Opinion
H14CP12010593A.
11-21-2012
In re JOSHUA F.[1]
UNPUBLISHED OPINION
KELLER, J.
This matter involves trial on coterminous petitions alleging neglect of the minor child, Joshua F., born January 30, 2012, and seeking to terminate the parental rights of Anju F. and John G. On February 1, 2012, the Honorable Marcia Gleeson signed an ex parte order vesting Joshua's temporary custody with the commissioner of the department of children and families. Judge Gleeson found that Joshua was in immediate physical danger from his surroundings. On that same day, the petitioner filed these coterminous petitions. On February 10, 2012, at the preliminary hearing on the order of temporary custody, the respondent mother and father appeared, were advised of their rights, and appointed counsel. Both parents agreed to sustain the order of temporary custody and entered pro forma denials to the neglect and termination allegations. Preliminary specific steps were issued for the department and mother on February 10, 2012. After paternity was established by genetic testing, Judge Gleeson adjudicated John G. as Joshua's father and issued preliminary specific steps for the department and father on March 29, 2010. Both parents signed the preliminary specific steps.
Both parents were duly served at their usual abodes with notice of the coterminous petitions. In addition, on February 10, 2012, each parent waived, through counsel, any defects in service. The court is not aware of proceedings pending in any other court regarding the custody of this child, and this court has jurisdiction. Neither parent claims Native American affiliation and the requirements of the Indian Child Welfare Act, 25 U.S.C. §§ 1901 et seq., are not applicable.
Father's abode as of the date of service was the Garner correctional facility.
I
FACTUAL FINDINGS
At trial, the petitioner presented the testimony of six witnesses and introduced 23 exhibits. The petitioner's witnesses were: Kimberly Koeppen, Jessica Nordland and Ryszard David Mrotek, all department of children and families (the department) employees; Dr. Stephen Humphrey, a clinical psychologist who evaluated mother for the court in 2009; Dawn von Mayrhauser, a social worker at the University of Connecticut Health Center; and Andreia Almeida, an employee of Community Residences, Inc. in Southington. Mother testified and introduced no exhibits. Father called no witnesses and introduced 5 exhibits. The child's attorney called no witnesses and introduced no exhibits. The credible and relevant evidence admitted at trial, including the items judicially noticed by the court, supports the finding of the following facts:
During the trial, the court indicated it was taking judicial notice of all facts requested by the petitioner in her motion dated October 25, 2012, court memoranda of hearing and prior court orders, including specific steps, and the filing dates of the various pleadings in Joshua's file. The court also indicated it would take judicial notice of any written or transcribed decisions pertaining to the granting of petitions to terminate mother's and/or father's parental rights to Antoine S. and Anthony S. No party posed any objection to the court taking judicial notice of these items.
Mother, Anju F., is 24 years old. Due to a history of conflict with her adoptive mother, she moved out of her family home when she was 17 years old. She claims to have been physically abused by her adoptive mother, Joshua's maternal grandmother. When she and maternal grandmother would argue, maternal grandmother would hit mother with whatever she could find, including pots, pans and her fists. Mother has a high school diploma and reports she was an average student, although she was in a special education class due to a learning disability she cannot identify. She has a high school diploma and also attended community college for a few months. She was involved in work programs during high school and worked at both Walmart and Target stores. She stocked shelves, priced products and assisted customers. She only worked at Target for two weeks because she was fired after calling in sick too many times. She has not held a job since 2009, and currently receives Supplemental Security Income disability payments, state health insurance and food stamps. Her adoptive father also contributes to her support. Despite her entitlement income, she has had great difficulty over the past few years maintaining a stable residence. At times, she has been homeless and had to reside in shelters. Mother's first boyfriend was father, John G., whom she has known since elementary school. She said they broke up the first time because he kept cheating on her. At age 16, while dating John G., mother became pregnant by another boy, but terminated the pregnancy because her parents insisted she was not ready to have a child.
Mother has never been married. She has a pattern of short-lived, sometimes volatile relationships with men of questionable character, which have resulted in at least 5 pregnancies. She is diagnosed with cerebral palsy and was recently recommended a wheelchair due to the extent of her limited mobility.
Mother also suffers from an adjustment disorder with depressed mood, as diagnosed by Wheeler Clinic and the court evaluator, Dr. Stephen Humphrey. She has a history of marijuana usage, but there is no evidence she has used any other illegal substances.
Father, John G., is 23 years old. Father was committed as a delinquent to the department when he was fifteen or sixteen. In 2005, a referral was made to the department hotline by his juvenile probation officer due to concerns about his out-of-control behavior. He was reportedly violent toward his mother, suspended multiple times from school and was expelled at least once. His mother attempted to work with voluntary services through the department for John. He received some services through Wheeler Clinic and the Department of Mental Retardation. As a youth, he was diagnosed with oppositional defiant and attention deficit disorders. He spent approximately eight months at a residential treatment program, Lake Grove School, after being committed as a delinquent. The school provides a clinical day school program, but he never attained a high school diploma. Although father told department worker Nordland he was going to work toward a G.E.D. while incarcerated, there is no evidence he has done so. He has not worked for the last two or three years. His last two employments were fast food restaurants. Father was married previously, but his wife filed for divorce within two years. He has known mother since elementary school and they have been in a relationship " off and on" for years. He indicated that it does not bother him that she has had children with other men during their time together, as he has been with other women. Apparently, mother's expecting a child by someone else and his claim that she fraudulently used his identity to obtain several cell phones do not bother him either. As of the date of trial, he and mother were planning to resume their relationship and get married. Mother has been writing him at the correctional facility, where he has been incarcerated since the end of 2011. Father is now serving a sentence based, in part, on convictions for two counts of risk of injury to a minor involving several incidents of sexual contact with a fourteen-year-old girl. These incidents occurred in September and October 2011, when mother was obviously pregnant with Joshua. His projected release date is sometime in February 2013. After he serves eighteen months of a seven-year suspended sentence, he has three years of probation to serve. He has previously been on probation for larceny in the fifth degree, which he violated twice in 2011, before the incidents with the teenage girl. Mother, who routinely fails to keep her own appointments, indicated she would have to accompany him to his appointments with his probation officer to make sure he did not miss them. Father received an unspecified sentence for violation of probation in April 2011. On June 26, 2012, one other outstanding case for violation of probation was resolved on the same date he was convicted on the risk of injury charges. In addition, he also has allegedly impregnated mother's roommate, Jennifer, with a child, Aaron G., who was born in December 2011, just a month or two prior to the birth of Joshua. The department is monitoring Aaron's care and considers him at risk. The paternity issue had not been resolved as of the date of trial.
During the pendency of the case of Anthony S., the issue of father's competency to stand trial was raised, but never resolved, because father failed to attend several scheduled competency evaluations and eventually, a default judgment was entered against him. In this case, no party has raised the issue of father's competency. There is no evidence that a person qualified to do so has ever indicated father is not competent to understand the nature of the proceedings or to assist his court appointed counsel, or any specific factual allegations that the father could not understand the nature of the proceedings or assist counsel in his defense See In re Azareon Y., (2012) (opinion to be officially released on December 4, 2012). In addition, father is incarcerated because he was capable of entering pleas to two counts of risk of injury to a minor and violation of probation on June 26, 2012.
Mother's involvement with the department began in 2007 when she gave birth to her son, Antoine S., born on December 21, 2006. Mother was only eighteen at the time. The child's father, Andrew S ., was abusive and controlling of mother. Mother reports being struck on several occasions during the course of this relationship, which lasted for several years. As soon as Antoine was born, hospital personnel made a referral to the department, expressing concern that mother could not independently care for the newborn baby. The Visiting Nurse Association (VNA) also had been to the home where mother and Andrew S. resided and did not assess it as appropriate for the child. The department obtained temporary custody of Antoine on January 22, 2007. Mother was provided with services to promote reunification with Antoine, however, little progress was made after a nearly two-year effort. Mother's and Andrew S.'s rights to Antoine were terminated on November 19, 2008. Mother consented to this termination.
The department received a second referral on May 24, 2009, following the birth of mother's second son, Anthony S., who was born on May 23, 2009. Shortly before Anthony was born, mother still was residing with Andrew S., the father of Antoine, and several domestic violence incidents had led to the issuance of protective orders to safeguard mother from Andrew S.'s abuse. Again, hospital personnel had concerns about mother's ability to perform basic childcare tasks and determined she was incapable of independently caring for the newborn Anthony. However, this time, mother was given an opportunity to parent Anthony with full-time supervision, and he was discharged home. The department required that mother and Anthony's maternal grandmother, June F., agree to a safety plan in which June would provide twenty-four-hour supervision of mother's care of Anthony. Unfortunately, when Anthony was only a little more than one week old, maternal grandmother left the home due to an argument with mother and was no longer willing to supervise mother's care of Anthony. At that point, there was no one suitable available to supervise mother's care of Anthony, and the department sought and obtained his temporary custody.
Initially, mother incorrectly named Andrew S. as Anthony's father. It was later confirmed by genetic testing in 2010, when Anthony was around 6 months old, that Anthony's biological father is John G.
Services to achieve reunification with Anthony were offered to mother and father; however, neither parent was compliant and made no progress toward reunification. Mother was referred by the department for substance abuse and mental health evaluations and parenting classes. She also was to address her domestic violence victimization. Kimberly Koeppen, the department worker assigned to Anthony's case, observed some of mother's visits with Anthony. During these visits, Koeppen would observe Andrew S. controlling mother, ordering her around and making demands of her. In June 2009, a physical and occupational therapy evaluation recommended certain modifications to help mother with her care of Anthony. During the supervised visits, the department made the suggested modifications. Mother was advised that continued physical and occupational therapy could strengthen her arms and legs and improve her ability to hold and carry the child. Mother attended an intake with Easter Seals for therapy in late 2009, but by the end of December, she had been discharged for lack of compliance. There were several other referrals by her physician to other therapeutic entities between March 2010 and June 2011, but mother failed to regularly attend any of them. She also did not keep consistent contact with the department and moved around a lot after being evicted from an apartment she shared with Andrew S. in January 2010. She often failed to charge her cell phone, or the phone number would change because she had lost her cell phone. Even after Anthony was removed, the VNA and Wheeler Clinic Intensive Safety Planning program, initially put into mother's home to preserve her custody of him, were willing to continue to work with mother, but she chose not to work with them. In June 2009, the department tried to engage mother in the Bristol Hospital Parent-Child Center to provide hands on parenting during supervised visits. That program started in August 2009 and ended in March 2010. It worked with mother during her supervised weekly visits. Toward the end of the program, the parent educator recommended that visits be reduced because mother had a hard time soothing Anthony during visits. Mother would frequently arrive late or leave early. After this program ended, the department was unable to refer mother to another parenting program due to her lack of consistent visits. Mother did not visit Anthony from May 25, 2010 to September 2010. She became pregnant again and visited only sporadically from September 2010 to January 2011, when her daughter, Aliannah, was born.
Mother could never be referred by the department for a supportive housing program because she never met the criteria of being close to reunification with any of her children, compliant with services and financially capable of maintaining an apartment long-term if provided assistance with a security deposit.
Mother was given a referral for individual therapy at Community Mental Health Affiliates to work on her coping skills and her poor relations with others. She did not attend consistently and was discharged in December 2009 for not keeping contact with her therapist or attending appointments. Subsequently, Koeppen stressed to mother the importance of getting treatment, and mother agreed she would comply, Koeppen referred her for an Advanced Behavioral Health (ABH) evaluation at the Wheeler Clinic in January 2010. This evaluation was to address mother's substance abuse and mental health needs. During the assessment, mother tested positive for marijuana. Intakes for treatment were scheduled at Wheeler in February, March and June 2010, which mother did not attend. She finally attended in October 2010 and was recommended for the Women and Healing group at Wheeler's Lifeline Clinic. This was group therapy to address mother's past trauma and improve her coping skills. It was a twelve-week program, but mother did not attend and was discharged unsuccessfully in December 2010. After that, Koeppen had a difficult time scheduling any further evaluations, as she was unable to contact mother. At some point, after an altercation with maternal grandmother led to mother's arrest, mother was referred by family relations for another evaluation at Wheeler to address anger and substance abuse issues in May 2011, but by July 2011, mother was discharged for failure to attend.
On November 10, 2009 Dr. Stephen M. Humphrey, a licensed clinical psychologist, pursuant to court order, conducted an evaluation of mother and also observed mother's interaction with Anthony S. During his interview with mother, Humphrey noted that mother speaks in a childlike voice and smiles often. He observed her markedly unsteady gait and obvious gross motor deficits. She was slow to initiate verbal output and her speech was stilted; however, she was easily understood once she began to talk, and had a good vocabulary. Her responses were focused and appropriate.
Humphrey also evaluated Andrew S., who was still identified as Anthony's father on the date of the evaluation. Much of the portions of the evaluation pertaining to Andrew S. were redacted by agreement.
Mother explained to Humphrey that when Antoine was born, he was premature and ended up being in the hospital for his first two months. She admitted that maternal grandmother was also hospitalized at the same time, so she probably did not spend as much time with Antoine in the neonatal intensive care unit as the department considered appropriate.
Mother described Andrew S.'s abuse to Humphrey. Andrew would always control her in everything she did. If she cooked something, and he did not think she cooked it right or measured it wrong, he would get mad and throw things. She added that sometimes he would hit her for no reason. He punched her in the head a few times. Once, he knocked her down because she would not miss work on Black Friday. She admitted she experienced some symptoms of depression when Antoine and Anthony were born, adding that the abuse by Andrew S. would increase her depression. She admitted to post-traumatic anxiety based on abuse perpetrated on her by Andrew S. and maternal grandmother. Mother said, " Sometimes I can see flashes of how Andrew used to hit me and everything." Mother told Humphrey that despite Andrew S.'s verbal and physical abuse, she had reunited with him and would have married him if a justice of the peace had returned her call. Mother told Humphrey that she planned to allow Andrew S. to move back in with her to help with Anthony.
Mother described the short-lived services she had received from the VNA and Bristol Hospital Parent-Child Center when Anthony was still home with her. Unfortunately, she never finished them. She acknowledged the services were helpful, and that certain aspects of Anthony's care were not possible for her without the assistance of another person, including putting him in his car seat and stroller and bathing him. She insisted that she could change his diaper, feed and put him to sleep by herself. Despite acknowledging that at times she needed help with the baby, she admitted she had asked maternal grandmother to leave her home at the end of May 2009, which led to the removal of Anthony. She also identified her counselor at Community Mental Health Affiliates (CMHA) in New Britain, another service she would fail to complete.
As part of his evaluation, Humphrey reviewed a letter from Anthony's pediatrician, Dr. Holly A. Frost, regarding mother's childcare ability. Dr. Frost indicated that during Anthony's 48-hour check-up, mother was unable to answer questions about his care, had not yet given him a sponge bath or mixed him any formula. Frost also noted that Anthony's circumcision wound was not appropriately dressed. She was also concerned that mother had not yet contacted the WIC program, which would assist with the purchase of necessary items for the baby. Frost also expressed concern about mother's response to Anthony's crying while he was in the examination room. Mother made no effort to comfort the baby, even after Frost prompted her to pick him up.
Humphrey learned that mother's friend, Jennifer Fitzpatrick, was also living with mother while Anthony was in her care. Fitzpatrick reported that mother was not bathing Anthony regularly and that she did not clean his bottles, necessitating the cleaning by Ms. Fitzpatrick. Mother admitted she was afraid to bathe Anthony because she might hurt him.
Humphrey talked to Dorothy Contrastano of the Bristol Hospital Parent-Child Center, who was designated as a collateral contact for purposes of the evaluation. She had supervised visits between mother and Anthony while also providing hands-on parenting education. She said mother's physical limitations became very evident when Andrew S. was no longer visiting with her, and these limitations really hindered the visit. She noted that mother was unable to lift Anthony off the floor or to carry him. She said she had been very open with mother about her concerns in this regard, and referred mother to Easter Seals for physical therapy, but mother only went once and did not follow through. Contrastano said that despite mother's claim to the contrary, she could not change a diaper by herself. The difficulties she had walking made it very hard for her to keep up with the toddler. Contrastano also said that 99% of the time, visits would be concluded earlier than the two hours allotted because mother or Andrew S., when he was attending, would claim illness or declare that the baby was ill. She said they raised multiple complaints the baby was overfed as an excuse not to have to feed him. After a protective order was issued in November 2009, mother was no longer accompanied by Andrew S. during her visits. Around that time, she also started missing visits and would not call in advance. On January 12, 2010, after mother had not visited for a period of time, Contrastano observed mother as unkempt and unfocused during a visit. Contrastano had to soothe and rock Anthony, who had been ill with a respiratory infection, because mother dozed off.
Humphrey observed mother interact with Anthony. Anthony woke up as he was transitioning from his foster mother. He did not cry when he awoke, but began crying when he was handed to mother. Mother held Anthony in her lap. She was unable to perform certain physical tasks while holding him. For example, a toy on which he was teething fell several times, and she was unable to pick it up readily. Humphrey had to help her, because it was clear she had great difficulty holding onto Anthony and retrieving the toys. Mother was attentive but struggled to move Anthony even while he was on her lap. She was able to get a toy from his bag which was next to her on the couch. This soothed him and he became calm.
Humphrey diagnosed mother with adjustment disorder with depressed mood, but of greatest concern to Humphrey were mother's physical disabilities, her involvement in a relationship where domestic violence was a factor and her use of marijuana. He felt mother should be referred for domestic violence counseling to help her understand the elements of domestic violence and the consequences of exposing children to such conflicts. He also felt mother needed individual therapy to address her depression. Most helpful to mother, regardless of whether or not she was caring for a child, would be a service with comprehensive supports, even assisted living, given her physical disabilities. Humphrey indicated that without constant support and assistance, mother would not be able to manage a child in her care. Humphrey noted that based on his observations during the interaction, mother would require help with almost any activity that involved lifting or moving Anthony. Humphrey concluded his report by stating " It is difficult for this examiner to imagine how Ms. F. might care for a child independently given her physical limitations." His additional concerns were the possibility she would re-engage with Andrew S., continue to smoke marijuana, or fail to accurately report on the status of herself and her child.
During the pendency of Anthony's case, after genetic testing revealed Andrew S. was not the child's father, mother named John G. as Anthony's father. Koeppen first met with him in early 2010, six months after Anthony's birth. After John G. missed three appointments for a paternity test, he finally attended one in mid-April 2010, which determined he was Anthony's biological father. By then, Anthony was nearly a year old. Despite this delay, father was allowed to begin visits with Anthony with mother in March 2010. He was referred three times to Wheeler Clinic for an ABH substance abuse and mental health evaluation between April and October 2010, but never attended. He did not attend the majority of his supervised visits with Anthony, and failed to keep his whereabouts known to the department. Koeppen noted he moved around a lot, and it was always difficult to get a hold of him. He instructed her to send letters to his mother's address, which she did, to remind him of various appointments. Father also did not comply with a court-ordered evaluation.
On May 19, 2011, mother's and father's parental rights to Anthony were terminated. Mother consented to the termination of her parental rights. Father did not attend the trial, and a judgment terminating his rights was entered upon his default for failure to appear. The court terminated John G.'s parental rights on the grounds of abandonment and no ongoing parent-child relationship. It noted that in the year preceding the trial on the termination petition, father only visited Anthony seven times when offered weekly visits, and that despite being offered substance abuse evaluations and treatment, transportation assistance, mental health evaluations and services, he failed to cooperate and participate in any meaningful services. Father's lack of effort thwarted the department's efforts and showed no commitment to reunifying with the child. The court ruled, by clear and convincing evidence, that the department had made reasonable efforts to reunify the child with the father, but he was unable or unwilling to benefit from such efforts. See In re Anthony S., Superior Court for Juvenile Matters, Child Protection Session at Middletown, Docket No. H14-CP09-009780A, (May 19, 2011, Bentivegna, J.).
The court took judicial notice of Judge Bentivegna's transcribed, signed oral decision on the termination petition regarding Anthony S. A copy of the transcript is in Joshua's file.
Just before mother and father lost their rights to Anthony, mother gave birth to a third child, Aliannah, on January 11, 2011. Aliannah was removed from her care pursuant to an order of temporary custody on January 13, 2011. Mother named John G. as the father of Aliannah, but a paternity test confirmed that another man, Karl T., was her biological father. Aliannah was quickly adjudicated uncared for and returned to the care of her father under an order of six months protective supervision on April 13, 2011. There were problems, as this protective supervision had to be extended. In December 2011, the court transferred Aliannah's care and guardianship to her paternal grandparents. The evidence does not indicate, what, if any, efforts were made to reunify mother with Aliannah. Mother recently indicated she was going to probate court to obtain visitation of Aliannah, one of her various excuses for missing visits with Joshua.
Mother and father wasted little time conceiving Joshua right around the time their parental rights to Anthony were terminated. On January 30, 2012, the department received a referral from Dawn von Mayrhauser, a social worker at the University of Connecticut Medical Center, regarding newborn Joshua. Joshua was born full term without medical complications. A review of the department case history on mother by the department investigator, David Mrotek, indicated an extensive history with the department, including the termination of her parental rights to two older children and the transfer of guardianship of another. Mother's past issues included transience, substance abuse, mental health issues, domestic violence and failure to engage in recommended services. Mrotek also learned of mother's cerebral palsy, which, as consistently noted during past mother-child interactional observations by department personnel, hospital staff, community providers and Humphrey, the court evaluator, creates a barrier to her ability to adequately perform basic child care tasks, especially given the lack of consistent effort on her part to improve her physical agility and parenting skills. Mother's persistent lack of compliance with services over the past few years had made it difficult to complete an effective evaluation of her potential ability to learn to care for an infant.
On January 31, 2012, Mrotek interviewed mother, who had not yet been allowed direct contact with Joshua due to her need for treatment for scabies and lice. Mrotek observed mother to be very frail, with very limited mobility in both her arms and legs. He was shocked by her physical appearance. Mother displayed limited insight into her understanding of why she was no longer the primary caretaker of her other three children. She claimed she was capable of taking care of Joshua with the help of her two roommates. However, Mrotek determined that these roommates had their own open child protection cases. He did not feel these roommates were an appropriate support for mother. In addition, Joshua's attending physician refused to allow Joshua to return to mother's home until it could be thoroughly disinfected and treated for scabies and lice infestation. Other persons living in the home would need to be examined for scabies as well, which is contagious. Exposure of an infant to scabies is unsafe; mother had to receive medication for twelve hours before the hospital would let her handle Joshua.
Hospital staff also began to observe mother's interaction with Joshua and no one on the hospital nursing staff was comfortable allowing mother to be left alone with the child. Significant concerns regarding mother's ability to maneuver the child, especially if a quick response was required, were noticed. Mother was not allowed to walk alone across the room with the child, as her gait was observed as very unsteady. Even carrying a light blanket while she walked proved difficult for her, as she needed to have her arms free to steady herself. A nurse who offered to demonstrate how to bathe the baby noticed that mother looked nervously at the maternal grandmother. Mother had difficulty picking up Joshua to bathe him. Mother had to lean on the bed to help her stand while she was bathing the infant. She was unable to wash the baby easily, as it was difficult for her to use a washcloth to wipe soap from the baby and rinse the baby off. Mother also had trouble moving the baby to dress him and change his diaper, and she had a problem raising Joshua's head properly to feed him formula. The nurses also noted that during the course of much of the night, mother was not able to provide basic childcare to Joshua due to fatigue, and the maternal grandmother had to assist and feed the child. Mother could only unfasten a diaper after several tries, and had trouble cleaning the baby during the diaper change. She required help holding the baby's legs for cleaning and fastening the diaper tapes. On two separate occasions, in lifting Joshua, mother failed to support his head or neck, despite first being prompted to do so. During the hospital stay, staff determined mother should not to be allowed to care for the baby in her hospital room by herself. It was the nursing staff's opinion that mother would require 24-hour supervision and assistance in order to ensure that the child was safe and his basic needs would be met. As of February 1, 2012, after several days of assessment of mother and Joshua, the nursing staff confirmed that mother was unable to independently provide basic child care to the infant Joshua.
Clearly, the services offered to mother to learn to parent Anthony had no long-term effect in improving her childcare ability, even with respect to the basics.
When Joshua was born, father, John G., was incarcerated at Garner correctional institution. He had been incarcerated since November 14, 2011, facing charges from three separate arrests dating back to July 30, 2011. These charges included sexual assault in the second degree (two counts), risk of injury to a child (three counts), unlawful restraint in the second degree, illegal purchase of liquor for a minor, violation of probation and larceny in the sixth degree.
On March 16, 2012, father was arrested for two other criminal incidents, which charged two counts of sexual assault in the fourth degree, one count of risk of injury to a minor, identity theft, larceny in the fourth degree and false statement in the second degree.
Mrotek spoke with three resources mother identified as persons being potentially able to assist her with caring for Joshua: the maternal grandfather, a couple who were friends with mother, and maternal grandmother. Only one identified resource, maternal grandmother, agreed to try to assist on a " short term" basis. The department rejected maternal grandmother as a relative resource due to the tense relationship between her and mother, which had lead to the violation of the safety agreement required to protect Anthony in 2009. Also, just a few weeks before Joshua's birth, on January 12, 2012, mother and maternal grandmother had been involved in another domestic dispute. Father suggested his sister in Tennessee. Despite mother's objection, the department did initiate a request to that state for an interstate compact study. Officials in Tennessee rejected the proposed placement. Although father advised Mrotek he was the father of Joshua, he agreed with the department's request for a genetic test, which was not unreasonable in light of mother's past misinformation as to the paternity of both Anthony and Aliannah.
Under the circumstances, immediately after Joshua's birth, neither parent could adequately care for Joshua, or provide an appropriate plan for the safe care of a vulnerable infant, and the department sought and obtained temporary custody of Joshua on February 1, 2012. Given the history of both parents with earlier department interventions, and their prior failures to successfully achieve reunification with other children, Mrotek filed coterminous petitions alleging predictive neglect and failure to rehabilitate under General Statutes § 17a-112(j)(3)(E) as the basis for termination.
Department worker Nordland was assigned to Joshua's case on February 10, 2012. Despite the pendency of the coterminous petitions, she encouraged both parents to engage in services. Nordland found it difficult to engage mother during February and March 2012, as mother did not make herself available for home visits or meetings.
After Joshua's birth, mother was living in New Britain in an insect-infested, small apartment with numerous individuals, all with past or current involvement with the department, and a pit bull that Nordland observed mother trying to control with considerable difficulty. Such were the conditions mother proposed as Joshua's first home. Mother told Nordland her roommates would help her care for the baby. One of the women, Patty, had her rights to her own children terminated, and a termination petition on another child was pending. Jamie, Patty's husband, has a criminal history and also had his rights to his own children terminated. Jennifer, who claimed to have given birth to a child, Aaron G., fathered by John G ., had an open department file and Aaron is considered at high risk. The department did not feel it appropriate that mother attempt to care for Joshua with the assistance of these individuals. Mother testified that she had, at times, relied on these purportedly helpful individuals for transportation, but they slept late and caused her to miss or not be on time for appointments. On one occasion, she missed an appointment because they demanded that mother make them lunch. Mother, as Humphrey noted, can be non-assertive and passive, allowing others to control or take advantage of her. Mother testified that Jennifer allowed her to care for Aaron, which is not so much a testament to mother's parenting ability as it is proof of Jennifer's lack of parental responsibility.
By April 2012, all of mother's roommates had moved out, leaving her to pay the rent for a large apartment. Mother at this point had a new fiancé, Pedro V., whom she currently names as the father of the child she expects in February 2013. Pedro also is the father of one-year-old twins, who reside with his aunt in Hartford. Pedro moved in with mother. In June 2012, mother and Pedro allowed the abusive Andrew S. to move back in to help with the rent. It did not take long for conflict to develop between Pedro and Andrew. In July 2012, the police were called and Andrew S. was arrested for physically assaulting Pedro because he was upset that Pedro was allowing too many people in and out of the apartment. This was Andrew S.'s fifth arrest in four years for domestic-related charges. By late August, mother was evicted for non-payment of rent and moved back in with Patty in an apartment in Bristol. Subsequently, she moved around, between family, shelters and friends, until a friend of maternal grandmother's allowed her to live in her ranch home in Farmington. This does not appear to be the kind of constantly supportive arrangement mother requires. The woman sleeps throughout the day and mother refers to her as a " landlord." Mother plans to have father join her there when he is released.
Mother's visits with Joshua have been sporadic. Given her past lack of involvement, the court, at the time of the preliminary temporary custody hearing, ordered that mother could have visits two times a week for two hours if she confirmed every visit twenty-four hours in advance. If she missed the first visit in any week, the second visit was not to take place. Within a month, mother's lack of compliance with this order resulted in her visits being reduced to once a week, as she was calling to confirm, but not showing up. In February, she attended one of five possible visits. In March, she attended only two visits out of a possible nine. On March 20, 2012, Nordland inquired of mother during a visit where she had been for the last month. Mother responded " at home." Nordland talked to mother about the fact that she had not attended parenting classes, a recent administrative case review meeting (ACR), or visits for the last month. Nordland informed mother that Joshua was now nearly two months old and mother had not made any progress toward reunification. When Norland asked her if she realized she had not seen Joshua in over a month, mother acknowledged that fact and laughed. Nordland warned mother a motion would be filed to ask the court to reduce her visits due to her poor attendance. In the months of April, May and June, mother only missed one visit each month, but in July she attended none, and in August and September she attended only one visit in each of those months. Just prior to trial, in October, she attended 3 of 4 scheduled visits. Mother often told Nordland she had transportation problems, although she had been given bus passes when requested, and Nordland consistently offered to have the department transport her. Nordland also referred her to a service, Freedom Ride, which would provide her with free or reduced taxi services, and mother is eligible for a medical cab due to her disability. Mother also would not call in advance to cite any transportation issue; it was always after the visit had been missed. She blames the maternal grandmother's failure to pick her up for a lot of her missed appointments and visits.
For parenting instruction, Nordland referred mother to the Circle of Security, which she was scheduled to start the first week of March. This program met weekly and would require four to six weeks to complete. Mother did not attend the appointment on March 5, 2012. Nordland made a second referral to a Circle of Security group closer to mother's home at her request, which was supposed to start on June 7, 2012, but mother did not attend. In July 2012, Nordland found another Circle of Security parenting group for mother located on the same street on which mother was residing, and again, mother did not attend. Nordland also gave mother contact information for other parenting groups in New Britain at various agencies; mother followed through with none of them.
Mother did begin to receive some parenting instruction from Community Residences Inc., a service that would supervise her visits and provide her with parenting education. This service was in place from May to October 2012, when mother was unsuccessfully discharged due to her inconsistent attendance at visits. The representative of this provider who worked with mother, Andreia Almerida, testified. She worked with mother during mother's visits from May 20 until October of 2012, when the case was closed due to mother's lack of attendance. Mother attended only half of the visits scheduled to be supervised by Almerida. Almerida was to intervene and help mother with necessary parenting skills during the visits. The department had explicitly instructed that mother not be allowed to stand alone with the child or carry him, which, based on Almerida's observations of mother's physical disability, were appropriate restrictions. Although mother knew what to do, she had difficulty feeding, holding, soothing, changing and dressing Joshua without assistance as a result of her physical limitations. As Joshua was getting older, her limitations were making the care of the baby more difficult. Joshua was more mobile and it was harder for mother to manage him. Mother could not just place him in her lap and expect him to sit still. Mother was unable to stand with the baby and to soothe him. There were only so many ways she could position the baby and make him more comfortable. Mother would practice buckling the car seat, but it took her a long time, and she was never able to actually place him in the seat. Almerida indicated she would not recommend that mother care for Joshua without constant supervision due to the limitations she observed in mother over the summer. Her discharge summary, dated October 8, 2012, notes that mother " requires a significant amount of assistance to care for her son."
In April 2012, Nordland discussed with mother the need for physical and occupational therapy, a previously identified need. Mother told Nordland she was not receiving any such therapy, but had an appointment with her physician, Dr. Feingold, a specialist, and he would refer her for physical therapy. This therapy required a medical doctor's referral, so Nordland could not directly refer mother. Mother obtained a referral from Feingold to the Hospital for Special Care in New Britain, and attended an intake on April 30, 2012. She never returned after the intake and was discharged for non-attendance. Nordland encouraged mother to follow up with Feingold for another referral. Mother was then referred to the Easter Seals program in Meriden, which she was to start in August 2012 and attend twice a week. In September, mother advised Nordland Easter Seals would not see her, as her insurance had lapsed. Mother had no explanation as to why her insurance lapsed other than to indicate she had not responded to inquiries from the Department of Social Services (DSS). The lapse was something mother had to personally take care of with DSS. Mother took care of the insurance issue, but then Feingold insisted on seeing her before he would make another referral, as he had not personally seen mother for a while, although he is the specialist who addresses issues regarding her disability. Mother did not see Feingold until October 31, 2012, when she was referred to a therapy service that would come to her home. He also authorized a power wheel chair for her. Mother testified that she had just started with this in home service on Friday, November 5, 2012, one week before trial.
Nordland also encouraged mother to address her mental health issues. In April 2012, mother scheduled an intake at CMHA in New Britain, after missing two previous intake appointments. Mother was assessed and weekly individual counseling was recommended. An ABH evaluation of mother on May 3, 2012 also recommended weekly therapy. The ABH evaluation concluded there was no need for substance abuse treatment for mother. Mother missed several sessions with CMHA and was ultimately discharged in June 2012, after being warned several times that her discharge was imminent due to lack of attendance. Nordland then gave her verbal and written information on how to access other mental health providers, including Catholic Charities and the Hospital of Central Connecticut. Nordland and mother had a conversation on June 15, 2012, and mother indicated she would try to get back to CMHA or pursue services somewhere else. Nordland told her mental health counseling was something she really needed to do. Mother's subsequent excuse for not engaging in mental health treatment was her lack of a phone, which prevented providers from calling her back. Nordland offered to have mother come to the department office to use a phone and also offered to go to mother's apartment so she could use Nordland's phone in July 2012. In August 2012, mother scheduled an intake at the Hospital for Central Connecticut, which the agency rescheduled for September 10, 2012. Mother did not attend the intake on September 10. Mother then missed an intake at the Bristol Counseling Center on September 18, left early as a result of claiming she didn't feel well and had urinated on herself on September 25, and failed to attend a final rescheduled intake on October 5, claiming the medical cab did not pick her up. A new agency for mental health services in Southington was located, and an intake scheduled there for October 22 or 23, but mother did not complete that intake. Mother has not scheduled any mental health appointments since. Mother around this time also had another lapse in her insurance because DSS told mother she did not complete DSS redetermination paperwork. Mother's transience may contribute to her insurance lapses, as she may not always keep DSS apprised of changes in her address.
Mother is currently expecting another child in February. Her plan for Joshua is that she and John G., who is not the father of her expected child, will live together and she can independently handle the care of both a toddler and an infant. Initially, when Nordland suspected mother was pregnant, mother lied to Nordland. It was Pedro who disclosed the pregnancy. When confronted, mother admitted she was ashamed she had not used birth control. She did not even know her due date, as she was not regularly receiving prenatal care.
Mother currently resides in a ranch home in Farmington with a woman who sleeps during the day and works nights. It's not clear how much space mother utilizes, but she intends to bring Joshua, father and the expected child there to live with her. Nordland testified that at the last visit she observed between mother and Joshua, mother could not remove Joshua from a car seat. Nordland had to place him in mother's arms. Mother had difficulty readjusting his positions. She only could slide Joshua off her lap, but could not place him on the floor. She took a long time to change Joshua's diaper, and had a hard time soothing him. The maternal grandmother put Joshua back into his car seat and rocked him in order to soothe him while mother fell asleep.
When she first was assigned the case, Norland sent father a letter providing him with her contact information and advised him to participate in whatever parenting, mental health and substance abuse services were available to him in the correctional facility. She did this a week after the case was transferred to her. She had telephone contact with father in late February, and he indicated he got her letter and had no questions. Nordland also discussed a paternity test with father, and indicated to him he did not have to have his sample drawn, as the testing facility already had his DNA information on file. However, Joshua's sample did have to be taken. Nordland obtained the paternity test results by the end of March, and set up monthly, hour-long visits with father in April. The department case aide who brought Joshua to these visits observed that father needed instruction on basic parenting skills, such as changing and feeding. He also had to be prompted to diaper, feed and soothe the child.
Father's criminal cases all were resolved when he pled guilty on June 26, 2010. Nordland reminded him that now that he was sentenced, he should start some programs at the correctional facility to address parenting skills, substance abuse and mental health. However, on August 2, 2012, father told Nordland he had not yet sought any services because he had forgotten he was supposed to do so. He also told Nordland he was counting on being released sooner, and it made no sense for him to engage in services until he was released. At this point, he reported that he probably was not going to get back together with mother, as he heard she was getting married to someone else. He accused mother of identity theft because she obtained two cell phones in his name. He stated that he found out about the cell phones from his mother, and that he would probably have mother arrested when he got out of prison. Nordland reminded him the department expected him to start services while incarcerated if possible. Ultimately, it appears he started attending a parenting class in mid-September, less than a month and a half prior to trial, although the exhibits he offered as proof of this are class time notices, and don't actually confirm his attendance, level of participation, progress or the nature of the parenting program. Although father participated in the March 2012 ACR conference by phone, he did not participate in an August ACR. Father sent Nordland a letter in September 2012 indicating he was seeking reunification with Joshua apart from the mother; but at trial, mother testified she and father plan to get married, live together and raise Joshua and her expected child, who has been fathered by someone else. Mother testified she had no concerns about reuniting with father, despite his criminal convictions for risk of injury to a minor, past infidelities and the fact that he is not the father of her expected baby.
Many of father's outstanding charges were nolled.
Joshua remains in the only home he has ever known with his foster parents and their adopted daughter. He is comfortable in this home, and interacts well with the foster parents and the other child. Joshua has asthma and requires the application of a nebulizer apparatus to keep his breathing normal. He is only ten months old, and requires stable, competent caretakers to meet all of his basic needs. Neither parent is prepared at this time to provide Joshua with the home environment he requires. Father remains incarcerated with a projected release date of February 2013. He only recently availed himself of a single program in prison for parenting. He has done nothing to address substance abuse, mental health, or his lack of a high school diploma. Mother has failed to participate in counseling services, physical therapy or parenting education. She has missed approximately 60% of her visits with Joshua. She has moved seven times since Joshua was born, and is now six months pregnant with her fifth child.
II
NEGLECT ADJUDICATION
Under General Statutes § 17a-112(l), a petition for termination of parental rights may be filed at the same time as a neglect petition. In a coterminous proceeding, the trial court must first, pursuant to Practice Book Practice Book § 35a-3, determine, by a fair preponderance of the evidence, whether the child is neglected, uncared for or abused. The grounds of neglect alleged here are that the child is being denied proper care and attention physically, educationally, emotionally or morally and permitted to live under conditions, circumstances or associations injurious to his well-being, pursuant to General Statutes § 46b-120(6).
General Statutes Section 17a-112(l) provides as follows: " Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child. Notice of the hearing on such petitions shall be given in accordance with sections 45a-716 and 45a-717. The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b-129, grant the petition for termination of parental rights as provided in section 45a-717."
Practice Book Section 35a-3, captioned " Coterminous Petitions, " provides as follows: " When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child or youth is neglected, uncared for or dependent; if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination of parental rights is in the best interests of the child or youth by clear and convincing evidence. If the judicial authority determines that termination grounds do not exist or termination of parental rights is not in the best interests of the child or youth, then the judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect, uncared for or dependent petition."
This is a case of predictive neglect. " Our statutes clearly permit an adjudication of neglect based on potential for harm or abuse to occur in the future. General Statutes § 17a-101(a) provides: ‘ The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury or neglect ...’ (Emphasis added.) By its terms, § 17a-101(a) connotes a responsibility on the state's behalf to act before the actual occurrence of injury or neglect has taken place." In re Michael D., 58 Conn.App. 119, 123-24, 752 A.2d 1135 (2000).
As the Connecticut Appellate Court has noted, " The department, pursuant to the statute, need not wait until a child is actually harmed before intervening to protect a child." Id., at 124. No court is required to leave a child in the custody of a parent who is clearly incapable of providing even basic care for the sole purpose of demonstrating that he will suffer actual harm. See In re Kelly S., 29 Conn.App. 600, 615, 616 A.2d 1161 (1992); In re Angelina P., Superior Court for Juvenile Matters, district of Hartford, Docket No. H12-CP10-013506-A (September 16, 2011, Dyer, J.). Where a child's family presents with a history of neglect of older children and parental inability to respond meaningfully to address the parental deficiencies which had been identified in the earlier cases, neglect can be predicted. Obvious inability to meet minimal expectations of parenting skills will sustain a finding that prospective harm to the child of such a parent is predictable. For example, in In Re Curnijah H., 121 Conn.App. 292, 294, n. 5, 994 A.2d 710 (2010), a finding of predictive neglect was upheld based on a mother's lack of success in addressing her drug abuse and mental health issues, which left her unable to care properly for any of her children. " The doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred." In re T.K., 105 Conn.App. 502, 513, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
Recently, our Supreme Court, in the case of In re Joseph W., 305 Conn. 633, 646, 46 A.3d 59 (2012), upheld and clarified the standard for applying the predictive neglect doctrine to child protection cases. In neglect proceedings involving the doctrine of predictive neglect, the petitioner is required to meet this standard with respect to each parent who has contested the neglect petition and has expressed a desire, or at least a willingness, to care for the child independently of the other parent. The trial court must find that it is more likely than not that, if the child remained in the independent care of either parent, the child would be " denied proper care and attention, physically, educationally, emotionally or morally ... or would be permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth ..." Id., at 46.
The court finds by a fair preponderance of the evidence that the department has correctly invoked the doctrine of predictive neglect with respect to Joshua. The evidence presented at trial proves that Anju F., as of the adjudicatory date, February 1, 2012, continued to have unmet medical, mental health and housing needs that rendered her largely unable to properly care for herself, let alone a helpless infant. Hospital personnel were alarmed at the thought of mother assuming a role as the sole caretaker for Joshua and determined she was entirely incapable of doing so. All of the issues mother presented with during the pendency of her older children's cases remained. She had not received any physical therapy to improve her strength and coordination, and had not addressed her mental health or her propensity to be involved in domestic violence, both as a victim and a perpetrator. She was living in an unsuitable, bug-infested environment with other adults who had child protection histories with the department and a pit bull. Mother had no viable plan to safely and competently care for Joshua at the time of his birth. She continued to lack the insight, judgment and basic competency required to adequately protect and raise any child, especially an infant. As Judge Dyer so eloquently expressed: " [T]the court is well aware that significant physical and emotional disabilities ... by themselves, do not render individuals unfit to parent their children. By accepting treatment and with the assistance from appropriate family members, public and private organizations and other support networks, many individuals have been able to overcome such challenges and successfully function as loving and nurturing parents to their children. Regrettably, that is not the case here." In re Angelina P., supra. In spite of experiencing the loss of all of her older children, mother, prior to the adjudicatory date, had consistently refused the offers of services and treatment made by the department or suggested by her physician that might assist and possibly enable her to acquire the help and skills necessary to appropriately care for a child. As of the adjudicatory date, her lifestyle continued to be unstable, transient and fraught with risk to her and to the physical and emotional safety and well-being of the child born to her. Mother had yet to learn to avoid violent relationships, as evidenced by her allowing Andrew S. back into her life while pregnant with Joshua. Her deficient parenting abilities, chaotic lifestyle, mental health and propensity to associate with risky individual were no different as of February 1, 2012 than they were when her parental rights were terminated on two prior occasions. Unfortunately, Anju F. had continued to engage in a cyclical pattern of conceiving children, whose custody must, of necessity, be assumed by the state at birth in order to protect them from the real risk of imminent and serious harm that every professional who has observed mother try to care for her infant children has noted as a serious concern.
As of the adjudicatory date, February 1, 2012, father, John G., remained incarcerated on pending serious felony charges that involved inappropriate sexual behavior with a minor on more than one occasion. Despite being on probation, he chose to engage in this criminal behavior when mother, and possibly her roommate, were both expecting his children. He was in no position to present any plan to independently assume the care and custody of Joshua, and at the time, since he was on pretrial status, it was unknown how long he would remain in prison. Even if father was not incarcerated, he had been completely unwilling in the past to participate in services to assess and possibly address his substance abuse, mental health issues and observed lack of parenting skills. He had exhibited no inclination to assume the role of a parent for Anthony; in fact, he abandoned him. Father also lacks insight as mother's parenting deficiencies. Like mother, his lifestyle is chaotic and transient. He has rarely held a job. In addition, father's arrest and conviction of charges involving a young girl raises additional concerns as to a possible psychopathology that poses a risk to any young child.
Based on the circumstances of the mother and father as of the adjudicatory date, February 1, 2012, the court finds by a fair preponderance of the evidence that it was more likely than not that if Joshua had been permitted to remain in the care and custody of either his mother or father, it would have caused Joshua to be denied proper care and attention, physically, educationally, emotionally or morally, or to be permitted to live under conditions, circumstances or associations injurious to his well-being. Father was physically unavailable due to his incarceration at the time. Even if he had not been incarcerated, he had, historically, shown little interest in addressing whatever shortcoming had led to his criminal involvement, unstable lifestyle, and lack of interest in responsible parenting. Under the circumstances, he was not able to gain sole custody. To discharge Joshua from the hospital into his mother's care would have placed him in an unhealthy, risky environment lacking the twenty-four-hour supervision and assistance mother would have required to safely provide him with even the most basic of needs, which, more likely than not, would have led to Joshua's being denied proper care and attention while living amidst conditions, circumstances and association in injurious to his well-being.
The court finds by a fair preponderance of the evidence that, as of February 1, 2012, the adjudicatory date, Joshua is neglected as alleged in the petition on the basis of predictive neglect, and enters an adjudication of neglect on both grounds.
II
Termination of Parental Rights-Adjudicatory Phase
Trial of a petition to terminate parental rights has two phases, adjudication and disposition. In the adjudicatory phase of the proceeding, the court must make separate determinations as to reasonable efforts and the statutory ground for termination. The ground for termination alleged here as to both parents is failure to rehabilitate by a parent of a neglected child under the age of seven whose parental rights to another child have previously been terminated. See General Statutes § 17a-112(j)(3)(E.
A. Reasonable Efforts
A termination of parental rights under § 17a-112(j) on non-consensual grounds, as has been pleaded for the respondent parents here, requires the court, in the adjudicatory phase, to find, as of the adjudicatory date, whether
There is clear and convincing evidence that the department has made reasonable efforts to locate each parent; and
There is clear and convincing evidence that the department has made reasonable efforts to reunify the child with each parent, unless the court finds that the parent is unable or unwilling to benefit from reunification efforts.
General Statutes Section 17a-112(j) provides, in pertinent part, as follows: " The Superior Court ... may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families 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 ..." See In re Shaiesha G., 93 Conn.App. 42, 47-8, 887 A.2d 415 (2006).
The court incorporates by reference here all of the factual findings it has previously made in this memorandum of decision relative to the period prior to the adjudicatory date of February 1, 2012. The court finds by clear and convincing evidence that the department made reasonable efforts to locate both parents, who were both served and appeared in this proceeding.
In this case, the department did not allege that reasonable efforts had been made to reunify Joshua with his parents. Alternatively, the department may plead and prove that a parent is unwilling or unable to benefit from reunification efforts. Section 17a-112(j) clearly provides that the department is not required to prove both circumstances. Thus, although section 17a-112(j) begins with a presumptive obligation that the department make reasonable reunification efforts, it later excuses this obligation in cases in which a trial court finds, by clear and convincing evidence, that a parent is unable or unwilling to benefit from such reunification efforts. See In re Jorden R., 293 Conn. 539, 554, 979 A.2d 469 (2009).
It is also proven by clear and convincing evidence that as of February 1, 2012, both parents were unable or unwilling to benefit from reunification efforts. In making this determination, the court has taken into account both parents' lack of cooperation with the department's reunification efforts in cases involving their older children, which resulted in the termination of the parental rights, as well as the unaddressed parental deficiencies exhibited by each of them prior to and at the time of Joshua's birth. As with her older children, mother was observed to be incapable of caring for Joshua without full-time supervision, yet she stubbornly insisted she could care for him on her own, or with the assistance of disreputable individuals. She had acquired no insight from her past experiences and remained incapable of recognizing that she needed a number of services if she were to ever maintain the custody of a child.
Father, as of February 1, 2012, had, over the previous two years, failed to participate in proposed services to reunify with his older son, Anthony. In fact, he had shown so little interest it took multiple appointments to perform genetic testing to ascertain if he was Anthony's father. Subsequently, after having been found to be the father, he didn't even visit the child. Just a few months prior to Joshua's birth, an event a prospective father should be looking forward to and carefully preparing for, he cheated on mother, had no job or secure housing, and worst of all, engaged in criminal conduct with a teenage girl which resulted in his incarceration. " Although incarceration alone is not a sufficient basis to terminate parental rights, incarceration, nonetheless, may prove an obstacle to reunification due to the parent's unavailability ..." In re Katia M., 124 Conn.App. 650, 661, 6 A.3d 86 (2010). That was the case here for father as of the adjudicatory date. It is obvious that despite both parents' past experiences with the department, neither of them made any appropriate effort to plan for the birth of Joshua in a manner that might have prevented his removal or attempted to address the issues that led to the loss of their rights in their older children prior to Joshua's birth.
B
Statutory Ground for Termination
The termination petition was filed on February 1, 2012. Under Practice Book § 35a-7(a), in the adjudicatory phase of the proceeding, " 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." See In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). In the case of a termination under § 17a-112(j)(3)(E), " [t]he court should consider all potentially relevant evidence, no matter the time to which it relates." In re Mia M., 127 Conn.App. 363, 14 A.2d 1024 (2011). The court incorporates by reference here all of the factual findings it has previously made in this memorandum of decision.
" An inquiry regarding personal rehabilitation requires ... a historical perspective of the respondent's child-caring and 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). See also In re Christopher B., 117 Conn.App. 773, 786-87, 980 A.2d 961 (2009) (trial court properly relied on respondent's history with the department prior to the filing of the most recent neglect petition).
Termination of parental rights under General Statutes § 17a-112(j)(3)(E) requires proof by clear and convincing that the child who is the subject of the petition is under seven years old, that the child was adjudicated as neglected or uncared for, that the parental rights of the respondent to another child were previously terminated pursuant to a petition filed by the commissioner for the department of children and families, and that the parent has failed, or is unwilling or unable to achieve, such a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. As to each of these elements, there was clear and convincing proof.
(1) The child is under the age of seven years. Clear and convincing evidence established that Joshua, at almost ten months of age, is less than seven years old.
(2) The child is neglected, uncared for, or abused. As discussed above, on the basis of predictive neglect, both grounds of neglect were proven by a fair preponderance of the evidence and Joshua is adjudicated neglected.
(3) Such parent's parental rights to another child were previously terminated pursuant to a petition filed by the commissioner of the department of children and families. This fact was also proven by clear and convincing evidence as to both parents. Without objection, the court took judicial notice of the following facts: On November 19, 2008, a petition was granted terminating mother's parental rights to Antoine S., born December 21, 2006. On May 19, 2011 a petition was granted terminating mother's and father's parental rights to Anthony S., born May 23, 2009. Both petitions had been filed by the commissioner.
(4) The parents have failed, and are unable or unwilling, to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, either parent could assume a responsible position in the life of the child.
The respondent mother has had her parental rights to two other children terminated pursuant to petitions filed by the department. Guardianship of her third child, Aliannah, was granted to the paternal grandparents after the child's father, Karl T., failed to retain her care and custody after a period of extended protective supervision. The reasons the department filed for termination of mother's parental rights with respect to Antoine S. and Anthony S. were her inability to parent as a result of her unimproved physical limitations, her failure to address her mental health needs, her involvement in domestic violence, her failure to improve her parenting skills and her inability to achieve stability in her own lifestyle. Mother failed to even begin most recommended services, most notably the physical and occupational therapy necessary to see if she could be enabled to independently perform childcare tasks. Her diagnosed mental disorders obviously contributed to her lack of judgment in the men and friends with whom she associated and her loss of family support. In three instances, despite the obstacles she already faced in assuming a responsible parental role for one very small child, she irresponsibly became pregnant with another. Her inability to correctly identify the fathers of Anthony and Aliannah reveals either a concerning lack of impulse control or worse, outright deception on her part toward the department and persons for whom she professes to care.
Hence, when Joshua was born, mother's circumstances had changed little from the time when she first gave birth to Antoine. Particularly disturbing in the case of Joshua is that there is no doubt mother knew what she would have to do to convince those around her that she could take care of him, but she made no effort to improve her circumstances or physical abilities or develop a viable plan with the adequate supports. She should have known his removal from her care was inevitable and it would not take the hospital nurses very long to detect the alarming nature of her parenting deficiencies.
Since Joshua's birth, despite the pendency of these coterminous petitions, the department, over the last nine months, did provide mother with a very effective and diligent permanency worker, Nordland, who attempted to engage her. Nordland's efforts were met with the same inattention and lack of urgency mother had exhibited previously. She has not engaged fully in any recommended services since February 2012 and failed to attend half of her scheduled visits with Joshua. She inexplicably can't seem to keep appointments, a working cell phone, health insurance, stable housing or supportive relationships. A person such as this cannot care for her own needs, let alone the needs of the helpless infant. She has not been regularly seeing an obstetrician in spite of her expected delivery, although she testified that a person with her disability has a harder time with the delivery of a child. Mother cannot care for her own needs, let alone the pressing needs of a helpless infant. She has led her entire adult life in a chaotic and continuously self-destructive manner.
As Humphrey testified, mother's reunification with a young infant would be viable only if she were to demonstrate progress in several respects: parenting education, ongoing drug testing, (and substance abuse counseling if it were determined she was actively using), individual therapy, and supports geared to reduce the stressors engendered by her disability. Without improvement in her physical strength, Humphrey found it difficult to imagine how mother might care for a child independently, as she would require help with almost any activity that involves lifting or moving a baby. Considering the events that have transpired since Humphrey's 2009 evaluation, including the loss of mother's rights to Anthony S., as well as events that have taken place in the nine months since Joshua's birth, mother, at the time of trial, was no more capable of safely parenting Joshua than she was able to parent Anthony in 2009. She stubbornly refuses to engage in programs or accept assistance even though, at times, she admits she needs help.
Joshua is a newborn infant. He is completely dependent on a competent caregiver for his safety, well-being and care. He is not readily visible in the community, and cannot summon for assistance should the need arise. He should not be required to wait for his inattentive and uncooperative mother to achieve what she has been unable to achieve with respect to three older children over a period of six years. As of the adjudicatory date, mother had failed to achieve a sufficient degree of personal rehabilitation that would encourage the belief that she could then or within a reasonable period of time, considering Joshua's age and needs, assume a responsible position in this child's life. She was not willing or able to do so. Since the adjudicatory date, mother has made so little progress, due to her lack of sustained effort, that there is no evidence to justify a belief that within a reasonable time, she could assume a responsible position in Joshua's life.
The respondent father has had his parental rights to another child terminated. While Anthony's case was pending, father was so uninvolved the court found abandonment and no ongoing child-parent relationship as the grounds for termination. Father, having lost the right to parent Anthony, should have seen the expected arrival of Joshua as another chance to become a decent father. Unfortunately, this was not his primary focus. His relationship with mother once again had deteriorated. There is no evidence he did anything to encourage or assist mother in preparation for the birth of Joshua. He slept with and possibly impregnated mother's friend, and just months before Joshua's birth, he engaged in criminal conduct of a sexual nature with a girl of 14. Although Nordland urged father to begin parenting, substance abuse and mental health services, if available, in prison as soon as he could, father at first advised Nordland services could wait until he was released when he wasn't even sure when that would occur. He remained in jail from November to June before he resolved his criminal cases. Almost three months after his conviction, just before trial, he enrolled in a parenting class, but enrollment alone does not sufficiently establish acquired knowledge or progress. He has never worked, but there is no evidence he has attempted to address his lack of education while imprisoned. When father is released he will be on probation, a status he, in the past, has had difficulty adhering to more than once.
As of the adjudicatory date, father had failed to achieve a sufficient degree of personal rehabilitation that would encourage the belief that he could then, or within a reasonable period of time, considering Joshua's age and needs, assume a responsible position in this child's life. The level of rehabilitation father has achieved during his period of incarceration, if any, falls far short of a level which would reasonably encourage the belief that he can assume a responsible position in Joshua's life within a reasonable time, given the age and needs of Joshua. That point of rehabilitation for father is a long way off. He will probably not be released until early next year. After that, he will be on probation again. Like mother, his adult lifestyle has been consistently chaotic. He moves from place to place, depending on others, with no apparent source of income. This instability is punctuated by his repeated criminal behaviors. It would require a lengthy period of time, including evaluation and counseling, to address his lack of empathy and responsibility toward his progeny and his selected women, his behavioral disorders and most significantly, whatever sexual proclivity led to his recent convictions before one would feel comfortable placing a very young child in his care.
The petitioner has proven the Ground E failure to rehabilitate ground for termination of parental rights alleged as to each parent by clear and convincing evidence.
III
Disposition
" A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition ... 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 interest of the child." (Citation omitted; internal quotation marks omitted.) In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998). On disposition, the court may consider information through the close of the evidentiary hearing. In the dispositional phase of this case the court has considered the evidence and testimony relating to facts and circumstances through November 6 and 7, 2012, the dates upon which the evidence was taken in this matter. In making the dispositional findings, the court incorporates by reference here all of the factual findings it has previously made in this memorandum of decision.
A.
REQUIRED STATUTORY FINDINGS
In making the dispositional decision in a non-consensual case, the court is mandated to consider and make written findings regarding seven factors specified in General Statutes § 17a-112(k). See In re Tabitha P., 39 Conn.App. 353, 361-62, 664 A.2d 1168 (1995). 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." In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003). As required by the statute, the court has considered the statutory factors and makes the following written findings with regard to the department's petition to terminate the parental rights of the mother and father, and the court has considered these findings in determining that it is Joshua's best interest to terminate the parental rights of his parents.
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
Over a nine-month period, the department offered timely and appropriate services to the respondent parents to facilitate reunion with Joshua despite their poor performances with respect to earlier reunification efforts with their older children. Specific steps were issued to both parents. The department offered visitation, transportation, parenting education, and substance abuse and mental health evaluations and treatment to mother. Nordland offered to assist mother even in the process of making telephone calls since mother was often without a working phone. The department monitored mother's needed participation in physical/occupational therapy. Within a week of Joshua's birth, Nordland sent a letter to father and advised him to begin parenting, mental health and substance abuse services at the correctional facility. She reminded him of his obligation on more than one occasion. He was notified of scheduled ACR conferences. She arranged for a genetic test to confirm his paternity and father was provided with supervised visitation once paternity was established, which required transporting the infant Joshua to the jail.
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.
DCF made reasonable efforts, to the extent possible, to reunify the parents with their child as required under the federal Adoption Assistance and Child Welfare Act of 1980, as amended. The court has found both parents were unable or unwilling to benefit from reunification services as of the adjudicatory date, and what little the parents have done subsequently, up to the time of trial, leads this court to conclude that neither parent could assume a responsible position in Joshua's life within a reasonable time, considering his age and needs. Nordland, the assigned permanency worker, advised both parents that a trial on these coterminous petitions would be fast approaching and that they would both need to immediately cooperate and participate in services to address their long-standing problems.
3. The terms of any court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which the parties have fulfilled their expectations.
Specific steps were ordered when the court entered an order of temporary custody on February 1, 2012, which were reaffirmed by the court for mother at the ten-day hearing on February 10, 2012. Father's steps were reaffirmed after the paternity test results were achieved, on March 29, 2012. The petitioner complied with these orders, including investigating potential relative resources for Joshua. The court is very impressed with the consistent and timely efforts Nordland made after February 1, 2012 to engage the parents in spite of the department's previous lack of success. Mother ignored significant specific steps orders, including failing to visit Joshua as often as DCF permitted, refusing to cooperate with therapeutic, counseling and parenting programs and services offered by the department and other agencies, failing to maintain adequate housing, and failing, at times, to maintain contact with the department. Mother has been mostly transient since Joshua's birth. It remains to be seen whether her current residence in Farmington is sustainable, but her past history of evictions is not encouraging. Mother subsists on disability income and food stamps, and has not engaged in any consistent physical or occupational therapy, despite numerous referrals over the past several years, which might equip her, a woman of at least average intelligence, to find and maintain secure housing and employment.
Nordland's organized and detailed testimony at trial was the best this court has ever heard from a department worker.
Father was advised to participate in services available through the department of corrections. However, he waited until September to enroll in a parenting class, and did not enroll in any groups that would have addressed mental health or substance abuse issues. Father did visit Joshua once a month, as the child would be brought to him. Due to his incarceration, he has not been able to secure adequate income or housing. Despite informing Nordland he would try to obtain a G.E.D., there is no evidence he has made any effort to do so.
4. The feelings and emotional ties of the child with respect to his parents, any guardian of his 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— § 17a-112(k)(4).
Joshua possibly knows his parents, in spite of his limited contact with them, although observers of supervised visits have recently noted that both have a hard time consoling him, which suggests he may not be too comfortable in their presence. For all but a few days of his life, the only consistent caretakers he has known are his foster parents, who are willing to be considered an adoptive resource.
5. The age of the child— § 17a-112(k)(5).
Born on January 30, 2012, Joshua is almost ten months old.
6. The efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his 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— § 17a-112(k)(6).
Mother has not made any significant effort to change her circumstances, conduct, or conditions, as demonstrated by all of the evidence, including the fact that this is now the third termination of parental rights proceeding in which she has been named as a respondent. Mother's loss of her parental rights to two older sons and her loss of the guardianship of her daughter seem to have made little impression on her. Since delivering Joshua, her past pattern of non-compliance with needed services and visits continued. Her pattern of getting pregnant when she already has a child she cannot care for continued. There is no indication she has contributed anything toward Joshua's support or attempted contact with the foster parents. She at times failed to maintain consistent contact with the department worker as a result of her lack of a secure place to live and simple organizational skills, such as maintaining a phone.
Father has made little effort to attain even a semblance of structure or responsibility. He again impregnated mother, but did little to help her plan for Joshua's impending birth despite his knowledge of her past inability to care for a child. Instead, he may have impregnated mother's friend and engaged in sexual misconduct with a 14-year-old girl. He remains incarcerated until February 2013, and only recently began a parenting program which he had not completed as of the date of trial.
The level of " adjustment" achieved by mother and father can only be considered chronic maladjustment, nowhere close to the level each would have to achieve to make it in the best interest of Joshua to return to the care of either of them in the foreseeable future.
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.
Neither parent has been prevented from having or maintaining a meaningful relationship with their son, Joshua, by any unreasonable act or conduct on the part of the other parent, the department or any other person. There was no evidence that the economic circumstances of either parent affected his or her ability to have a meaningful relationship with Joshua. Programs and services to progress toward reunification were available to both, and both were offered regular visitation. Father's incarceration may have limited his participation in services, but his incarceration was his own fault, not someone else's.
B
Best Interest of the Child
The final element of the termination of the parental rights statute, § 17a-112(j), requires that, before granting a petition for such termination, the court must find " by clear and convincing evidence ... (2) that termination is in the best interest of the child ..." The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare. In determining whether terminating the parental rights of the respondent parents would be in Joshua's best interest, the court has considered various factors, including the child's interest " in sustained growth, development, well-being, and in the continuity and stability of [his] environment"; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); his age and needs; the length and nature of his stay in foster care; the contact maintained with his birth parents and the potential benefit or detriment to Joshua of retaining a connection with his biological parents; his bond to each parent; In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999); and the seven statutory factors and the court's findings thereon. The court has also balanced the child's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with his biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).
Clear and convincing evidence establishes that it is in Joshua's best interest to terminate the parental rights of both respondents. In deciding the issue of best interest in this case, the court has considered the adjudicatory and dispositional evidence in its entirety, and has concluded there is no other credible or realistic plan achievable within a reasonable time to secure and protect Joshua's best interest other than a termination of his parents' rights. The mother's persistent failure to even try to improve the physical limitations caused by her disability continues to prevent her from being able to take care of any child, in particular an infant such as Joshua, who must rely completely on competent adults for his welfare and protection. In addition, mother fails to attend to her emotional problems, including her history of trauma. Her predilection for forming dependent relationships with persons who abuse or take advantage of her poses a risk to her children. As recently as January 2012, she has been the perpetrator of domestic violence.
Finally, mother has been unable to stabilize her own lifestyle. She has had seven different residences since February. She has no consistent, stable, suitable supports in place from community services or other persons in her life. She moved out of her adoptive parents' home when she was 17, and they have been less than steadfast in supporting her. Although capable of securing birth control, she is, incredibly, pregnant again, due to deliver in February 2013. There is nothing to indicate she can care for one small child, let alone two. If she manages to maintain custody of her expected child after the birth, and her parental rights to Joshua are not terminated, Joshua, undoubtedly, would have to wait even longer for permanency if mother again attempts to prove she can care for a newborn.
Mother does not even possess the organizational ability to maintain her own insurance, despite her complex medical needs, plan for transportation when necessary, remember and keep appointments, or consistently maintain a working cell phone.
The respondent father will be incarcerated for at least a few more months. When he is released, he will not be ready to assume Joshua's care, and he may also have to contend with an obligation relating to another child, Aaron G., if paternity testing establishes he is the father. What elements of his psychological makeup led him to engaging in a sexual relationship with a fourteen-year-old must be further evaluated. He is facing three years of probation, and has shown himself to be unsuccessful in completing two previous periods of court-ordered supervision. The solidity of his relationship with mother is precarious at best; in light of his infidelity and his acceptance of her infidelities, the attachment to mother or Joshua does not appear strong. He has criminal propensities, a history of transience, a past propensity to violence and out-of-control behavior, no high school diploma, and minimal work history. Although quite capable of indiscriminately engaging in sexual relations that result in conceptions, he has no history of competently caring for a child, or even planning to care for a child, and little insight into mother's incapacity. Like her, he too, thinks she can care for an infant and a toddler. Given the extreme level of his past disinterest in Anthony S., and the nature of the above concerns, waiting to see if this immature and troubled young man will transform himself into a parent within a reasonable period of time, with or without mother as part of his life, cannot be justified.
Joshua is in a loving home with two foster parents, the only parents he has ever known, who are eager to adopt him. His asthma must be competently and consistently addressed. He requires, as he moves into toddlerhood, a developmental stage fraught with risk, devoted, vigilant, informed and structured care. With neither parent willing or able to assume adequate responsibility for him, clear and convincing evidence proves that it is in this child's best interest to terminate their parental rights and free him for permanence and stability elsewhere.
Conclusion
The petition for termination of parental rights is granted, and judgment may enter terminating the parental rights of Anju F. and John G. in Joshua F.
Pursuant to General Statutes Section 17a-112(m), it is ordered that the commissioner of the department of children and families be appointed statutory parent for Joshua so that he may be placed for adoption.
Case status reports shall be submitted within thirty days of this judgment, on December 21, 2012, and quarterly status reports shall be timely presented to the court as required by law.
A hearing on a motion for review of Joshua's permanency plan, which was due on November 1, 2012, is scheduled to be held on December 19, 2012 at 10:00 A.M., as previously ordered, in the New Britain juvenile district.
Judgment may enter accordingly.