Opinion
No. M08-CP06-010181-A, M08-CP06-010182-A, M08-CP06-010183-A
March 26, 2009
MEMORANDUM OF DECISION
This is a termination of parental rights case.
Each of the following facts is found by clear and convincing evidence:
1. On December 12, 1993, the commissioner of the department of children and families ("DCF") received a referral that Luis R. ("Luis"), the older brother of Johnson R. ("Johnson"), Armin R. ("Armin") and Max R. ("Max"), was being emotionally abused by his mother because of the conditions in the family's apartment. (Social study for the termination of parental rights, exhibit 1, 10.) Luis required medical attention but the parents did not obtain it for him. Id.
2. Johnson was born in July 1994.
3. On August 10, 1995, Luis and Johnson were adjudicated neglected and placed with the parents under an order of protective supervision.
4. On February 21, 1996, the court issued an ex parte order of temporary custody ("OTC") in favor of DCF with respect to Luis and Johnson.
5. Shortly thereafter, Armin was born in February 1996.
6. On March 14, 1996, Luis and Johnson were committed to the care, custody and guardianship of DCF.
7. Effective March 14, 1997, such commitment was extended for an additional year. However, on June 12, 1997, the commitment was modified to an order of protective supervision and Luis and Johnson were returned to the parents.
8. Max was born in December 2000.
9. On July 10, 2006, DCF filed neglect petitions and motions for ex parte orders of temporary custody for Luis, Johnson, Armin and Max, which motions were granted by the Superior Court for Juvenile Matters ("SCJM"). On such date, preliminary specific steps were ordered for the mother and the father. Johnson, Armin and Max have not been in the custody of the parents since July 10, 2006.
10. On July 17, 2006, the orders of temporary custody were sustained after a contested hearing.
11. On September 25, 2006, a court-ordered psychological evaluation of the father occurred. On September 25 and 26, 2006, such psychologist also evaluated the mother.
Such psychologist concluded (exhibit 8, 6) that the mother had
marked cognitive limitations, and an emotional indifference that is highly concerning. She is markedly detached from her circumstances and does not have a realistic understanding of her needs or the needs of her children. She is highly suspicious, distrustful and blames other[s] for her problems. Feeling guarded and distrustful, she isolates and, in fortress manner, remains contained within the family. The family isolates and she has the view of needing to defend against the outside world that is viewed as negative and unfriendly. The attitudes greatly interfere with the possibility of change. Given the intellectual and emotional standing, she will require much supervision and support.
Such evaluator further noted that the mother's
emotional detachment, mask like presentation, and extreme denial are highly concerning and suggest a hopeless, defensive stance, consistent with victimization. Affectively removed, the highly simplistic accounts and low reasoning do not make her credible, or able to effectively advocate or care for her sons. The intense denial and unwillingness to acknowledge her children's, or her own, circumstances, indicate she will not easily alter her behaviors or in any manner advocate [for] or protect her children.
Id., 10.
Such evaluator concluded that the father had
much unsophisticated and naive psychological understanding. He was blatantly deceptive and could not mask it. In addition, the manner of endorsing reveals he is psychologically disorganized and perceives others being gullible and easily deceived.
Id., 10.
Such evaluator also concluded that the father's
self-aggrandizing, suspicious and blaming stance betray a very rigid, paranoid defense structure. He is defiant and has threatened to flee the country in an effort to avoid responsibilities or having to alter his actions.
Id.
The evaluator also concluded that neither parent understood the impact of their behavior on the children. Id. The evaluator stated that the children had "referenced the mother engaging in prostitution, drug use and domestic violence." Id. In the past, the father had also reported the mother's inadequate parenting, sexual behavior and drug use. The evaluator reported that neither parent had "awareness of the children's needs and [each] actively denied every allegation documented in the records." Id.
Such evaluator identified "the intense resistance and active collusion of the couple," and the "high likelihood they will not pursue any treatments or interventions to address the family situations or meet the developmental needs of their children." Id. She concluded: "The family unit gives evidence of being highly chaotic and unhealthy." The result of living with the parents was, inter alia, that the children had "poor social adaptation and mental health disorder[s]," and as of September 25 and 26, 2006, less than three months after DCF had filed the neglect petitions, they were at risk of "ongoing emotional, physical and moral harm." Id., 11.
12. On November 21, 2006, Luis, Johnson, Armin and Max were adjudicated neglected and committed to the care, custody and guardianship of DCF. The SCJM ordered final specific steps for each of the parents.
13. On May 24, 2007, permanency plans with a goal of reunification with the parents were approved by the SCJM. New final specific steps were ordered for the mother. New specific steps were issued for the father but without prejudice to his counsel filing a motion for a competency hearing for the father.
14. On September 20, 2007, the commitment of Luis was revoked because he refused DCF services, and his custody and guardianship reverted to the parents.
15. On April 3, 2008, the SCJM consolidated the pending motions to approve permanency plans with goals of TPR and adoption and the parents' objections thereto with the hearing on the TPR petitions expected to be filed by DCF. On such date each parent's oral motion for competency evaluation was granted.
16. On June 19, 2008, the SCJM found the father to be not competent and not restorable to competency.
17. On July 3, 2008, DCF filed the TPR petitions. The sole ground alleged against each parent in each such petition was "failure to rehabilitate" in violation of General Statutes § 17a-112(j)(3)(B).
18. Between November 21, 2006, the date of the neglect adjudications and dispositions and July 3, 2008, the date of the filing of the TPR petitions, in violation of General Statutes § 17a-112(j)(3)(B) neither parent was able to rehabilitate herself or himself.
19. On June 19, 2008, the SCJM found that the father was not competent and not restorable to competency, and such court appointed a guardian ad litem for the father. On July 10, 2008, the SCJM found the mother to be competent.
20. On January 9, 2009, DCF again filed motions to approve permanency plans of TPR and adoption of each of the children that were consolidated with the TPR hearings.
21. The consolidated hearings occurred on March 3, 2009, March 4, 2009, and on March 23, 2009, at the SCJM Child Protection Session ("CPS"). The assistant attorney general representing DCF, the current worker assigned to the family, the attorney for the children, the biological mother and biological father of the children, their separate counsel, the guardian ad litem for the children and the guardian ad litem for the father appeared before the court on each such day, except the father chose not to appear before the court on March 23, 2009, although his counsel had agreed out of the presence of the undersigned to conclude the consolidated hearings on such date. DCF did not seek to have a default enter against the father because of his unexcused absence.
22. Between November 21, 2006, the date of the neglect adjudications and dispositions and March 29, 2009, the end of the TPR hearing, in violation of General Statutes § 17a-112(j)(3)(B) neither parent was able to rehabilitate herself or himself.
23. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by clear and convincing evidence.
GENERAL STATUTES § 17A-112(k) FINDINGS: 1. The timeliness, nature and extent of services offered, provided and made available to the parent and each child by an agency to facilitate the reunion of each child with the parent.(A) Over a period of fifteen years, the mother has been offered and/or has received a remarkable number of and exhaustive list of individual services and services relating to her children from or facilitated by DCF for purposes of reunification as set forth in the social study for the termination of parental rights (exhibit 1, 5-6):
1993:
1. Catholic Family Services parenting program
2. Visiting Nurses Association for Luis and Johnson
3. Easter Seals referral for Johnson
4. Birth to Three for Johnson
5. Latino Program: clinical services
1995: CT Page 5677
6. Birth to Three for Johnson
1996:
7. parent aide
8. Intensive Family Preservation
9. Veteran's Memorial Medical Center: psychiatric care
1997:
10. Catholic Family Services: 6 sessions of parenting classes
11. Child Guidance Clinic; counseling for Luis
12. Intensive Family Preservation from Milford Mental Health
13. Catholic Family Services: counseling
14. Catholic Family Services: psychiatric assessment
1999:
15. Family Relations
16. Community Health Center: counseling
17. Latino Program: counseling
2001:
18. Intensive Family Preservation
19. Child Guidance Clinic, counseling for Johnson
20. Midstate Medical Center, therapeutic services for Johnson
21. Latino Program: counseling and substance abuse treatment
22. Turning Point: substance abuse treatment, parenting, individual counseling and psychiatric evaluation
2002:
23. Rushford Center: substance abuse evaluation
24. Intensive Family Preservation
25. Birth to Three for Max
2004:
26. Rushford Center: substance abuse evaluation
27. Mental health evaluation
28. Venture Program for Luis
29. Community Health Center: counseling for Armin
30. Rushford Center: substance abuse evaluation
31. Rushford Center: Mental health evaluation
32. Domestic Violence for Victim group
2006:
33. Rushford Center: substance abuse evaluation
34. Therapy for Luis
35. Intensive Family Preservation
36. Rushford Center: Substance abuse evaluation
37. Family Relations
38. [activity] for Luis
39. Alliance Staffing: therapeutic mentor for Luis
40. Rushford Center: substance abuse evaluation
41. court-ordered psychological evaluation
2007:
42. Delta T: clinical services
43. Hispanic Clinic: clinical services
44. R.A. Alternative Therapy: in relative foster home clinical support for all children
45. Greater Bridgeport Mental Health Center: counseling
46. Optimus Mental Health: clinical services
47: Alliance Staffing: 1-1 services for Armin and Johnson
48. Foster home for Johnson, Armin and Max
49. Alliance Staffing; clinical services
50. New Britain Counseling Center
51. Southington Behavioral Health psychiatric referral
2008:
52. Institute for the Hispanic Family: clinical services
53. Institute for the Hispanic Family: clinical services
54. Tutor for Johnson and Max
Additionally, the mother was provided with transportation;
CT Page 5680
supervised visitation; and
administrative and case management services.
(B) Over a period of fifteen years, the father has been offered and/or has received a remarkable number of and exhaustive list of individual services and services relating to his children from or facilitated by DCF for purposes of reunification as set forth in the social study for the termination of parental rights (exhibit 1, 7-8) (many of these services were also provided to the mother or one or more of the children):
1993:
1. Catholic Family Services: parenting program
2. Visiting Nurses Association for Luis and Johnson
3. Easter Seals referral for Johnson
4. Birth to Three for Johnson
5. Latino Program: clinical services
1995:
6. Birth to Three for Johnson
1996:
7. parent aide
8. Catholic Family Services, counseling
9. Intensive Family Preservation
1997:
10. Catholic Family Services: 6 sessions of parenting classes
11. Child Guidance Clinic: counseling for Luis
12. IFP from Milford Mental Health
1999:
13. Family Relations
14. AIC
2001:
15. IFP
16. Rushford Center: substance abuse evaluation, screen and treatment
17. Child Guidance Clinic, counseling for Johnson
18. Midstate Medical Center, therapeutic services for Johnson
19. Turning Point: substance abuse treatment, parenting, individual counseling and psychiatric evaluation
2002:
20. Rushford Center: substance abuse evaluation
21. Intensive Family Preservation
22. Birth to Three for Max
2004:
23. Rushford Center: substance abuse evaluation
24. Venture Program for Luis
25. Community Health Center; counseling for Armin
26. Rushford Center: substance abuse evaluation
27. Rushford Center: mental health evaluation
2005:
CT Page 5682
28. Rushford Center: substance abuse evaluation
2006:
29. Rushford Center: substance abuse evaluation
30. Therapy for Luis
31. Intensive Family Preservation
32. Rushford Center: substance abuse evaluation
33. Family Relations
34. [activity] for Luis
35. Rushford Center: substance abuse evaluation
36. Alliance Staffing: therapeutic mentor for Luis
37. Rushford Center: substance abuse evaluation
38. Court-ordered psychological evaluation
39. Family Violence Education Program for father who completed nine weeks
40. DCF efforts to locate a therapist well versed in personality disorder to treat father
DCF referred father to:
41. Delta T
42. Alliance Staffing
43. New Haven Hispanic Clinic
44. Yale School of Medicine
45. Bridgeport Community Health Center
46. R.A. Alternative Therapy (for both parents)
CT Page 5683
47. Dr. Frazer of Forensic Consultants, LLC
48. The Connecticut Psychological Association
2007:
49. Delta T: clinical services
50. Hispanic Clinic: clinical services
51. R.A. Alternative Therapy: in relative foster home clinical support for all children
52. Greater Bridgeport Mental Health Center
53. Dr. H — for psychiatric evaluation and treatment
54. Alliance Staffing: 1-1 services for Armin and Johnson
55. Foster home for Johnson, Armin and Max
56. Rushford Center: substance abuse evaluation
57. Hispanic Counseling Center of New Britain: clinical services
58. Alliance Staffing: clinical services
59. New Britain Counseling Center
60. Southington Behavioral Health: psychiatric referral
61. The Connection: substance abuse evaluation
2008:
62. Rushford Center: substance abuse evaluation and drug screen
63. Institute for the Hispanic Family: clinical services
CT Page 5684
64. Institute for the Hispanic Family: clinical services
65. Tutor for Johnson and Max
Additionally, the father was provided with transportation;
supervised visitation; and
administrative and case management services.
(C) In addition to the services described above, each of the children has been offered and has received the following services from or facilitated by DCF, inter alia:
medical and dental services plus an MDE;
reunification services;
supervised visitation;
transportation;
foster care services;
counseling;
psychiatric/psychological services;
court-ordered psychological evaluation; and
administrative and case management services.
All services offered to the mother, the father and to each of the children have not been identified as not reasonably timely under the circumstances, except for visitation after February 2008, the suspension of which and the possible resumption of which was the subject of dispute by each of the parents. After hearing the arguments of the parents and reviewing the evidence the court finds by clear and convincing evidence that the presence of visitation between February 2008, and March 2009, would not have caused a change in the court's adjudication of TPR based on each parent's failure to rehabilitate or the court's disposition based on the best interest of each of the children. The parents' parenting deficiencies over a period of approximately fifteen years related to and/or were caused, inter alia, by their own chronic substance and/or alcohol abuse, their continuing mental health problems, their cognitive limitations, their negative behavior including but not limited to domestic violence and the dysfunctional interactions between themselves and their children.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980 as amended.DCF has made reasonable efforts to reunite the mother and each of the children, and the father and each of the children. See 1. above, and other discussions of reasonable efforts throughout this memorandum of decision. The reasonable efforts made and facilitated by DCF with respect to services for the mother and the father were timely and adequate to address the issues that led to DCF involvement with each of them and to address the issues that continued or arose after such DCF involvement. Unfortunately, each of the parents was unable to appreciate, understand and/or accept the existence of their personal and parenting problems, and to acknowledge their continuing and extensive need for services.
3. The terms of an applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).On July 10, 2006, and subsequently in this case, the court ordered specific steps for the mother and the father "to safely . . . regain the custody . . ." of each such child.
In the social study in support of the termination of parental rights the current DCF worker summarized the delivery of the specific steps in court to the mother:
On 7/10/06, [the mother] was provided a copy in Spanish of the following court ordered specific steps: Keep all appointments with DCF, Keep your whereabouts known to DCF and your attorney, Participate in individual and family counseling to address domestic violence, anger management, mental health, exposure to domestic violence and substance abuse, Accept and cooperate with in home services, Submit to substance abuse assessment and drug screens, comply with treatment if recommended, Cooperate with court ordered evaluations and testing, Secure and maintain adequate and legal income, No substance abuse, No involvement with criminal justice system, Consistent and timely meet and address the children's needs, and Visit the children as often as DCF permits.
(Exhibit 1, 19, paragraph 59.) The father was also provided with a copy in Spanish of his specific steps. Id., 34, paragraph 54.
Such social study contains numerous examples of the mother's and the father's failure to comply with the specific steps. The parents arrived late for visitation or missed visitation. See, e. g., exhibit 1, 20-23, paragraphs 67, 69, 72, 73, 75, 81, 82. On other occasions the parents were unable to interact with or redirect the children when they were inappropriate. See, e.g., exhibit 1, 20-25, paragraphs 67, 72, 73, 75, 81, 82, 84, 86.
Despite their documented histories of substance abuse and mental health problems, the mother and father minimized and/or denied that they had problems or needed services. See, e. g., exhibit 1, 21-25, paragraphs 75, 76, 77, 86, 87, 90, 91, 92. On December 29, 2008, the mother tested positive for cocaine and a psychotropic medication for which she had no prescription.
The parents continued to engage in arguments in front of the children, emotional abuse and other domestic violence. See, e. g., exhibit 1, 21-25, paragraphs 73, 74, 82, 85, 89, 94.
The mother continued to have arrests for prostitution. See exhibit 1, 25-26, paragraphs 95, 96, 101, 102. See also exhibit 11 and see exhibit 3, study in support of motion to maintain commitment and review permanency plan, page 4.
On August 7, 2007, a therapist reported to DCF that the mother "was resistant to treatment and unwilling to acknowledge her mental deficiencies." Exhibit 1, 24, paragraph 91. Such therapist also reported that "change was highly improbable for [the mother] given her level of resistance." Id. On August 20, 2007, the mother was discharged from treatment because of her refusal to continue to participate. Id., 25, paragraph 92.
On April 1, 2008, another therapist who testified in court reported to DCF that the mother was not able to accept responsibility for her actions that resulted in the removal of her children and that she was unable to acknowledge the existence of any issues that inhibited reunification. Id., 25, paragraph 99.
The current DCF worker set forth DCF's summary of the mother's circumstances as follows:
[The mother] has demonstrated a very long history of individual psychiatric illness that directly impacts her ability to appropriately manage both her own life and the lives of her children. The severity of her mental illness is such that she has been unable to demonstrate any measure of progress that would lead the Department to think that she could safely and appropriately raise his children. [The mother] continues to minimize and deny her issues and she continues to exhibit marked mental illness and ongoing arrests for prostitution. She has not shown an awareness of her children's needs, how her parenting or lack thereof has affected the children or that she needs to make changes in her parenting. The dynamics between [the mother and the father] remains highly dysfunctional. To subject the . . . children to the environment in which their parents exist would result in their developing into highly dysfunctional individuals themselves. Johnson, Armin and Max entered DCF care in 7/06, demonstrating many negative and dysfunctional behaviors. Since 7/06, the boys have learned healthy ways to modify their maladaptive behaviors. They are thriving educationally, socially and emotionally. Johnson, Armin and Max deserve to spend the remainder of their childhoods in a family setting free of mental illness, domestic violence, substance abuse, criminal activity, parental incarceration and chronic chaos.
The court finds the foregoing evidence as to the mother to be credible and an accurate summary of the circumstances.
The father's history of parenting deficiencies, mental health issues, domestic violence, alcohol and substance abuse is set forth in pages 27-43 of exhibit 1, the social study in support of the termination of parental rights. In the months before DCF filed its neglect petitions and motions for orders of temporary custody, the father was arrested for and pled guilty to charges arising out of a physical altercation between Luis and the mother and the father's threats:
On 4/15/06, Luis . . . was arrested for punching his mother several times outside a restaurant. [The father] did not intervene. [The father] threatened to shoot his wife once he was "juiced up." He was charged with Disorderly Conduct and Breach of Peace. He was also found to be in violation of a restraining order as he was reportedly drinking alcohol in the home. Both [The father] and son Luis were arrested for assault of [the mother].
On 4/18/06, DCF received a referral alleging that there was a domestic dispute. [The father] was charged with Disorderly Conduct and Threatening 2nd, for threatening to shoot [the mother]. A full protective order was issued prohibiting [the father] from having contact with [the mother]. At the time that the referral was called in to the Hotline, [the father] was in the parking lot of the family's apartment building. [The father] was intoxicated and threatened to kill [the mother] when he was "juiced up enough." The report also said that mother abused drugs and was prostituting at night. Physical Neglect was substantiated by DCF and the case was transferred for ongoing services . . .
On 4/28/06, [the father pled] guilty to charges stemming from the domestic dispute. The full protective order was modified to a partial and [the father] returned home.
(Exhibit 1, 33, paragraphs 44, 45, 47.)
Despite his own behavior, the father expressed concern about the mother's care of the children:
On 4/19/06, [the father] reported to DCF Social worker Cortez that he had concerns of [the mother] caring for the children because he believed she was using crack, prostituting and hearing voices. [The father] reported that [the mother] has had a drug problem for years. He stated that he was fearful that his children were in danger due to her recent behavior.
Id., paragraph 46.
On June 9, 2006, the police found the father "extremely intoxicated." Id., paragraph 48.
Despite the father's stated concerns about the behavior of the mother, on June 13 and 14, 2006, the father (and the mother) refused to cooperate with DCF:
On 6/13/06, [the father] denied all of the allegations against him and his wife. [The father] denied substance abuse by himself and [the mother]. He refused to participate in a substance abuse evaluation and would not comply with any other recommendations. Although [the mother] was present for the announced home visit, she refused to speak with Ms. Cortez concerning the case and would not cooperate with a substance abuse evaluation.
On 6/14/06, DCF Social worker[s] . . . Cortez and . . . Berrios visited the parent's home. Both parents were present. Mother refused to speak with the social workers. [The father] denied all the allegations and any substance abuse. He reported that he was taking prescription pills that made him appear to be under the influence. He refused to sign any releases and to participate in substance abuse evaluation. [The father] threatened to send the children out of the country if the Department chose to file neglect petitions in court. [The father] was very argumentative and defensive. He denied that his wife was leaving the home or using drugs and stated that everyone lied. He stood very close to social worker Berrios and demanded that she smell his breath for alcohol. Ms. Berrios had to ask [the father] to step back as he was acting inappropriately.
Id., 34, paragraphs 51, 52.
In violation of the specific steps, on August 14, 2006, after a hair test the result was "positive for the use of cocaine, benzodiazepines and cocaethylene." Id., 36, paragraph 62. The father "was recommended to attend substance abuse treatment but adamantly denied a problem and refused treatment." Id.
In violation of the visitation protocol, at times the father made bizarre, inappropriate and/or threatening comments in front of one or more of the children, or ignored the children to speak to the social worker. See, e. g., such social study, pages 36-41, paragraphs 63, 68, 70, 71, 77, 78, 80, 83, 97. The father also continued to make similar comments to DCF personnel. See, e.g. pages 37-42, paragraphs 69, 78, 85, 86, 87, 99.
In violation of the specific steps, the father did not attend a substance abuse program that had been arranged for him. Id., 39, paragraph 75. On December 26, 2006, he appeared at the DCF office, and two workers noted that he "smelled of alcohol." Id., 40, paragraph 82.
On May 27, 2007, the father's specific steps were updated with a new therapy goal that the father "was to demonstrate a clinically significant improvement in his global functioning." Id., paragraph 88. This did not occur at any time prior to the end of the TPR hearing.
Although the father did attend several sessions with a psychiatrist (DCF provided an interpreter), the psychiatrist was unable to proceed because of the father's lack of cooperation or interest. Such psychiatrist wrote two letter reports to the DCF worker then assigned to the family (such psychiatrist also testified). (Exhibits 27 and 28.) In the first letter report dated August 24, 2007, such psychiatrist wrote in part:
On August 22, [the father] stated that the only reason he had ever accepted appointments with me was to get me to agree that there was no reason for his children to be outplaced. He reiterated his oft-made claim that DCF took his children from the family home because "they need the business." Again, as he had in all of our previous meetings, he reverted to the threats that his "billionaire" relative would come to his aid and that he would have the E — Ambassador to the United States intervene on his behalf. The first thing he wanted me to know — also, repeated literally dozens of times — was that he was an "educated man," a "professor," and that his level of achievement made him "equal to a doctor." All of this had an angry, grandiose, paranoid quality. [The father] is neither insightful nor introspective and I doubt that he will be able to accept voluntary psychiatric treatment.
(Exhibit 27.)
In his testimony, such psychiatrist found that the father had Paranoid Personality Disorder evidenced by chronic suspiciousness, attribution of blame to other people, some elements of grandiosity, and occasional delusions. Those traits interfere with a person's ability to parent. Such psychiatrist did not believe that the father was amenable to any kind of behavioral therapy.
In April 2008, a therapist at the Institute for the Hispanic Family, who testified at the TPR hearing, concluded that the father was unable to benefit from therapy. Id., 43, paragraph. She reported to DCF her conclusions:
A 4/10/08 Discharge Summary from The Connection Counseling Center . . . reported that [the father] was recommended to attend individual substance abuse counseling one time per week for five weeks with the goal of identifying cultural issues, escalation of urges, triggers and cues, learn ways to prevent uncontrolled reactions and develop controlled responses, utilize rational thinking methods, stress management, and effective communication skills. [The father] was unsuccessfully discharged from treatment as having been noncompliant and in need of gaining a more healthy and balanced control of his life . . .
On 4/24/08, [the father] told social worker Morales that he refused to participate in the 4/5/08 psychiatric evaluation as he felt he was seeing too many doctors . . .
In 4/08, social worker Morales had ongoing discussions with Ms. . . . Perez, therapist at the Institute for the Hispanic Family regarding [the father's] participation in therapy. She frequently reported that [the father] was unable to benefit from talk therapy due to his defensiveness, strong denial and delusional/psychotic presentation. She explained that his thought process was highly distorted by grandiose tangential and paranoid thought patterns. His psychiatric symptoms often interrupted . . . treatment, as much of the clinical session was devoted to redirecting and refocusing him. Ms. Perez indicated that a preliminary psychiatric evaluation found that his condition may be treatable with medication. She recommended a formal comprehensive psychiatric evaluation.
Id., 43, paragraphs 104-06.
The current DCF worker set forth DCF's summary of the father's circumstances as follows:
[The father] has demonstrated a very long history of individual psychiatric illness that directly impacts his ability to appropriately manage both his own life and the lives of his children. The severity of his mental illness is such that he has been unable to demonstrate any measure of progress that would lead the Department to think that he could safely and appropriately raise his children. [The father] continues to minimize and deny his issues and he continues to exhibit marked mental illness and threatening behavior. He has not shown an awareness of his children's needs, how his parenting or lack thereof has affected the children or that he needs to make changes in his parenting. The dynamics between [the father and the mother] remains highly dysfunctional. To subject the . . . children to the environment in which their parents exist would result in their developing into highly dysfunctional individuals themselves. Johnson, Armin and Max entered DCF care in 7/06, demonstrating many negative and dysfunctional behaviors.
The court finds the foregoing evidence as to the father to be credible and an accurate summary of the circumstances.
4. The feelings and emotional ties of such child with respect to his or her parents, any guardian of the 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.As of the dates of the trial, Johnson and Armin were bonded to their mother and father, but not in a meaningful parent-child way as evidenced by the supervised visitation. Max was frightened by the father and the mother, and did not want to visit with them.
As of the dates of the trial, each such child was bonded to the foster parents with whom they have resided since September 2007. Such foster parents provide a positive, stable environment, and they currently provide for the needs of each child, including the special needs of Max.
5. The age of each of the children:
Johnson is fourteen years old.
Armin is twelve years old.
Max is eight years old.
6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.As set forth above, neither parent has been able to adjust his or her circumstances, conduct or conditions to make it in the best interests of the children to return home in the foreseeable future.
7. The extent to which a parent has been prevented from maintaining a meaningful relationship with the children by the unreasonable act or conduct of the other parent of the children, or the unreasonable act of any other person or by the economic circumstances of the parent.There was no evidence presented that the mother or the father has been prevented from maintaining a relationship with any of the children by any unreasonable act or conduct of any other person.
Although the court had some information, neither the mother nor the father provided specific information in a financial affidavit format concerning her or his current or past economic circumstances. Neither has paid support for any of the children or regularly provided clothes or other items to any of the children since their September 2007, removal.
LAW APPLICABLE TO TERMINATION OF PARENTAL RIGHTS CASES:
General Statutes § 17a-93 (and General Statutes § 45a-707(8)) provide:
"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 . . .
1. Prerequisites to a TPR determination, and the statutory grounds alleged by the petitioner DCF:
General Statutes § 17a-112(j)(3) provides that the prerequisites to a determination that any TPR petition should be granted are that the court must find by clear and convincing evidence
(1) that [DCF] has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required . . .
and that
(2) termination is in the best interest of the child . . .
In this case, each parent was unable or unwilling to benefit from reunification efforts.
The third requirement is that the court find, by clear and convincing evidence, that DCF has proved at least one of seven statutory grounds for termination. In re Melody L., 290 Conn. 131, 163 (2009); In re Davonta V., 98 Conn.App. 42, 43 (2006), affirmed, 285 Conn. 483 (2008); In re Shaun B., 97 Conn.App. 203, 214, 903 A.2d 246 (2006); In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003).
The grounds alleged in this case are: . . .
(B) the child (i) has been found by the Superior Court or the Probate Court to be neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . .
General Statutes § 17a-112(j)(3).
Despite the order in General Statutes § 17a-112(j) in which the statutory prerequisites to be proved are set forth, prior to any termination of parental rights
[i]f the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.
In re Eden F., 250 Conn. 674, 689, 741 A.2d 873 (1999).
2. Explanation of Ground B, failure to rehabilitate: A. General standards:
In In re Halle T., 96 Conn.App. 815, 835, 902 A.2d 670 (2006), cert. denied, 280 Conn. 924 (2006), the Appellate Court explained the failure to rehabilitate requirements as follows:
"Failure to achieve a sufficient degree of personal rehabilitation is one of the seven statutory grounds on which parental rights may be terminated under § 17a-112(j)(3). We have stated that personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [Section 17a-112] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . .
Rehabilitate means to restore [a . . . delinquent person] to a useful and constructive place in society through social rehabilitation . . . The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child's life. Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems. It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life . . . (Emphasis in original.)
See also In re Melody L., supra, 290 Conn. at 149-50.
In Halle T., the Appellate Court explained the foregoing finding requirement concerning a parent's level of rehabilitation to assume a responsible position in the child's life as follows:
CT Page 5697
[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [C]ourt to have been neglected [or] uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . .
Although the standard is not full rehabilitation, the parent must show more than any rehabilitation . . . Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., 91 Conn.App. 248, 259-60, 881 A.2d 450 (2005); see also In re Amneris P., 66 Conn.App. 377, 383-84, 784 A.2d 457 (2001); In re John G., 56 Conn.App. 12, 17-18, 740 A.2d 496 (1999).
In re Halle T., supra, 96 Conn.App. at 835-36. The same point is also set forth in In re Shyliesh H., 56 Conn.App. 167, 179-80, 743 A.2d 165 (1999) and in In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999).
The "petitioner's expressly articulated expectations" are the specific steps. In Practice Book § 26-1(n), "specific steps" are defined as "those judicially determined steps the parent or guardian and the commissioner of children and families should take in order for the parent or guardian to retain or regain custody of a child or youth."
In Halle T., the Appellate Court also referred to Supreme Court statements of the applicable standard:
Our Supreme Court has instructed that the applicable standard in these types of cases "requires the court to find, by clear and convincing evidence, that the level of rehabilitation [a parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life." (Internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999); see also In re Jeisean M., 270 Conn. 382, 399, 852 A.2d 643 (2004); In re John G., supra, 56 Conn.App. 17; In re Juvenile Appeal (84-3), 1 Conn.App. 463, 477, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). A finding of when the respondent would be able to resume caring for the child was required neither by statute nor by case law. Instead, the court properly examined whether, "within a reasonable time, considering the age and needs of the child, [the] parent could assume a responsible position in the life of the child . . ." (Internal quotation marks omitted.) In re John G., supra, 17.
In re Halle T., supra, 96 Conn.App. at 837.
The Appellate Court then focused on the importance in each case of the factual context of the child's circumstances:
We recently emphasized the importance of conducting this inquiry by considering the factual context of the particular child's situation. " The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child . . . What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." (Citation omitted; emphasis added; internal quotation marks omitted.) In re Alejandro L., supra, 91 Conn.App. 260; see also In re Eden F., supra, 250 Conn. 706; In re Christina V., 38 Conn.App. 214, 220-21, 660 A.2d 863 (1995); see also In re Shyliesh H., 56 Conn.App. 167, 173-74, 743 A.2d 165 (1999) (respondent's failure to achieve rehabilitation illustrated by lack of understanding of child's medical, psychiatric condition).
In re Halle T., supra, 96 Conn.App. at 837-38.
Finally, the Appellate Court noted that in a number of cases despite a parent's progress toward personal rehabilitation the parent had not rehabilitated sufficiently to have the child returned and to avoid a termination of parental rights:
The court acknowledged the evidence that the respondent had made some progress in personal rehabilitation. Nevertheless, when viewed in the light of the child's significant needs, such progress, made over approximately two years, was insufficient when considered in relation to the child's special needs and her need for permanency. 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 (footnote omitted). In addition to Sheila J., 62 Conn.App. 470, 481, 771 A.2d 244 (2001) (". . . In effect, however, the court determined that although the respondent demonstrated some efforts and had taken some steps toward rehabilitation, those efforts were too little and too late . . ."), the Appellate Court has upheld other trial court findings of rehabilitation efforts being "too little, too late . . .": see In re Brittany J., 100 Conn.App. 329, 335, 917 A.2d 1024 (2007) (". . . The court also found the testimony of James Connolly, a court-appointed psychologist, to be more credible on this issue and noted that the respondent's `recent cooperation with her psychotropic medication regimen on the eve of trial is `too little, too late . . .'") and In re Dorrell R., 64 Conn.App. 455, 780 A.2d 944 (2001).
Although the court can consider rehabilitation efforts occurring after the filing of the TPR petition, it does not have to do so, and the court can determine that from the perspective of the age, needs and circumstances of the child and the usual application of Practice Book § 35a-7A that those efforts are not timely:
The court found by clear and convincing evidence that the respondent is unable or unwilling to make realistic and sustained efforts to conform her individual conduct to acceptable parental standards. The department made numerous referrals for the respondent during the pendency of this case. The respondent failed to take advantage of the referrals in a timely manner, and it was not until the filing of the termination petitions that she demonstrated any willingness to address her problems. The respondent has not made the changes necessary in her lifestyle in a timely manner that would indicate that she would be a safe, responsible and nurturing parent for the children.
In re Anthony H., 104 Conn.App. 744, 758 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).
The presence of a "strong loving bond" or a "strong bond" between a parent and a child in and of itself may not be sufficient to prevent termination of parental rights. In the Anthony H. decision, the Appellate Court considered substantive issues that kept the mother from "being a responsible parent to the children" despite a claim of a "strong loving bond":
The respondent also argues that the court's finding that she had failed to achieve rehabilitation is clearly erroneous because she has a strong loving bond with her children. The respondent relies on dicta in In re Jessica M., 49 Conn.App. 229, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1999), to support her position. "[T]o the extent the parents can demonstrate to [the child] that they care about her and love her, they have a responsible position in her life." Id., 240. The respondent claims that she has a responsible position in the lives of the children by virtue of her strong loving bond with them. The respondent's argument founders because she has multiple issues that prevent her from being a responsible parent to the children, such as failing to provide appropriate and reliable housing, failing to maintain employment and failing to keep them safe from R, who is abusive and has substance abuse problems, among other concerns.
In re Anthony H., supra, 104 Conn.App. at 762-63 (footnotes omitted). See also In re Anna Lee M., supra, 104 Conn.App. at 124, 143-44; In re Brittany J., supra, 100 Conn.App. at 333, 336-37; In re Tyqwane V., 85 Conn.App. 528, 533, 535-36 (2004). In a recent case, former Justice Peters observed:
The 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).
The Appellate Court has stated that evaluating whether there has been sufficient parental rehabilitation the trial court must consider the full history of the respondent's parenting abilities:
The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999) . . .
In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); see also In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003). In an earlier decision, In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995) the Appellate Court expressed this requirement as follows: . . .
. . . Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting abilities . . .
See also In re Emerald C., 108 Conn.App. 839, 858-59 (2008).
In a very recent decision, the Appellate Court has expressed the trial court's duty to consider the "entire picture" of the parent-child relationship:
In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain "a historical perspective of the respondent's child caring and parenting abilities." In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995). "Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998). Finally, "[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship." Id., 818.
In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007).
In a dissolution of marriage context the requirement of an inquiry into the full history of the parents'"past behavior" in order to evaluate parenting ability has been expressed as follows:
Nevertheless, our Supreme Court has also held that the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being. Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006) (internal quotations omitted).
This court, however, cannot speculate about a parent's chances for future rehabilitation by assuming, for example, that a parent successfully would complete a parenting-related program, obtain independent housing in the future, or earn a legal income sufficient to support himself or herself and the child. In In re Selena O., 104 Conn.App. 635, 642-43 (2007), the trial court found that the mother could be rehabilitated within a reasonable period of time in the future. The Appellate Court determined that the trial court's findings were based on facts that were not in evidence, and on a fact that did not exist. Id., 648-49. The trial court's findings were speculative, material to its decision and clearly erroneous. Id.
B. Ground B exception to the usual rule that in the adjudicatory phase, the judicial authority is limited to evidence of events occurring prior to the filing of the TPR petition, as amended, to be applied in the discretion of the trial court: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.
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).
Despite Practice Book § 33-3(a) and case law regarding termination proceedings generally, we have determined that with regard to termination petitions brought under § 17a-112(c)(3)(B) [now § 17a-112(j)(3)(B)], the trial court may, in the adjudicatory phase, properly consider facts and events that occur after the filing date of the petition in determining whether a respondent has achieved a sufficient degree of personal rehabilitation within the meaning of that statute. See In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). In In re Stanley D., we addressed a claim that the trial court improperly found that the respondent had not achieved sufficient personal rehabilitation within the meaning of § 17a-112(c)(3)(B). Id., 225, 763 A.2d 83. In our explanation of the requirements of § 17a-112(c)(3)(B) and the hearing process for petitions to terminate parental rights based on that section, we stated that"`[p]ersonal rehabilitation' refers to the reasonable foreseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citation omitted; emphasis in original.) Id., 230. The respondent, therefore, cannot prevail on his claim that the court could not consider whether he had achieved personal rehabilitation during the eighteen months subsequent to the filing of the petitions.
See also In re Anthony A., 112 Conn.App. 643, 649 (2009); In re Cheila R., 112 Conn.App. 582 (2009); In re Joseph L., 105 Conn.App. 515, 527-28 (2008); and In re Anthony H., supra, 104 Conn.App. at 757-58.
In Ground (B) cases, a court may consider events subsequent to the filing date of the petitions, but it does not have to do so:
. . . This court has expanded that rule [set forth in § 35a-7A] to allow courts to consider events subsequent to the filing date of the petitions in the adjudicatory phase of termination proceedings. "Practice Book § 33-3(a) [now § 35a-7A] limits the time period reviewable by the court in the adjudicatory phase to the events preceding the filing of the petition or the latest amendment . . . In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citations omitted; emphasis added; internal quotation marks omitted.) In re Stanley D., supra, 61 Conn.App. at 230; see In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000). The respondent's appeal challenges the evidence that a court must consider during the adjudicatory phase of the proceedings. The respondent argues that because this court has stated that trial courts may, in their discretion, consider such evidence, fundamental fairness requires the trial court to consider those events that take place up until the hearing. We do not agree with the respondent.
In re Jennifer W., supra, 75 Conn.App. at 494-95; see also In re Selena O., 104 Conn.App. 635, 646 (2007) and In re Nelmarie O., 97 Conn.App. 624, 628, 905 A.2d 706 (2006).
C. The relationship between a respondent's compliance with the "specific steps" and whether there is "sufficient rehabilitation:"
General Statutes § 46b-129, pertaining to neglect and orders of temporary custody, contains three references to "specific steps." The first reference is in subsection (b):
. . . Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth . . .
The second reference is in subsection (d):
The court, after a hearing pursuant to this subsection [relating to the preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to § 46b-129(a) pertaining to neglect, uncared-for or dependency petitions], shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth . . .
The third reference is in subsection (j) which provides that if a child is committed to DCF after being adjudicated neglected or uncared for "the court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent."
Practice Book §§ 33a-6 and 33a-7 also contain similar references to the issuance of specific steps by the court at the time of the issuance of an ex parte order of temporary custody and at the preliminary hearing. Practice Book § 33a-6(d) provides:
. . . (d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth . . .
Practice Book § 33a-7 provides:
(a) At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall: . . . (8) make any interim orders, including visitation, that the judicial authority determines are in the best interests of the child or youth, and order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth . . .
General Statutes § 17a-112(j)(3)(B), pertaining to termination of parental rights, provides in part with respect to specific steps:
The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that . . . (3) . . . (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . (Emphasis supplied.)
Although because of the presence of a comma after "proceeding" and the absence of a comma after "fifteen months" such subsection can be read so that the specific steps requirement applies only in Ground B(ii) cases (and not in the much more common Ground B(i) cases), the usual practice in this court accepted by DCF and all other parties is to apply the specific steps requirement to such Ground B(i) cases.
The official form petition for termination of parental rights utilized by DCF (JD-JM-40 Rev. 9-2006) separately sets forth Ground B(i) and Ground (B)(ii) bases for termination, so that DCF can select one, the other or both as a basis for termination.
The Supreme Court has emphasized the importance of compliance by each respondent with the specific steps:
The specific steps that a respondent and DCF must follow in order to provide an opportunity for reunification. Although the present appeal does not concern a termination proceeding, we note that specific steps are considered to be "fair warning" to a parent of the potential termination of parental rights in subsequent proceedings. In re Jeffrey C., 64 Conn.App. 55, 62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).
Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding . . .
In re Devon B., 264 Conn. 572, 584 (2003).
The Appellate Court has explained that successful completion of the specific steps, e.g., "petitioner's expressly articulated expectations," is, by itself, "not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation. In re Vincent D., supra, 65 Conn.App. at 670, 783 A.2d 534." In re Jennifer W., supra, 75 Conn.App. at 500. In Vincent D., the Appellate Court explained:
In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department . . . Accordingly, successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation . . .
In re Vincent D., 65 Conn.App. 658, 670, 783 A.2d 534 (2001) (citations omitted). See also In re Melody L., supra, 290 Conn. at 150-51.
4. The best interest of the child requirements:
As set forth above, the court first determines whether DCF has proved, by clear and convincing evidence, one of the grounds alleged in its TPR petitions. In this case, the sole ground alleged against the mother and the father is Ground B, failure to rehabilitate. The court looks separately at the proof as to each parent. Its options are that DCF has not proved such ground against either parent; that DCF has proved such ground against one but not the other parent; or that DCF has proved such ground against both parents.
After making such adjudicatory determinations, before the court can terminate parental rights, it must find, by clear and convincing evidence, that to do so is in the best interest of the child:
After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112(j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child's best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript.
In re Davonta V., supra, 98 Conn.App. at 42, 43.
As has been set forth above:
A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under § 17a-112(j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.
In re Brea B., 75 Conn.App. 466, 469-70, 816 A.2d 707 (2003) (internal quotation marks omitted). See also In re Melody L., supra, 290 Conn. at 163; In re Selena O., supra, 104 Conn.App. at 643 n. 8; In re Shaun B., supra, 97 Conn.App. at 206-07.
The difference in focus between adjudication and disposition has been explained as follows:
In the dispositional phase of a termination of parental rights 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, 356-57, 641 A.2d 378 (1994). During this dispositional phase, "the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child . . . In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a-112[k]." In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). We note that those "seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).
In re Davonta V., supra, 98 Conn.App. at 46-47 (footnote omitted). See also In re Janazia, 112 Conn.App. 69, 98 (2009).
The seven required statutory findings are not specified in General Statutes § 17a-112(k) as the only parameters for determining the best interest of the child in a TPR context. Instead, the focus of many of the required statutory findings is to insure that the parents' rights and interests appropriately and properly have been considered.
The seven required findings set forth in General Statutes § 17a-112(k) are as follows:
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 an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such 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; (5) the age of the child; (6) 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 such child 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 (7) 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 Appellate Court recently has set forth the best interest standards of the child in a TPR context as including ". . . the child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26, 926 A.2d 690 (2007); see also In re Janazia, supra, 112 Conn.App. at 97; In re Cameron C., 103 Conn.App. 746, 759, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008), and In re Brianna C., supra, 98 Conn.App. at 804. Continuity and stability of environment are elements of permanency. The Appellate Court stated that in making such best interests determination, the trial court should "consider and make" the required written General Statutes § 17a-112(k) findings:
The respondent and R both claim that the court improperly concluded, in the dispositional phase of the hearing, that it was in the child's best interest to terminate the parental rights of the respondent with respect to R. We disagree.
"The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of its environment." (Internal quotation marks omitted.) In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000). "In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Jermaine S., supra, 86 Conn.App. 835. The court thoroughly considered each of the seven criteria before finding that the respondent's failure to address her long-term history of substance abuse and domestic violence issues dictated that it would be in R's best interest to terminate her parental rights.
In re Ryan R., supra, 102 Conn.App. at 625-27. See also In re Joseph L., 105 Conn.App. 515, 529-30 (2008); In re Anthony H., supra, 104 Conn.App. at 764 (2007); and In re Cameron C., supra, 103 Conn.App. at 760.
The ". . . child's interests in sustained growth, development, well-being, and continuity and stability of its environment . . ." also are applied in connection with neglect dispositions:
In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.)
In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004).
Although the focus in the dispositional phase "appropriately shifts from the conduct of the parent to the best interest of the child . . ." In re Romance M., supra, the sixth required finding in § 17a-112(k) is to consider
. . . 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 such child 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 . . .
As set forth above, the focus of many of the other required § 17a-112(k) findings also is to insure that the parents' rights and interests appropriately and properly have been considered.
Additionally, although "the best interest of the child" is referred to as a dispositional focus, the concept also appears in one of the adjudicatory grounds, Ground D, General Statutes § 17a-112(j)(3)(D), no parent-child relationship:
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 . . .
Also, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed." The seven adjudicatory grounds in General Statutes § 17a-112(j) are part of "the provisions of this section," e.g., § 17a-112.
4. DCF as statutory parent:
In performing its duties with respect to a TPR trial, this court's responsibility does not include where or with whom a child should live after a termination of parental rights, and thus this court should not enter orders concerning such matters as part of any TPR case disposition:
In the dispositional phase of a termination proceeding, the court properly considers only whether the parent's parental rights should be terminated, not where or with whom a child should reside following termination.
In re Sheena I., 63 Conn.App. 713, 726, 778 A.2d 997 (2001); see also In re Davonta V., supra, 98 Conn.App. at 53. There are several statutes providing or referring to DCF as statutory parent after TPR has occurred. For example, General Statutes § 17a-93 provides:
As used in sections 17a-90 to 17a-124, inclusive, and 17a-152: . . . (f) `Statutory parent' means the Commissioner of Children and Families or that child-placing agency appointed by the court for the purpose of giving a minor child or minor children in adoption . . .
General Statutes § 17a-112(m) provides:
The Superior Court may appoint a statutory parent at any time after it has terminated parental rights if the petitioner so requests.
In its TPR petitions, DCF has requested that it be appointed as statutory parent.
See also, e.g., General Statutes § 45a-707(7), and see General Statutes § 17a-146:
. . . the Commissioner of Children and Families shall exercise and have all authority, rights, duties and functions granted to or imposed upon the Commissioner of Social Services in the general statutes in the area of adoption of children, including, but not limited to, authority . . . to act as a statutory parent, as defined in section 45a-707.
General Statutes § 17a-112(o) provides:
CT Page 5714
In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the child which shall include measurable objectives and time schedules. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the progress made on implementation of the plan . . . If the court determines that the department has not made reasonable efforts to place a child in an adoptive placement or that reasonable efforts have not resulted in the placement of the child, the court may order the Department of Children and Families, within available appropriations, to contract with a child-placing agency to arrange for the adoption of the child. The department, as statutory parent, shall continue to provide care and services for the child while a child-placing agency is arranging for the adoption of the child.
5. Closure, stability, health, safety, continuity, stability and permanency for the child:
In determining the best interest of a child in a TPR context, see In re Ryan R., supra, 102 Conn.App. at 625-27, the court also considers and applies, inter alia, the concepts of closure and permanency:
It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations.
In re Davonta V., supra, 98 Conn.App. at 53. The Appellate Court also referred to stability and permanency concepts in Alejandro L.:
In its decision, the court found by clear and convincing evidence that the children's best interests would be served by granting the petitions to terminate the respondent's parental rights. In support of that finding, the court noted that much of the children's short lives had been spent in the custody of the commissioner, and that the children needed stability and permanency in their lives. On the basis of those facts, we conclude that the court's determination that the respondent's parental rights should be terminated was not clearly erroneous.
In re Alejandro L., supra, 91 Conn.App. at 262.
In the neglect context, the Supreme Court referred to the "dual goals of safety and permanency." In re Allison G., supra, 276 Conn. at 159.
Helping children achieve permanency has long been a goal of the federal government, see, e.g., 42 U.S.C. §§ 621, 622, 629g, 629h, 670, 671, 673b, 673c, 675 and 5113, and of the General Assembly, see, e.g., General Statutes § 46b-129(k):
. . . (2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan . . .
See also General Statutes §§ 17a-110a, 17a-111b and 17a-112(o). Thus, closure and stability for a child, the health and safety of a child, and continuity and stability of environment, see In re Anthony A., supra, 112 Conn.App. at 653-54, are concepts relating to permanency for the child.
6. The standard of clear and convincing evidence:
In Miller v. Commissioner of Corrections, 242 Conn. 745, 794-95 (1997), Justice Borden explained such clear and convincing standard of proof:
The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt. It "is sustained if the evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." (Emphasis added; internal quotation marks omitted.) State v. Bonello, 210 Conn. 51, 66, 554 A.2d 277, cert. denied, 490 U.S. 1082, 109 S.Ct. 2103, 104 L.Ed.2d 664 (1989).
Although we have characterized this standard of proof as a "middle tier standard;" J. Frederick Scholes Agency v. Mitchell, 191 Conn. 353, 358, 464 A.2d 795 (1983); and as "an intermediate standard;" State v. Davis, supra, 229 Conn. 293; between the ordinary civil standard of a preponderance of the evidence, or more probably than not, and the criminal standard of proof beyond a reasonable doubt, this characterization does not mean that the clear and convincing standard is necessarily to be understood as lying equidistant between the two. Its emphasis on the high probability and the substantial greatness of the probability of the truth of the facts asserted indicates that it is a very demanding standard and should be understood as such . . . We have stated that the clear and convincing evidence standard "should operate as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory." (Internal quotation marks omitted.) Lopinto v. Haines, 185 Conn. 527, 539, 441 A.2d 151 (1981) . . .
(Footnotes omitted.)
See also In re Cheyenne A., supra, 59 Conn.App. at 158-59; Notopoulos v. Statewide Grievance Committee, 277 Conn. 218, 226, 890 A.2d 509 (2006); In re Anthony H., supra, 104 Conn.App. at 756 (2007); Eberhardt v. Imperial Construction Serv., 101 Conn.App. 762, 923 A.2d 785 (2007); and Chernick v. Johnston, 100 Conn.App. 276, 280, 917 A.2d 1042 (2007), cert. denied, 282 Conn. 919, 925 A.2d 1101 (2007).
7. The construction of General Statutes § 17a-112:
As set forth above, General Statutes § 17a-112(q) provides that the "provisions of this section shall be liberally construed in the best interest of any child for whom a petition under this section has been filed."
However, "[f]amily reunification is an important social objective. As our Supreme Court recently has reminded us: `[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children.' Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005)." In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed, 280 Conn. 474 (2006).
8. Weight to be given to testimony, including from court-appointed psychologists and other experts:
In Davonta V., supra, 285 Conn. at 488-89, the Supreme Court set forth the standards to be applied by the court in considering witness testimony, including but not limited to the testimony of child welfare professionals, which testimony has an important role in neglect and TPR trials:
Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . 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 . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999) . . .
In In re Melody L., supra, 290 Conn. at 161, the Supreme Court stated that a trial court can give credence to the testimony of an expert witness even on "the ultimate issue" to be decided by the trial court:
This court repeatedly has held that, "[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S.Ct. 775, 99 L.Ed. 1257 (1955). This understanding has been codified in § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."
As the Appellate Court aptly has recognized, "[t]he trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases." (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn.App. 353, 364-65 n. 8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluator's conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).
With respect to the trial court's responsibilities concerning the best interest of a child, the Supreme Court emphasized that after considering expert testimony, such court ". . . must make its own independent determination as to the best interest of the child . . ."
Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004) ("[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest" [citations omitted; internal quotation marks omitted]). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in Davonta's best interest.
In re Davonta V., supra, 285 Conn. at 489.
Similar principles have been set forth in earlier decisions:
In the Appellate Court decision in Davonta V., supra, 98 Conn.App. at 60, Judge Schaller, dissenting, wrote:
The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987). (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).
(Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition:
Psychological testimony from professionals is appropriately accorded great weight in termination proceedings.
CT Page 5720 In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999) (emphasis added).
Earlier, the Supreme Court set forth the parameters for a trial court's use of expert testimony in a family case:
As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate, differently and on circumstances that may have changed.
Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002):
". . . [A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).
The trial court in whole or in part need not accept a person's testimony, whether or not such person has been qualified as an expert:
The law traditionally recognizes the trial court as a tribunal equipped to resolve disputed evidentiary issues, and as the "final judge of credibility." Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358 (1954). Moreover, as we have often noted, the fact that a witness testifies as an expert does not compel the acceptance of his or her testimony as true. See, e.g., Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338 (1987).
State v. Joly, 219 Conn. 234, 237, 243, 593 A.2d 96 (1991). The Supreme Court stated that factual determinations are ". . . appropriately committed to the sound discretion of the trial court." Id. In Joly, the issue was whether a witness had been hypnotized. Id. The Supreme Court then stated:
. . . In resolving this issue, the court may be aided, but is not bound, by expert opinion. Id. Such testimony must be "considered, weighed and tested like any other evidence;" id.; and assessed "in relation to the other circumstances in evidence bearing on the question in issue;" Blake v. Blake, 207 Conn. 217, 225, 541 A.2d 1201 (1988); including, if offered, the testimony of the allegedly hypnotized witness. The trial court "is privileged to adopt whatever testimony [it] reasonably believes to be credible;" (emphasis in original) Eichman v. J J Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990); and expert testimony may be rejected in favor of other evidence found more persuasive. Transportation Plaza Associates v. Powers, 203 Conn. 364, 377, 525 A.2d 68 (1987).
In In re David W., 254 Conn. 676, 687-88, 759 A.2d 89 (2000), the Supreme Court emphasized deference to the trial court's discretion in determining the weight to be given to all or part of an expert's testimony:
Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989) . . .
9. The balancing of the legitimate interests of the parents, children and the state of Connecticut:
Each termination of parental rights case requires consideration of the interests of all parties, but as set forth above, in the dispositional phase the statutory standards require a focus on the best interests of the child, not the primary wishes or best interests of the parents. Nevertheless:
The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . .
(Citations omitted.) In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
Since Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923), the United States Supreme Court has recognized the fundamental liberty interest of parents in the custody, care and control of their children. Most recently in Fish v. Fish, supra, Justice Katz's dissenting opinion, the line of Supreme Court cases, beginning with Meyer, in which this fundamental liberty interest is recognized, has been set forth:
The Supreme Court's decisions recognizing this fundamental right date back to at least 1923. See Meyer v. Nebraska, 262 U.S. 390, 399, 401-03, 43 S.Ct. 625, 67 L.Ed. 1042 (1923) (concluding that "proficiency in foreign language . . . is not injurious to the health, morals or understanding of the ordinary child" and recognizing right of parents to "establish a home and bring up children" and to "control the education of their own"); Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 69 L.Ed. 1070 (1925) (holding that state could not interfere with parents' decision to send children to private schools when decision was "not inherently harmful" and recognizing right "to direct the upbringing and education of children under their control"); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (exempting Amish from state compulsory education law requiring children to attend public school until age eighteen, recognizing that "primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition"); see also Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944) ("[i]t is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder"); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) ("[i]t is plain that the interest of a parent in the companionship, care, custody, and management of his or her children `come[s] to this [c]ourt with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'"); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) ("[w]e have recognized on numerous occasions that the relationship between parent and child is constitutionally protected"); Parham v. J.R., 442 U.S. 584, 602, 99 S.Ct 2493, 61 L.Ed.2d 101 (1979) ("Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course"); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing "[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child"); Washington v. Glucksberg, 521 U.S. 702, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ("[i]n a long line of cases, we have held that, in addition to the specific freedoms protected by the [b]ill of [r]ights, the `liberty' specially protected by the [d]ue [p]rocess [c]lause includes the righ[t] . . . to direct the education and upbringing of one's children" [citations omitted]).
Fish v. Fish, supra, 285 Conn. at 93 n. 3 (Katz, J., dissenting).
In Parham, the United States Supreme Court recognized that parents, who have traditional interests in and responsibility for the upbringing of their child, retain a substantial, if not the dominant, role in decisions for their child(ren), absent a finding of neglect or abuse as has occurred in this case:
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries; 2 J. Kent, Commentaries on American Law.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Sup. 1039, 1047-48 (ED Pa. 1975), vacated and remanded, 431 U.S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe MacClintock 348-49. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra, at 230; Prince v. Massachusetts, supra, at 166 . . .
Parham v. J.R., supra, 442 U.S. at 602-03.
In his concurring opinion, Justice Stewart rejected the idea that all parents act in the best interests of their children and that all parents are fit parents:
To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.[fn 7]
Id., 624 (Stewart, J., concurring).
In footnote 7, Justice Stewart referred to Justice Brennan's concurring and dissenting opinion which contained the following:
In our society, parental rights are limited by the legitimate rights and interests of their children. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts, 321 U.S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children and that, inter alia, curtail parental authority to alienate their children's property, to withhold necessary medical treatment, and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children . . .
Id., 630-31 (Brennan, J., concurring in part and dissenting in part).
Connecticut also balances the constitutional rights of parents against the duty and responsibility of the state to insure the health, safety and welfare of children. See, e. g., In re Stephen M., 109 Conn.App. 644, 646 (2008):
To facilitate the state's parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents' inability or failure to provide for their well-being. See General Statutes § 17a-101; In re T.K., 105 Conn.App. 502, 503-04, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that "[p]arents have a constitutionally protected right to raise and care for their own children." In re Juvenile Appeal (83-DE), 190 Conn 310, 318-19, 460 A.2d 1277 (1983) . . .
and In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983):
Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208 31 L.Ed.2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriae interest of the state in the well being of children is deemed by law to supercede parental interests. See General Statutes 17-43a, 46b-129(e); In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983); Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).
In an earlier decision, In re Juvenile Appeal (83-CD), 189 Conn. 276, 282-84, 293, 455 A.2d 1313 (1983), the Supreme Court rejected a respondent parent's argument that General Statutes § 46b-129(b) was unconstitutional because it was an impermissible infringement on such parent's right to family integrity. Recently in Fish v. Fish, 285 Conn. 24, 73-74, 939 A.2d 1040 (2008), the Supreme Court balanced parents' constitutional liberty interests against a child's welfare and safety to apply the regular civil fair preponderance standard of proof in third party custody proceedings: . . .
. . . Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).
Accordingly, although we agree with the concurrence that the interest of the parent is extremely significant and may require additional protection by imposing a heightened standard of proof in other circumstances, there is well established precedent for applying the fair preponderance standard in third party custody proceedings.
This is a case where each of the children was removed from the custody of the mother and the father in July 2006, and where each of the children has been committed to the care, custody and guardianship of DCF since November 21, 2006, so the family has not been an intact family for in excess of two years. The parents thus do not have the benefit of any presumption that they are fit to care for such children, and, unfortunately for the parents, the evidence is overwhelmingly to the contrary. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008):
As we noted in Roth, "[t]here are . . . limitations on these parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. See Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see also General Statutes § 10-204a (requiring parents to immunize children prior to school enrollment); General Statutes §§ 14-100a, 14-272a (requiring child restraint in vehicles); General Statutes § 17a-81 (authorizing emergency medical treatment where parent withholds consent) General Statutes §§ 31-23, 31-24 (restricting child labor from certain occupations or workplaces); General Statutes § 53-21a (prohibiting parents from leaving child unsupervised in public accommodation or vehicle). Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity. Parham v. J.R., supra, 603; see General Statutes § 17a-101g (removal of child where imminent risk of harm); General Statutes §§ 17a-112(j), 45a-717 (termination of parental rights)." Roth v. Weston, supra, 259 Conn. 224.
Former Chief Justice Peters has noted:
Cases involving the termination of parental rights are always difficult . . . Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety.
In re Christina M., supra, 90 Conn.App. at 566-67.
WITH RESPECT TO THE MOTHER AND FATHER OF JOHNSON, ARMIN AND MAX DCF HAS PROVED, BY CLEAR AND CONVINCING EVIDENCE, THE GROUND B ALLEGATIONS OF ITS TERMINATION OF PARENTAL RIGHTS PETITIONS.The court finds that DCF has alleged and proved, by clear and convincing evidence, that
(1) this court has jurisdiction over the matter and the parties;
(2) there is no other action pending in any other court affecting custody of Johnson, Armin and Max known to this court. Neither biological parent has claimed to be affiliated in his or her lineage with any Native American tribe;
(3) on November 21, 2006, Johnson, Armin and Max were adjudicated neglected, and each was committed to the care, custody and guardianship of DCF;
(4) prior to and after filing its July 3, 2008, termination petition, DCF made reasonable efforts to reunify the mother with Johnson, Armin and Max through offers of and provision of services, but the mother was able to reach a point where after the November 21, 2006, adjudication of neglect reunification with her was in best interest of Johnson, Armin and Max;
(5) prior to and after filing its July 3, 2008, termination petition, DCF made reasonable efforts to reunify the father with Johnson, Armin and Max through offers of and provision of services, but the father was able to reach a point where after the November 21, 2006, adjudication of neglect reunification with him was in best interest of Johnson, Armin and Max; and
(6) both the mother and the father of Johnson, Armin and Max, who were adjudicated neglected, have failed to, are unable and/or are unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Johnson, Armin and Max as of the date of the filing of the TPR petition or as of March 23, 2009, the last date of the TPR hearing, either parent could assume a responsible position in the life of Johnson, Armin and Max as their day-to-day full-time parent.
THE BEST INTEREST OF JOHNSON, ARMIN AND MAX:
The court has considered the best interest of Johnson, Armin and Max. The court has considered whether it is in the best interest of either Johnson, Armin or Max to be returned to the mother or to the father, including whether the mother or such father 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 Johnson's, Armin's and Max's ". . . interests in sustained growth, development, well-being, and continuity and stability of [their] environment . . ." In re Ryan R., 102 Conn.App. 608, 625-26 (2007). Unfortunately for Johnson, Armin and Max, the mother and the father since July 2006, separately and together (as of the end of the hearing they continued to reside together) have not provided and currently are unable to provide each of them with such safe, secure, nurturing, stable and permanent environment. On the other hand, in the care of the foster parents, each is receiving love, nurturing and appropriate care in a stable environment.
In accordance with applicable federal and state law, the court finds, by clear and convincing evidence, that it is in the best interest of Johnson, Armin and Max and that it is necessary for each of their well-being, growth, development, safety, security, stability, continuity, consistency and permanency, and for closure, that the rights of the biological mother and the father be terminated.
CONCLUSION AND ORDERS:
Having considered the evidence and the statutory, Practice Book and case law requirements, the court finds, by clear and convincing evidence:
(a) DCF proved by clear and convincing evidence that the mother and the father of Johnson, Armin and Max, each of whom was adjudicated neglected on November 21, 2006, had failed as of July 3, 2008, the date of the TPR petition (and as of March 23, 2009, the end of the TPR hearing), to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and needs of Johnson, Armin and Max, she or he could assume a responsible position in Johnson's, Armin's or Max's life; and
(b) it is in the best interest of Johnson, Armin and Max to terminate the parental rights of the biological mother and the biological father.
Accordingly, it is hereby ORDERED that the parental rights of the mother and the father to Johnson, Armin and Max are hereby terminated.
The commissioner of the department of children and families is appointed as the statutory parent of Johnson, Armin and Max. The initial status report concerning Johnson, Armin and Max shall be submitted, as required, within thirty days hereof. Quarterly reports and annual permanency plans shall be submitted as required in accordance with statutory requirements, including those set forth in General Statutes § 17a-112(o).
Judgment shall enter accordingly.