In re Jaime S.

Full title: IN RE JAIME S

Court: Connecticut Superior Court Judicial District of Middlesex, Child Protection Session at Middletown

Date published: Mar 9, 2009

2009 Ct. Sup. 4874 (Conn. Super. Ct. 2009)

Opinion

No. M08-CP07-010557-A

March 9, 2009

AMENDED MEMORANDUM OF DECISION

BEAR, J.

In a petition dated March 19, 2007, and filed in the Court of Probate for the district of Meriden, the biological mother sought to terminate the parental rights of the biological father pursuant to the following grounds set forth in General Statutes § 45a-717(g) ("TPR proceeding"):

. . . the court may approve a petition terminating the parental rights and may appoint a guardian of the person of the child, or, if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to sexual molestation and exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child.

The statement by the mother annexed to the petition contained the following:

[The father] and I were married in. 1999. We were separated in 2001 and divorced in the State of New York in early 2003. Since that time [the father] has threatened the life of me and my son forcing us to flee from New York, to live in a safe house, and to keep our whereabouts unknown so that he cannot reach us. I have been told by the Domestic Violence Court advocate, members of the District Attorney's Office, and my attorney that on several occasions he has made deadly threats against me and my child and they advised me that I move far, far away. During and subsequent to our divorce proceedings [the father] has had five occasions where the court has allowed him supervised visitation. Most of these were therapeutic supervised visits intended to foster a healthy relationship between my son and his father. On each of these occasions the supervised visitations were terminated by the agencies because of inappropriate and aggressive behavior on the part of [the father].

In October of 2002 the Supreme Court of the State of New York ordered an emergency medical evaluation of the father, based, according to the court document, upon his conduct in open court, his communication to both the court and the plaintiff, that he was in crisis and was going to commit suicide. He has been denied visitation by the New York Family Court and there is a permanent order of protection for myself and my son.

[The father] is a substance abuser who has been incarcerated several times since the date of our marriage. [The father] has told the domestic violence judge that he doesn't care if he ever sees his son again. I believe that the only way that I and my son can be safe, is if [the father's] rights are terminated.

On May 9, 2007, pursuant to General Statutes § 45a-717(e)¹ the Probate Court requested that DCF make an investigation and written report to it on or before August 7, 2007.

1 General Statutes § 45a-717(e) provides as follows:
(1) The court may, and in any contested case shall, request the Commissioner of Children and Families or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to the court's determination of whether the proposed termination of parental rights will be in the best interests of the child, including the physical, mental, social and financial condition of the biological parents, and any other factors which the commissioner or such child-placing agency finds relevant to the court's determination of whether the proposed termination will be in the best interests of the child. (2) If such a report has been requested, upon the expiration of such ninety-day period or upon receipt of the report, whichever is earlier, the court shall set a day for a hearing not more than thirty days thereafter. The court shall give reasonable notice of such adjourned hearing to all parties to the first hearing, including the child, if over fourteen years of age, and to such other persons as the court shall deem appropriate. (3) The report shall be admissible in evidence, subject to the right of any interested party to require that the person making it appear as a witness, if available, and subject himself to examination.

On November 26, 2007, the father moved to transfer the TPR proceeding to the Superior Court for Juvenile Matters ("SCJM"), and such motion was granted by the Probate Court on December 18, 2007.

The SCJM transferred the TPR proceeding to the SCJM, Child Protection Session ("CPS") for the contested trial.

On September 4, 2008, the father appeared at CPS with his counsel, waived any defects in service, waived his advisement, and entered a pro forma denial. The father requested that the son meet with an evaluator, the mother agreed and both parties agreed that they would meet with the Court Services Officer to determine the questions to which the evaluator should respond.

On October 2, 2008 the attorney for the father reported to the court that the father was being held on an Immigration and Customs Enforcement ("ICE") detainer. The trial was scheduled on January 21, 2009.

The trial took place on January 21 and January 22, 2009. The mother, her counsel and a paralegal were present during the trial. On January 21, 2009, the father participated by telephone connection from New Mexico where he was being detained. On January 22, 2009, ICE did not allow him telephone access. The father's attorney was present during the trial. Jaime S. ("Jaime"), who is eight years old, was not present during the trial but his counsel was present during the trial.

Because the length of father's availability by phone pursuant to the policy of the facility was unknown, although it was as little as one-half hour, he was the mother's first witness. He testified that he was detained by ICE pending review of his legal permanent residence status. He stated that he was convicted of unauthorized use of a motor vehicle in 2005 and that he was placed on probation. In 2007 he violated his probation by engaging in an assault. Such violation was treated by ICE as his second offense involving "moral turpitude," thus possibly subjecting him to deportation.

The father stated that he had been arrested approximately eight to ten times in his life, and "only incarcerated three times," two of which were because of his violation of protective orders in favor of the mother. Until he was detained by ICE, he was incarcerated mainly in New York state correctional facilities. His offenses included assault in the third degree, shoplifting, unauthorized use of a motor vehicle (at least twice) and driving offenses.

The father testified that he was currently "clean and sober." He claimed that he had been sober for three years. He currently takes "heart pressure medication."

The father stated that in the past he had used alcohol and drugs. He used cocaine, crack and marijuana. Earlier in his life he was arrested for possession of illegal substances. He claimed that he never used alcohol prior to visits with Jaime. He also claimed that he was never found guilty of violating any order of protection.

He stated that he utilized a lot of court processes to find the mother and that even the New York court tried to help him. He claimed that he has bought gifts and prayers for his son but that he has not sent them because of the protective orders. He stated that he knows that his son loves him.

In 2003 he had supervised visitation once each week for an hour. He agreed that if he missed any of the visits he would submit to a urine test within seventy-two hours. If he did not do so, he would have to petition the New York court to re-establish visitation.

He claimed that he never threatened the mother to take Jaime and "disappear" or to have "his boys" hurt or "take care of" the mother.

On cross-examination by his attorney, the father stated that he has continuously lived in the United States since he was six years old. The last time he left the United States was in 1988 to visit his family in Columbia. He has extensive family in Columbia and one of his sisters maintains contact with them. He and the mother met in 1995 or 1996 and they were married in 1999. They stayed together through 2002. Jaime was born in 2000.

He said that he was arrested for but never convicted of violating any of the protective orders entered in favor of the mother. He stated that his visits with Jaime were suspended because of each arrest. After he was found not guilty, he would start the process in the New York court of re-establishing visits. The father stated that until a process server could not find the mother, he was not aware that the mother and Jaime had left the state of New York. After the mother was located in Connecticut, the New York court lost jurisdiction over his visitation.

The last time he visited with Jaime was at a YWCA in New York, when Jaime was three or four years old. The father said that the mother was uncooperative and that she found reasons to have his visitation stopped. He claimed that he was never physically violent with Jaime and "no one had ever claimed that."

He was convicted in New York for a second time of the unauthorized operation of a motor vehicle, which for such second offense was a felony. He also has been convicted of shoplifting and assault in the third degree, but post-conviction he is attempting to establish a claim of self-defense. He stated that he has not been convicted of drug use or selling drugs. He stated that he has never been a member of any Columbian or Haitian gangs.

The father said that he had been incarcerated for three months for the unauthorized use of a motor vehicle, three days for shoplifting, thirty days because of his conviction for the offense of assault in the third degree (being used as the second offense of moral turpitude under federal immigration law) and for eight months for the violation of his probation. He was then detained by ICE. He could learn by the end of April 2009, if he is going to be deported.

On redirect the father stated that he had been arrested in 1987 for the misdemeanor of illegal possession of a firearm. He was also arrested for driving under the influence but he was not incarcerated. He stated that none of his arrests involved minor children.

During re-cross examination the father claimed that he wanted to support Jaime financially but that the mother would not accept such support. He said that the mother did not seek a court order for child support. The father denied that he knew about a bank account established by the mother for him to deposit support funds.

The father stated that he agreed to supervised visitation because the mother feared that he would take Jaime and travel to Columbia.

The father said that he made efforts to maintain contact with Jaime through supervised visits. The days of the week such visits took place were changed because of scheduling issues. It was easier for the mother to bring Jaime for visits on the weekend when she was living with the maternal grandmother in Connecticut. When he missed a visit he had to take a urine test, and he stated that he did not fail any such tests.

During his supervised visits he took Jaime to the library or to the Galleria Mall in White Plains. One of his sisters was allowed to attend some of the visits. He stated that Jaime had a close relationship with his family, including his two sisters, nieces and nephews. After 2003, those relationships ended. The mother obtained protective orders against his sisters.

He believes that the mother deliberately kept him away from Jaime for the past five years.

He is aware that Jaime has changed his first and last name.

The DCF worker assigned to prepare the Probate Court study testified. The study (entitled Assessment of Child and Family for Termination of Parental Rights and signed on December 17, 2007 by the worker) was admitted as full exhibit 1. Such DCF worker made seven home visits to the mother and Jaime. (Exhibit 2, 1.) The worker described the current home, and Jaime's history of living with his mother for his entire life. Id., 2. He wrote:

According to [the mother], she has relocated her residence often as a result of trying to avoid [the father's] unorthodox, erratic and threatening behaviors toward her.

Id.

He also reported that Jaime's pediatrician was in good health and that he had no concerns about the mother's ability to care for Jaime. The school Jaime was attending reported that Jaime was a good student with no behavioral issues. The school had no concerns about the mother's ability to care for Jaime.

The worker's observation of Jaime was that Jaime

present[ed] as an engaging and articulate youngster who enjoys playing music, especially the violin. [He] currently attends therapy in order to address issues concerning his father.

Id.

Jaime's therapist reported that as of November 2007, Jaime was afraid of the father and that he was "apprehensive about recalling memories of his father." Id. In the year he had been in therapy, Jaime had made progress in overcoming his anxiety about his father. As of November 2007, the therapist thought that Jaime did not want to have contact with his father. Jaime ". . . sense[d] his mother's anxieties about [the father] . . ." Id. According to the DCF worker, the therapist believed that ". . . it appeare[d] as if the termination of [the father's] parental rights would be in the child's best interest at this time." CT Page 4880 Id., 3.

The DCF worker wrote that according to Jaime he had no ongoing relationship with his father and because of the father's threats to his mother that made her afraid he did not want to have a relationship with him. Id. Jaime said that ". . . he would feel safer if he knew his father could have no involvement with him or his mother." Id. He also told such worker that his father did not follow through with his promises and he recalled that his father had missed many visits. Id.

The mother stated to the worker that the father had mentally and emotionally tormented her during their marriage and that she had been in counseling since 2001. Id., 4. The mother was also a client of Jaime's therapist. The therapist described the mother ". . . as a conscientious caretaker who has Jaime's . . . health and well-being as her main priority."

The DCF worker spoke with the father who stated that his marriage to the mother ended ". . . as a result of his substance abuse and mental health issues." Id., 6. The worker determined that the father "seemed to minimize the issues that caused the end of his marriage and that he stated "`She knew the extent of my problem.'" Id. The father also admitted that he left the mother and Jaime on weekends. Id.

The father also admitted to such DCF worker that he had problems that may have led the mother to keep him from Jaime, but he stated to the worker that "he is not an evil person." Id. ". . . [D]espite the things he did in the past . . ." the father told such worker that ". . . he would like to have a relationship with his son." Id.

In November 2007, when the DCF assessment was being prepared, the father was incarcerated in Riker's Island Prison in New York City. Id.

The DCF assessment was that the parental rights of the father should be terminated. DCF explained its assessment and the basis for its recommendation as follows:

The Department of Children and Families bases its recommendation on the fact that [the father] has failed to maintain a reasonable degree of interest, concern or responsibility for his son's welfare based on a pattern of volitional inconsistent, irresponsible, threatening and criminal behavior that has had a negative affect on [Jaime's] psycho-emotional well being.

This Department's recommendation is also based on the fact that Jaime . . . has been denied the care, guidance, or control necessary for his physical, educational, moral, or emotional well-being by reason of acts of parental commission or omission by [the father], as evidenced by his inability to maintain consistent visitation with Jaime . . . unresolved substance abuse issues that have had a negative psycho-emotional impact on the child, threatening behaviors, and criminal acts that have caused his current incarceration.

There is also no ongoing relationship between [the father] and Jaime . . . as a result of the respondent father's poor choices as they pertain to parenting his son, and it appears as if to allow further time for the establishment or reestablishment of the parent/child relationship would be detrimental to [Jaime's] best interests, as [the father's] actions appear to be indicative of one who is irresponsible, emotionally neglectful, and indifferent as to what is in his child's best interests.

This Department's recommendation is further based on the fact that Jaime . . . repeatedly reported to this writer that he has no desire to have a relationship with his father, based on [the father's] inconsistent, unorthodox, threatening and criminal behavior. Jaime . . . also indicated that he would feel safer if his father was not allowed to re-enter his life.

This Department's recommendation is believed to be in [Jaime's] best interests because allowing the re-establishment of the relationship between him and [the father] would present a detriment to the child's psycho-emotional well being.

Id., 6-7.

On November 26, 2007, the DCF worker met with a DCF domestic violence consultant in connection with the preparation of his assessment. The reason for the referral to such consultant was the "[h]istory of domestic violence." The consultant organized the information as follows in her December 17, 2007, report:

Due to [the father's] threatening, emotional and psychological abuse, [the mother] has changed her name and her son's name for safety purposes at the recommendation of her former attorney. [The mother] is also known as ___ and her son is known as ___.

[The father] has a lengthy criminal history, including felony convictions.

Batterer's pattern of coercive control and behaviors that create harm for the child(ren) and family:

Threatening to kill the [mother and Jaime]; threatening to kill himself; threatening to physically harm [the mother and Jaime].

Threatening that his "boys" will harm [the mother and Jaime].

Threatening to take [Jaime] away from [the mother].

Causing [the mother] to lose her job due to [the father's] threatening and erratic behaviors and threats to her safety and the safety of her CD-workers.

Isolating [the mother] from family and friends by threatening to harm them and having his friends threaten them.

Causing [the mother] to buy another car because she was warned that there was a tracking device on it.

Repeatedly lying to [the mother].

Driving fast and erratically with [the mother and Jaime] in the car to frighten them.

Stalking behavior including following [the mother] in his car and continuing to track her and [Jaime] even through several moves. [The mother] has had to move several times and leave the state in order to get away from [the father].

Due to [the father's] threatening behaviors, [the mother] will not go to New York State, preventing her from going to her medical specialist and compromising her career by not being able to take assignments that go into New York.

Due to [the father's] behaviors, [the mother] is constantly on the lookout for him or his friends, causing her stress and anxiety.

Verbal abuse including name-calling and put-downs.

Non-offending parent's strengths and full range of efforts to support and provide for the safety and well-being of the child:

[The mother] has actively safety-planned for herself and her son by leaving [the father], filing several orders of protection in NY; applying for and receiving a long-standing restraining order in CT; changing her name and her son's name; moving several times, including to another state.

[The mother] is the primary day-to-day caretaker for her son.

[The mother] has sought therapy for herself and her son and is appropriately attentive and supportive of her son's healing process.

[The mother] has sought to maintain a sense of normalcy and stability for [Jaime] despite [the father's] behaviors by promoting extracurricular activities such as camp, sports and music.

[The mother] has a history of employment and has supported her and [Jaime] without any financial support from [the father].

Despite [the father's] attempts to isolate [the mother], [the mother] has maintained a support system.

Adverse impact of batterer's behavior on each child/family functioning:

[The father] has not had visitation with [Jaime] for years, nor has he provided any financial support.

When he was granted supervised visitation with [Jaime], [the father] would often miss visits or show up late. Visitation was stopped because [the father] was inappropriate with Jaime during visits, including dropping him on one occasion. Jaime was upset that [the father] did not apologize for dropping him and thought that his father had dropped him on purpose.

If [the father] called, [Jaime] would act like a dog and bark, growl and run and hide in order to avoid talking with him.

[Jaime] would take his seat belt off to try and get his mother to stop the car when they

were driving to supervised visits with his father. He would do this when he saw the signs for New York on the highway.

[Jaime] wanted to change his name because he did not want to be like his father.

[Jaime] tells his friends that he doesn't have a father.

[Jaime] is constantly looking around his environment to make sure his father is not around.

[Jaime] has suffered from stomach problems due to stress and will lose his appetite due to fear of his father.

[Jaime] stated that he needed to stay enrolled in karate so that he could learn to fight [the father] if he came to try and hurt him and his mother.

Other factors/issues impacting risk/vulnerability: CT Page 4885

[The father] has a history of crack cocaine use and has a long criminal history.

[The father] has a history of mental health problems and erratic behavior.

[The father] has access to firearms and was arrested in January 2007 while in possession of a firearm. He is currently incarcerated.

Recommendations:

[The mother] is currently petitioning the court to terminate the parental rights of [the father] in regards to her son . . . It appears to this Consultant from the LINK search and additional information provided by SW Williams, that [the father] continues to pose a significant risk to [the mother] and [Jaime] and a termination of his parental rights is in the best interest of [Jaime's] physical and emotional well-being.

Follow-up plan:

DV Consultant will enter consult form into LINK.

Social Worker should follow up with DV Consultant if any new questions arise.

Id., 8-10.

Such DCF worker continued to visit with Jaime and his mother in 2008, and by the date of the trial he had seen Jaime fourteen times, and he spoke to him out of the presence of his mother. In 2008 such DCF worker visited Jaime seven times.

Such worker testified that the therapist (as of November 2007) reported that Jaime had no positive memories of his father and such therapist did not believe at such time that it was a good idea for Jaime to re-establish contact with his father. Jaime was seeing such therapist to help him deal with his anxieties about his father. The DCF worker testified that Jaime saw the father threaten the mother and that frightened Jaime. Jaime told him that he would like to live with his mother to the exclusion of his father. He wanted to change his first and last name so as not to be associated with his father.

The mother testified that Jaime does not want to see his father, and that he has asked her about how to end any further visitation with him. The mother said that she told him that the father's parental rights would have to be terminated to have visitation be eliminated.

She testified that she and the father married in 1999 and she left him in 2002 because of his drug addiction and because he did not successfully complete rehabilitation treatment. She stated that in August 2001 the father tried to kill her while they were in a car by crashing it. He would not take alternate transportation. He drove off with her in the car and she stated that he reached speeds of 110 miles per hour, and that he did not stop for stop signs or traffic lights. He said to her that she wanted to be dead. She was screaming out the passenger window and eventually he was stopped by the police.

Another time he made threats to kill her and her boss.

She stated that because of the father's drug addiction, suicide issues and threats to take Jaime away from her it was agreed that the father's visits with Jaime would be supervised. After the father initially visited regularly beginning in December 2002, he began to miss visits and he did not telephone. He did not acknowledge Jaime's third birthday in May 2003. As early as 2003, Jaime started to change his name because he did not want to be associated with his father.

The father wanted to wait until he was released from incarceration before he resumed phone calls to Jaime. Pursuant to court order, the father's telephone conversations with Jaime were recorded so that the court could review them to determine that the father was speaking appropriately to Jaime. She testified that the court determined that portions of the father's conversations were not appropriate.

The mother described an incident where the father, under the influence of drugs, stole a car and led police through a three-city chase before he crashed the vehicle. After the father was released from incarceration, there was supposed to be supervised visitation instead of phone contact, and such visitation resumed in November 2003. Such visitation stopped and resumed in February 2004. Those visits stopped and resumed in August 2004. Each set of visits lasted only for a few weeks before the father ceased them.

In November 2004, the father called to say that he was near a train and he asked if he should jump in front of it or go to a police precinct. He admitted to the mother that he had stolen another vehicle. He also said to the mother that she did not know what could happen to her going to and from Jaime's school. She also stated that the father "threatened to go postal."

She testified that she obtained orders of protection against the father. During one of the hearings, the father threatened her and the court suggested that she go to a shelter. She could not work because it was too dangerous. She received compensation through a crime victim advocate program. The mother stated that after his threats, he was incarcerated and then placed on probation. The mother obtained an order of protection that covered "everywhere she was." She said that the father did not violate that order of protection. She also had other orders of protection from the family court from September 2002, through September 2007.² She stated that the father violated those orders by contacting her. He said that she should be careful, that he could come and take Jaime, that she should keep her eyes open because people could follow her. She reported those threats to her attorney.

2 A New York court decision attached to the mother's petition sets forth that there was an order of protection including "a full stay away order" in effect through January 6, 2008.

The mother testified that there were periods of time when the father could not be found and when he did not attempt to contact Jaime.

The mother testified that prior to their marriage the father joined Alcoholics' Anonymous ("AA"). When she was pregnant, the father started to disappear on weekends for crack cocaine. He started counseling but he did not like the therapist.

After Jaime was born on a Wednesday, the father was scheduled to take her and Jaime from the hospital on Friday but he did not do so. One of his sisters had to bring him to the hospital.

In an effort to deal with his problems, the father went to AA, the Maxwell Institute, hypnosis treatment, St. Vincent's or St. Joseph's, Narcotics Anonymous ("NA"), Silver Hill, Hawthorne Halfway House and Westchester Medical Center without success.

The mother testified that she has not prevented contact between the father and Jaime and that she has not hidden from the father. She admitted, however, that she does not want the father to know where she and Jaime live. The mother moved to Connecticut in 2002 to live with the maternal grandmother, whose address was known by the father, but from 2002 through 2009 she did not contact the father to tell him where she and Jaime were living. She resided in a domestic violence battered women's shelter between April and July 2005, and since that time the father has not known where she and Jaime have been residing. There was no court order requiring her to provide her address and any communications could have been through the parents' attorneys.

She stated that the father told her that he had "boys" who could take care of what he needed. She related that the father had a confrontation with a boss at his then place of employment. Approximately six months passed and he told her that "his boys had taken care of the situation," and that he would not have any more problems with the boss.

She described a bank account she established into which the father could make deposits for Jaime's support. The father was present in court when the account was discussed and decided. After two years she was told to close the account because the father had not made any deposits.

She stated that there are no current orders of protection. The criminal order of protection expired in January 2007, and the last family order of protection expired in September 2007. (However, see footnote 2 above.) After the expiration of the family court order of protection in September 2007, she did not seek any order of protection in Connecticut.

She testified that she has been represented by counsel and that through such counsel she has not received any letters from the father, requests for phone calls or visits other than the motion for visitation that the father filed in this case. The father has not inquired about Jaime's health or his well-being, schooling, or extracurricular activities.

The mother stated that Jaime currently did not want to visit with the father or speak to him on the telephone. The mother said that it is Jaime who is "driving this." It is he who does not want to have contact. She stated that Jaime has said that the father makes him feel guilty for who he is, and that he is not doing anything wrong. Jaime blamed himself but it was his father who had the problems.

At the request of the father, agreed to by the mother, prior to the trial the court ordered that Jaime meet with a psychologist concerning his perceptions and memories of his father and the basis for such perceptions. See full exhibit A, 1. At the trial such psychologist was qualified as an expert in the field of forensic psychology and custody evaluations and an expert in the area of parental alienation.

Such psychologist defined parental alienation as a circumstance where one parent portrays the other parent in a negative light and the child takes note of such portrayal. The child has less or no contact with the alienated parent based on the perception put forth by the other parent. He testified that any professional performing custody or visitation evaluations would be familiar with the concept of parental alienation.³

3 Parental alienation has been referred to and discussed in Connecticut court decisions, including Ruggiero v. Ruggiero, 76 Conn.App. 338, 339 fn.1, 819 A.2d 864 (2003), where the Appellate Court distinguished between the trial court's factual finding of parental alienation and parental alienation syndrome, an alleged psychiatric disorder not listed or set forth in the American Psychiatric Association's current Diagnostic and Statistical Manual ("DSM-IV"):

As we will discuss, the court made a factual finding that the plaintiff had engaged in parental alienation. The plaintiff's claim concerning parental alienation dealt with the issue of the validity of a finding of parental alienation syndrome. The court did not address any potential mental health condition. This opinion utilizes the court's factual conclusion that the plaintiff's activity as a parent alienated the defendant, and this court makes no decision concerning the validity of such a syndrome.

(Emphasis in original.) See also Snyder v. Cedar, 2006 Ct.Sup. 3216, No. NNH CV01 0454296, Superior Court, Judicial District of New Haven at New Haven (Pittman, J., February 16, 2006); Coleman v. Coleman, 2004 Ct.Sup. 11232-a, No. FA 02-0174562, Superior Court, Judicial District of Middlesex, Regional Family Trial Docket at Middletown (Munro, J., August 5, 2004); In re Katherine W., 2000 Ct.Sup. 13285, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Quinn, J., October 26, 2000).

He stated that during his session with Jaime (neither the mother nor the father participated in such session), Jaime portrayed the father in a somewhat confused way with altering perceptions. Jaime believed that his father was to be feared, that the father in an incident when he was three years old had caused him to bump his head, and that the father was going to abduct him. According to such evaluator, Jaime formed his opinions based on what the mother had told him.

The evaluator reported that Jaime had positive recollections of some interactions with the father, such as when the father bought him toys and played with him on a computer at a library. Such evaluator stated that Jaime had a "polarization of views" about his father. Jaime told him that he would be afraid if he had contact with his father, but that if it were in a safe place, like a doctor's office, it would be okay for that to occur. Also, later in the evaluation Jaime narrated a co-parenting fantasy where the mother prepared dinner and the father helped him with his homework. The evaluator concluded that Jaime wanted to have some type of relationship with his father and that he could envision the nature of such a relationship; that Jaime has at least some positive memories of his father; that Jaime disclosed positive experiences rooted in contextual information that he portrayed positively; that Jaime translated that information into projected positive experiences; that the idea that the mother reinforced Jaime's positive memories of his father is completely inconsistent with the mother's approach to Jaime and to the father; and that Jaime's references to a father or a father figure are to his biological father.

Additional facts are set forth, infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.

LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:

The law applicable to this case is generally set forth in such recent cases as In re Melody L., 290 Conn. 131 (2009); In re Davonta V., 285 Conn. 483 (2008); In re Justice V., 111 Conn.App. 500 (2008); In re Devaun J., 109 Conn.App. 832 (2008); In re Joseph L., 105 Conn.App. 515, 939 A.2d 16 (2008); and In re Marcus S., 2008 Ct.Sup. 3329, No. H12-CP07-012714-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 29, 2008).

Because the mother filed her TPR petition in the Probate Court pursuant to General Statutes § 45a-717, although the matter was transferred to the SCJM General Statutes § 45a-717(g), instead of General Statutes § 17a-112(j) (which is quite similar), remains as the applicable statute in this matter. As previously set forth it provides in relevant part:

. . . the court may approve a petition terminating the parental rights and may appoint a guardian of the person of the child, or, if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child; (B) the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to sexual molestation and exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child . . .

The first ground alleged by the mother is abandonment, e.g., ". . . the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ." (emphasis added). The law as to abandonment has developed by construction and interpretation of General Statutes § 17a-112(j)(3)(A) and General Statutes § 45a-717(g)(2)(A) (sometimes referred to herein as Ground A). In In re Ashley E., 62 Conn.App. 307, 314-15, 771 A.2d 160 (2001), what was then General Statutes § 45a-717(f) was construed by the Appellate Court:

The respondent also argues that the evidence did not support a finding of abandonment. "Abandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment." (Citations omitted.) In re Kezia M., 33 Conn.App. 12, 17, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). General Statutes § 45a-717(f) defines abandonment as "the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ." "Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare." (Citations omitted; internal quotation marks omitted.) In re Kezia M., supra, 17-18.

Section 45a-717(f) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. See id., 18.

"The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing, and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance." (Citations omitted; internal quotation marks omitted.) Id., 18.

The biological father's self-created fact of incarceration and detention for part of Jaime's life to date are not recognized by courts as valid excuses for failing to perform the foregoing parental responsibilities and duties:

In the present case, the record supports the court's decision that the respondent abandoned the child. The findings support the conclusion that the respondent manifested no reasonable degree of interest, concern or responsibility for the child, either when he was incarcerated or when he was not. As we have recently stated, "[w]hile the respondent's imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children." In re Deana E., 61 Conn.App. 185, 194, 763 A.2d 37 (2000).

In re Ashley E., supra, 62 Conn.App. at 315. The father's failure to provide financial support also occurred both when the father was incarcerated or detained and when he was not incarcerated or detained.

In In re Deana E., 61 Conn.App. 185, 194, 763 A.2d 37 (2000), the Appellate Court affirmed the trial court's finding of abandonment, and stated the following:

The record supports the court's decision that the respondent abandoned his children. While the respondent's imprisonment alone does not constitute abandonment, it does not excuse his failure to attempt either to contact or to visit with his children. The record clearly demonstrates that, while in prison, the respondent made absolutely no effort to determine where his children were, to contact them or to have them visit with him . . .

See also In re Jermaine S., 86 Conn.App. 819, 839-40, 863 A.2d 720 (2005), and also see In re Jordan T., No. T11-CP07-012689-A, Superior Court, Judicial District of Windham, Child Protection Session at Willimantic (Foley, J., December 4, 2008), page 9:

The court further notes "[w]hile acknowledging that the respondent [mother]'s incarceration, in and of itself, does not dictate the determination that [she] has failed to achieve rehabilitation, it would be disingenuous for the court to overlook the fact that while [she] is serving [her] sentence, [the mother] will not have the ability to serve as a parenting resource for [her child]." In re Samantha B., Superior Court, Child Protection Session at Middletown (October 3, 2002, Rubinow, J.).

Substance abuse and mental health issues are also associated with parental abandonment. See, e.g., In re Savannah N., 2006 Ct.Sup. 23845, 23851, No. H12-CP05-010580-A, Superior Court, Judicial District of Hartford, Juvenile Matters at Hartford (Wollenberg, J., December 22, 2006); In re Adalia C., 2007 Ct.Sup. 23018, 23020, No. H12-CP04-014606-A, Superior Court, Judicial District of Hartford, Juvenile Matters at Hartford (Wollenberg, J., December 14, 2006).

In In re Rachel J., 97 Conn.App. 748, 754-55 (2006), cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), the Appellate Court discussed General Statutes § 17a-112(j)(3)(C) (referred to herein as "Ground C"), which tracks General Statutes § 45a-717(g)(2)(B), the second ground alleged by the mother in her TPR petition, in the context of coterminous neglect and TPR petitions:

The court issued a thorough and well-reasoned memorandum of decision on June 3, 2005, in which it found that there was ample evidence that R and N were neglected in that they were denied proper care and attention and permitted to live under conditions or associations injurious to their well-being. The court found that "the extreme injury inflicted on [R], and [the respondent's] subsequent failure to obtain medical treatment for many days amounted to a denial of proper care and attention of both children . . . [R] has been abused and received a serious physical injury that was inflicted by other than accidental means." In addition, the court found that the respondent exposed R to sexual abuse. It stated: "Whether the abuse was perpetrated by [the respondent] or by [F] as [the department] originally believed, in either instance, both children were permitted to live in a home where sexual abuse occurred. [R's] significant behavioral problems demonstrate the serious effect the abuse has had on [R]." As to N, the court specifically found that "the domestic violence and physical and emotional abuse of [R] created an environment in the home such that [N] was denied proper care and attention physically, educationally, emotionally or morally and was permitted to live under conditions, circumstances or associations injurious to her well-being." The court further found that "the fact that [the respondent] severely injured [R] after entering into [two service] agreements is further evidence that the children were neglected."

Finding that both children were neglected, the court turned its attention to the termination petitions. As to R, the only ground alleged in the termination petition was that the respondent, as a result of sexual molestation and severe physical abuse on her part, denied R the care, guidance or control necessary for her physical, educational, moral or emotional well-being under § 17a-112(j)(3)(C). The court found by clear and convincing evidence that R's injuries at the hands of the respondent constituted nonaccidental serious physical injuries to a child. It found further that the respondent's "failure to obtain medical treatment for [R] for days after the injury constituted an act of parental omission that . . . denied her the care, guidance and control necessary for her well-being. Moreover, [the respondent] only took [R] for treatment after learning that the department worker] and [the] father were planning to see [R] the following day." The court found that, in addition to serious physical injury, R suffered serious emotional injury and sexual abuse while living with the respondent. Accordingly, the court concluded that the respondent denied R, by reason of acts of parental commission and omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being.

In another recent decision, In re Nelmarie O., 97 Conn.App. 624, 626-27, 905 A.2d 706 (2006), the Appellate Court also affirmed a Ground C basis for the termination of parental rights upon the following summary of facts:

The court found that [children] N and Y had seen the respondent and the father abuse [another child] E [who eventually died], and that the respondent had ordered N and Y to hit E with a sandal. There was no evidence, however, that the respondent and the father physically had abused N and Y. The court nonetheless found that the respondent and the father had failed to provide N and Y with "a safe home environment free of violence" and accordingly granted the petitions for neglect and termination of parental rights . . .

In Nelmarie the Appellate Court discussed the portion of Ground C that refers to a parent's failure to provide for the emotional well-being of a child:

The respondent next claims that the court improperly found that she had failed to provide for the emotional well-being of N and Y pursuant to § 17a-112(j)(3)(C). In support of her claim, the respondent points out that she did not physically abuse N and Y and that she was not the biological mother or legal guardian of E. Section 17a-112(j), however, provides in relevant part that the court "may grant a petition [for termination of parental rights] if it finds by clear and convincing evidence . . . (3) that . . . (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to . . . the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being . . ." That statute does not require that the children who are the subjects of the termination petition be abused physically. See In re Sean H., 24 Conn.App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). Furthermore, the respondent's relationship with E is not relevant to her claim. See id., 143-46. We conclude that the court properly found that the respondent had failed to provide for the emotional well-being of N and Y by abusing E in their presence and ordering them to participate in the abuse.

In re Nelmarie O., supra, 97 Conn.App. at 628-29 (fn omitted).

Other decisions where trial court findings that DCF proved Ground C as a basis for termination of parental rights include:

1. In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099 (2002):

The court found, and the evidence is clear and convincing, that "the respondent deliberately and `nonaccidentally' slammed [M's] head against the floor on September 11, 1998." The resulting fracture of the skull, as testified about by Spivack, caused impaired functioning of the brain, seizures and the potential for permanent brain injury or death . . .

2. In re Sheena I., 63 Conn.App. 713, 722-23, 778 A.2d 997 (2001):

Second, the petitions alleged acts of parental commission or omission by the respondent pursuant to General Statutes (Rev. to 1999) § 17a-112(c)(3)(C). In regard to this ground for termination of parental rights, the court found, by clear and convincing evidence, that the respondent had burned S's arms and that she had engaged in acts of parental commission and omission in terms of her lengthy absences from home, her knowledge of the neglect and abuse inflicted on her children by J's father and her failure to take steps to protect her children from such abuse. The court further found, by clear and convincing evidence, that those acts seriously injured the children . . .

(Footnote omitted.)

3. In re Jonathan M., 255 Conn. 208, 213, 764 A.2d 739 (2001):

The court also determined by clear and convincing evidence that the ongoing drug use had served to deny Jonathan, by reason of acts of parental commission and omission, the care, guidance and control necessary for his well-being. The court terminated the parental rights of both the mother and the petitioner, concluding that neither [the petitioner] nor [the mother] is able to care for their son in the foreseeable future . . . Jonathan needs the stability and consistency that are provided in [the foster] home.

4. In re David W., 254 Conn. 676, 684 (2000), where the Supreme Court reversed the Appellate Court's ruling on an issue of ex parte contact concerning a psychological evaluation and reinstated the trial court's decision that DCF had proved a violation of Ground C:

The trial court concluded that the respondents' inability to acknowledge and accept responsibility for the injuries, despite years of therapy, was a deficiency that "goes to the very issue of safety and well-being of the child. This is not an issue that can be carefully skirted in therapy." The court accepted and adopted Mantell's observations concerning the failure of the respondents to acknowledge or accept responsibility for their actions in seriously injuring their own child. The court also ruled that the acts of parental omission and commission were the "most applicable" ground for termination.^fn3

In footnote 3, the Supreme Court set forth the trial court's rationale for finding a violation of General Statutes § 17a-112(j)(3)(C):

The trial court explained: Here the child has been clearly exposed to nonaccidental or inadequately explained serious physical injury. The father has obliquely suggested that he possibly did something harmful. The mother has, at a minimum, failed to protect the child. After nearly four years, the parents are only marginally able to deal with their responsibility for, if not participation in those injuries. The court finds that this ground has been proven by clear and convincing evidence.

5. In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303 (2000):

"The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S.Ct. 1977, 40 L.Ed.2d 311 (1974). This court has previously dealt with a similar challenge to the termination of parental rights in In re Juvenile Appeal (85-2), 3 Conn.App. 184, 485 A.2d 1362 (1985), in which we stated, "The respondent's final claim is that the court erred in finding that the petitioner proved by clear and convincing evidence that the children had been denied by reason of acts of parental commission or omission the care necessary for their general well-being . . . The essence of the respondent's claim in this regard is that direct evidence as to any acts of commission or omission was lacking and that the judgment rested upon speculation and inference.

"While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof." (Internal quotation marks omitted.) In re Juvenile Appeal (85-2), supra, 3 Conn.App. 192-93.

In this case, as previously set forth in detail, the court found by clear and convincing evidence that Cheyenne suffered severe physical injuries in the form of seventeen rib fractures that occurred at different times. The respondents could not explain her injuries and, after a period of time and reflection, attributed them to Cheyenne's grandmother. "It is not our function to retry the case or to pass upon the credibility of the witnesses; Johnson v. Flammia, 169 Conn. 491, 497, 363 A.2d 1048 (1975) . . ." In re Juvenile Appeal (85-2), supra, 3 Conn.App. 193. On the basis of our review of the record, we conclude that the evidence is sufficient to support the court's conclusion that the respondents, by acts of omission or commission, denied Cheyenne the care necessary for her physical well-being.

In a recent decision, In re Lana A., 2008 Ct.Sup. 17650, 17666, No. H14-CP06-008675-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Olear, J., November 5, 2008), Judge Olear has also summarized some Appellate Court Ground C decisions:

In finding parental acts of commission or omission, the courts have given careful consideration of the circumstances of each individual case. See In re Sean H., 24 Conn.App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). Consider, In re Sheena I., 63 Conn.App. 713, 723, 778 A.2d 997 (2001) (parent absent from home for long periods, had knowledge of neglect and abuse inflicted on children by other parent, and failed to take steps to protect children from such abuse); In re Tabitha T., 51 Conn.App. 595, 603, 722 A.2d 1232 (1999) (parent failed to protect children in her care from sexual abuse by their older siblings; parent instructed child not to disclose to therapist anything about sexual abuse or any other goings on of the family); In re Lauren R., 49 Conn.App. 763, 772, 715 A.2d 822 (1998) (parent failed to believe child's account of abuse or perpetrator's admission of abuse, failed to protect child from further abuse, failed to avail herself of reunification services, and failed to cooperate with police and department to ensure child's protection); In re Mark C., 28 Conn.App. 247, 254-55, 610 A.2d 181, cert. denied, 223 Conn. 922, 614 A.2d 823 (1992) (father committed all acts of physical and sexual abuse; while mother may have been victimized by her abusive husband, she was not relieved of her responsibilities to her children; father would pose a threat to the children upon his release from incarceration if they were returned to mother); and In re Nelmarie O., 97 Conn.App. 624, 905 A.2d 706 (2006) (mother and father abused one child, but not two others; by such acts of commission as to the one child parents failed to provide the other children with a safe home and environment free from violence).

In the Lana A. case, the child had received significant traumatic injuries for which there was no explanation, including multiple rib fractures. Id., 17655. In another recent CPS case, In re Alisha G., 2008 Ct.Sup. 10852, 10879-80, No. M08-CP06-016466-C, Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middlesex at Middletown (Bear, J., July 1, 2008), where the father sexually assaulted one of the children over a several year period and the mother failed to take action to protect such child, the court found that as to each such parent the petitioner had proved Ground C by clear and convincing evidence. In In re Heather D., 2001 Ct.Sup. 15160, 15167-68, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Jongbloed, J., November 13, 2001), the court found that a continuing atmosphere of terror created by the respondent was sufficient to establish acts of commission or omission:

The presence of battering in the home has a detrimental effect on children. Knock v. Knock, 224 Conn. 776 (1993). In In re Sean H., 24 Conn.App. 135, the Appellate Court recognized that emotional injury constitutes an act of omission or commission. Here, John D. engaged in a pattern of physical and emotional abuse of David and the petitioner while Heather was in the home. He sexually assaulted Heather's older half-sister while Heather was in the home. As set forth in In re Juvenile Appeal, (84-6) 2 Conn.App. 705, cert. denied, 195 Conn. 801 (1985), "In striking at the heart of the family, the respondent demonstrated total disregard for the impact of his actions upon the emotional well-being of his [child.]" By sexually assaulting her half-sister and physically and emotionally abusing her mother and her brother, John D. struck at the heart of this family.

Here, John D. who was almost daily under the influence of drugs or alcohol, created an atmosphere of terror in the house in which Heather lived. He physically abused the petitioner (his girlfriend) and her son and sexually assaulted her severely limited daughter. All of this conduct created a pattern of abuse as alleged in the petition causing Heather to be denied by John D. the care, guidance or control, necessary for her physical, educational, moral or emotional well-being. The court finds by clear and convincing evidence that this statutory ground has been proven.

In In the Interest of Ashley E., 1999 Ct.Sup. 15065, 15070, Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown (Rogers, J., November 23, 1999), affirmed, 62 Conn.App. 307, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001), because of a lack of serious emotional or physical injury, the court concluded that the petitioner had not proved acts of commission or omission within the ambit of General Statutes § 45a-717(g)(2)(B):

The court finds that petitioner has not proven that Ashley has been denied, by reason of acts of parental omission or commission, the care, guidance or control necessary for her physical, educational, moral and emotional well-being as set forth in Connecticut General Statutes § 45a-717(g)(2)(B). The court cannot conclude this child has suffered serious emotional or physical injury. In re Kelly S., 29 Conn.App. 600, 614 (1992). Ashley has the care of a mother who loves her and her father did not stand in the way of the development of this bond.

Also, in In the Interest of Joseph M., 1999 Ct.Sup. 9133, 9139-40, Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown (Quinn, J., July 2, 1999), the court did not find that the respondent had inflicted any serious physical or emotional injury on the children and the court thus did not find that the petitioner had proved the act or commission or omission allegation of the petition:

The applications further claim that the children have been denied, by reason of an act of parental commission or omission, the care, guidance or control necessary for their physical, educational, or emotional well-being. Our courts have held that: "There is nothing in this clear statutory language that limits the acts of commission or omission to the serious physical injury of a child, rather than the serious emotional injury to a child . . . The language does not limit the grounds to acts resulting in physical injury." In re Sean H., 24 Conn.App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991). In re Kelly S., 29 Conn.App. 600, 614, 616 A.2d 1161 (1992). The court cannot find, from the evidence, that Anthony M. inflicted serious physical injury on his children. The evidence of physical abuse related only to Joseph and then only to the hand squeezing. While the pain caused by Anthony M.'s actions still remains with Joseph to this day, they did not inflict a serious physical injury on this child. There is no evidence of any physical injuries to the other children.

The issue of serious emotional injury is more difficult. The children have suffered some emotional difficulties because they have a biological father who did not pursue a connection with them and who has remained a stranger to them. Nonetheless, the court cannot conclude that this is a serious emotional injury, from the evidence presented. It is unfortunate and most parents hope that their children will not need suffer from emotional losses and disruptions, as these children have suffered. While the court does not intend to minimize the impact of Mr. M.'s neglect of his children, the court cannot find that it meets the requirements of the statute and dismisses this count of the applications.

A third case where the trial court found that the allegations of commission or omission, resulting in the child suffering "great emotional harm" because of the behavior of the respondent, had not been proved is In the Interests of Alissa N., 1998 Ct.Sup. 7047, 7056, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Quinn, J., June 16, 1998):

As to the third ground alleged, the court finds that the evidence has not proven that Alissa has denied, by reason of acts of parental omission as well as commission, the care, guidance or control necessary for her physical, educational, moral and emotional well being as set forth in Connecticut General Statutes § 45a-717(g)(2)(B). In a gradual process, while she was an infant, Alissa came to be cared for exclusively by her grandmother. She does not view and does not know Binky as her mother and calls her by her nickname "Binky." The court cannot conclude from these facts that the child has suffered great emotional harm, as required by the case law interpreting this section of the statutory requirements for termination. Alissa has the care of a grandmother who loves her as her own child and her biological mother did not stand in the way of the development of that bond. In re Kelly S., 29 Conn.App. 600, 614, 616 A.2d 1161 (1992), In re Sean H., 24 Conn.App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991).

Another such case is In re Jeffrey F., 1997 Ct.Sup. 12748, 12757-58, Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown (Dyer, J., December 29, 1997):

C.G.S. § 45a-717(g)(2)(B) provides that this statutory ground for termination applies in those cases where the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being.

The statute authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to the child. In re: Kelly S., 29 Conn.App. 600, 614, 616 A.2d 1161 (1992). See also: In Re Theresa S., 196 Conn. 18, 25-27, 491 A.2d 355 (1985); In re Sean H., 24 Conn.App. 135, 144-45, 586 A.2d 1171, cert. denied 218 Conn. 904, 588 A.2d 1078 (1991). This section of the TPR statute "requires proof of specific conduct that has caused serious injury to the child." In re Kelly S., supra, 616; In re Theresa S., supra; In re Nicolina T., 9 Conn.App. 598, 520 A.2d 639 cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).

The petitioners did not prove at trial that the child ever suffered serious physical or emotional injury from either parent.

"The legislative history of [this section of the statute] makes it clear that it was added to the law so that seriously abused children could be permanently removed from the care of the parent inflicting such abuse." In re Luke G., 40 Conn.Sup. 316, 324 (1985).

Because there was no act of serious physical or emotional injury to the child, the petitioners failed to prove this ground for termination by clear and convincing proof. Accordingly, this count of the petition against the biological father is hereby dismissed.

A recent case where the petitioner did prove by clear and convincing evidence Ground C, acts of commission or omission, is In re Melody L. et al., 2007 Ct.Sup. 3342, No. H12-CP02-008535-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 23, 2007), affirmed, 290 Conn. 131 (2009). The facts in that case included sexual abuse, exposure of the children to the mother's sexual activity, excessive corporal punishment, exposure of Melody to pornography, the children's exposure to the mother's substance abuse, failure to enroll the children in school and the mother's failure to protect the children from the illegal and improper behavior of the mother's boyfriend even after the mother was informed by the children of such behavior. See, e.g., In re Melody L., supra, 290 Conn. at 136-40.

The third ground alleged by the mother is pursuant to General Statutes § 45a-717(g)(2)(C):

(C) there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child . . .

The law as to "no ongoing parent-child relationship" has developed by construction and interpretation of General Statutes § 17a-112(j)(3)(D) and General Statutes § 45a-717(g)(2)(C) (sometimes referred to herein as Ground D). In In re Valerie D., 223 Conn. 492, 531, 613 A.2d 748 (1992), the Supreme Court explained such statute as follows:

Section 45a-717(f)(3) defines an "ongoing parent child relationship" as "the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child." We have recognized that the statutory definition "is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation." In re Jessica M., supra, 467-68. In such a case, we held that "the ultimate question is whether the child has no present memories or feelings for the natural parent" . . . Id.

(Emphasis added.)

In In re Christian P., 98 Conn.App. 264, 268-70, 907 A.2d 1261 (2006), the Appellate Court explained the criteria to be used by the court in determining whether there is no parent-child relationship within the meaning of General Statutes § 17a-112(j)(3)(D):

General Statutes § 17a-112(j)(3)(D) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that "there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . ."

"This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent connotes feelings of a positive nature only." (Citations omitted; internal quotation marks omitted.) In re Jonathan G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).

In In re Jessica M., 217 Conn. 459, 586 A.2d 597 (1991), our Supreme Court defined an ongoing parent-child relationship as it applies to noncustodial parents. The court stated that termination of a noncustodial parent's rights requires a finding that "the child has no present memories or feelings for the natural parent." (Internal quotation marks omitted.) Id., 468. When the child does have present memories or feelings, there must be a finding that "no positive emotional aspects of the relationship survive." Id., 470. We recognize that "the evidence regarding the quality of [a parent's] relationship with [a] child must be reviewed in the light of the [parent's] limited access to visitation at the time of the petition." (Internal quotation marks omitted.) In re Alexander C., 67 Conn.App. 417, 425, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003).

(Emphasis added.)

Pursuant to General Statutes § 45a-717(h), the court is required to make the following findings:

Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by a child-placing agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or child-placing agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to the child's parents, any guardian of the child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust such parent's circumstances, conduct or conditions to make it in the best interest of the child to return the child to the parent's home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.

(1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by a child-placing agency to facilitate the reunion of the child with the parent: The court is unaware of any such services being offered to the father.

(2) The terms of any applicable court order entered into and agreed upon by any individual or child-placing agency and the parent, and the extent to which all parties have fulfilled their obligations under such order: The court is unaware of any such order.

(3) The feelings and emotional ties of the child with respect to the child's parents, any guardian of the child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties: Jaime is bonded, very close and loyal to his mother. He does not have many independent memories of his father and he has some hopes, dreams or fantasies about how things would be if he could have safe, supervised visitation with his father. He shares his mother's fears about his father because such fears are of continuing concern to the mother.

(4) The age of the child: Jaime is eight years old, ten months old.

(5) The efforts the parent has made to adjust such parent's circumstances, conduct or conditions to make it in the best interest of the child to return the child to the parent's home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child: Since the parents separated, the father has not been able to adjust his circumstances, conduct or conditions to maintain consistent visitation and other continuing contact with Jaime because of his substance abuse, mental health issues, and his behavior including but not limited to threats against the mother and to abduct Jaime, because of protective orders entered against him and because of his incarcerations and detentions arising from his criminal activities.

(6) The extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent: The father has not been prevented from maintaining a meaningful relationship with Jaime by the unreasonable act or conduct of the mother.

WITH RESPECT TO THE FATHER OF JAIME, THE MOTHER HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND A ALLEGATION OF ITS TERMINATION OF PARENTAL RIGHTS PETITION.

The court finds that the mother has alleged and proved, by clear and convincing evidence,

(1) that this court has jurisdiction over the matter and the parties;

(2) that there is no other action pending in any other court affecting custody of Jaime known to this court. Neither biological parent has claimed to be affiliated in his or her lineage with any Native American tribe; and

(3) the first ground alleged by the mother, abandonment, e.g., ". . . the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ." has been proved by the mother.⁴

4 Connecticut Practice Book § 35a-7A, effective January 1, 2009, provides that

(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.

(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.

(Emphasis supplied.)

In In re Latifa K., 67 Conn.App. 742, 748-49, 789 A.2d 1024 (2002), the Appellate Court explained the language of Conn. Practice Book § 33-3(a), the predecessor of § 35a-7 and § 35a-7A, as follows:

". . . A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition." (Internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). "In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition. In the disposition phase, the court is concerned with what action should be taken in the best interests of the child, and in that phase the court is entitled to consider facts occurring until the end of the trial." In re Romance M., 30 Conn.App. 839, 859, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994).

As of the date of the mother's Probate Court petition, March 19, 2007, the father had abandoned Jaime. See pages 23-24, supra, setting forth parental omissions constituting abandonment, many of which, including the failure to provide financial support, are applicable to the father. Such abandonment continued through the end of the TPR hearing.
The mother did not prove either the second ground ("acts of commission or omission") or the third ground ("no parent-child relationship") as of March 19, 2007, nor did she do so as of the end of the TPR hearing.

The mother did not prove the second and third grounds she alleged, e.g., the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to sexual molestation and exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, and there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child.⁵

5 See footnote 4.

THE BEST INTEREST OF JAIMIE:

The court has considered the best interest of Jaime in terms of maintaining a legal relationship with his biological father. The court has considered whether it is in the best interest of Jaime to be reunited with the father, including whether the father in a non-custodial way reasonably could be expected and relied upon to provide the safe, secure, nurturing, stable and permanent environment idealized in the statutes and case law, and the court has considered Jaime's ". . . interests in sustained growth, development, well-being, and continuity and stability of [his] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). The father's mental health issues, his history of substance abuse, his emotional abuse, threats and other behavior intended to control, frighten and at times to terrorize the mother⁶ have made it impossible for him to have a relationship with Jaime because, inter alia, he has destroyed his relationship with Jaime's primary caretaker, the mother. It is thus in Jaime's best interest to terminate the father's parental rights.

6 In Davonta V., 285 Conn. 483, 488 (2008), the Supreme Court set forth the general rule about the court's consideration of testimony and other evidence in a court trial:

. . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . .

See also In re Sole S., Docket No. F04-CP03-005606-A, Superior Court for Juvenile Matters, Child Protection Session at Middletown (Bear, J., March 4, 2009), pages 39-43.

ORDERS:

Having considered the evidence and the statutory, Practice Book and case law requirements, the court enters the following orders:

It is hereby ORDERED that the parental rights of the father to Jaime are hereby terminated, and that the mother shall be the sole guardian of Jaime.

Judgment shall enter accordingly.