Opinion
No. H12-CP09-12371A
February 3, 2011
MEMORANDUM OF DECISION RE PETITION FOR TERMINATION OF PARENTAL RIGHTS
The Department of Children and Families (DCF) has filed a petition to terminate the parental rights of Shannon B. and Jonathan P., the biological mother and father of Jonaya P., who was born on August 16, 2008. The respondents were never married to each other.
The following procedural history is relevant in this matter. DCF filed a neglect petition concerning Jonaya on March 5, 2009. On July 14, 2009 the court (Dannehy, J.) found that the child was neglected and committed her to the care and custody of DCF. Jonaya has continuously remained in the petitioner's custody, in a relative foster placement, since that date.
DCF filed the petition for termination of parental rights on August 24, 2010. Both respondents were properly served, and the court has jurisdiction.
Pursuant to C.G.S. § 17a-112j(3)(B), the petitioner alleged that Jonaya was previously adjudicated a neglected child, and that Shannon B. has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable period of time, considering the age and needs of the child, she could assume a responsible position in the life of the child.
DCF alleged a similar count of parental failure to rehabilitate with respect to Jonathan P. In addition, the petitioner pled statutory grounds of abandonment (C.G.S. § 17a-112j(3)(A)) and lack of an ongoing parent-child relationship (C.G.S. 17a-112j(3)(D)) against the father.
A trial was held before the undersigned on January 19, 2011. The petitioner was represented by the assistant attorney general. A court-appointed attorney appeared for the minor child. Shannon B. was present throughout the proceeding and was represented by her counsel.
Jonathan P. did not attend the trial, despite notice, and his absence was unexplained and unexcused. The father's court-appointed attorney was present and represented his interests throughout the trial. The court has carefully considered all of the evidence that was presented during the trial, and finds that all of the facts referred to herein were proven by clear and convincing evidence at trial.
FACTUAL FINDINGS RE ADJUDICATION
DCF became involved with the family on December 19, 2008 after Shannon B. stabbed Jonathan P. in the back with a knife during a domestic altercation. (Petitioner's Exhibit A., p. 6.) Jonaya, who was then four months old, was present in the home when the assault occurred. (Petitioner's Exhibit C.) Shannon B., who was already on probation, was charged with Assault First Degree (a Class B felony) as a result of that incident. (Petitioner's Exhibit E.) Shannon B. alleged to DCF around that time that she had endured verbal and physical abuse from Jonathan P. when the father was under the influence of alcohol. (Petitioner's Exhibit D, p 2.) Both respondents admitted to DCF that they had previously sold and used illegal drugs. (Petitioner's Exhibit D, p. 2-3.)
Shannon B. had prior convictions in 2006 for driving under the influence of liquor and drugs, and in 2007 for possession of illegal narcotics. (Petitioner's Exhibit E.) She was convicted on March 9, 2009 at Superior Court GA-14 in Hartford on the count of Assault First Degree for stabbing Jonathan P. (Petitioner's Exhibit E.) Jonathan P.'s criminal history was also introduced into evidence during this trial. He has been convicted of two counts of possession of marijuana, and has a pending charge of disorderly conduct. In 2007, Jonathan P. was sentenced to four months' imprisonment for probation violation. (Petitioner's Exhibit E.) The DCF social study that was submitted into evidence during this trial states that both respondents ". . . have unresolved substance abuse and mental health [histories]. Both parents have a history of a relationship with characteristics of domestic violence." (Petitioner's Exhibit D, p. 4.)
The evidence at trial established that Shannon B., who is 24 years old, has an extensive history of poly-substance abuse. The mother admitted to a DCF social worker that she began using marijuana, alcohol and Ecstasy when she was 13, and that she heavily abused the drug PCP in her early 20s. (Petitioner's Exhibit D, p. 2.) She informed DCF that she had ceased using drugs when she became pregnant with Jonaya. (Petitioner's Exhibit D, p. 2.)
Following Shannon B.'s arrest on the stabbing charge, Jonaya was initially voluntarily placed with her maternal great grandmother. (Petitioner's Exhibit A, p. 4.) Since February 2009, the child has lived continuously with her maternal great aunt, Catherine C. When Jonaya was committed to DCF's custody in July 2009, the petitioner approved Catherine C.'s home as a relative foster care placement for the child. The child has now lived with Catherine C. and her family for 23 months.
At the neglect commitment hearing on July 14, 2009, Judge Dannehy issued specific steps orders to both respondents and to DCF. (Petitioner's Exhibit B.) Jonathan P. was ordered to undergo a substance abuse evaluation, to visit the child as often as permitted by DCF, and to cooperate with designated service providers. DCF subsequently made referrals for Jonathan P. to receive substance abuse assessment and treatment at ADRC, domestic violence counseling and individual counseling at Catholic Charities and parenting classes at the Klingberg Center.
Clear and convincing evidence at trial proved that Jonathan P. never participated in any of the designated services that were offered to him by DCF. (Petitioner's Exhibit C, p. 2.) The foster mother, Catherine C., testified that Jonathan P. visited with Jonaya on July 4, 2010, and attended the child's birthday party in August 2010. Per Catherine C., the father has not seen the child at all from last August through the day of trial. Although Jonathan P. told the foster mother that he would visit Jonaya this past Christmas, he did not do so. Although the father brought a present to the child on her birthday last August, he did not send her a gift at Christmas, and he has not sent any other gifts, cards or letters to the child at any other time while she has been in foster care. Catherine C. also testified that Jonathan P. does not contact her to inquire about the child's well-being. The court found the foster mother's testimony to be credible, and accepts it as fact.
During 2009, Shannon B. was initially ordered by her probation officer to enter long-term residential drug treatment at the Daytop Center in Bridgeport. When Judge Dannehy issued specific steps orders on July 14, 2009, the Daytop program was specifically listed in the order as a service provider where the mother would receive wrap-around substance abuse treatment, mental health counseling and parenting instruction. (Petitioner's Exhibit B.) This court infers from this evidence that both the court and DCF believed the treatment which the criminal court required Shannon B. to attend would also further her rehabilitation and reunification efforts in this case. There was credible evidence at trial that Shannon B.'s involvement with the criminal justice system was related to her substance problems, and that she would benefit from participation in long-term residential substance abuse treatment. (Mother's Exhibit 1.)
Shannon B. voluntarily testified during this trial. She testified that she was unsuccessfully discharged from the Daytop facility after she used PCP and left the program without permission. After the respondent was unsatisfactorily dismissed from treatment at Daytop, her probation officer referred her to a New Haven-based residential treatment program and ordered her to cooperate with placement there. Shannon B. entered the Elm City Women and Children's Center on July 31, 2009. (Mother's Exhibit 6.) This facility offers "a 6-12 month residential substance abuse treatment program for women who have involvement with the criminal justice program." (Mother's Exhibit 6). Shannon B.'s adjustment at the Elm City Women and Children's Center was initially very positive for approximately four months. (Mother's Exhibits 6 and 7.) However, on December 2, 2009 facility staff found the respondent passed out and holding a bottle of 3-M Dust Remover. (Mother's Exhibit 8.) The court infers from this evidence that Shannon B. inhaled a form of aerosol gas that caused her to become intoxicated and lose consciousness. The respondent, who was scheduled to appear in criminal court on December 3, 2009 "absconded" from the Elm City Women and Children's Center at approximately 9 p.m. on December 2, 2009. (Mother's Exhibit 8.) She did not complete the program there and was unsatisfactorily discharged.
As a result of her unsuccessful discharge from the two residential substance abuse programs, the respondent was charged with violation of probation and incarcerated. (Petitioner's Exhibit D, p. 9.) Her criminal history record from the Connecticut Department of Public Safety indicates that Shannon B.'s probation was violated on April 1, 2010. (Petitioner's Exhibit E, p. 3.) She has been continuously incarcerated at the York Correctional Center in Niantic since December 30, 2009.
Shannon B. has visited with her daughter one time per month since she was imprisoned. DCF initially transported the child to the prison for these visits, but the bulk of the visits have been facilitated by the foster mother, Catherine C. Credible evidence presented at trial established that Shannon B. has interacted appropriately with Jonaya during these contacts.
The respondent mother testified credibly that while incarcerated, she has enrolled in the following group programs offered by the Department of Correction at Niantic: the "Thinking For A Change" and "Target" programs, which offer behavior modification instruction and dialectical behavior therapy; a vocational program, a mother's support group and a grief and loss support group. She has not yet finished the programs, but is close to completing several of them. Shannon B. testified that she is on the waiting list to participate in the substance abuse and alternative to violence group programs that are offered at York Correctional Center.
During the past eight months, Shannon B. had three disciplinary "tickets" for violation of prison rules. She was cited for possession of contraband, fighting with another prisoner, and use of insulting language. She was found responsible for each of these infractions during administrative proceedings at the correctional facilities. Her punishments for these violations included two, seven-day periods of confinement in the prison's administrative segregation unit. If she is granted parole, Shannon B.'s earliest possible release date would be September 9, 2011.
Pursuant to C.G.S. § 17a-122(j)(1), the court is required to determine in a termination proceeding whether or not DCF made reasonable efforts to reunify the child with her parents. "Reasonable efforts means doing everything reasonable, not everything possible." In Re Jessica B., 50 Conn.App 554, 566, (1998). Clear and convincing evidence at trial proved that DCF made reasonable efforts to reunify Jonaya with the respondent father. The petitioner offered Jonathan P. substance abuse assessment and treatment, domestic violence counseling, individual mental health counseling, parenting classes and visitation. The evidence established that the respondent father, who did not appear at trial, turned down all the program services offered by the petitioner and visited the child only on a few occasions. That evidence also prompts the court to find that Jonathan P. is unable or unwilling to benefit from reunification efforts.
Because of her involvement with the criminal justice system, both DCF and the juvenile matters court initially determined that the bulk of Shannon B.'s reunification services would be provided in conjunction with the rehabilitative services provided to her by the probation officials. Shannon B. was to receive substance abuse therapy, domestic violence counseling, and mental health counseling at the Daytop and Elm City residential programs. Unfortunately, Shannon B. was unable to complete either program and was unsatisfactorily discharged from both after relapsing and leaving the treatment facilities.
Since her incarceration in December 2009, the respondent has been limited to participation in the rehabilitation programs offered by the Correction Department that are listed above. During her residence at the treatment facilities and the prison, the respondent had visits with her daughter that were facilitated either by DCF, or the foster mother. Under the totality of the circumstances, the court finds as proven by clear and convincing evidence that the petitioner made reasonable efforts to reunify the child with the respondent mother.
DCF has alleged as a ground for termination that both respondents have failed to achieve the degree of personal rehabilitation that would encourage the belief that they could assume a responsible position in the neglected child's life within a reasonable time. In ruling on this allegation, the court is required to consider the age and needs of the child. C.G.S. 17a-112j(3)(B). "Personal rehabilitation . . . refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child." In Re Dylan C., 126 Conn.App. 71, 88 (2011), citing In Re Trevon G., 109 Conn.App. 782, 789 (2008). In order to meet its burden of proof with respect to such an allegation, the petitioner must demonstrate by clear and convincing evidence that the respondent's level of rehabilitation ". . . 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 and internal citations omitted). In Re Dylan C., Id.
The evidence at trial established that Jonaya is now two years and five months old. She has been in foster placements for more than two years, and was adjudicated as a neglected child by the court on July 14, 2009. She needs a stable and permanent home. The evidence at trial established that both parents required substance abuse, mental health, and domestic violence treatment/counseling at the time the child left their care in 2008. Each party's successful completion of the services outlined in Judge Dannehy's specific steps orders was essential to the child's safety and well being, and a prerequisite to parental reunification. Jonathan P. has not engaged in any of the services offered by DCF, and he did not offer any proof at trial that he had otherwise engaged in any meaningful effort to rehabilitate.
The evidence at trial also proved that Shannon B. was unsatisfactorily discharged from the two, intensive residential substance abuse treatment programs to which she was referred, and that she has not completed the substance abuse, domestic violence and individual counseling that was mandated in the specific steps orders. Her violation of criminal court orders resulted in further incarceration that has impeded both her rehabilitation efforts and her contact with Jonaya. The respondent has commendably enrolled during the past year in a number of programs offered by the Department of Correction. But she has also received three disciplinary infractions during the past eight months, and her earliest possible release date is at least seven months away. As our Appellate Court recently noted: "The linchpin to a determination that rehabilitation has occurred necessarily includes a finding that the parent can begin or resume parenting within a reasonable period of time. The question is not simply one of rehabilitation, it is whether the respondent can meet the needs of the child within a reasonable time." In Re Dylan C., p. 81-82.
Given Jonaya's age and need for permanency, the length of time that she has already spent in foster placements, the mother's history of failed participation in two residential substance abuse programs, the nature of her other rehabilitative efforts to date, which the court finds to be insufficient, and the length of time remaining on her current sentence of imprisonment, the court finds that the respondent will not be able to parent Jonaya within a reasonable period of time.
With respect to both Jonathan P. and Shannon B., the court finds that DCF has proven the alleged adjudicatory ground of parental failure to rehabilitate by clear and convincing evidence.
DCF also alleged the two additional statutory grounds of abandonment and lack of ongoing parent-child relationship in the termination petition which it filed concerning Jonathan P. As defined in the statute, abandonment means ". . . that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child." C.G.S. § 17a-112(j)(3)(A). By statute, no ongoing parent-child relationship 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 . . ." C.G.S. § 17a-112(j)(3)(D). In determining that no ongoing parent-child relationship exists, the court is also required by statute to make a finding that ". . . to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child." Id. The biological father has not visited the child since last August, and only had a few contacts with her during the entire time that she has been in foster placement. Catherine C.'s credible testimony proved that Jonaya does not regard Jonathan P. as a parental figure. With the exception of the birthday present that he brought to the child's party last summer, Jonathan P. has not given the child gifts and he did not visit with her during the recent Christmas season, despite telling the foster mother that he would do so. The court credits the foster mother's testimony that the father does not contact her to inquire about Jonaya's well-being. Jonathan P. did not attend the TPR trial, and did not contact his lawyer or the court to explain his absence. The child has been in foster care with relatives for more than two years, and needs a permanent and stable home. Jonathan P. has never offered a permanency plan for Jonaya other than foster care. Based on the forgoing evidence, the court finds that DCF has proven clearly and convincingly that Jonathan P. abandoned Jonaya, and lacks an on-going parent-child relationship with her, as alleged in the termination petition.
FACTUAL FINDINGS RE DISPOSITION
Having determined that the petitioner has proven adjudicatory grounds for termination of parental rights against each respondent by clear and convincing evidence, the court next considers the issue of disposition. DCF must also prove by clear and convincing evidence that termination of parental rights is in the child's best interests. Pursuant to the provisions of C.G.S. § 17a-112(k), the court must make and consider the following seven factual findings in conjunction with its determination on the issue of disposition.
1. The timeliness, nature and extent of services offered, provided and made to the parents and child to facilitate reunification. Jonathan P. was offered the following services by the petitioner: substance abuse evaluation and treatment at ADRC and mental health counseling, anger management counseling and a parenting program at Catholic Charities. He did not participate in any of the services offered by DCF. His visitation with the child was minimal, and he has not had contact with Jonaya since last August. Because Shannon B. was ordered to cooperate with placement at a residential substance abuse program by Adult Probation, DCF and Judge Dannehy agreed that the mother could utilize services offered by the treatment facility in order to achieve reunification with the child. Shannon B. was referred to the Daytop and Elm City Women and Children's facilities, where it was envisioned that she would receive substance abuse treatment, domestic violence counseling and mental health treatment. Unfortunately, the respondent did not satisfactorily complete either of those programs, and was ultimately incarcerated as a direct result of her failure to do so. While she has been incarcerated during the past year, Shannon B. has participated in various programs at her correctional facility. During her stays in the residential treatment facilities and her imprisonment, Shannon B. was afforded visits with Jonaya. The court finds as proven by clear and convincing evidence that the petitioner and/or other state agencies have offered timely, appropriate and extensive reunification services to both respondents.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the Federal Adoption and Child Welfare Law of 1980, as amended. As recounted above, both respondents were offered appropriate services and visitation by DCF in an effort to reunify the child with her parents. The court finds by clear and convincing evidence that the petitioner made the reasonable efforts mandated by Federal law.
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. Clear and convincing evidence at trial established that the petitioner complied with the specific steps orders issued in July 14, 2009 by Judge Dannehy. Based on the clear and convincing evidence at trial, the court finds that Jonathan P. did not cooperate with any of the services offered by DCF, did not participate in counseling and make progress toward identified treatment goals, and did not visit Jonaya as often as permitted by DCF. The court also finds as proven by clear and convincing evidence that Shannon B was non-compliant with some of the specific steps orders because she had further involvement with the criminal justice system, abused substances on two occasions, did not successfully complete two residential substance abuse treatment programs, and did not receive other mandated services as a result of her failure to complete residential treatment and incarceration. Although the respondent has appropriately visited with the child on a monthly basis, and is currently enrolled in various programs offered by the Department of Correction, she has yet to complete the intensive substance abuse treatment and domestic violence counseling as required by the 2009 specific steps orders.
4. The feelings and emotional ties of the child with respect to the child's parents, and any person who has exercised physical care, custody and control of the child for at least one year and with whom the child has developed significant emotional ties. The court finds as proven by clear and convincing evidence the following facts: The child has had little contact with Jonathan P. during the past year and does not regard him as parental figure. No significant emotional bond exists between the child and her biological father. Jonaya has visited with Shannon B. monthly during the past year. The child knows Shannon B. and refers to her as "Ma," although the foster mother credibly testified that Jonaya addresses several people by that name.
Jonaya, who is two years and five months old, has resided continuously in her present foster home for almost two years. A close emotional relationship exists between the child and the foster parents, and a foster sibling, to whom the child looks for comfort. The totality of the evidence established that Jonaya is doing well in the foster home, is psychologically bonded to her foster mother and foster father, and views them as the primary parental figures in her life.
5. The age of the child. Jonaya was born on August 16, 2008. She is two years and five month old.
6. The efforts each parent has made to adjust such parent's circumstances or conduct or conditions to make it in the best interests of the child to return such child to the parental 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. Jonathan P. failed to attend any of the reunification programs that DCF offered. He has not visited Jonaya since last August, and has had only a few visits with the child since she has been in foster placement. He did not attend this trial and has not offered any alternative placement plan for the child. The court finds based upon clear and convincing evidence that Jonathan P. has not made any significant effort to adjust his circumstances, conditions or conduct so that Jonaya could be returned to live with him at any time in the foreseeable future. Due to her failure in the two substance abuse programs and her incarceration, Shannon B. has been unable to parent Jonaya since her arrest in December 2008. Although she enrolled during the past year in group programs offered by the Department of Correction, and has visited with Jonaya as often as permitted, Shannon B. still has not completed the needed residential substance abuse treatment and domestic violence counseling that was ordered in July 2009. The respondent will remain incarcerated for at least another seven months. During her incarceration, she has received discipline for three prison infractions that included fighting, use of insulting language and possession of contraband. These incidents lead the undersigned to conclude that Shannon B. is still struggling with some of the personal and behavioral issues that initially led to respondent's involvement with the criminal justice system and Jonaya's removal from her care. The court finds that although Shannon B. has made attempts at rehabilitation, she has not sufficiently adjusted her circumstances, conduct or conditions so as to make it in the best interests of the child to return such child to the mother in the foreseeable future As our Appellate Court recently noted: "It is an unfortunate reality that sometimes parents fail to take the steps necessary to achieve personal rehabilitation until the petitioner has filed a petition to terminate parental rights and there is little time to do the needed work." In Re Dylan C., id., p. 90.
7. The extent to which the parents have been prevented from maintaining a meaningful relationship with the child by the unreasonable acts or conduct of the other parent or the child, or the unreasonable acts of any other person, or by the economic circumstances of the parents. The evidence presented at trial did not reveal the existence of any such acts, conduct or circumstances.
Although Jonaya was committed to DCF's custody in July 2009, she has resided outside of the parental home since December 2008. The child, who is two years and five months old, has lived continuously with Catherine C. and her family for almost two years. Catherine C. is the maternal aunt of Shannon B. and the great aunt of Jonaya. The DCF social study indicates that Jonaya's physical and emotional needs are being met by the foster parents, with whom the child has "established a very positive and nurturing relationship." (Petitioner's Exhibit D, p. 14.) The foster parents are willing to adopt Jonaya. Clear and convincing evidence at trial established that Jonathan P. has not been significantly involved in the life of the child. Clear and convincing evidence at trial indicated that Shannon B. has historically had problems involving substance abuse and domestic violence. These unresolved issues are directly related to the mother's inability and unavailability to parent the child for the past two years. Since December 2008, Shannon B. has failed to satisfactorily complete two residential substance abuse treatment programs, and she has not completed domestic violence counseling, all as required by the court's specific steps. The mother will not be eligible for release from prison for at least another seven months. This court is mindful that incarceration alone is not a sufficient basis for the termination of parental rights. In Re Devon W., 124 Conn.App. 650 (2010), citing In Re Juvenile Appeal, 187 Conn. 431 (1982). However, in the present case, the respondent's volitional actions in abusing substances and leaving the treatment facilities contrary to the stipulations of her probation caused her to be imprisoned, and made her unavailable to the child. As our Appellate Court has also noted, incarceration may prove to be an obstacle to reunification due to a parent's unavailability. In Re Devon W., Id. Furthermore, the circumstances surrounding Shannon B.'s failed treatment efforts, her violation of probation, and her disciplinary infractions in prison, all cast doubt on the mother's ability to reform her conduct, and to successfully reunify with the child. Given Jonaya's age, need for a permanent and stable home, and the length of time that she has already spent in foster care, the court finds that it would be detrimental to the child to delay permanency planning for her any further. Having considered all of the evidence, this court finds that the petitioner has proven by clear and convincing evidence that it is in the best interests of the child that the parental rights of both respondents be terminated.
It is hereby ORDERED that the parental rights of Shannon B. and Jonathan P. with respect to the child Jonaya P. are hereby terminated.
The court further ORDERS that the Commissioner of the Department of Children and Families is appointed the statutory parent of Jonaya P., and is ordered to pursue the adoption of said child as expeditiously as possible. The court ORDERS said Commissioner to file all Motions for Review of Permanency Plan, Permanency Plan and Quarterly Status Reports pertaining to this child on a timely basis as required by law until said child is adopted. The court also ORDERS said Commissioner, and the Probate Court that processes said child's adoption, to immediately notify the clerk of this court when Jonaya's adoption is finalized.
SO ORDERED.