Opinion
No. M08-CP07-010557-A
November 6, 2009
MEMORANDUM OF DECISION
On March 9, 2009, after a two-day hearing, this court terminated the parental rights of the biological father to Jaime S. ("Jaime"). In re Jaime S., 2009 Ct.Sup. 4874, No. 08-CP07-010557-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., March 9, 2009). The biological mother continued as Jaime's sole custodial parent and statutory guardian of his person and estate. On April 22, 2009, the father appealed this court's decision and such appeal is pending before the Appellate Court.
On October 2, 2009, pursuant to Practice Book §§ 61-11 and 61-12, the father moved for a stay of the court's order terminating the father's parental rights while the father's appeal to the Appellate Court is pending. The father also filed a motion for post-TPR visitation while his appeal is pending.
"Sec. 61-11. Stay of Execution in Noncriminal Cases . . . (b) Matters in which no automatic stay is available under this rule [.] Under this section, there shall be no automatic stay . . . in juvenile matters brought pursuant to chapters 26 through 35a . . . (e) Motions to request stay [.] Requests for a stay pending appeal where there is no automatic stay shall be governed by Section 61-12."
Sec. 61-12. Discretionary Stays [.] In noncriminal matters in which the automatic stay provisions of Section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court . . . A temporary stay may be ordered sua sponte or on written or oral motion, ex parte or otherwise, pending the filing or consideration of a motion for stay pending appeal. The motion shall be considered on an expedited basis . . .
Pursuant to Practice Book § 61-11, there is no automatic stay of this court's decision, a clear policy determination that the status quo prior to the entry of a TPR judgment is not necessarily expected to remain in place pending any appeal of a TPR judgment.
The father's motion for stay of execution pending appeal.
In such motion for stay, the father, inter alia, alleged the following:
1. The law as set forth in the Supreme Court's decision in Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 493 A.2d 229 (1985), is applicable to the question of whether or not to order a stay pending appeal.
2. The four factors usually considered in determining whether a stay should enter are:
A. the likelihood that the appellant will prevail;
B. the irreparability of the injury likely to be suffered from immediate implementation of the judgment of the court;
C. the effect of a stay upon other parties to the proceeding; and
D. the public interest involved.
3. The father has a good chance of prevailing on appeal.
4. There will be irreparable harm if the stay is not granted.
5. There will not be any harm to the parties if the stay is not granted.
6. There is a strong public interest in a termination proceeding.
In Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 455, 493 A.2d 229 (1985), the Supreme Court approved a "balancing of the equities" test in determining whether a stay of the court's decision should be issued during an appeal, and it included standards of the type utilized in connection with whether to issue an injunction:
While we thus approve the "balancing of the equities" test employed by the trial court, we do not in its application eschew such factors as the likely outcome of the appeal, the irreparability of the prospective harm to the applicant, or the effect of delay in implementation of the order upon other parties as well as upon the public interest. We have vested a large measure of discretion in trial judges in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused.
Griffin Hospital v. Commission on Hospitals Health Care, supra, 196 Conn. at 458-59. With respect to the father's motion for stay, Jaime and the mother are presumably encompassed by the phrase "other parties."
In TPR cases, permanency, stability and closure for a child are important factors. Such factors have been the focus of the Supreme and Appellate Courts in their review of trial court TPR decisions, such as in In re Davonta V., 98 Conn.App. 42, 907 A.2d 126 (2006), affirmed, 285 Conn. 483 (2008). In such decision, the Appellate Court considered the testimony of a forensic psychologist on the importance of permanency to a child, and in that case the Appellate Court recognized the trial court's discretion to accept such testimony of a forensic psychologist instead of the contradictory testimony of the guardian ad litem. Conversely, in this case the court credited the testimony and evidence of persons who testified as to facts demonstrating that the father had abandoned Jaime (within the meaning of the applicable statute) prior to the date of the filing of the TPR petition in the Probate Court and that termination of the father's parental rights was in the best interest of Jaime as of the date of the filing of such petition and as of the last date of the TPR hearing despite the psychologist's opinion that Jaime had some sort of interest in seeing his father. However, nothing in the court's March 9, 2009, decision or this decision prohibits the father from having whatever contact, including visitation, telephone contact or correspondence, on such terms to which the mother and Jaime may agree but as set forth below this court is not going to order that any such contact occur, and in no decision found by this court has any other Connecticut trial court done so.
In Davonta DCF was the petitioner and the children were in foster care, but the general concepts of stability, permanency and closure rather than "psychological limbo" and "legal limbo" that were considered, In re Davonta V., supra, 98 Conn.App. at 51, are also applicable to Jaime.
". . . `It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Where testimony is conflicting the trier may choose to believe one version over the other . . . as the probative force of the evidence is for the trier to determine.' (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002)." In re Davonta V., 98 Conn.App. at 51-52.
The Supreme Court agreed with the Appellate Court and with the trial court about the importance of the concepts of stability, permanency and closure for a child as follows:
This court has "noted consistently the importance of permanency in children's lives. In re Juvenile Appeal (Anonymous), 181 Conn. 638, 646, 436 A.2d 290 (1980) (removing child from foster home or further delaying permanency would be inconsistent with his best interest); In re Victoria B., 79 Conn.App. 245, 263, 829 A.2d 855 (2003) (trial court's findings were not clearly erroneous where much of child's short life had been spent in custody of [commissioner] and child needed stability and permanency in her life); In re Teshea D., [ 9 Conn.App. 490, 493-94, 519 A.2d 1232 (1987)] (child's need for permanency in her life lends added support to the court's finding that her best interest warranted termination of the respondent's parental rights). Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments." (Internal quotation marks omitted.) In re Jeisean M., supra, 270 Conn. 400-01.
"[S]table and continuous care givers are important to normal child development. Children need secure and uninterrupted emotional relationships with the adults who are responsible for their care." 3 D. Kramer, Legal Rights of Children (2d Ed. Rev. 2005) § 29:11, p. 185; see also J. Goldstein, A. Solnit, S. Goldstein A. Freud, The Best Interests of the Child: The Least Detrimental Alternative (1996) p. 19 ("[c]ontinuity of relationships is essential for a child's healthy development"); see also In re Hanks, 553 A.2d 1171, 1178 (Del. 1989) ("[N]o child can grow emotionally while in limbo, never really belonging to anyone except on a temporary and ill-defined or partial basis . . . To grow, the child needs at least the promise of permanency in relationships and some continuity of environment." [Internal quotation marks omitted.]). "Repeatedly disrupted placements and relationships can interfere with the children's ability to form normal relationships when they become adults." 3 D. Kramer, supra, p. 185.
In regard to children who have bonded with their foster parents, "[o]nce new psychological relationships form, separation from the new parents becomes no less painful and no less damaging to a child than separation from natural or adoptive caregiving parents. Indeed, to the extent that such separations are repeated (as in multiple foster care placements), they make the child more vulnerable and make each subsequent opportunity for attachment less promising and less trustworthy than prior ones." J. Goldstein, A. Solnit, S. Goldstein A. Freud, supra, pp. 104-05. Termination of a biological parent's rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption. See 3 D. Kramer, supra, § 28:2, p. 17. Even if no adoption is forthcoming, termination can aid stability and lessen disruption because a parent whose rights have been terminated no longer may file a motion to revoke the commitment of the child to the custody of the commissioner; see General Statutes § 46b-129(m); or oppose an annual permanency plan. See General Statutes § 46b-129(k) . . .
See Adoption of Nancy, 443 Mass. 512, 517, 822 N.E.2d 1179 (2005) (terminating father's parental rights where children were happy in foster care, though no adoptions imminent and children's counsel opposed termination, because "[s]tability in the lives of children is important, particularly in a case that has continued for a long period of time in the hope that the father could and would successfully rehabilitate himself . . . [and in which] permanence and stability . . . will be eased by termination of their father's rights" [citations omitted]); Rights of F.M., 305 Mont. 189, 193, 24 P.3d 208 (2001) (crediting testimony of experts that termination of mother's parental rights and children's placement in long-term foster care in children's best interests because they "are in need of permanency and stability in their lives in order to effectively progress in their therapy and the continued fantasy of being returned to their mother's care someday was detrimental to the therapeutic process").
In re Davonta V., supra, 285 Conn. at 494-97.
As set forth above, much of the case law has developed in the context of litigation involving DCF and the foster care system but the same requirements of stability, permanency and closure are applicable for all children who have had to live though contentious, violent, threatening and traumatic family conflict initiated and continued by a biological parent.
In this case, the father has not been a parental presence in Jaime's life nor has he had contact with Jaime for several years. Unfortunately, as set forth in detail in this court's decision, the father has brought that result on himself through his behavior toward the mother and through his own self-destructive behavior. The reintroduction of the father into the lives of the mother and Jaime through visitation, telephone contact or other communication will open them to their past fears for their safety because of the past behavior of the father toward the mother and because of his untreated substance abuse and mental health issues as of the dates of the TPR hearing. Interim visitation will be destabilizing for them and will destroy the sense of security they have developed over the years of the father's absence from their lives.
In this case, as in every case where a biological parent ceases to have contact with a child and such parent eventually is a respondent in a TPR hearing, the ideal result prior to such hearing would have been timely and successful reunification between such biological parent and the child. Unfortunately, in many cases, including this case, such biological parent was unwilling or unable in a timely manner over a period of years to take the actions necessary to make it feasible for him to reinitiate safe contact with the child without causing the mother and Jaime to continue to be fearful of him because of his prior history of threats and threatening behavior, substance abuse and mental health issues, lack of financial and emotional support, and other issues such as the temporary and unsustained nature of prior contacts.
The Appellate Court has "recently observed that `[t]he sad fact is that there is a difference between parental love and parental competence.' In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941, [affirmed, 280 Conn. 474, 908 A.2d 1073 (2006).]" In re Halle T., 96 Conn.App. 815, 817, 902 A.2d 670 (2006). In such decision, the Appellate Court also noted:
Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A., supra, 83 Conn.App. 22-25; In re Sheila J., supra, 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H., supra, 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation). In re Halle T., supra, 96 Conn.App. at 838-39.
In In re Rachel J., 97 Conn.App. 748, 761, 905 A.2d 1271 (2006), the Appellate Court noted, with respect to a claim that the trial court erroneously found that it was in the child's best interest to terminate the parental rights of the respondent parent:
The respondent offers scant analysis of this claim, which is predicated solely on the court's finding that a bond existed between [minor child] R and the respondent. Our courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child's best interest to terminate parental rights. See, e.g., In re Tyqwane V., 85 Conn.App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn.App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn.App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Furthermore, the existence of a bond between parent and child can spawn negative consequences, such as in this case, in which R attempted to protect the respondent from discovery of the abuse.
(Footnotes omitted.)
While in this case the TPR ground found by the court by clear and convincing evidence was abandonment and not failure to rehabilitate, over a period of years the father did not take the opportunity to deal with his issues by engaging successfully in treatment and therapy, and he continued to engage in criminal behavior and continued to have involvement with governmental authorities including prosecution, incarceration and detention; he did not overcome the deleterious effects of the damage to Jaime and the mother caused by his behavior during the marriage, divorce and post-divorce; and he did not support Jaime financially or emotionally in any material or meaningful way. If the court were to enter a stay of its TPR order and judgment, it would deny Jaime stability, permanency and closure necessary for his safety, security, development and happiness.
The court concludes that the father does not have a reasonable likelihood of success on appeal. Thus, the irreparability of the prospective harm to the father is non-existent. The effect of delay in implementation of the TPR judgment and order upon Jaime is significant. The impact of a delay of the court's orders upon the state's parens patriae interest is also significant given the state's duty, obligation and responsibility to provide stability, permanence and closure for children who reside in Connecticut.
In In re Halle T., supra, 96 Conn.App. at 822, the Appellate Court set forth the standard of review and legal principles pertaining to a TPR appeal:
At the outset, we note the standard of review and legal principles germane to our discussion. "Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous . . .
On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling. (Citations omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn.App. 713, 719-20, 778 A.2d 997 (2001); see also In re Javon R., 85 Conn.App. 765, 768-69, 858 A.2d 887 (2004); In re Kristy A., 83 Conn.App. 298, 305-06, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004).
See also In re Brittany J., 100 Conn.App. 329, 334, 917 A.2d 1024 (2007).
The court thus concludes that entry of a stay will cause harm to Jaime by delaying stability, permanence and closure for him, and the court denies the father's pending motion for such stay.
The father's motion for post-TPR visitation.
On June 18, 2009, allegedly pursuant to General Statutes § 46b-121(b), the father filed a motion for post-TPR visitation. General Statutes § 46b-121(b) provides in part as follows:
Although this statute was set forth as a basis for the motion, the portion of it that the father relies on to provide a basis for the visitation order sought from the court was not identified in such motion or in any memorandum of law. No decision where General Statutes § 46b-121(b) was the authority for a post-TPR visitation order in favor of a parent was cited by the father.
In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before said court paternity of a child born out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child, youth or youth in crisis therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child, youth or youth in crisis subject to its jurisdiction or otherwise committed to or in the custody of the Commissioner of Children and Families . . . Said court shall also have authority to grant and enforce injunctive relief, temporary or permanent in all proceedings concerning juvenile matters . . . Any judge hearing a juvenile matter may make any other order in connection therewith that a judge of the Superior Court is authorized to grant and such order shall have the same force and effect as any other order of the Superior Court. In the enforcement of its orders, in connection with any juvenile matter, the court may issue process for the arrest of any person, compel attendance of witnesses and punish for contempt by a fine not exceeding one hundred dollars or imprisonment not exceeding six months.
(Emphasis supplied.)
Although the father was present at the November 2, 2009, hearing, the father did not present any evidence including his testimony in support of his motion for visitation, telephone contact and/or the right to correspond with Jaime, nor did he set forth in such motion any details of how his requests would be effectuated.
Several trial court decisions refer to or discuss requests for post-termination visitation, but in none of such decisions is post-termination visitation actually ordered by the court.
In In the interest of Felicia B., Superior Court for Juvenile Matters, Child Protection Session, Judicial District of Middletown, 1998 Ct.Sup. 15649, 15654 (Quinn, J., December 29, 1998), affirmed, 56 Conn.App. 525, 743 A.2d 1160 (2000), the trial court stated that the purpose of a TPR judgment, inter alia, is to vest legal authority over the children with the statutory parent (DCF in this case) and to grant such statutory parent the right to make decisions about each of such children's future life and his contact with other persons based on his or her current best interest:
While the court treated the motion for visitation as amended as a request for transfer of guardianship, the testimony of the paternal relatives and the arguments of counsel for custody and visitation continued to reflect their confusion about the purpose of the dispositional hearing. When disposition is being considered in [] termination of parental rights cases, any visitation order would be inconsistent with the judgment being sought. The purpose of such a judgment is to vest legal authority over the children with the statutory parent or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of Connecticut General Statutes § 46b-59, quoted by the intervenors, when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered.
The intervenors also sought to challenge the propriety of DCF's determination to prohibit visitation during the pendency of the co-terminous petitions. While there might be a time and place for such a challenge, such concerns are not relevant to the dispositional phase of termination petitions, where the focus is on what is presently in the best interests of the children.
At the dispositional hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. In re Romance M., 229 Conn. 345, 357, 641 A.2d 378 (1994). Even had there been such existing visitation, any permanent placement orders would require the end to such visitation, unless the children were placed with their relatives . . .
In footnote 2 of such decision, Judge Quinn added:
Connecticut General Statutes § 17a-112(i) contemplates in the event of termination of parental rights that either the Commissioner of the Department of Children and Families or another child placement agency will become the statutory parent of the children or that there will be a transfer of guardianship to an individual or individuals who become the guardians of the persons of the children. It does not contemplate custody of the children being awarded to third parties or visitation as in the dissolution of marriage context, Connecticut General Statutes § 46b-59, which states that any such visitation rights which might have been awarded may be terminated when there is an action "regarding the parental rights with respect to such child or the adoption of such child."
In a second decision, In the Interest of Steven J., Superior Court for Juvenile Matters, Child Protection Session at Middletown, 2000 Ct.Sup. 8398, 8406 (Quinn, J., July 18, 2000), the court ruled that in a TPR case, any visitation order was inconsistent with a TPR judgment:
However, in considering the appropriate disposition in a termination of parental rights case, any visitation order would be inconsistent with the judgment being sought. The purpose of a termination judgment is to vest legal authority over the children with the statutory parent, adoptive parents or the guardians and to grant such entities or individuals the right to make decisions about the children's future life and their contact with others. As reflected in the language of Connecticut General Statutes § 46b-59, when parental rights or adoption are being considered by a court of competent jurisdiction, termination of visitation orders issued under that statute may also be ordered.
In In the Interest of Kachainy C., Superior Court for Juvenile Matters, Child Protection Session at Middletown, 2000 Ct.Sup. 8710, 8720 (Rogers, J., July 26, 2000), affirmed, 67 Conn.App. 401, 787 A.2d 592 (2001), the court recognized the special circumstances both of the biological mother and Kachainy who had life threatening illnesses, but did not order DCF to arrange for post-TPR visitation:
Finally, this is not a case where the mother should be precluded from having contact with her daughter in the time that both of them have remaining in their lives. They enjoy a comfortable visiting relationship and Kachainy enjoys visiting with her siblings who live with Nilda. The court therefore strongly recommends that DCF allow visitation to continue during the time period it remains the statutory parent of this child and that it encourage the adoptive mother to allow visitation in the future. Visitation should continue so that Kachainy's mother, in whatever small way, can continue to offer Kachainy love, comfort and support.
Instead of an order directing DCF to provide such visitation, the court "strongly recommended" and "encourage[d]" such visitation.
In In re Meagan B., No. F04-CP02-005358-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown, 2005 Ct.Sup. 11935-ce, 11935-dj (Jongbloed, J., Aug. 31, 2005), the court also recognized that post-TPR visitation was inappropriate and set forth the following:
After considering the children's sense of time, their need for a secure and permanent environment, the need to avoid future placements, and the totality of circumstances, the court concludes that termination of parental rights of respondent mother and father is in the children's best interest. It is accordingly, ORDERED that the parental rights of Tammi W. and Roger B. are hereby terminated as to the children Meagan and Brandon B. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the children.
With regard to the visitation requested by father, in view of the court's orders terminating parental rights, visitation is not appropriate with the children and they have not expressed a desire for visitation. Nevertheless, the court encourages DCF to consider whether a final visit with father would be in the children's best interest at this time.
Thus, although the court concluded that post-TPR visitation was "not appropriate," it "encouraged DCF to consider whether a final visit with father" was in the children's best interest. Such discretion was within DCF's authority as statutory parent.
In In re Nathaniel S., Superior Court for Juvenile Matters, Fourteenth District/Plainville, 1992 Ct.Sup. 3222 (Goldstein, J., April 10, 1992), the court also did not order post-TPR visitation but instead expressed its expectation concerning the wishes of the child if such wishes were in his best interest:
However, the court expects that Nathaniel's wish to maintain some reasonable contact with his mother will be honored by DCYS and any prospective adopting family. 46b-59; Michaud v. Wawruck, 209 Conn. 407, 551 A.2d 738 (1988). Nathaniel is already old enough to initiate contact by phone with his mother. He is wise enough to recognize his need to bond, but is unwilling to cavalierly discard his natural mother. His wishes should be respected if in his best interest.
In In re Tra'von W., 2008 Ct.Sup. 5411, 5442, No. H12-CP04-010019-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., April 1, 2008), the court did not order post-TPR visitation but instead made a recommendation for visitation post-adoption:
Recognizing that there is a bond between Travon and the respondent father, Joel J., this court recommends that visitation continue between Tra'von and the father post adoption.
In In re Kyon G., 2007 Ct.Sup. 10945, 10970-71, No. H12-CP03-008877-A, Superior Court, Judicial District of Middlesex, Juvenile Matters at Middletown (Wilson, J., May 11, 2007), the court recommended but did not order post-TPR and post-adoption visitation "if therapeutically appropriate:"
The court recognizes the strong bond that exists between the boys, their mother and their extended family members. The court therefore recommends that supervised visitation continue up to and post-adoption if therapeutically appropriate.
This court finds that the entry of any visitation orders by the court, after the termination of a parent's parental rights would be inconsistent with the effect and import of such termination. See In re Johnson R., No. M08-CP06-010181-A, 2009 Ct.Sup. 12423, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., July 13, 2009); In re Lyric H., 2008 Ct.Sup. 11765, No. H14-CP05-008261-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Graziani, J., July 14, 2008); In Re Melody L., 2007 Ct.Sup. 4632, 43 Conn. L. Rptr. 140, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., March 30, 2007).
Pursuant to Practice Book § 61-11 (see fn 1, supra), there is no automatic stay of this court's TPR decision, a clear policy determination that any visitation privileges prior to the TPR judgment were not expected to remain in place pending the appeal of the TPR judgment.
The status quo in this case is that the father had not had visitation or other contact with Jaime for several years before the court's March 9, 2009, TPR judgment.
Also, as stated by the attorney for Jaime at the November 2, 2009, hearing, any renewal of contact and/or visitation should be under the supervision of a therapist. Also, it would have to be supervised to assure the safety and security of Jaime. These are matters that would be better considered, if necessary, after the decision of the Appellate Court.
Such denial of an order of visitation is in keeping with the irrevocable effect of a TPR judgment, especially in a case where the evidence supporting the termination of parental rights in the best interest of the child is clear and convincing. General Statutes § 17a-93(e) provides for the complete severance of the parent-child relationship after a TPR judgment is entered:
"Termination of parental rights" means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption except it shall not affect the right of inheritance of such child or the religious affiliation of such child . . .
The complete severance of the parent-child relationship after termination has been recognized by the United States Supreme Court:
A termination of parental rights is both total and irrevocable. Unlike other custody proceedings, it leaves the parent with no right to visit or communicate with the child.
M.L.B. v. S.L.J., 519 U.S. 102, 118, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), quoting Lassiter v. Dept. of Social Services, 452 U.S. 18, 39, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (Blackmun, J., dissenting). (Internal quotation marks omitted.)
The relationship between the need for a stay of the court's judgment of termination and post-TPR visitation was discussed in In re Amy H., 56 Conn.App. 55, 61, 742 A.2d 372 (1999):
The respondent next claims that the trial court had no authority to enter, sua sponte, protective orders regarding visitation between Amy and the respondent under Yontef v. Yontef, supra, 185 Conn. 275. Specifically, the court ordered that no visitation would be granted pending appellate resolution of the case and subsequent retrial if ordered. We hold that the respondent cannot successfully challenge the visitation order because he did not move for a stay of execution.
Practice Book § 61-11 provides in relevant part that proceedings to enforce or carry out the judgment shall be automatically stayed until the time to take an appeal has expired; if an appeal is filed, such proceedings shall be stayed until the final determination of the cause . . . This section shall not apply . . . to juvenile matters brought pursuant to chapters 26 through 35 [of the Practice Book, which govern procedure in juvenile matters] . . .
In the present case, the respondent did not move for a stay of execution. Hence, his visitation rights were extinguished when his parental rights were terminated. See Practice Book § 61-11. Accordingly, we hold that the respondent cannot successfully challenge the court's visitation order because the order terminating his parental rights was not stayed.
The court's determination that the father abandoned Jaime was based on facts in addition to the father's failure to visit with Jaime.
At the November 2, 2009, hearing, the father through his attorney claimed that the court's decision that he had abandoned Jaime was based solely on his failure to visit Jaime for several years. This argument reads the court's decision too narrowly, as can be seen by a review of the court's very detailed factual findings that were set forth in the court's March 9, 2009, decision, some of which are repeated as follows:
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) the Probate Court requested that DCF make an investigation and written report to it on or before August 7, 2007.
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, 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. The father 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 to 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 though 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." 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 Co-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:
[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. 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.
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 A1. 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.
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.
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).
The court found that 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 . . ." had been proved by the mother.
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, e.g., pages 38-39, 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 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 mother 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 was thus in Jaime's best interest to terminate the father's parental rights.
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.
Having heard the interested parties and having considered the motions filed by the father for stay of execution and for visitation, each such motion is hereby denied.