Opinion
H12CP15014728B
12-09-2016
In re Justice S. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert G. Gilligan, Judge
By petition filed with the court on June 9, 2016, the Commissioner of the Department of Children and Families (" DCF") seeks to terminate the parental rights of Fatima M. (" Mother") and John Doe (" Father") as those rights pertain to the minor child, Justice S., born February 21, 2015. Proper service of process on both respondents has been confirmed and notice of the trial was properly given in accordance with the applicable provisions of the Connecticut General Statutes and the Practice Book. Counsel was appointed for Mother and the minor child. Despite notice of the proceedings by publication John Doe has never appeared in this action. There is no known action pending in any other court concerning custody of the minor child nor any claim of Native American affiliation. The court finds that it has proper jurisdiction over this matter.
Procedural History
At a hearing held on July 10, 2015, the court removed putative father Terry S. from the pending neglect proceedings based on genetic testing, accepted a written plea of nolo contendre from Mother, adjudicated Justice S. neglected as being permitted to live under conditions injurious to her well-being and committed her to the care and custody of the Commissioner of the Department of Children and Families. (Burgdorff, J.) At a hearing on April 14, 2016, the court approved a permanency plan of termination of parental rights and adoption for Justice; found that the plan was in the best interest of the child and that DCF had made reasonable efforts to effectuate the plan. (Dannehy, J.)
In the termination of parental rights petition, DCF has alleged the following adjudicatory grounds: Ground B-1 (failure to rehabilitate) as to Mother and Ground A (abandonment), Ground B-1 (failure to rehabilitate) and Ground D (no on-going parent child relationship) as to John Doe.
A trial on the petition was conducted on November 3, 2016. Mother was present and represented by court-appointed counsel. Pursuant to In Re Yasiel R., the court advised Mother of her rights including her right to remain silent and the possibility that the court may draw an adverse inference from her failure to testify.
At the conclusion of the first day of trial, a second day for trial was scheduled and conducted on November 8, 2016. Mother did not appear and her counsel reported that counsel was unaware of the reason for Mother's absence and not able to reach her by phone or leave a message since Mother's phone had limited minutes and her voice mail was full.
The court found that Mother had actual notice of the trial date and continued the trial without Mother. The court heard testimony from DCF's witnesses, Ebonie Dawes, a DCF treatment social worker, Dr. Derek Franklyn, a licensed clinical psychologist and Pearlene Martell, a licensed clinical social worker employed by The Community Renewal Team (" CRT"). DCF offered exhibits (Exhibits A, B, C, D E, F, G, H, I, J and K) which were admitted as full exhibits without objection. Neither counsel for Mother nor counsel for the minor child presented testimony or offered exhibits. Counsel for DCF moved for the court to take judicial notice of all prior court proceedings and records relating to Mother's child protection history. The court granted the motion absent objection and took judicial notice of the pleadings and their filing dates, court memoranda of hearings, and prior court rulings and orders in the court files as the same relate to the child protection history of Justice and Mother.
At the conclusion of DCF's evidence, Mother's counsel again reported having received no message from Mother explaining her absence from trial and she was not certain as to Mother's position with respect to her intention to exercise her right to testify on her own behalf. Since the parties had previously scheduled a third day of trial and given the serious nature of a termination of parental rights proceeding and its effect on the rights of Mother and the child, the court kept the adjudicatory phase of the trial open to afford Mother's counsel the opportunity to file with the court by November 14, 2016, a written affidavit together with credible evidence that Mother was prevented from appearing for reasons beyond her control and that Mother wished to offer testimony on her own behalf. DCF was provided the right to contest any such claim, if made by Mother. No such proof was submitted by Mother's counsel as ordered and the court has proceeded to rule on the basis of the evidence admitted through November 8, 2016 and closing argument from all counsel.
Legal Standard
A hearing on termination of parental rights consists of two phases: adjudication and disposition. In the adjudicatory phase, the court must determine whether the proof provides clear and convincing evidence that at least one ground pleaded exists to terminate parental rights as of the date of the filing of the petition or last amendment. See In re Keyashia C., 120 Conn.App. 452, 455, 991 A.2d 1113, cert. denied, 297 Conn. 909, 995 A.2d 637 (2010); In re Javon R., 85 Conn.App. 765, 769, 858 A.2d 887 (2004); In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842 cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991); Practice Book § § 32a-3(b), 35a-7. However, where the ground alleged involves failure of the respondent to rehabilitate " in the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011); In re Jennifer W., 75 Conn.App. 485, 495, 816 A.2d 697 cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); In re Joseph L., 105 Conn.App. 515, 527, 939 A.2d 16 (2008); In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000). If at least one pleaded ground to terminate is found, the court must then consider whether the facts, as of the last day of trial, establish, by clear and convincing evidence, that termination is in the child's best interest. See In re Anthony H., 104 Conn.App. 744, 756, 936 A.2d 638 (2007). " In the dispositional phase . . . the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interests of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Luciano B., 129 Conn.App. 449, 479, 21 A.3d 858 (2011); In re Joseph L., 105 Conn.App. 515, 529, 939 A.2d 16 cert. denied, 287 Conn. 902, 947 A.2d 341 (2008). Procedurally, it is permissible to hear evidence as to both adjudicatory and dispositional phases at the same trial without first determining if the state has proven a statutory ground for adjudication before consideration of the dispositional question. See In re Jason P., 41 Conn.Supp. 23, 24, 549 A.2d 286 (1988); In re Juvenile Appeal (84-AB), 192 Conn. 254, 257, 471 A.2d 1380 (1984); State v. Anonymous, 179 Conn. 155, 172-73, 425 A.2d 939 (1979); Practice Book § 35a-7.
Findings
The court was able to closely observe the appearance and demeanor of the respondent Mother and witnesses in the court room and determine the validity, cohesion, and the credibility of their testimony. The court has reviewed and considered the documentary evidence admitted as full exhibits. The court makes the following findings herein by clear and convincing evidence based on an independent assessment of all the credible and relevant testimony and documents admitted to evidence at the trial.
Mother
Mother was born September 23, 1982. She is the oldest of six children and grew up in Hartford. She reports that she experienced " a lot of physical altercations" with peers when she entered middle school which she attributes to peer pressure and stress at home. She also reports that she had " some gender identification issues, " and experienced depression which led to her threatening and attempting suicide. She was hospitalized in seventh grade for two months as a result of her attempted suicide by cutting her wrists and later that year for similar concerns. She reported to Dr. Derek Franklin, who conducted a court-ordered psychological evaluation, that she was prescribed Prozac, Risperal and Klonapin to help her with her depression and " aggressive behaviors." (Exhibit G.) She left her mother's home at age eighteen to live with a girl friend with whom she resided for a period of six years.
Mother reports that she was raped at age twenty-one and was not sure whether Jason T. or the alleged rapist was the father of Nashawn. Nashawn lived with Mother and her girl friend for two years until they broke up. At that time Mother left the apartment they shared and moved into a shelter with Nashawn.
In addition to Justice, Mother has three other children, Nashawn M., age 11, Shawn'Na S., age 6, and Omunique S., age 4. The legal guardianships of Shawn'Na S. and Omunique S. were permanently transferred by this court to a relative on March 3, 2015 (Dannehy, J.). Her oldest son, Nashawn M., has resided with his father since an incident whereby Shawn'Na fell out of a second story window and suffered a skull fracture while left by Mother in the care of maternal grandmother.
Mother has a history of smoking marijuana but denies ever smoking in the presence of her children. Mother admitted to smoking marijuana at the time that Shawn" Na fell out of the window. A hair test conducted by CRT on 7/8/15 was positive for marijuana.
Mother has an arrest record for assault in the second degree for allegedly physically assaulting Nashawn's father on April 8, 2016 which charge remained pending at the time of trial. (Exhibit K.)
The Child
Justice was born February 21, 2015. She has been in two relative foster placements since her removal. She was briefly placed with relatives from 2/26/15 to 2/27/15 at which time she was returned to Mother's care. On 6/5/15 she was again removed under an order of temporary custody and again placed with the same relatives. On 8/17/15, Justice was removed from those relatives due to safety concerns and she was placed with a relative, Calissa W., who resides in Windsor and continues to care for her. Justice has eczema which is treated with hydrocortisone cream. She suffers from frequent congestion which is relieved by a humidifier and aspirator. Justice attends day care in Windsor and is reported to be doing well.
Adjudicatory Grounds as to Mother
In the Termination of Parental Rights petition filed June 9, 2016, DCF alleges that the child has been found in a prior proceeding to have been neglected or uncared for and Mother has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the child, Mother could assume a responsible position in the life of the child, General Statute § 17a-112(j)(3)(B)(I).
Reasonable Efforts
General Statutes Section 17a-112(j)(1) requires that the court find, by clear and convincing evidence, that DCF made reasonable efforts to locate the respondent parent(s) and made reasonable efforts to reunify the child with the respondent parent(s). Therefore, the court must first determine in the adjudicatory phase of a termination of parental rights proceeding, whether DCF has met its burden to prove that it has made reasonable efforts to locate the parents and to reunify the child with the parents. See In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).
With respect to the statutory element of reasonable efforts to locate and reunify required for termination pursuant to General Statutes § 17a-112(j)(1), the court finds the following by clear and convincing evidence.
Reasonable Efforts to Locate the Respondents
DCF's efforts to locate Mother and John Doe have not been questioned. Mother was served with the petition by a state marshal at her usual place of abode. After putative father Terry S. was excluded by DNA testing as the child's father and removed from the case, Mother was unwilling or unable to provide DCF with the name of the child's father. In the absence of any alternative means to determine Justice's paternity, DCF published notice of the filing of the termination of parental rights petition in the Hartford Courant giving legal notice of the petition to " John Doe as the father of a child born 2/21/15 to Fatima M." The court finds by clear and convincing evidence that DCF satisfied its statutory obligation to make reasonable efforts to locate Mother and John Doe and provide notice of the proceedings.
Reasonable Efforts to Reunify the Child with the Respondents
General Statutes Section 17a-112(j)(1) requires that in a termination of parental rights proceeding, the court also find, by clear and convincing evidence, that DCF made reasonable efforts to reunify the child with the respondent parent(s). " The word reasonable is the linchpin which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof." In re Shaiesha O., 93 Conn.App. 42, 48, 887 A.2d 415 (2005). " Although [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn . . . [r]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted; citation omitted.) In re Ryan R., 102 Conn.App. 608, 619, 926 A.2d 690 (2007); In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000) . . ." [R]easonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Internal quotation marks omitted.) In re Vincent B., 73 Conn.App. 637, 641, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). " [T]he department must prove either that it has made reasonable efforts to reunify or, alternatively, that the 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. Rather, either showing is sufficient to satisfy this statutory element." In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009). Our Appellate Court has held that the court must look to events prior to the date the petition was filed, to determine whether reasonable efforts at reunification were made. In re Shaiesha O., supra, 47.
Reasonable Efforts by DCF to Re-unify Mother and Justice
To assist Mother with her rehabilitation goals, DCF made referrals to service providers to address her presenting issues and facilitate her re-unification with Justice. Mother was referred to My Sister's Place and the Connections for supportive housing. Mother was referred to and transported to Community Health Resources for individual therapy but Mother failed to return after the initial interview and was discharged. DCF referred Mother to the Intensive Family Preservation program (IFP) at The Village for Families and Children from which she was successfully discharged on 6/5/15 despite DCF concerns about her not being forthcoming about her or her child's residency. DCF referred Mother to Klingberg Community Services parenting education group to address DCF concerns about Mother's ability to provide a safe and stable living arrangement and ability to properly assess responsible care givers for Justice. Mother was referred to The Community Renewal Team (CRT) for substance abuse and mental health evaluations and participation in Intensive Outpatient Therapy (IOP). Mother was referred to Derek Franklin, Psy.D. for a psychological evaluation, provided with supervised visitation with Justice, bus passes and DCF case management services. Dr. Franklin recommended a referral by DCF to the Department of Developmental Services (DDS) which DCF followed but the referral was rejected by DDS. The court finds by clear and convincing evidence that DCF made reasonable efforts to reunify Mother and Justice and that Mother was unwilling or unable to benefit from such reunification efforts.
Reasonable Efforts by DCF to Re-unify father John Doe and Justice
In the absence of any other individual being identified by Mother as the father of Justice, John Doe was found to be her biological father. John Doe has never come forward to assert his parental rights as the father of Justice. Accordingly, efforts by DCF to re-unify Justice with John Doe were impossible due to his unknown identity and failure to come forward. " It is axiomatic that the law does not require a useless and futile act." In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999). The court finds by clear and convincing evidence that reasonable efforts by DCF to reunify John Doe and Justice were impossible and John Doe was unwilling or unable to benefit from reunification efforts by DCF.
Adjudication of Mother
Ground B-1 (Failure to Rehabilitate)
General Statutes § 17a-112(j)(3) provides, in relevant part, that termination of parental rights is warranted if the trial court, in the adjudicative phase, finds by clear and convincing evidence that " (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . ."
Antecedent Neglect Proceedings
Justice has been found to be neglected in a prior court proceeding. On July 10, 2015, Mother entered a written plea of nolo contendere to the petition filed by DCF which alleged that Justice was neglected as being permitted to live under conditions injurious to her well-being. Justice was adjudicated neglected and committed to the care and custody of the Commissioner of the Department of Children and Families. (Burgdorff, J.) Mother was provided with court-ordered amended specific steps for reunification with Justice.
Personal Rehabilitation
The factual determination for this court is whether the parent has achieved rehabilitation as contemplated under § 17a-112(j)(3)(B), that is, rehabilitation sufficient to render the parent able to care for the child. " Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [the parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [the parent] can assume a responsible position in [the] child's life." (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). [Section 17a-112] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time." (Citation omitted; internal quotation marks omitted.) In re Jazmine B., 121 Conn.App. 376, 383-84, 996 A.2d 286, cert. denied, 297 Conn. 924, 998 A.2d 168 (2010); In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004); In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). " [T]he critical issue [in assessing rehabilitation] is . . . whether the parent has . . . gained the ability to care for the particular needs of the child at issue." (Internal quotation marks omitted.) In re Trevon G., 109 Conn.App. 782, 952 A.2d 1280 (2008). Whether the age and needs of the child do not support allowance of further time for the parent to rehabilitate must also be considered. In re Luis C., 210 Conn. 157, 167, 554 A.2d 722 (1989). Also, in determining whether the degree of rehabilitation is sufficient and allowance of a reasonable period of time would promote rehabilitation further, a court can consider efforts made since the date of the filing of the petition to terminate parental rights. See In re Jennifer W., 75 Conn.App. 485, 816 A.2d 697 (2003); In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000); In re Sarah M., 19 Conn.App. 371, 377, 562 A.2d 566 (1989).
Specific Steps
At the time of the neglect adjudication, Mother's presenting problems included her history of substance abuse, unaddressed mental health issues, inadequate parenting skills and unstable housing. On July 10, 2015, the court ordered amended specific steps to facilitate Mother's rehabilitation and reunification with Justice. (Exhibit E.) The specific steps spell out the efforts and requirements the parent and DCF must comply with in order to achieve family reunification. Mother signed the specific steps indicating that she understood what was required of her to be re-united with Justice and the consequences of her non-compliance. As DCF seeks to terminate Mother's parental rights due to her failure to rehabilitate, the court makes the following findings with respect to the specific steps ordered by the court and Mother's compliance therewith by clear and convincing evidence.
1. Keep all appointments set or by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child's court-appointed attorney and/or guardian ad litem .
Although Mother attended an administrative case review meeting on 8/13/15, shortly after the child's removal, Mother failed to show at scheduled meetings with DCF on 9/22/15, 10/22/15 and 11/16/15. The 90-day meeting scheduled for 11/16/15 was rescheduled for 11/20/15 but Mother still failed to attend. Although Mother attended a meeting on 12/21/15, a home visit was discussed on 1/15/16 and scheduled for 1/19/16 but when the worker arrived there was no one home and there was no access to the home. Subsequently, an Administrative Case Review meeting was scheduled for 1/25/16 and a case planning meeting was scheduled at DCF for 5/3/16, both of which Mother failed to attend. The court finds by clear and convincing evidence that Mother failed to comply with this specific step by her failure to keep appointments and cooperate with DCF to facilitate reunification.
2. Let DCF, your attorney, and the attorney for the child(ren) know where you and the children are at all times .
Prior to Justice coming into DCF care on June 5, 2015, Mother was living a transient lifestyle. Shortly after Justice's birth on 2/21/15, Mother signed a service or safety agreement with DCF whereby Mother agreed to reside at the home of the child's maternal great aunt. Mother voluntarily left that home with Justice for some period of time during which she was reportedly residing between the homes of friends and relatives.
3. Take part in counseling and make progress toward the identified treatment goals: Parenting and Individual goals . " Mother to provide her child with proper in area of nutrition, supervision, clothing and shelter ."
Mother began Intensive Outpatient Therapy at CRT on 8/13/15 where she was diagnosed with cannabis abuse. Mother dropped out of the program on 9/10/15. Mother called on 1/13/16 to re-engage in treatment which was scheduled to begin on 1/19/16. On 1/19/16 the provider reported to DCF that Mother did not show for her appointment. On 2/11/16 Mother reported to DCF that she re-engaged in treatment at CRT on 2/9/16. CRT confirmed that Mother attended on 2/9/16 and 2/17/16 but Mother had appointments for 2/24/16, 2/29/16, 3/2/16 and 3/9/16 none of which she attended. Mother also had an appointment for a psychiatric evaluation scheduled for 3/1/16 but did not show. Mother was discharged from the program for a second time.
On 6/5/15, Mother was successfully discharged from the Intensive Family Preservation program at The Village for Families and Children despite DCF's ongoing concern and the program's awareness of Mother's continued transient lifestyle. As a result of DCF's concern about Mother's history of unstable or inappropriate housing and her ability to provide adequate care for Justice, Mother was referred on 9/1/15 to Klingberg Family Services for a parenting group. Mother never attended any of the sessions nor did she attend or comply with a second referral on 2/11/16 for the Spring session.
4. Accept in-home support services referred by DCF and cooperate with them .
No evidence of compliance or noncompliance was offered.
5. Submit to a substance abuse evaluation and follow the recommendations about treatment, including inpatient treatment necessary, aftercare and relapse prevention .
Mother was not compliant with this specific step. After Mother completed a substance abuse and mental health evaluation at CRT on 7/08/15 the recommendation for treatment was a referral to Intensive Outpatient Therapy. Mother dropped out of the IOP treatment program after she had attended the program for less than a month. Mother re-engaged in the IOP program on 2/09/16 and attended one session on 2/17/16 but failed to attend appointments scheduled for 2/24, 2/29, 3/2 and 3/9 which resulted in her being discharged from treatment.
6. Submit to random drug testing; the time and method of testing will be up to DCF to decide .
While in IOP treatment at CRT for the period of 8/13/15 through 9/10/15 when she dropped out, Mother tested negative for all illegal substances. However, Mother was noncompliant with this specific step since she failed to submit to random drug testing, as required, from September 10, 2015 to February 9, 2016, making it impossible to determine whether or not she was abusing any illegal substance.
7. Not use illegal drugs or abuse alcohol or medicine .
As noted, it cannot be determined whether Mother was using drugs or abusing alcohol except for the period of time that she was in IOP treatment at CRT.
8. Cooperate with service providers recommended for parenting/individual/family counseling, in-home support services and/or substance abuse assessment/treatment . " CRT for substance abuse evaluation & follow all recommendations for treatment, if any. Klingberg Family Center Parenting Group. Phoenix for individual therapy. CRT for medication management ."
As noted in specific step number 6 above, after Mother dropped out of IOP treatment at CRT, she re-engaged in the program only to again fail to show for scheduled appointments, including a scheduled appointment for a psychiatric appointment on 3/1/16. Mother's failure to attend resulted in her being unsuccessfully discharged from the program.
9. Cooperate with court-ordered evaluations or testing .
Mother failed to fully comply with this specific step as set found in the above findings with respect to steps 5, 6 and 8.
10. Sign releases allowing DCF to communicate with service providers to check on your attendance, cooperation and progress toward identified goals, and for use in future proceedings with this court. Sign the releases within 30 days .
There was no evidence offered that Mother failed to sign the requested releases.
11. Sign releases allowing your child's attorney and guardian ad litem to review your child's medical, psychological, psychiatric and/or educational records .
There was no evidence offered that Mother failed to sign any releases requested.
12. Get and or maintain adequate housing and legal income .
With regard to the requirement that she get or maintain adequate housing, Mother has had a history of transient lifestyle and continues to demonstrate her difficulty or reluctance to provide a more stable living arrangement within which to raise a child. During her history with DCF, Mother has lived in Bloomfield, Rockville and multiple addresses in Hartford. She has lived at times with different romantic partners, her father, a cousin, her aunt and her mother. On one occasion, DCF attempted to conduct a home inspection at three different addresses provided in Hartford but Mother could not be located. Most recently, Mother lives with her mother. A home inspection disclosed that in addition to Mother and maternal grandmother, the apartment is occupied by maternal step grandfather, a maternal uncle and Mother's partner. DCF acknowledges that while the apartment may arguably be adequate for Mother, it is cluttered and crowded and not suitable for Justice, especially since Mother's oldest daughter, while left by Mother in maternal grandmother's care, fell out of a second story window and suffered a fractured skull.
With regard to legal income, Mother reports that she is employed as a club security officer on weekends and works three days during the week doing maintenance work. Mother has not provided pay stubs or other verification of employment.
13. Immediately let DCF know about any changes in the make-up of the household to make sure that the change does not hurt the health and safety of the child(ren) .
No evidence was offered on this specific step other than DCF's contention that Mother has not been forthright in disclosing whether her romantic partner is living with her.
14. Not get involved in the criminal justice system. Cooperate with the Office of Adult Probation or parole officer and follow your conditions of probation or parole .
Mother was arrested on April 28, 2016 for assault in the second degree for allegedly physically assaulting the father of her oldest child. The disposition of the charges remained pending at the time of trial.
15. Take care of the child(ren)'s physical, educational, medical, or emotional needs, including keeping the child(ren)'s appointments with his/her/their medical, psychological, psychiatric or educational providers .
No evidence was offered.
16. Keep the child(ren) in the State of Connecticut while the case is going on unless you get permission from DCF or the court to take them out of state. You must get permission first .
No evidence was offered.
17. Visit the child(ren) as often as DCF permits .
Although Mother has been generally consistent with her supervised weekly visits with her child at DCF and has been appropriate at such visits, she has only sparingly visited Justice at the relative foster home in Windsor despite being offered unlimited visits and being encouraged by DCF and the relative foster mother to visit Justice. DCF has provided Mother with bus passes and when Mother's sister offered to drive Mother to the foster home she was not home when her sister went to pick her up.
18. Within thirty (30) days of this order, and any time after that, tell DCF in writing the name, address, family relationship and birth date of any person(s) who to would like the department to investigate and consider as a placement resource for the child(ren) .
No evidence was offered.
19. Other: Cooperate with psychiatric consultation for medication .
Although CRT scheduled a psychiatric consultation for Mother, she failed to attend.
A parent's compliance with specific steps set during the pendency of the neglect case is a relevant and important consideration in reaching a rehabilitation finding. In re Luis C., supra, 210 Conn. 157, 167-68 (1989); In re Shyliesh H., 56 Conn.App. 167, 179, 743 A.2d 165 (1999). While compliance with court-ordered specific steps is a relevant and important consideration, compliance does not guarantee return of a child to a parent. " Successful completion of expressly articulated expectations is not sufficient to defeat a department claim that the parent has not achieved sufficient rehabilitation." In re Vincent D., 65 Conn.App 658, 670, 783 A.2d 534 (2001). " Although a parent may have participated in the programs recommended pursuant to the specific steps ordered, a court may properly find that the parent has failed to achieve rehabilitation . . . [A] finding of rehabilitation is not based on a mechanistic tabulation of whether a parent has undertaken specific steps ordered. The ultimate issue the court must evaluate is whether the parent has gained the insight and ability to care for his or her child given the age and needs of the child within a reasonable time." (Citations omitted.) In re Destiny R., 134 Conn.App. 625, 627, 39 A.3d 727 (2012).
To terminate parental rights for the failure to achieve rehabilitation, both prongs of the test incorporated in § 17a-112(j)(3)(B)(i) must be met: (1) that the parent has failed to achieve rehabilitation; and (2) there is no reason to believe that the parent could assume a responsible position in the life of the child within a reasonable time, considering the age and needs of the child. In re Danuael D., 51 Conn.App. 829, 843, 724 A.2d 546 (1999) " What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis." In re Stanley D., 61 Conn.App. 224, 231, 763 A.2d 83 (2000).
Mother's Failure to Achieve Rehabilitation within a Reasonable Time
The court finds by clear and convincing evidence that Mother has failed to achieve such a degree of rehabilitation so as to encourage the belief that within a reasonable period of time she could resume a responsible role as a parent for Justice. In support of the court's findings, the court incorporates the findings above made with respect to Mother's failure to comply with the court-ordered specific steps. Although Mother participated in some services with minimal motivation, Mother has not benefitted from the services provided.
A determination of personal rehabilitation requires " a historical perspective of the respondent's child caring and parenting." In re Kyara H., 147 Conn.App. 855, 867, 83 A.3d 1264 (2014). Mother has four children, none of whom are in her care. At the time of the neglect adjudication of Justice, Mother's presenting issues included her history of substance abuse, unaddressed mental health issues, inadequate parenting skills and unstable housing. Mother's hair test on July 8, 2015 for the presence of illegal substances resulted in a positive test for marijuana. Mother attended the IOP substance abuse treatment program at CRT but dropped out after she had attended the program for less than a month. Although Mother tested negative for all illegal substances for the period of 8/13/15 through 9/10/15 when she dropped out, Mother failed to submit to random drug testing, as required, from September 10, 2015 to February 9, 2016, making it impossible to determine whether or not she was abusing any illegal substance.
The importance of Mother's need to address the deleterious effect of substance abuse on her ability to parent was underscored by DCF's witness, Dr. Derek Franklin. Dr. Franklin's testimony and Psychological Evaluation (Exhibit G) reported Mother's admission of her historical use of marijuana but, as she professed, " only to calm down." Her clinical test scores conducted by Dr. Franklin were that of a person who may have used drugs on a fairly regular basis. Other test scores indicated that Mother is likely to be defensive about her substance abuse, she likely associates with others who use drugs and that a substance dependence disorder is more likely than abuse. Dr. Franklin was of the opinion that rather than relying on necessary prescription medications to address her mental health issues, Mother was self-medicating with marijuana. Dr. Franklin recommended that Mother submit to a psychiatric evaluation to assess appropriate medications in view of her self-reported history of being prescribed Prozac, Risperdal and Klonapin in the past. As noted above, a psychiatric appointment was scheduled for Mother by CRT for that purpose but Mother failed to attend.
With respect to Mother's chronic history of transient lifestyle and unstable housing and its effect on her ability to provide stability for a child, Mother now has housing but her situation is tenuous. She reportedly resides in an apartment occupied by maternal grandmother, maternal step grandfather, a maternal uncle and Mother's partner. While the apartment may arguably be adequate for Mother by herself, it is cluttered and crowded and was determined not to be suitable for Justice, especially since Mother's oldest daughter, while left by Mother in maternal grandmother's care, fell out of a second story window and suffered a fractured skull.
Concern about Mother's history of unstable housing, poor choice of care givers and other parenting deficiencies resulted in the referral to Klingberg Family Services on 9/1/15 for parenting classes described in specific step No. 3 above. As noted, Mother never attended any of the sessions nor did she attend or comply with a second referral to Klingberg on 2/11/16 for the Spring session. The need for Mother to attend and participate in parenting classes to improve her ability to parent a child was underscored by Dr. Franklin's conclusion that " Because [Mother] is easily overwhelmed, has poor judgment and is intellectually compromised, parenting is expected to be challenging for her." (Exhibit G, p. 7.) Dr. Franklin testified that Mother has a history of being exploited by men and he expressed concern about Mother's ability to manage her own life. Dr. Franklin testified that given Mother's history and limitations, he did not believe that Mother was capable of parenting Justice.
Most disturbing of Mother's failures is her failure to keep her commitment under specific step no. 17 to visit Justice " as often as DCF permits." Although Mother has been fairly consistent and appropriate with visits supervised by DCF in the community, she has not visited Justice at the relative foster home in Windsor with even minimal consistency despite being offered unlimited visits and being encouraged by DCF and the relative foster mother to visit Justice. DCF provided Mother with bus passes to attend visits and when Mother's sister offered to drive Mother to the foster home, she was not home when her sister went to pick her up. Mother's failure to visit Justice as often as permitted illustrates her lack of understanding of the importance to Justice of parent and child bonding and her lack of commitment to reunification. The decisive consideration in assessing the adjudicatory ground of failure to rehabilitate requires a determination of whether the respondent parent has sufficiently addressed the issues and parental deficiencies that gave rise to DCF involvement to the degree that the parent can, considering the age and needs of the child, assume a responsible position in the child's life, or will be able to do so in the reasonably foreseeable future. " Although the standard is not full rehabilitation, the parent must show more than 'any' rehabilitation . . . Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation." (Citations omitted.) In re Jennifer W., 75 Conn.App., 485, 500, 816 A.2d 697 (2003). The issue is not whether the parent has improved his or her ability to manage his or her own life, but whether he or she has gained an ability to care for the specific needs of the child at issue. See In re Jocquyce C., 124 Conn.App. 619, 627, 5 A.3d 575 (2010).
Based on the entirety of the evidence in the record of Mother's conduct, prior and subsequent to the filing of the petition, the court finds by clear and convincing evidence that Mother has not achieved the degree of rehabilitation sufficient to encourage the belief that within a reasonable period of time, considering the age and needs of Justice, that Mother could assume a responsible position in her child's life within the meaning of General Statutes § 17a-112(j)(3)(B).
Adjudication of John Doe
DCF has alleged Ground A (abandonment), Ground B-1 (failure to rehabilitate) and Ground D (no on-going parent child relationship) as adjudicatory grounds to terminate the parental rights of John Doe. " Because the statutory grounds necessary to grant a petition for termination of parental rights are expressed in the disjunctive, the court need find only one ground to grant the petition." In re Brea B., 75 Conn.App. 466, 473, 816 A.2d 707 (2003). Based on the evidence in the record, the court makes the following findings, by clear and convincing evidence.
Ground A (Abandonment)
With respect to the allegations concerning the statutory ground of abandonment, the court may consider only the evidence related to circumstances and events prior to June 9, 2016, the date on which the TPR petition was filed. No individual claiming to be John Doe and the father of Justice has come forward to claim paternity of Justice, requested any visitation or contact with the child, sent cards, gifts or letters to the child, inquired about the child, provided financial support or maintained any degree of interest, concern or responsibility as to the welfare of Justice.
Accordingly, the court finds, by clear and convincing evidence that John Doe has abandoned Justice.
Ground D (No On-Going Parent-Child Relationship)
A second statutory basis alleged by DCF for terminating John Doe's parental rights to Justice is that no ongoing parent-child relationship within the meaning of General Statutes § 17a-112(j)(3)(D) exists. With regard to DCF's allegations that there is no ongoing parent-child relationship between Justice and John Doe, the court may consider the evidence and testimony related to circumstances and events occurring through the close of evidence. In re Amber B., 56 Conn.App. 776, 746 A.2d 222 (2000); In re Stanley D., 61 Conn.App. 224, 763 A.2d 83 (2000); In re Latifa K., 67 Conn.App. 742, 789 A.2d 1024 (2002).
The statute defines an " ongoing parent-child relationship" as meaning " the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child."
" [T]he statute [§ 17a-112(j)(3)(D)] requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. See In re Michael M., [29 Conn.App. 112, 129, 614 A.2d 832 (1992)]; In re Megan M., [24 Conn.App. 338, 341, 588 A.2d 239 (1991)]. The ultimate question is whether the child has no present memories or feelings for the natural parent." (Citations omitted.) In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).
John Doe has never made himself known to the court, DCF or the child. Justice has never met and can have no present memories of John Doe. John Doe has not entered the child's life or sought to establish an appropriate parent-child relationship. As complete strangers, there is no bond between Justice and John Doe nor any basis for allowing time for one to develop. The court finds by clear and convincing evidence that no ongoing parent-child relationship exists between John Doe and Justice and to allow time for such a relationship to develop would be detrimental to the child's best interest.
Disposition
DCF has proved all adjudicatory grounds alleged and therefore the court must address the dispositional phase of this proceeding and determine whether it is in the best interest of the child to terminate the parental rights of Mother and John Doe. " The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of his or her environment." (Internal quotation marks omitted.) In re Jason R., 129 Conn.App. 746, 766 n.15, 23 A.3d 18 (2011). " In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a-112(k)]." In re Jonathon G., supra, 63 Conn.App. 528. Those factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven nor is there any requirement that each factor be proven by clear and convincing evidence before termination can be ordered. In re Jason B., 137 Conn.App. 408, 422-23, 48 A.3d 676 (2012).
The Seven Statutory Factors
In determining whether it is in Justice's best interest to terminate Mother and John Doe's parental rights, the court has considered each of the seven statutory factors set forth in General Statutes § 17a-112(k) as required and makes the following findings:
1. The timeliness, nature and extent of services offered, provided and made available to the parents and the child by a child-placing agency to facilitate the reunion of the child with the parents.
The court finds that DCF offered appropriate and timely services to Mother to facilitate her reunion with the child as such services are set forth in the " Reasonable Efforts by DCF to Re-unify Mother and Justice, " section of the adjudicatory phase of this memorandum of decision which services and findings are hereby incorporated by reference herein.
No services could be provided to John Doe, who has not made himself known to DCF.
2. Whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended.
Based on the factual findings previously made in this Memorandum of Decision, the court finds that DCF has made reasonable efforts to reunify Justice with Mother pursuant to the federal Adoption and Safe Families Act of 1997, as amended and further finds that Mother was unable or unwilling to benefit from reunification services.
DCF made reasonable efforts to locate and contact John Doe but as he failed to come forward and was unavailable, reunification efforts could not be made for him.
3. Finding with regard to the terms of any applicable court order entered into and agreed upon by any individual or child-placing agency and the parent, and the extent to which all parties have fulfilled their obligations under such order.
The findings with regard to Mother's compliance with the court-ordered specific steps are set forth above in the adjudicatory phase of this memorandum of decision. Mother did not adequately fulfill her obligations under the specific steps. DCF adequately fulfilled its obligations imposed by the court-ordered specific steps.
No court orders were imposed on John Doe whose identity remains unknown.
4. The feelings and emotional ties of the child with respect to the child's parents, any guardian of the child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child had developed significant emotional ties.
The DCF social worker testified that Mother has acted appropriately at visits with Justice. She further testified that Justice appears happy to see Mother at visits but Justice displays the same demeanor when she greets the social worker. Justice has been cared for in a pre-adoptive foster home for more than one year where all her needs are being met and she has had the opportunity to bond with her foster family.
John Doe is a stranger to Justice and accordingly has no feelings or emotional ties to him.
5. The age of the child.
Justice was born February 21, 2015 and is twenty-one months old.
6. The efforts the parents have made to adjust the parents' circumstances, conduct or conditions to make it in the best interest of the child to return the child to the parents' home in the foreseeable future, including, but not limited to, (A) the extent to which the parents have maintained contact with the child as part of an effort to reunite the child with the parents, provided the court may give weight to incidental visitations, communications or contribution, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child.
Mother has failed to follow through with services offered. As a result of her failure, she has made only minimal efforts to adjust her circumstances, conduct or conditions and none to the degree to make it in the best interest of Justice to be reunited with Mother. Mother had regular contact with Justice at DCF supervised visits. Mother's maintenance of regular contact and communication with the child's foster family was impaired by Mother's failure to take advantage of the unlimited visits offered with Justice in the foster home.
John Doe's identity is unknown and he has failed to respond to the proceedings. In the absence of any information concerning his circumstances or conduct, it is not in the best interest of Justice to be reunited with John Doe.
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.
There was no evidence that Mother or John Doe have been prevented from maintaining a meaningful relationship with Justice by any unreasonable act by any person or by economic circumstances.
Additional Best Interest Considerations
" Trial courts must take the laboring oar to maintain the proper balance between parental rights to family integrity and the state's responsibility to protect the rights of children to grow up in a safe and nurturing environment." In re Christina M., 90 Conn.App. 565, 585, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006). In addition to consideration of the above statutory factors, the court has considered Justice's interest in sustained growth, development, well-being, stability, length of stay in foster care, continuity of a safe and secure environment, the nature of the child's relationship with the foster and biological parents and the degree of contact maintained with the biological parents. The court has balanced those interests against any benefit of maintaining a connection with her biological parents. The court has also considered that the attorney for the minor child supports the termination of Mother's parental rights as being in the best interest of Justice.
" Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate; it is ordered so as not to punish a child by denying [the child] a safe permanent home with proven competent caretakers because [the] biological [father] . . . continues to be incapable of providing such a home for [the child]." In re Samantha B., 45 Conn.Supp. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), cert. denied, 248 Conn. 902, 732 A.2d 177 (1999). In re Joseph W., 121 Conn.App. 605, 997 A.2d 512 (2010). Justice has lived in a pre-adoptive foster home since August 7, 2015. She is reported to be medically up to date and meeting all her developmental milestones. She is enrolled in day care where she is reported to have adjusted well. Justice needs stability, appropriate care and permanency, especially at her age. Her foster parents have demonstrated the ability to provide the same.
Conclusion and Orders
Having carefully considered and weighed all the credible testimonial and documentary evidence admitted at trial and made the factual findings set forth herein, the court finds, by clear and convincing evidence, that DCF has sustained the burden to prove the adjudicatory grounds alleged against Fatima M. (Mother) and John Doe by clear and convincing evidence. The court further finds, by clear and convincing evidence, that termination of the parental rights of Fatima M. (Mother) and John Doe to Justice S. is in the best interest of Justice S.
Accordingly, the court enters the following orders.
It is hereby ORDERED that the parental rights of Fatima M. (Mother) and John Doe (Father) to Justice S. are hereby terminated, and the Commissioner of DCF is appointed the statutory parent of Justice S., effective immediately. DCF shall file a case plan within thirty days of this judgment and such further reports shall be timely filed with the court as required by law.
Judgment shall enter accordingly.