Opinion
Nos. CP-04-004754-A, CP-04-004755-A
August 3, 2011
MEMORANDUM OF DECISION
This protracted and procedurally entangled child protection matter involves the interests of two minor children: Justin F. (d.o.b. October 24, 1997), and Hailee L. (d.o.b. October 27, 2003).
Kimberly A.-L. and Jason W. are the biological parents of Justin. The parents were never married to each other. Jason W.'s parental rights to Justin were terminated by the Superior Court for Juvenile Matters (Winslow, J.) in a decision that was rendered on April 18, 2007. Kimberly A.-L. and Anthony L., who have been married to each other since 2003, are the biological parents of Hailee L. Both of the children resided with Kimberly A.-L. and Anthony L. when the Department of Children and Families (DCF) initially became involved with the family during 2004. Additionally, it is not disputed that Justin had little contact with Jason W., and has for many years regarded Anthony L. as a parental figure. For purposes of clarity, Kimberly A.-L. and Anthony L. will be referred to in this decision as the "parents" and the "respondents."
Pending before this court are termination of parental rights petitions that were filed by DCF on November 25, 2008. (This is the second time that DCF has filed petitions to terminate the respondents' parental rights to these children. A detailed recitation of the lengthy procedural history of this matter, which is essential to an understanding of the various issues raised in this case, appears below.) The instant petitions seek the termination of Kimberly A.-L.'s parental rights to Justin, and the termination of both respondents' parental rights with respect to Hailee. Also pending are 33 motions, the majority of which have been filed by the respondents, who are self-represented. A listing of all the pending motions presently before the court is attached to this decision as Exhibit A, and is incorporated by reference herein. Many of the pleadings filed by the parents were repetitive, and some bear captions that contain editorial comments reflective of the respondent's beliefs about the nature and fairness of these proceedings. Basically, the pending motions filed by the respondents constitute motions to revoke commitment, motions for visitation and the restoration of their visitation rights, motions for the return of the physical custody of both children, and motions objecting to both the termination of their parental rights and DCF's permanency plans for the children. Additionally, the petitioner and the attorney for the minor children each filed objections to the parents' motions to revoke commitment, and DCF also filed a motion for review of the permanency plan. All of the pending motions were considered simultaneously by the undersigned during this trial on DCF's petitions to terminate parental rights.
In the pending TPR petitions, DCF initially alleged the following two grounds for the termination of Kimberly A.-L.'s parental rights to Justin, and for the termination of both respondent's parental rights with respect to Hailee: (1) parental failure to rehabilitate, pursuant to C.G.S. § 17a-112(j)(3)(B)(i); and parental failure to rehabilitate where the child has been in the custody of the commissioner of DCF for at least 15 months, pursuant to C.G.S. § 17a-112(j)(3)(B)(ii).
On April 3, 2009, the court (Esposito, J.) granted DCF's motion to amend the petitions by adding the count of abandonment, per C.G.S. § 17a-112(j)(3)(A), against each parent.
Trial before the undersigned began on September 20, 2010, and continued on 23 days through April 12, 2011, when the court heard the parties' final arguments. The court offered the parties the option to thereafter submit a simultaneous, supplemental memoranda of fact and law by April 26, 2011. The respondents submitted a supplemental memorandum. Counsel for DCF and the attorney for the minor children did not elect to prepare supplemental memoranda. As noted, Kimberly A.-L. and Anthony L. were self-represented throughout this case, and each had the assistance of court-appointed standby counsel. DCF was represented by an assistant attorney general. A court-appointed attorney for the minor children represented the interests of Justin and Hailee. The children were also assisted by a court-appointed guardian ad litem, who was present in court throughout the proceeding.
The undersigned is the third judge assigned to hear this matter. A trial on these petitions commenced before the Hon. Gerard Esposito on December 7, 2010. A mistrial was declared after Judge Esposito died while the trial was in progress. The trial resumed ab initio before the Hon. James Bentivegna on September 13, 2010. A second mistrial was declared when Judge Bentivegna recused himself on September 17, 2010.
The court has considered all of the evidence and testimony that was presented at trial. In order to ascertain the prior predicate rulings of other courts that are integral to this case, and to gain an understanding of the context surrounding their issuance, this court has taken judicial notice of earlier court findings and decisions in this matter, a listing of which is annexed hereto as Exhibit B, and is incorporated by reference herein. The court has also given careful consideration to the legal arguments of the parties.
PROCEDURAL HISTORY
The following procedural history is germane to the court's determination of the pending termination of parental rights petitions and other motions:
Justin and Hailee entered state foster care on September 23, 2004 after DCF invoked a 96-hour hold on their custody, pursuant to the provisions of C.G.S. 17a-101g(e). DCF took this action based upon the reported behaviors of the parents at the Bristol Hospital Emergency Department on September 23, 2004 when they sought a sexual abuse evaluation of Justin there. On September 27, 2004 the court (Ginocchio, J.) granted an ex parte request by the petitioner for temporary custody of the children. The order of temporary custody was sustained at the Superior Court for Juvenile Matters in Waterbury on September 30, 2004. Specific steps orders were set by the court for the respondents and DCF at the hearing on the order of temporary custody. A trial on DCF's neglect petition was held before the court (Bear, J.) at the Child Protection Session of the Superior Court for Juvenile Matters in Middletown from November 28, 2005 through November 30, 2005. The respondents were present in court on November 28th, but did not attend the other two days of the trial. On December 1, 2005, Judge Bear issued a memorandum of decision, of which this court has taken judicial notice. Judge Bear found that Justin was neglected, and that Hailee was neglected and uncared for, and committed both children to the care and custody of the petitioner. The case was thereafter returned to the juvenile matters court in Waterbury. The parties, who were subsequently denied a fee waiver, did not successfully appeal the neglect and uncared for adjudications and the disposition committing Justin and Hailee to DCF's care and custody.
A review of the court file indicates that Judge Bear did not issue new specific steps orders when he rendered the decision on December 1, 2005 that adjudicated Justin and Hailee as neglected children, and committed their custody to DCF. The specific steps orders that were set at the order of temporary custody hearing on September 30, 2004 remained in effect until Judge Winslow issued the amended specific steps orders at the hearing on September 5, 2007.
On April 26, 2006, DCF filed petitions at the juvenile matters court in Waterbury to terminate the parental rights of Kimberly A.-L. and Jason W. to Justin, and the parental rights of Kimberly A.-L. and Anthony L. to Hailee. The matter was transferred to the Child Protection Session in Danbury for trial. A 22-day trial on the first TPR petitions was held there before the court (Winslow, J.) during the months of February and March in 2007. The parents represented themselves during the trial with the aid of standby counsel. On April 18, 2007, Judge Winslow issued a written memorandum of decision. She found that DCF had failed to prove the grounds of parental failure to rehabilitate that had been alleged against Kimberly A.-L. and Anthony L., and denied the termination petitions that had been brought against those respondents. As part of her ruling, the judge also found that Kimberly A.-L. and Anthony L. had complied with the specific steps orders that had been previously ordered by the court.
Judge Winslow found that the petitioner had proven adjudicatory grounds for the termination of Jason W.'s parental rights to Justin, and that termination would be in the child's best interest. She terminated the biological father's parental rights to Justin. Although Judge Winslow did not terminate the parental rights of Kimberly A.-L. and Anthony L., she did not revoke the commitment, or return the children to the respondents' custody, on that date. Rather, the court ordered DCF on April 18, 2007 to file a revised permanency plan that would effectuate the children's reunification with the respondents. DCF appealed Judge Winslow's judgment denying the petitions for termination of parental rights on May 4, 2007, but subsequently withdrew its appeal on December 4, 2007.
Judge Winslow thereafter conducted a hearing at the court in Danbury on September 5, 2007. She issued amended specific steps orders to Kimberly A.-L. and Anthony L. and DCF on that date. Those orders, which were intended by the court to advance the parents' reunification, required the respondents to do the following: (1) to cooperate with one announced visit by DCF to their home; (2) to keep the children's whereabouts, and their own, known to DCF; (3) to cooperate with the children's therapy, including any new therapists to which DCF might refer them; (4) to accept and cooperate with any in-home support services referred by the department, including any specialist whose purpose is to facilitate reunification; (5) to cooperate with Boys Girls Village as to the implementation of reunification services; (6) to sign any release allowing Boys Girls Village to communicate with DCF; (7) to maintain adequate housing and legal income, to not engage in substance abuse and to have no involvement with the criminal justice system; (8) to advise the petitioner immediately of changes in the composition in the household; and (9) to visit the children as often as permitted by DCF. (See Petitioner's Exhibit 20, p. 111-17 and In Re Justin F., 116 Conn.App. 83, 97 (2009)). At the hearing on September 5, 2007, Judge Winslow approved the revised permanency plan submitted by DCF, insofar as it called for the reunification of both children with the respondents, but denied approval of the petitioner's proposed concurrent permanency plan of termination of parental rights and adoption.
The respondents filed a motion requesting the court to reconsider its specific steps orders on September 24, 2007. Judge Winslow denied that motion.
On January 18, 2008, Judge Winslow conducted a hearing on a motion to revoke commitment that the respondents filed on June 26, 2007. The respondents offered argument, but no evidence, at the revocation hearing. The court denied the motion to revoke commitment on that date. (See Transcript, January 18, 2008 Hearing (Winslow, J.) p. 109, line 16 — p. 110, line 16.). At the hearing, Judge Winslow also reminded the parents that they must comply with the court's September 5, 2007 specific steps orders, and that failure to do so could negatively affect their chances for reunification with Justin and Hailee. (See Transcript, January 18, 2008, p. 40, line 1-19). Kimberly A-L. and Anthony L. subsequently appealed Judge Winslow's September 5, 2007 specific steps orders and her decision on January 18, 2008 denying the respondent's motion to revoke commitment.
During the late summer and fall of 2007, the petitioner and the respondents both filed motions pertaining to the parents' visitation with the children. These included a motion to compel visitation filed by the parents; DCF's motion to modify visitation by requiring that a third party supervise the visits; and the respondents' motion to increase the frequency of visitation. Judge Winslow heard those motions at a proceeding that spanned three days between March 14, 2008 and May 12, 2008. At the conclusion of the hearing, on May 12, 2008, Judge Winslow granted the parents unsupervised visitation in an oral decision that was critical of both DCF and the respondents. In her oral decision, Judge Winslow found that both parties had posed "obstacles" to the reunification process. With respect to the petitioner, the court noted: "So I'm profoundly disappointed that DCF has not understood that its obligation in this case is a plan for reunification and that plan for reunification is intended to reunify, not to find evidence as to why the [respondents] should not be allowed to reunify. I see no conceivable reason at this time why supervised visitation is required . . . And I've heard enough evidence to convince me that supervised visitation is damaging to these children because DCF cannot constrain itself from interfering with the [respondents'] parenting of these children, which I have not found in any way improper during these visits." (Transcript, May 12, 2008 Hearing, (Winslow, J.), p. 188, line 24 — p. 189, line 9). The court also made the following comments about the parents at that hearing: "We've had substantial delays caused in this case . . . by the intransigence of the [respondents]. And by that I mean, basically, stubbornness. It's a fancy word that means stubborn. This is a case where the [respondents] would've benefitted greatly by having some legal assistance from competent attorneys, in which case the hearing probably would've concluded several months ago, and some progress might have been made towards reunification as a result. Because, however, they have repeatedly refused to accept legal assistance. They have caused substantial delay in making progress towards reunification. In addition to that, the [respondents] have refused to follow the specific steps that were set forward by the Court, which also would have advanced, considerably, progress toward reunification." (Transcript, May 12, 2008 Hearing (Winslow, J.), p. 186, line 8-25.)
The petitioner filed a motion requesting Judge Winslow to stay, pending appeal, her May 12, 2008 order granting the respondents unsupervised visitation. The court denied that motion in written decision dated June 6, 2008. Judge Winslow's decision was also critical of DCF. It chided the petitioner for ignoring the permanency plan of reunification and for continuing to pursue termination. The court also blamed the petitioner for causing hostilities with the respondents at supervised visits. (Memorandum of Decision, June 6, 2008, p. 2-4.) In her June 6, 2008 memorandum of decision on the motion for stay, Judge Winslow also wrote: "Any delay in the expansion of visits will be detrimental to the children. The delay in reunification efforts will only worsen the situation. Reunification cannot make progress in the current climate of mutual hostility between the Waterbury office of DCF and the respondents in the context of supervised visits. The respondents are difficult and annoying people, but have presented no physical or emotional danger to the children for years." ( Id., p. 4.)
DCF appealed Judge Winslow's order granting the parents unsupervised visitation with the children. The petitioner also moved the Appellate Court for an emergency stay of the order. The Appellate Court initially granted the stay on June 6, 2008, but subsequently vacated it on July 23, 2008.
On June 13, 2008, the respondents filed a contempt motion against DCF and various individuals associated with the petitioner. The respondents moved for contempt findings based on their claims that DCF had wilfully disobeyed the court's visitation orders, including Judge Winslow's May 12, 2008 order of unsupervised visitation. The respondents' contempt motion was heard by the court (Kahn, J.) on July 9, 2008. Judge Kahn denied the motion. The parents then filed a motion to reargue the contempt motion. Judge Kahn held further proceedings on July 23, 2008 and again denied the respondents' contempt motion.
On July 25, 2008, the petitioner filed an ex parte motion for emergency relief to modify the court's visitation orders at the Superior Court for Juvenile Matters in New Haven, where the parents now resided. DCF claimed in the motion that the court's May 12, 2008 order awarding the parents unsupervised visitation was not based upon a consideration by the court of the children's best interests. The petitioner also alleged factual claims in the motion in support of their request that the respondents' visits with Hailee be suspended, and that their visits with Justin be supervised. The court (Brown, J.) scheduled the matter for an evidentiary hearing, denied the ex parte relief requested by DCF and ordered that the children were not to be forcibly removed from their foster homes to attend visits with their parents. The matter was assigned for a contested hearing on August 13, 2008 at the Child Protection Session in Middletown. The respondents moved on August 4, 2008 for a continuance of the August 13th hearing. The court (Bear, J.) granted the continuance, but also issued an order temporarily suspending the parents' visitation with the children, without prejudice, pending hearing on the motion that was rescheduled to begin on August 22, 2008.
Kimberly A.-L. and Anthony L. filed a second motion for revocation of commitment on August 7, 2008. On August 12, 2008, DCF filed a Motion for Review of Permanency Plan. The plan proposed by DCF was for the termination of the respondents' parental rights and adoption of the children. On August 15, 2008, the respondents filed a motion to reinstate their unsupervised visitation rights.
A hearing on DCF's emergency motion to modify the order of unsupervised visitation commenced before Judge Bear on August 22, 2008. During the course of that hearing, on August 25, 2008, Judge Bear issued a second temporary visitation order. Judge Bear noted that the hearing which had begun on August 22nd would likely require several additional hearing days before it could be tried to completion. The court modified its August 4, 2008 order suspending the parental visits with Justin and Hailee. Instead, the court ordered the DCF Commissioner to facilitate visits between the children and both parents in accordance with the provisions of C.G.S. § 17a-10a. Judge Bear noted that this order was also temporary in nature, and without prejudice to either party, pending his final decision on the motion currently being considered at the hearing. Basically, the court's invocation of C.G.S. § 17a-10a gave DCF the authority to determine the contours of the parents' contacts with Justin and Hailee, based upon the agency's consideration of the children's best interests, and the other factors enumerated in the statute.
This statute provides: "(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
"(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship.
"(c) If such child has an existing relationship with a sibling and is separated from such sibling as a result of intervention by the commissioner including, but not limited to, placement in a foster home or in the home of a relative, the commissioner shall, based upon consideration of the best interests of the child, ensure that such child has access to and visitation rights with such sibling throughout the duration of such placement. In determining the number, frequency and duration of such visits, the commissioner shall consider the best interests of each sibling, given each child's age and developmental level and the continuation of the sibling relationship.
"(d) The commissioner shall include in each child's plan of treatment information relating to the factors considered in making visitation determinations pursuant to this section. If the commissioner determines that such visits are not in the best interests of the child or that the number, frequency or duration of the visits requested by the child's attorney or guardian ad litem is not in the best interests of the child, the commissioner shall include the reasons for such determination in the child's plan of treatment."
After several additional days of hearing, Judge Bear issued a final decision on the petitioner's emergency motion to modify visitation on December 9, 2008. On page 30 of his written memorandum of decision, the judge noted: "With respect to the pending motion seeking cessation of the parents' visitation with Hailee and the supervised visitation between the parents and Justin, General Statutes § 17a-10a is the governing statute." The court also ordered that ". . . DCF has the responsibility and duty to determine the visitation between Justin and his parents that is in his best interests." (Memorandum of Decision, (Bear, J.), December 9, 2008, p. 132.) Because the petitioner's motion also requested that the court suspend the respondents' visitation with Hailee, the court continued the hearing pursuant to the provisions of C.G.S. § 17a-10a in order to receive further evidence about whether or not it would be in Hailee's best interests to suspend the parental visits.
At a hearing conducted on December 12, 2008, counsel for the petitioner represented that DCF was withdrawing its request for the suspension of the respondents' visits with Hailee. DCF indicated that it would offer Kimberly A.-L. and Anthony L. supervised visits with both children.
Based on the foregoing, Judge Bear concluded the hearing and affirmed as a final order on the modification motion his earlier interim ruling that DCF should determine the nature and frequency of the respondent's visitation with their children under the statutory provisions of C.G.S. § 17a-10a.
Kimberly A.-L. and Anthony L. filed numerous appeals from the trial court decisions referenced above. They appealed, inter alia, the specific steps orders that Judge Winslow established on September 5, 2007, Judge Winslow's order on January 18, 2008 denying their motion to revoke the commitment of the children, Judge Kahn's decisions in July 2008 denying their motion for contempt, Judge Brown's July 25, 2008 order that Justin and Hailee should not be forcibly removed from their foster homes to attend parental visits, Judge Bear's two temporary orders in August 2008 that initially suspended parental visits, and then permitted DCF to regulate the visitation under C.G.S. § 17a-10a, and Judge Bear's final ruling in December 2008 which affirmed that C.G.S. § 17a-10a applied, and that the petitioner had the authority and duty under that law to regulate the parents' visits with their two committed children. At around the same time, the petitioner appealed Judge Winslow's May 12, 2008 decision granting Kimberly A.-L. and Anthony L. unsupervised visits with Justin and Hailee. All of the those appeals (AC29498, AC29498-A01, AC29498-A02, AC29498-A03, AC29498-A04, AC29498-A05, AC 29498-A06, AC30610, AC30611 and AC29912) were consolidated for determination by the Connecticut Appellate Court.
As noted previously, DCF filed the pending petitions for termination of the respondent's parental rights on November 25, 2008. (The respondents introduced evidence during the current trial that DCF actually made the decision to file the second TPR petitions during December 2007. See Respondents' Exhibit E.) However, the second TPR trial was stayed by the Appellate Court and did not proceed until after the court ruled on the pending appeals. The Appellate Court issued its decision on June 11, 2009. See In Re Justin F., et al, supra. The Appellate Court found that Judge Winslow had the statutory authority to issue the specific steps orders under C.G.S. § 46b-129(b) and that ". . . each of the steps was in the best interests of the children and aimed at the ultimate goal of reunification of the family." Id., p. 98. The Appellate Court affirmed Judge Winslow's denial of the respondent's motion to revoke commitment, and the various orders of Judges Kahn and Brown. It ruled that the respondents' appeals of Judge Bear's interim orders were moot, because both had been superseded by that court's final visitation orders. The Appellate Court rejected the respondents' claims that Judge Bear should not have allowed DCF to determine the parameters of the parent-child visits under Section 17a-10a, and that the statute was unconstitutional. The court held that the ". . . parents provided no legal underpinning to their bare assertion that § 17a-10a is unconstitutional," and it declined to "undertake an analysis of the constitutionality of a statute whimsically against the strong presumption of its validity." Id., p. 109-10. The Appellate Court also held that: "Given the information provided to the court regarding the children's circumstances and in light of the long and tortured history of this matter, we do not fault the court for having decided to invoke the provisions of § 17a-10a in an effort to bring all the resources of the department into play to set a course in the best interests of the children." Id., p. 110. Finally, the Appellate Court rejected as moot the petitioner's appeal of Judge Winslow's May 12, 2008 order granting the parents unsupervised visitation. The Appellate Court ruled that subsequent to the May 12, 2008 orders, ". . . the court issued visitation orders suspending visitation and then yielding responsibility to determine the contours of visitation with the children to the department pursuant to § 17a-10a. Because, as noted previously, we do not disturb those subsequent orders on appeal, there is no practical relief we can afford to the commissioner. Accordingly, the commissioner's appeal must be dismissed." Id., p. 111.
Kimberly A.-L. and Anthony L. appealed the rulings by our Appellate Court to the Connecticut Supreme Court and the United States Supreme Court. The Connecticut Supreme Court denied the respondents' petition for certification for appeal on September 9, 2009. In Re Justin F. et al., 293 Conn. 914 (2009). The United States Supreme Court denied the parents' petition for a writ of certiorari on January 25, 2010. Kimberly [A.-L.], et vir, Petitioners v. Connecticut, 130 S.Ct. 1298 (2010).
Additional procedural history will be recounted below, when necessary, for contextual purposes in connection with this court's factual findings in the present case.
FACTUAL FINDINGS RE ADJUDICATION
Judge Winslow denied the first TPR petitions on April 18, 2007 and then issued amended specific steps orders at a hearing on September 5, 2007. The court rendered the specific steps orders orally and on the record at that hearing. (Petitioner's Exhibit 20.) There was credible evidence at trial that the respondents did not sign, or agree to, those orders.
The respondents argue that the specific steps orders were legally defective because they did not sign or agree to them. In support of this claim, they cite C.G.S. § 17a-112(k)(3) which requires the court in a termination case to consider ". . . the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order." The court does not accept this argument. The provisions of C.G.S. § 17a-112, which set forth the statutory scheme for the termination of parental rights, must be read in concert with C.G.S. § 46b-129(c)(6), the statute that vests the court with authority to issue specific steps orders at the outset of a neglect or uncared for proceeding. That statute does not mandate parental acquiescence, and states: "The court, after a hearing pursuant to this subsection shall order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or retain custody of the child or youth." (Emphasis added.)
The respondents appealed Judge Winslow's specific steps orders on February 4, 2008.
In their appeal, the respondents asserted that the amended specific steps orders violated their constitutional rights. As previously noted, the Appellate Court ruled in June 2009 that the specific steps issued by Judge Winslow were appropriate and based upon the best interests of the children. In Re Justin F., 116 Conn.App., p. 98-99.
As part of the amended specific steps orders, which the court ordered to facilitate the reunification of the parents with Justin and Hailee, the respondents were required to participate in the children's counseling, and to undergo family therapy with the children. Judge Winslow was aware from evidence presented at the first TPR trial that Justin had by then been seeing a therapist on a regular basis. DCF informed the court at the hearing on September 5, 2007 that Justin's therapist had recently relocated outside of Connecticut, and that the child was about to commence treatment with a new mental health professional. (Transcript, September 5, 2007, p. 45-46.) The court engaged in a lengthy discussion with the parents at that hearing, and underscored the necessity that they learn about Justin's emotional difficulties and cooperate with his therapist. (Transcript, September 5, 2007, p. 63-66.) At the hearing, Judge Winslow told the respondents: ". . . it behooves the parents to cooperate with the therapist for Justin, find out what's going on with Justin." ( Id., p. 63, line 25-27.) She also stated: "I'm hearing that he's got some behavioral issues, some difficulties. Find out what the problems are with Justin. Find out how you can deal with those problems." ( Id., p. 64, line 2-3.) When DCF reported the name of a therapist who would shortly begin treating Justin, the parents objected to that therapist's selection and expressed concern that he would be biased. Judge Winslow instructed DCF to select a mental health professional with no nexus to the case, in hopes that the parents would be more willing to cooperate. ( Id., p. 68.) Judge Winslow issued the following order to Kimberly A-L and Anthony L. during the hearing on September 5, 2007: "You are to participate in the counseling for your children, and that includes Justin with any new therapist that he is going to; and you are to cooperate with any therapist to which Justin and Hailee may be sent. I don't know if she's — if that's being contemplated at this point in time. But essentially, you are to cooperate with and participate in family therapy, ( Id., p. 112, line 15-21.)
Eileen Geary, the DCF social worker assigned to the case, testified credibly during the present trial that in accord with Judge Winslow's order, the petitioner retained Dr. Diana Martinez, a licensed clinical psychologist, to treat Justin and Hailee, and to conduct family therapy sessions with the parents and children. Ms. Geary wrote a letter to the parents on September 11, 2007. (Petitioner's Exhibit 30.) The worker informed the respondents in that letter about Dr. Martinez's selection. In order to make the visits more convenient for the respondents, DCF arranged to have Dr. Martinez conduct sessions with the parents and children after the parents' weekly supervised visits with the children. ( Id.) The worker provided the parents with the therapist's address and telephone number, and advised them that Dr. Martinez' first therapy session with Justin and Hailee was scheduled for September 18, 2007 at 5:45 p.m. at the psychologist's office in Waterbury. ( Id.) The parents were invited to attend. ( Id.)
Ms. Geary testified credibly during this trial that neither parent has ever participated in the children's individual therapy, or engaged in family therapy, as Judge Winslow ordered on September 5, 2007.
On September 18, 2007, the date when Dr. Martinez was scheduled to have her first appointment with Justin and Hailee, the respondents faxed a five-page letter to her.
The parents told Dr. Martinez in this communication that they were prohibiting her from treating the children, and stated that she could be subjected to civil and/or criminal penalties if she did so. (Petitioner's Exhibit 21.) The respondent's letter to Dr. Martinez, which was written 13 days after the hearing when the court issued its specific steps and urged the parents to cooperate in the children's mental health therapy, stated in part: "On September 5, 2007, Judge Winslow court [sic] ordered that the CT DCF place our children in counseling of their choice, over our objections and infringing upon our constitutional rights/civil rights. The court order is unlawful and void because DCF does not have legal guardianship of our two children (Justin and Hailee) and it is also unconstitutional to treat minors without parental consent." ( Id., p. 3.)
Dr. Martinez testified during the present proceeding that she found the parents' letter threatening legal repercussions to be "highly intimidating." (Transcript, December 15, 2010, p. 24 line 11-12.) Dr. Martinez holds a PhD degree, has been a licensed clinical psychologist for 25 years, and has testified as an expert witness in court 50-60 times.
At the request of DCF, Dr. Martinez initially saw both Justin and Hailee. However, the psychologist only had two contacts with Hailee, both during 2007. After the second session the psychologist concluded that Hailee was functioning very well, and did not require ongoing psychological therapy at that time. Dr. Martinez has treated Justin continuously since September 2007. (Transcript, December 15, 2010, p. 30-33.) Dr. Martinez also confirmed that neither respondent has ever participated in the children's therapy or family therapy with her since she has been involved with this case.
Since approximately September 2008, Hailee has been involved in therapy with at the Yale Child Study Clinic. (Petitioner's Exhibit 53, p. 4.) Her current therapist there is Dr. Claudia Califano. Dr. Califano, a psychiatrist, has provided psychotherapy and play therapy for Hailee since July 2010. (Transcript, January 6, 2011, p. 38, line 12-16.) The child's psychological diagnosis and treatment will be discussed in greater detail below. That treatment is not for reunification purposes. ( Id., p. 56, line 18-26.) The respondent parents were not asked to participate in Hailee's therapy at the Yale Child Study Clinic. ( Id., p. 76, line 9-14.) The court does not find the respondents' non-involvement with Hailee's therapy at the Yale Child Study Clinic to be a violation of the September 5, 2007 specific steps orders.
Dr. Martinez testified credibly that Justin is an emotionally fragile child who will destabilize very quickly when he is subjected to various stressors. He has a history of aggressive behavior, oppositional and resistive behavior, and frequent tantrums so severe that he sometimes had to be physically restrained. (Transcript, December 15, 2010, p. 25, line 12-14.) Dr. Martinez, and the prior therapist, have treated Justin for these problems. She has attempted in therapy to provide the child and his foster mother with techniques and problem solving skills that will assist them to manage Justin's behaviors in ways that are calming and soothing. ( Id., p. 26, line 5-12.) Although Justin still acts out and displays the behaviors mentioned above, the occurrences have become less frequent since the child has been receiving therapy. ( Id., p. 28, line 11-18). Dr. Martinez opined that Justin is dealing with feelings of being abandoned by his parents, and has "deep trust issues." She also testified that Justin, who is now 13, is at risk for many potential problems related to his mental health. These include the possibilities that he could experience anxiety disorder, engage in anti-social activities and substance abuse, and have problems sustaining friendships and relationships. The psychologist also believes that, despite having average or better intelligence, Justin is at risk for dropping out of school. Dr. Martinez testified credibly that Justin requires permanency in order to ensure his mental health.
Dr. Martinez also offered the following opinion about the failure of the respondents to engage in Justin's treatment: "The fact that his parents have not participated in therapy introduces ambiguities in terms of what quality of care they can provide for him were he to return to their care." (Transcript, December 15, 2010, p. 44, line 27 and p. 45, line 3.) The court found the testimony and professional opinions of Dr. Martinez to be credible, and accepts them as fact.
During cross examination by Anthony L., Dr. Martinez testified credibly that she is not a reunification specialist (Transcript, December 15, 2010, p. 122, line 10-11.) and that the referral form sent to her by DCF did not list reunification as one of the treatment goals for the children. ( Id., p. 101, l.-3.) Dr. Martinez also admitted that if she had conducted sessions with the children and the parents, she would have gathered information that would have been shared with the petitioner and the court. This evidence appears to have been offered by the parents in an attempt to prove that the services offered by Dr. Martinez were not implemented by DCF to facilitate reunification, and were really intended to aid the petitioner in securing evidence that could be used against the respondents in court. This court was not persuaded by the evidence.
Ms. Geary, the DCF social worker, testified that because Justin and Hailee had been out of the respondent's care for several years by 2007, the family therapy sessions could have aided the children's transition back into the parental home, and also could have given the respondents information about the children's emotional needs. (Transcript, September 20, 2010, p. 106, line 15-22.)
Dr. Martinez testified that she was informed by Ms. Geary that there was an order for reunification. (Transcript, December 15, 2010, p. 115, line 24-25.) She testified that she had previously conducted family therapy with the goal of facilitating reunification, and was well acquainted with this type of professional pursuit. ( Id., p. 38, line 3-11.) She also stated that if the parents had participated in therapy sessions, she would have attempted to facilitate reunification by helping Justin and Hailee to establish a basis trust and attachment with their parents so that the parents could resume total care of the children, and by assisting the parents to become more cognizant of the needs of their children. ( Id., p. 39-40.) She specifically testified: "Well, the first step is really, having everybody in the same room getting acquainted with one another and establishing some ground rules of what the purpose is and where we're going, goals. Reunification is a gradual process, a gradual process in where the parents will require becoming more attuned to their children's needs, particularly if there's been a long time where they have not had direct contact caring for their children." ( Id., p. 39, line 11-19.) The psychologist also opined that reunification would be thwarted unless respondents engaged in the children's individual counseling and family therapy. ( Id., p. 30, line 4-9.) The court credits all of the foregoing evidence. The court also finds the respondents' objections to the fact that Dr. Martinez would share her information and observations with the petitioner and the court to be without merit. Although it is true that negative information resulting from such sessions would have been detrimental to the respondents' chances for reunification, it is equally just as true that positive information would have enhanced them.
At a hearing on May 12, 2008, eight months after she issued her specific steps orders, Judge Winslow again explicitly reminded the respondents that it was imperative for them to engage in the children's therapy. She told the parents: "Take advantage of some of those helps that are available. I refer in particular to Dr. Martinez, with whom you really urgently ought to be in touch, regarding what needs to be done with transition." (Transcript, May 12, 2008, p. 117, line 16-24.) DCF sent numerous letters to the respondents reminding them about this specific step, and inviting them to participate in Justin and Hailee's therapy. (See Petitioner's Exhibits 1-19 and 29-38.) Unfortunately, clear and convincing evidence proved that from September 5, 2007 through the date that this trial concluded, Kimberly A.-L. and Anthony L. never contacted Dr. Martinez to initiate therapy, have consistently refused to cooperate with the mental health counseling of the children, and have not engaged in family therapy. They also sent written warning to the therapists selected by DCF advising that they could be penalized for treating the children without parental permission.
Judge Winslow also ordered the respondents to permit DCF to conduct one announced visit at the family home. This was ordered to ensure that the premises were suitable for Justin and Hailee. The judge specifically indicated that only one parent had to be present when DCF conducted the visit. She also directed that the respondents' daughter Amanda, who was born to the parents after Justin and Hailee entered state foster care, did not have to be present in the home during DCF's inspection. Ms. Geary testified credibly that the parents never complied with this specific step. Kimberly A.-L. left a voice mail message for Raenette Riddick, a DCF supervisor, on September 18, 2007. The mother informed DCF during the call that the respondents would not be home on the following day at 3 p.m. when the department had indicated that it wished to conduct the visit. The respondent stated: "So just wanted to let you know that nobody will be here to open the door and even if we were going to be home we wouldn't open up the door anyways." She also informed the DCF supervisor that the owner of the property "is still looking to press charges" because the premises had been posted with a no trespassing sign. (Respondent's Exhibit G-1.)
The evidence at trial established that Kimberly A.-L. made similar telephone calls to DCF on two earlier occasions in 2007. During these contacts, the mother warned that DCF personnel would be subjected to arrest for trespassing if they entered onto the premises where the family was residing.
Ms. Geary testified that she and Ms. Riddick went to the respondents' residence in an unsuccessful attempt to conduct the home visit on October 23, 2007. (Transcript, February 16, 2011, p. 67.) Jacqueline F., the paternal grandmother and an intervening party in this case, confirmed during her testimony that the DCF employees attempted to make a home visit at the respondents' residence on that date. (Transcript, March 23, 2011, p. 91, line 18-21.) On November 6, 2007, the respondents sent a nine-page complaint via telefax to the New Haven Police Department. (Respondents' Exhibit N-5.) In their complaint to the police, the respondents alleged that Ms. Geary and Ms. Riddick committed criminal trespass when they went to the parents' home. ( Id.) The complaint requested that the police arrest the DCF employees. ( Id., p. 9.) The respondents' written complaint to the police did not mention Judge Winslow's September 5, 2007 specific steps order that DCF was to conduct a home visit at the parents' residence.
The respondents issued a subpoena to the New Haven Police Department in connection with this trial. Lt. Lisa Dadio testified at trial in response to that subpoena. Lieutenant Dadio testified that her agency received the parent's complaint via telefax on November 6, 2007. (Transcript, March 23, 2011, p. 23, line 17-19.) The lieutenant called Ms. Riddick and advised her about the respondents' complaint. ( Id., p. 27, line 22-27 and p. 28, line 1-7.) The New Haven Police Department took no enforcement action against the DCF employees. (Respondent's Exhibit K-3.)
During the trial, the respondents offered into evidence a letter that was sent to them by Ms. Geary on June 6, 2007. (Respondent's Exhibit B.) Ms. Geary wrote the letter after Judge Winslow denied the first TPR petitions, but before the September 5, 2007 hearing when the second set of specific steps orders were issued. In the letter, the social worker indicated that DCF wanted to conduct the home visit in order to assess the suitability of the premises for Justin and Hailee. She also wrote in the letter that another purpose of the visit would be to assess the needs of the respondent's other child, Amanda. The respondents argued at trial that the petitioner's real purpose in visiting the home was to check on Amanda. However, as noted above, Judge Winslow addressed the parents' concerns about Amanda at the September 5, 2007 hearing when she specifically instructed that the child did not have to be present during the DCF home visit. Despite that ruling by the court, the respondents consistently refused to comply with this specific steps order.
The respondents contended at trial that the home visit requirement, and all of Judge Winslow's September 5, 2007 specific steps orders, were eliminated on May 12, 2008 when that court awarded the parents unsupervised visitation. This court does not agree that all of Judge Winslow's specific steps orders were vitiated by her May 12, 2008 order granting unsupervised visitation. The May 12th hearing dealt with various motions pertaining to visitation. Judge Winslow did not revoke commitment, or restore custody of the children to the parents, on that date. There was no indication that the court no longer wanted the respondents to visit the children as often as permitted by DCF, cooperate with in-home reunification services, or participate in family therapy and the children's individual therapy. Indeed, as noted above, Judge Winslow specifically reaffirmed one of the specific steps when she admonished the respondents at the May 12, 2008 hearing about the urgent need for them to become involved with Dr. Martinez. (Transcript, May 12, 2008, supra.)
Although this court does not find that Judge Winslow eliminated all of her prior specific steps orders when she modified the visitation order on May 12, 2008, the court does find that Judge Winslow eliminated the specific steps requirement that the parents must cooperate with one DCF home visit. As noted, Judge Winslow had previously informed the respondents that the purpose of one home visit was to see whether their premises were "suitable." (Petitioner's Exhibit 20, p. 111, l. 24-26.) Implicit in Judge Winslow's May 12th order granting unsupervised parent-child contacts at the family home was a determination by her that those premises were then a physically suitable place for Justin and Hailee to be present. This court concludes that as of May 12, 2008, Judge Winslow determined that the respondents' compliance with a home visit by DCF was no longer necessary. However, this court will consider the evidence about the parents' lack of compliance with this specific step order prior to May 12, 2008 in making findings about the respondents' abilities and/or willingness to benefit from reunification efforts.
Another specific steps order that was issued on September 5, 2007 was the requirement that the parents comply with any in-home support services referred by DCF. The respondents were also ordered specifically to cooperate with a service provider known as Boys Girls Village, and to sign any releases that were necessary in order for DCF and that agency to communicate.
Ms. Geary testified about her efforts to refer the respondents to Boys Girls Village for in-home reunification services during September 2007. The social worker testified that when she attempted to make the referral to the Boys Girls Village in Waterbury, the respondents refused to sign the necessary authorization form that would have permitted DCF and Boys Girls Village to communicate. As a result of the parents' refusal to sign the necessary releases, the referral for the in-home support services could not be made by DCF. (Transcript, September 20, 2010, p. 76, line 9-18, p. 77, line 7-12.) A "Study In Support of Permanency Plan" that the petitioner filed with the court on August 12, 2008 noted: "On 9/25/07 the Department of Children and Families notified [the respondents] that the referral for in-home services had been initiated and that their signature on a release of information was mandatory in order to complete the referral packet. The [respondents] refused the service and sent a letter stating the Department of Children and Families had violated their constitutional rights and threatening legal action." (Petitioner's Exhibit 55, p. 7.)
The respondents cross-examined Ms. Geary extensively during this trial about the proposed referral to Boys Girls Village. They also introduced the affidavit and testimony of Christina Kennan, an official with the agency. The apparent purpose of the respondents' proffers was to demonstrate that the Boys Girls Village did not offer in-home reunification services in 2007, and, therefore, that DCF's referral was not a sincere and reasonable effort by the petitioner to provide reunification services to the parents. The respondents also introduced into evidence a document entitled "Boys Girls Village Inc. In Home Services Program Referral Summary." (Respondents' Exhibit I-1.) The form, which consists of three pages, was signed on September 25, 2007 by Eileen Geary and Raenette Riddick of DCF. It was obtained from the petitioner's case file. The referral summary, which was partially completed, contains information about the parents and the children. Next to the heading "Criteria for Referral," a box is checked and the following statement appears: "child is in out of home placement and the involvement of In-Home Services would enable them to return to the home earlier than original discharge plan (approximately six months)." ( Id., p. 1.) On that form under the "Service Provided" heading, an "X" appears in the box next to the words "Reunification Service." ( Id.) Although Respondents' Exhibit I-1 was filled out and signed by the DCF officials, it was never sent to Boys Girls Village. The court infers from the testimony of Ms. Geary that this was because the respondents refused to sign the releases that would have enabled DCF and the agency to share information and discuss the referral. (See Transcript, September 20, 2010, p. 134, line 6-16.)
Ms Keenan is the program manager of in-home support services for Boys Girls Village. In addition to eliciting her testimony, the respondents also introduced her sworn affidavit into evidence. (Respondent's Exhibit M-5.) Ms. Keenan testified credibly that her agency offers an intensive family preservation program in the Waterbury and Bridgeport areas. (Transcript, March 23, 2011, p. 142, line 2-23, Respondent's Exhibit M-5, Respondent's Exhibit P-5.) However, this program could not have been provided to the respondents for the following two reasons: (1) it was not available to clients in the New Haven area (Transcript, March 23, 2011, p. 142, line 21-23); and (2) the program is aimed at preventing the removal of children from the parental home, and is not available to clients whose children are already in foster care. ( Id., line 6-9.)
Ms. Keenan testified credibly that sometime prior to 2006, Boys Girls Village offered in-home reunification services to parents whose children had been removed from their homes. (Transcript, March 23, 2011, p. 155, line 2-12.) Because her agency did not offer that program in 2007, Boys Girls Village could not have provided it to the respondents at the time when Ms. Geary attempted to make the referral. However, Ms. Keenan also testified credibly that Boys Girls Village contracts with DCF on a statewide basis to offer a program known as the "Permanency Planning Services Program," (PPSP). Boys Girls Village potentially could have been retained by the petitioner in 2007 to provide reunification services to the parents through the PPSP. ( Id., p. 145, line 19-27, p. 146, line 1-27; p. 147, l. 1-2; and p. 164, line 21-27.) Ms Keenan also testified credibly that her agency could not have received DCF's referral summary (Respondents' Exhibit I-1) unless the respondents signed a release authorizing the petitioner to share information about the parents. ( Id., p. 171, line 19-22.)
The court found that Ms. Keenan's testimony, although credible, was somewhat imprecise about exactly when Boys Girls Village offered in-home reunification services. In answer to one question, Ms. Keenan appeared to confirm that her agency offered this program prior to 2006. (Transcript, March 23, 2011, p. 155, line 2-7.) In another response, Ms. Keenan testified that the in-home reunification program was offered by her agency through December of 2006. ( Id., l. 8-12). Later in her testimony Ms. Keenan testified: "Approximately 2002, Boys and Girls Village had an in home services program that ended in the New Haven Region." ( Id., p. 160, line 5-6.)
The court finds from the foregoing evidence that during September 2007, Ms. Geary complied with Judge Winslow's specific steps orders by attempting to refer the respondents for in-home reunification services with the Boys Girls Village. The court finds that the parents were unwilling to cooperate with this service, and refused to sign authorizations that would have enabled DCF to release information to the Boys Girls Village, and to send along the referral to that agency. This was in contravention of the court's September 5, 2007 specific steps orders that required the parents to sign the necessary releases and cooperate with in-home reunification services. The court finds that the summary form partially filled out by Ms. Geary erroneously requested a particular service that Boys Girls Village could not have provided to the parents in 2007. However, the court is not persuaded by that evidence that the social worker was intentionally engaging in a hollow gesture, or that DCF was unwilling to provide such services to the parents. The respondents' refusal to sign the release forms indicated that they were rejecting such in-home services, and stopped the referral process. The court infers from the evidence that Ms. Geary's mistaken request for the discontinued program would have been discovered relatively quickly if the parents had authorized the petitioner to send in the referral and discuss it with Boys Girls Village. The court also finds from the evidence that a similar reunification service could possibly have been provided thereafter for the parents, either through the PPSP program offered by Boys Girls Village, or, through a subsequent referral to the Reconnecting Families Program, which is offered by a different service provider. (See Respondents' Exhibits M-5 and P-5.)
The parents were also ordered by the court on September 5, 2007 to "visit the children as often as permitted by DCF." (Transcript, September 5, 2007, p. 113, line 13-14.) Considerable evidence was introduced during this proceeding about the respondents' visitation with Justin and Hailee since the end of the first TPR trial in April 2007.
From April 18, 2007 until approximately July 2008, Kimberly A.-L. and Anthony L. had supervised visits with Justin and Hailee once each week for two hours at the Waterbury DCF office. The evidence established that the respondents consistently and punctually attended the supervised visits. The children's paternal grandmother, Jacqueline F., and their younger sister, Amanda, also participated in some of the visits during that time period. (Transcript, March 23, 2011, p. 51, et seq.) Certain DCF reports depicted the parental visits in a negative light. (See, for example, Petitioner's Exhibit 52, 54 and 55.) There was friction between DCF staff and the respondents during some of these visits. (Petitioner's Exhibit 55, p. 6.) However, evidence introduced at trial by the respondents, which included numerous excerpts from DCF case narratives and the testimony of individuals who observed some of the contacts, described the visits very positively. The narratives and testimony indicated that the parents often brought food and drinks to the visits, were affectionate with the children, and engaged in games, sports and other appropriate activities with the children during these contacts. A number of DCF narrative entries indicated that the children enjoyed the visits. (See, generally: Respondents' Exhibits D-1, N-1, L-1, T-1, P-2, Z-2, H-3, L-3, M-3, P-3, R-3, S-3, T-3, W-3, X-3, Z-3, and A-4.) The paternal grandmother offered similar testimony about the quality of the visits that she attended during that period. (Transcript, March 23, 2011, p. 69, line 23-27, p. 70, 1-2.) DCF never had to summon the police, or the private security officers on duty at its office, to intervene with the respondents during any of the supervised visits.
The weightier portion of the evidence presented during this trial proved that the majority of the supervised visits were positive and enjoyable events for the family. For the most part, the parents behaved appropriately with their children during the supervised visits; Justin and Hailee interacted well with the respondents, their grandmother and their sibling; and the children — especially Justin — appeared to enjoy the visits.
There were a few instances during the supervised visits when Hailee was observed to experience "role confusion" when Anthony L. questioned her about the titles that she used when referring to the respondents and to her foster parents. (See Petitioner's Exhibit 56, p. 5; Respondent's Exhibit L-1; and Children's Exhibit ZZ, p. 2.) During the visitation hearing on May 12, 2008, Judge Winslow stated that the respondents were within their rights to instruct the children about the titles that they used to address their foster parents and biological parents, and criticized DCF for admonishing the father not to do so in the presence of the children at the visits. (Transcript, May 12, 2008, p. 187, line 10-27. See Also Judge Winslow's Memorandum of Decision dated June 6, 2008, p. 2-4.)
As noted previously, Judge Winslow also found on May 12, 2008 that the respondents' parenting of the children during the supervised visits was not ". . . in any way improper." Transcript, May 12, 2008 Hearing, p. 188, l. 24-p. 189, l. 9.
Judge Winslow orally modified the visitation order to permit the respondents unsupervised visits with Justin and Hailee on May 12, 2008. She filed a written decision elaborating on those orders and denying a motion to stay on June 6, 2008. DCF appealed that visitation order. The Appellate Court stayed the trial court's order on June 6, 2008, but subsequently vacated the stay on July 23, 2008. The petitioner then filed its emergency ex parte motion to modify visitation on July 25, 2008. In that motion, the petitioner requested that the respondent's visits with Hailee be suspended, and that Justin's visits be supervised. As noted previously, Judge Brown denied the relief requested pending hearing, but issued an ex parte order that the children were not to be forcibly removed from their foster homes for parental visits. On July 31, 2008, Justin had an unsupervised, three-hour visit with the respondents at the DCF office (Respondents' Exhibit B-2.) There was no evidence that Hailee ever had an unsupervised visit with the respondents.
Hailee began to exhibit symptoms of emotional distress during the spring and summer of 2008. Dr. Martinez testified she was consulted again about Hailee when the child displayed irritability, some anxiety, and difficulty sleeping following parental visits. (Transcript, December 15, 2010, p. 31, line 1-3.) The exact date of this consultation was not clear to the court, but the evidence suggested that it may have occurred during May 2008. ( Id., p. 30, line 25 and p. 31, line 1-8; and Petitioner's Exhibit 54, p. 4.) At the time of the consultation, Dr. Martinez offered suggestions about how to deal with some of the situations that arose during the visits. But she also recommended that if Hailee continued to exhibit similar behavior, she should be seen by a practitioner who specialized in treating younger children. (Transcript, December 15, 2010, p. 31, line 5-8.) A DCF social study that was introduced into evidence indicated that Hailee was experiencing "heightened anxiety and role confusion" around the time of the consultation; and also stated that she had "difficulties sleeping" and "unexplained crying fits" prior to entering treatment. (Petitioner's Exhibit 54, p. 4.) Hailee commenced therapy at the Yale Child Study Clinic in September 2008. (Petitioner's Exhibit 54, p. 4.)
In August 2008, Judge Bear modified the visitation order again in response to DCF's emergency motion when he issued interim orders that first temporarily suspended the parental contacts, and then authorized DCF to implement visitation pursuant to C.G.S. § 17a-10a. Judge Bear's final order on December 12, 2008 affirmed his earlier interim modification order that allowed DCF to establish the contours of visitation in the children's best interests under that statute. In his memorandum of decision, Judge Bear cited In re Devaun J., 109 Conn.App. 832, 836 (2008). (Memorandum of Decision, December 9, 2009, p. 32.) In the Devaun J. case, a child's therapist recommended that visits with the respondent be suspended because they caused instability and deterioration of the child's condition, and because the child saw the visits as a threat to his security and a risk of disruption of the permanency of his placement. Judge Bear found that the ". . . Devaun set of facts is quite similar to Hailee's circumstances as described by the foster mother and by the current social worker." ( Id., p. 32.) The Connecticut Appellate Court subsequently affirmed Judge Bear's visitation modification order in its In Re Justin F. decision, supra. (See specifically pages 129-110 of the Appellate Court's In re Justin F. decision.)
In early September 2008, the petitioner offered Kimberly A.-L. and Anthony L. weekly visits with both Justin and Hailee that were to be supervised by a third party other than DCF. (Petitioner's Exhibit 31.) In a letter to the parents dated September 11, 2008, Ms. Geary advised the respondents that DCF had contacted the Alliance Staffing Agency to supervise the visitation and requested that they contact her by telephone to make the arrangements for the resumption of their visits ( Id.). Since then, Ms. Geary and another social worker who was briefly assigned to the case wrote a number of additional letters to the parents. (Petitioner's Exhibits 1-19 and 32-38.)
In addition to inviting the respondents to participate in the children's therapy sessions and to cooperate with one DCF home visit, the social workers suggested to the respondents in these letters that they should visit with their children. In a letter to the parents dated October 15, 2008, Ms. Geary wrote: "If you wish to comply with weekly visitation arrangements set forth by the Department of Children and Families, please contact me to implement the 3rd party weekly, two hour visits which can be scheduled for Tuesday from 3:30-5:30 for your continued convenience." (Petitioner's Exhibit 35.) Similarly, in a letter to the respondents dated January 30, 2009, Ms Geary stated: "It is hoped that you contact the Department at your earliest convenience, in order to make arrangements for the weekly supervised visits to resume with Hailee and Justin, under the guidelines set forth in court on 12/12/08." (Petitioner's Exhibit 19.) Ms. Geary enclosed recent photographs of Justin and Hailee in a letter sent to the parents on June 29, 2010 (Petitioner's Exhibit 16; Transcript, September 20, 2010, p. 94, line 9-15.) Ms. Geary also stated in that communication that the parents could contact her to make arrangements for weekly supervised visits. ( Id.)
Ms Geary testified credibly at trial that the respondents never telephoned her to discuss arrangements for supervised visits. On September 11, 2008, Kimberly A.-L. and Anthony L. sent a 15-page document to various officials at the Department of Children and Families, the Superior Court for Juvenile Matters, and the Attorney General's Office. (Respondent's Exhibit X). The correspondence is captioned: "Requesting Our Parental Visits Back (2)." ( Id.) In this document, the respondents contended, inter alia, that Judge Winslow's orders of unsupervised visitation were still in effect, that Judge Bear's then interim modification order was unlawful, and that the third-party supervised visitation that DCF had offered was in contravention of both the specific steps orders and the unsupervised visitation orders that had previously been issued by Judge Winslow. ( Id.) The respondents requested in that correspondence that their weekly unsupervised visits be restored. ( Id., p. 15.) Since August 2008, the respondents have filed numerous motions with the court, and have also made numerous written requests to DCF for restoration of their unsupervised visitation. (Emphasis added.) A DCF narrative entry dated December 15, 2008 notes: "The parents send weekly letters requesting that their visits be reinstated." (Respondent's Exhibit 1-4.) The court finds that the respondents did not request, or agree to accept, the weekly supervised visits with Justin and Hailee that the petitioner has repeatedly offered them since early September 2008.
DCF scheduled two administrative treatment plan hearings to address the respondent's requests for unsupervised visits, and their opposition to the petitioner's determination that their visits with Justin and Hailee should be supervised. (Petitioner's Exhibit 29, and Transcript, September 20, 2010, p. 97, line 9-14.) The administrative hearings, which are authorized under the provisions of C.G.S. § 17a-15, were scheduled for December 29, 2008 and February 27, 2009. (Petitioner's Exhibit 29.) The respondents did not attend either treatment plan hearing. (Petitioner's Exhibit 56, p. 2-3; Transcript, September 20, 2010, p. 97, line 13-14.) See also In re Justin F., supra, 116 Conn.App. 83, 109 (2009). The hearings officer, Attorney Dale King, dismissed their requests/administrative appeals with prejudice both times. (Petitioner's Exhibit 29.)
Following each dismissal, the respondents filed pleadings dated January 5, 2009 and March 6, 2009 entitled: "Opposition and Response to Corrupted Dale H. King's Notice of Dismissal of Treatment Plan Hearing."
In addition to asserting that Judge Bear's orders modifying visitation in August 2008 and December 2008 were unlawful, the respondents also claim that they have been barred from the DCF office in Waterbury. The parents had their supervised visits at that location for several years, and had an unsupervised visit with Justin there during the summer of 2008. (Respondents' Exhibits X and B-2.) After Judge Bear issued the August 4, 2008 order temporarily suspending their visitation, the respondents and the paternal grandmother went to the DCF office in Waterbury on August 12, 2008. That was their next previously scheduled date for an unsupervised visit with Justin. (Respondent's Exhibit C-2.) One of the respondents called the Waterbury police, and an officer from that department arrived at the DCF office and spoke with all the parties ( Id.) A DCF representative informed the parents and the officer about Judge Bear's order suspending visitation, and advised them that a visit would not take place that day. ( Id.) After speaking with the respondents and the DCF representative, the police officer instructed the respondents to leave the premises ( Id.) The foregoing evidence appears to have been offered by the respondents in support of their claim that they have been prevented from visiting the children by the petitioner and the court since that date, and, more specifically, that they could not visit the children because they have been barred from the DCF offices. (See Respondent's Exhibit X, p. 2.) However, the court finds that this contention is refuted by the credible evidence that DCF has offered the parents third-party supervised visitation at a location other than the DCF offices consistently since September 2008, and has repeatedly written to the parents and suggested that they visit their children. It is also refuted by the credible evidence that the petitioners failed to attend two scheduled treatment plan hearings held by DCF, where they could have voiced their concerns about visitation.
This court takes judicial notice of the provisions of Connecticut's Uniform Administrative Procedure Act, C.G.S. § 4-166, et sequitur. The respondents had the opportunity to address their requests and objections pertaining to the petitioner's visitation plan at those administrative hearings. If the respondents were aggrieved by a ruling of the hearings officer that they considered to be adverse, they could have taken an appeal to the Superior Court under the applicable statutory provisions of the Act.
The respondents also claim that Judge Bear informed them at the December 12, 2008 hearing that visitation may not be for purposes of reunification. By then, DCF had filed the second TPR petitions. The respondents appear to claim that since the termination petitions had been filed, and because they had been told by Judge Bear that visitation may not be for purposes of reunification, Judge Winslow's order that the parents visit the children as often as permitted by DCF was vitiated. This court does not agree. Judge Bear stated the following to the parents on that date: "Until your rights are terminated, if that takes place, and it may not take place, so it's another reason, you're entitled to have — or until the Court under 17a-10a suspends visitation, you are entitled to have visitation. The visitation may not be at this point for purposes of reunification. But you're still entitled to have that visitation. But having said that, there are cases that occur in this Court more than once, not all the time, but enough to know that until the very end, if you're willing to work with DCF, and there's a basis on which to work, and you are willing to do what DCF thinks you need to do, there's always a chance for reunification." (Respondent's Exhibit N-4, p. 23, line 17-27 and p. 24, line 1-2.) Viewed in the context of its entirety, the trial court's statement appears to include an exhortation that the parents should continue to visit with Justin and Hailee, and should cooperate with DCF, in order to possibly avert termination, and reunify with the children.
In apparent support of this argument, the respondents cite the case of In Re Reginald H., 2006 Ct.Sup. 16210 (2006), a trial court decision issued by Judge Bear. The respondents assert that this case holds that once a termination of parental rights petition is filed, all prior specific steps orders are vitiated because the petitioner's purpose is no longer reunification. (See argument of Anthony L., Transcript, March 4, 2011 p. 186, line 3-8.) This court does not believe that the holding of this case is as broad as the respondents suggest. The trial court's focus in the In Re Reginald H. matter appears to be upon a specific steps order that required the respondents to sign information releases for DCF, and the issue of whether or not the respondents were under a continuing obligation to comply with that order once DCF initiated a termination of parental rights proceeding against them. Judge Bear wrote in his decision: "Once the petition to terminate parental rights is filed, all bets are off. Parents are under no obligation to voluntarily assist the department in obtaining information that will be used against them to completely sever the rights to their children." ( Id.) The thrust of the respondents' argument in the present case appears to be twofold: (1) that all specific steps orders of the court are automatically vitiated once the petitioner decides to pursue termination because reunification is no longer the objective of the department; and, (2) that by complying with any specific steps order once a termination action has been commenced, the respondents would be providing the court and the petitioner with information that would be detrimental to their case. The later argument assumes that all information about a respondent's compliance with specific steps orders would be negative, and overlooks the possibility that compliance with such orders would be viewed favorably by the court, and would be helpful to the respondents. The former argument appears to disregard the rehabilitative purpose of C.G.S. § 46b-129(j), which states that upon commitment of a child: "The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of the parent." Reading C.G.S 46b-129(j) in conjunction with the provisions of C.G.S. 17a-112(j)(3)(B)(ii), this court believes that the intent of the specific steps orders legislation is to create a statutory scheme to facilitate parent-child reunification by having the court issue clear and well-defined orders to both the petitioner and the parents about the steps they must take to reunify the family while a child protection case is on-going. The mere filing of alleged grounds for termination of parental rights would not seem to eliminate the obligations of the petitioner and the respondents to nonetheless obey existing court orders that could still lead to reunification. This court presumes that such orders would apply throughout the pendency of a child protection case, unless otherwise modified or rescinded by the court. In the absence of statutory language or appellate court guidance which instructs to the contrary, this court does not find that the filing of a termination petition extinguishes all existing specific steps orders that have been previously issued by the court. Assuming arguendo that the In Re Reginald H. decision embodies a holding that is contrary to this interpretation, this court respectfully disagrees with the coordinate court, and is not obligated to follow that precedent. (Emphasis added.)
Judge Bear also told the respondents on December 8, 2008: "We've had cases that are scheduled for trial of the TPR where DCF withdraws the TPR petition, because during the time between the filing of the TPR and the trial date of the TPR, the parents have worked as hard as they can, and they've been successful in persuading DCF that there's still a basis for reunification." (Respondent's Exhibit N-4, p. 24, line 5-10.)
Ms. Geary credibly testified during this trial that since DCF offered the respondents third-party supervised visits with both children in September 2008, Kimberly A.-L. and Anthony L. have not visited Justin and Hailee at all. (Transcript, September 20, 2010, p. 95, line 11-15.) This testimony was corroborated by Jacqueline F., the paternal grandmother, who testified that she and the respondents have not seen the children since July 2008. (Transcript, March 23, 2011, p. 114, line 14-20.)
Given the interim court order temporarily suspending visits in August 2008, the court obviously does not consider any failure by the respondents to visit Justin and Hailee during that month to be willful. One legal and factual issue that this court must resolve is whether or not the petitioner has appropriately offered supervised visits to the respondents since September 2008, and the appropriateness of the respondents' response to such offers.
A DCF status report that was introduced into evidence recounted that the respondents have not sent cards, gifts, or letters to either child through DCF since September 2008. (Petitioner's Exhibit 56, p. 2-3.) The report also indicated that each parent "has failed to recognize each child's birthday, special occasions, and holidays," since September 2008. ( Id.) The court credits all of this evidence.
On June 30, 2010, the respondents filed a motion with the court that requested unsupervised visits with the children at their respective foster homes, unsupervised telephone contact with the children there, and permission to drop off in person at the foster home, without third-party supervision, cards, gifts and other materials and things for the children. (Respondents' Exhibit C.) The respondent's motion also noted: "All these requests are not changeable and only these exact, precise and defined conditions will apply." ( Id.)
As of this writing, Justin and Hailee have not seen or spoken with Kimberly A.-L. and Anthony L. for approximately two years and nine months. The children, who reside in separate foster homes, were visited by their guardian ad litem during December 2009. At that time, Justin, who was 12, had not seen his mother and stepfather for approximately 15 months. The guardian ad litem reported to the court that Justin stated then that he missed seeing his parents and wished that they would visit with him. (Children's Exhibit ZZ, p. 2.) Justin suggested to the guardian ad litem that his parents could visit with him at a restaurant with Hailee, or during a therapy session with Dr. Martinez. ( Id.) The guardian ad litem also spoke separately with Hailee, who was then six years old. The guardian ad litem's report noted: "When asked about `the other mommy and daddy'" she replied "that was cancelled." "Hailee did not know where they had gone." ( Id.) The GAL also wrote that Hailee had "vague memories" of the respondents. ( Id.)
A DCF status report prepared on September 1, 2010 contains the following notation: "Justin continues to address his feelings of confusion stemming from the cessation of his weekly visits with his mother . . . and his step-father . . ." (Petitioner's Exhibit 56, p. 4.) Dr. Martinez testified during trial that she observed Justin's "longing throughout the years" for contact with the respondents. (Transcript, December 15, 2011, p. 113, line 5-6.) The psychologist opined that Justin deals with ". . . feelings of being abandoned by his parents." ( Id., p. 44, line 26.) She also testified that the child has "deep trust issues" ( Id., p. 46, line 14), and exhibits "profound sadness and dismay." ( Id., p. 36, 1-5.) During one therapy session with Dr. Martinez in December 2008, Justin wrote a letter to the respondents. It read in part: "You are making me sad because you are choosing not to visit. I want you to come because I have not seen you in a long time." (Children's Exhibit AA.) Dr. Martinez sent Justin's letter to DCF, who forwarded it to the respondents on January 14, 2009. (Children's Exhibit BB.) Despite his request, Justin has not seen or heard from the respondents since that letter was sent.
This court finds from all of the credible evidence recounted above that since September 2008, the respondents have insisted that their visits with Justin and Hailee be unsupervised, have continuously demanded such contacts in written communications to DCF and motions to the court, and have volitionally refrained since September 2008 from visiting the children under the conditions set forth in the petitioner's visitation plan. The respondents do not accept the legal validity of Judge Bear's orders in 2008 that modified the prior visitation order by permitting DCF to establish a visitation plan in the best interests of the children pursuant to C.G.S. § 17a-10a. (Respondents' Exhibit D). The respondents also do not accept the Connecticut Appellate Court ruling in 2009 that affirmed Judge Bear's decision regarding visitation. ( Id., See also: the testimony of the paternal grandmother in response to questions asked by Anthony L., Transcript, March 23, 2011, p. 78, line 9-27 and p. 79, line 1-4.) The evidence at trial proved that since September 2, 2008, DCF has continuously offered Kimberly A.-L. and Anthony L. visitation with their two children that would have been supervised by a third party other than DCF at a site away from the petitioner's offices. The evidence also established that both respondents could have engaged in such supervised visits, but have steadfastly elected not to do so under the conditions set by the petitioner during the past 33 months. This decision has resulted in their total absence from the lives of Justin and Hailee during that time.
The court finds as proven by clear and convincing evidence that, since September 2008, the respondents have failed to comply with the specific steps order that they visit the children as often as permitted by DCF. The court also finds from the evidence presented that the parents' failure to visit has caused confusion for both children, and sadness and emotional difficulties for Justin.
The clear and convincing evidence that was introduced at trial proves that Kimberly A.-L. and Anthony L. do not accept any responsibility for the circumstances that resulted in the neglect adjudication and the commitment of their children to the petitioner's care and custody. (Respondent's Exhibit L, Respondent's Exhibit Y.) The parents maintain that the removal of the children and the neglect adjudication were unlawful acts, which they claim were perpetrated with malevolent intent by DCF and the courts ( Id.; See also: Transcript, March 23, 2011, p. 78, line 9-27 and p. 79, line 1-4.) In a communication that they forwarded via facsimile to various officials at DCF, the Attorney General's Office and the court system on August 31, 2010, the respondents claimed: "We have not abused or neglected our children at all and this was proven at the 1st TPR trial, where we were finally afforded the legal right to present material witnesses and vital evidence." (Respondent's Exhibit Y, p. 1.) In the same communication they also wrote: "We urge you all to turn from your wicked [evil] ways and turn yourselves in to the authorities for your criminal acts. When you have a second chance at doing what's right, you should take it and really re-think what is wrong. By the State Actors continuing to pursue these unlawful juvenile matters maliciously is wrong, especially when it's being done willfully and intentionally." ( Id.)
During the pendency of this case, since April 18, 2007, the respondents have made numerous requests for the medical, school, and therapy records of Justin and Hailee. Under a protocol established during 2006 by the court, (Trombley, J.), DCF has periodically mailed packets containing such documents that were in its case file to the parents at their residence in New Haven. During 2009 and 2010, the respondents also filed Freedom of Information Requests for the academic records of the children with the public school systems in Waterbury and Cheshire. (See Respondents' Exhibits T-4, U-4 and V-4.) The respondents also sent written requests for the children's records during that time period to the medical and mental health professionals who were treating Justin and Hailee. (Respondent's Exhibits L, M, R, S, Q-5 and S-5.) The respondents indicated on each of the latter requests that the records were required as "expeditiously as possible due to the pre-meditated 2nd false and unlawful TPR Kangaroo Mistrial scheduled to commence in September 2010 . . ." ( Id.) The respondents also warned the medical and psychological treatment providers in writing on each request for information that it was illegal for them to treat the children without the parents' authorization. ( Id.)
The evidence at trial established that the petitioner substantially complied with this order by Judge Trombley, although the information packets were forwarded by the petitioner to the parents less frequently than on the monthly basis ordered by the court.
The respondents' assertion throughout this proceeding that the petitioner lacks the legal authority to authorize treatment for Justin and Hailee, who have been committed to DCF's care since 2005, appears to be contradicted by two statutes. C.G.S. § 17a-6(e) mandates that the commissioner of DCF, or the commissioner's designee, shall ". . . Insure that all children under the commissioner's supervision shall have adequate food, clothing, shelter and adequate medical and dental, psychiatric, psychological, social, religious and other services." The provisions of C.G.S. § 17a-10 permit the commissioner to authorize the medical and dental treatment of children committed to her care.
The respondents introduced credible evidence at trial that since April 2007, they have maintained adequate housing and legal income, have not been convicted of any crimes, have not been hospitalized for any long-term mental illness or deficiency and have not been diagnosed with one, and have cooperated with agencies other than DCF that have provided benefits or services to their daughter Amanda, and/or to them. There have not been any complaints or accusations that the respondents have neglected or mistreated their younger child, Amanda. The respondents have lived at the same address in New Haven for several years, and DCF has been aware of this address. The court accepts all of the foregoing evidence as proven fact.
The petitioner stipulated that the mental health of the respondents was not an issue during this trial.
Ms. Geary admitted during the present trial to testifying on January 18, 2008 that Kimberly A.-L. and Anthony L. do not pose a "grave threat" to Justin and Hailee. (Transcript, February 9, 2011, p. 46, line 21-24.) To the extent that the respondents offered this testimony to prove that there is no substantial likelihood that they would physically neglect or harm the children, the court credits that evidence. To the extent that the respondents offered this testimony to prove that there is no substantial likelihood that they would emotionally neglect the children, or ignore their needs for psychological treatment, the court does not accept that evidence.
Because the court has taken judicial notice of the December 1, 2005 judgment that committed Justin and Hailee to DCF, the court also finds as proven by clear and convincing evidence that both children were committed by the Superior Court as neglected children during a prior proceeding, and that both children have continuously been in the petitioner's care and custody for more than 15 months.
DISCUSSION RE ADJUDICATION
One significant issue throughout this case has been the respondents' ongoing contention that the original neglect adjudication was invalid and unlawful. (Respondents' Exhibit L, Respondent's Exhibit Y.) This issue warrants additional discussion here, because it appears to relate to the parents' attitude since September 2007 about compliance with reunification efforts.
In a document dated August 24, 2010, the respondents wrote: "The unlawful seizure of our children from September 23, 2004, the false and unlawful `Order of Temporary Custody' from September 27, 2004, and the erroneous and unlawful neglect adjudications from December 1, 2005 were all obtained by fraud and in violation of the laws, the constitutions, and our family's legal rights, thus, the State does not have legal guardianship and does not have legal custody of our children that are presently in State care illegally." (Respondents' Exhibit L.)
During the first TPR trial in 2007, the court permitted the parents to introduce evidence challenging the adjudicatory claims and facts that were presented by DCF during the neglect trial. Judge Winslow made findings at the conclusion of the first termination of parental rights trial that discredited a number of the factual allegations made by DCF during the neglect proceeding. She also found that some of the reports and affidavits submitted by the petitioner during the TPR trial were very inaccurate and/or lacking in credibility. The respondents point to those findings in asserting that they proved during the first TPR proceeding that the 2005 neglect findings, and the court's orders committing their children to DCF, were devoid of any basis in fact and law. The respondents also appear to argue that because neglect was never proven from their point of view, they should not be required to cooperate with court-stipulated reunification efforts, or to demonstrate parental rehabilitation. This court finds those assertions to be incorrect for several reasons.
Judge Winslow rendered her decision in the first TPR case during April 2007, before the Connecticut Appellate Court decided the case of In Re Stephen M., 109 Conn.App. 644 (2008). In that decision the Appellate Court held: "We therefore conclude that a finding that a child is neglected and abused made by a trial court when adjudicating a neglect petition constitutes an appealable final judgment. If no appeal is filed in a timely fashion, the parents may not collaterally attack those findings during a termination of parental rights trial, and the trial court adjudicating the termination of parental rights is bound by the findings made in the prior proceeding." ( Id., p. 665.) Because this court found the In Re Stephen M. to be applicable in the case at bar, it did not permit the respondents to introduce evidence challenging the 2005 neglect adjudication during this trial of the second TPR petitions.
Judge Winslow did not reopen the neglect adjudication or disposition, vacate the commitment, or restore the custody of Justin and Hailee to Kimberly A.-L. and Anthony L. when she denied the first TPR petitions on April 18, 2007.
The judge established amended specific steps orders for the parents to follow in order to achieve reunification at the September 5, 2007 hearing, and she denied the respondent's motion to revoke commitment on January 18, 2008. The respondents' subsequent appeals of the trial court's specific steps orders and denial of their motion to revoke commitment were denied by the Appellate Court in 2009, and those orders were affirmed. Inherent in those judicial actions were determinations by the courts that the 2005 neglect adjudication and commitment orders were valid, that cause for each child's commitment still existed, and that both parents needed to undertake additional rehabilitative efforts before it would be in the children's best interest to return them home. Judge Winslow made her determinations notwithstanding her finding at the end of the first TPR trial that the respondents had been compliant with all of the prior court-ordered specific steps.
Furthermore, Judge Winslow explicitly told Kimberly A.-L. and Anthony L. at the January 18, 2008 revocation hearing that she believed that the 2005 neglect adjudications and commitment orders were proper. "That decision that I wrote did not address any — any question about — or nor did it question whether or not the children should've been committed. The children should've been committed. That has been . . . accomplished long since, and it occurred as a direct result of incidents occurring at Bristol Hospital in September." (Transcript, January 18, 2008, p. 79, line 1-11.) Judge Winslow also told the parents: "However, what I also found was that there wasn't any problem with the commitment in that the commitment was based upon behaviors that occurred at — and what needs to be addressed from my point of view is the behaviors that occurred at Bristol Hospital in September — and the — that was what immediately led to the removal of the children." ( Id., p. 83, line 23-27 and p. 84, line 1-3.)
At the hearing when she denied the motion to revoke commitment, Judge Winslow also explained to the parents why she was not returning the children to their custody at that time:
THE COURT: Let me tell you, that is not the reason why I would not allow custody to be revoked at this time, commitment to be revoked. That's not the reason. The reason is because you don't recognize it's you, you, not the children. It's because you don't recognize the needs that your children may have, will have, in the event that they are moved suddenly from one home to another. It's because you fail to recognize that . . . it is you, the parents who are the problem.
You said — asked — you said earlier are we — we're not the problem. I say to you, yes, you are, because that tells me that you have not come to a point where you're ready to be trusted as the parents of these two children. Because you have no insight or judgment with regards to their needs emotionally. And this is a perfect example of it.
If you can't understand and can't acknowledge that the children would undergo trauma from being pulled out of the place where they've been for the last two or three years and placed suddenly back into your home, if you don't understand that, that is the reason why I would not — why I would not agree to revoke commitment at this time. Because you don't understand that. And that is fundamental to the reason why the children were taken away to begin with: a failure to recognize their emotional needs. And that is the crux of the problem.
(Transcript, January 18, 2008, p. 109, line 16-27 and p. 110, line 1-16.)
These and other comments made by Judge Winslow reflect her determinations after the first termination trial that the respondents lacked necessary understanding about Justin and Hailee's emotional needs and problems, and needed to work closely with the children's therapists and other professionals in order to acquire that insight, and to therapeutically advance the process of returning the children to the parental home.
As part of the present proceeding, this court is required by C.G.S. § 17a-112(j)(1) to determine whether or not the petitioner made reasonable efforts to reunify Justin and Hailee with their parents. The statute reads, in pertinent part: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that such parent is unable or unwilling to benefit from reunification efforts . . ." Our Appellate Court has held that the term reasonable efforts ". . . means doing everything reasonable, not everything possible." In Re Jessica B., 50 Conn.App. 554, 566 (1998). The Appellate Court has also confirmed that a trial court is not required to make a reasonable efforts finding ". . . if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts." In Re Shaiesha O., 93 Conn.App. 42, 47 (2005).
Clear and convincing evidence proved that within 13 days after the court rendered its specific steps orders on September 5, 2007, the respondents ignored DCF's request that they participate in Justin and Hailee's therapy sessions with Dr. Martinez. At that time, the respondents also sent the psychologist a letter stating that they were prohibiting her from treating the children, and warning that she could be subjected to civil and criminal penalties for engaging in their treatment without parental permission. The respondents undertook this course of action without ever meeting, or speaking to, Dr. Martinez. From September 2007 through the present, despite a subsequent admonishment from Judge Winslow on May 12, 2008 that they should "urgently be in touch" with Dr. Martinez, the respondents have consistently refused to participate in the children's therapy, or the family counseling, as required by the specific steps orders.
Clear and convincing evidence proved that from September 5, 2007 through May 12, 2008 when Judge Winslow issued her modified order for unsupervised parental visits, the respondents adamantly refused to comply with the court's specific steps order that they permit DCF to conduct one announced home visit at their residence in New Haven. On November 6, 2007, the respondents filed their written complaint with the New Haven Police Department seeking the arrest of the two DCF employees who visited their premises in an attempt to comply with the court's specific steps order.
Clear and convincing evidence proved that during September 2007, the respondents refused to sign the authorization forms that would have enabled DCF to confer with Boys Girls Village and refer the parents for the court-ordered in-home reunification services. The respondents' refusal to sign the release of information forms ended the referral process, and the respondents to date have never received the in-home reunification services ordered by the court.
Clear and convincing evidence proved that since September 2008, the respondents have not accepted DCF's offers of third-party supervised visitation with the children, and, as a result of their decision, have had no contact of any kind with Justin and Hailee since then.
The court finds based upon the clear and convincing evidence recounted above that Kimberly A.-L. and Anthony L. have been, and are, unwilling to benefit from reunification efforts.
Because this court has found that the respondents were unwilling to benefit from reunification efforts, it is not required under the provisions of C.G.S. § 17a-112(j)(1) to find that the petitioner made reasonable efforts to reunify the children with the parents. "Thus, although § 17a-112(j) begins with the presumptive obligation that the department make reasonable reunification efforts, it later excuses that 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." In Re Jorden R., 293 Conn. 539, 554 (2009).
However, the evidence presented at trial proved that from September 5, 2007 forward, the petitioner offered the respondents the following services in compliance with the court's amended specific steps orders: supervised visitation, in-home reunification services; the court-mandated home inspection, individual therapy for Justin and Hailee, the opportunity to participate in each child's individual therapy, and family therapy. This court is mindful of Judge Winslow's criticism of DCF at the May 12, 2008 hearing and in her written memorandum of decision dated June 6, 2008, about the department's pursuit of termination, and its failure to support the permanency plan of reunification. This court accepts as credible the evidence presented by the respondents that DCF had decided in December 2007 that it would file the second set of TPR petitions after a court hearing scheduled for the following month (Respondent's Exhibit E.) As the Connecticut Appellate Court has noted, a "toxic" relationship has existed between DCF and the respondents for many years. But Judge Winslow also indicated at the May 12, 2008 hearing that the respondents had refused to follow the court's specific steps orders, and had impeded the reunification process as a result. Furthermore, the evidence presented during the present trial proved clearly and convincingly that by December 2007, both of the respondents had already adopted a very open and oppositional position about complying with any of the court-ordered reunification services, with the exception of supervised visitation. As noted previously herein, such evidence established that since September 5, 2007, both respondents consistently refused to obey the court's orders that they permit one home visit, sign the releases to enable the referral for in-home reunification services, and participate in family counseling and the children's individual therapy. Given the intransigent unwillingness of Kimberly A.-L. and Anthony L. to cooperate with the orders for reunification services delineated in the amended specific steps, this court also finds by clear and convincing evidence that the petitioner's attempts to offer those services constituted a reasonable effort to reunify the children with their parents as mandated by statute. (See In Re Alexander T., 81 Conn.App. 668, 673 (2004) where our Appellate Court found that ". . . the efforts of the department were reasonable in light of the respondent's conduct.")
As noted previously, the respondents' obligation to comply with this particular specific steps order ended on May 12, 2008, when the court implicitly eliminated it by granting unsupervised visits at the parental home.
See In Re Justin F., 116 Conn.App. 83, 89 (2009).
The court must next determine whether or not the petitioner has proven the grounds for termination of parental rights that were alleged against the respondents in the pending petitions, as amended.
Failure to Rehabilitate, Per C.G.S. § 17a-112(j)(3)(B)(i) and C.G.S. § 17a-112(j)(3)(B)(ii)
With the exception of facts pertaining to certain predicate judicial rulings, and the context in which they were issued, the court bases its findings on these grounds for termination of parental rights on evidence pertaining to events during the period from April 18, 2007 (the date the first TPR trial was resolved) through the date that the presentation of evidence in this current trial ended. In the adjudicatory phase of any termination of parental rights proceeding, the judicial authority is limited to 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. C.P.B. § 35a-7; In Re Jennifer W., 75 Conn.App. 485, 494 (2003). "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 Jennifer W., supra, 494-95.
The petitioner alleged two separate counts of parental failure to rehabilitate (per C.G.S. § 17a-112(j)(3)(B)(i) and C.G.S. § 17a-112(j)(3)(B)(ii)) in its termination petition against Kimberly A.-L. with respect to Justin. The petitioner also alleged the same two counts of parental failure to rehabilitate in its termination petitions against Kimberly A.-L. and Anthony L. with respect to Hailee. The two counts have similar statutory adjudicatory elements with one exception. In a count brought under C.G.S. § 17a-112(j)(3)(B)(ii), the petitioner must also prove that the previously committed child has been in DCF custody for at least 15 months.
C.G.S. § 17a-112(j)(3)(B)(i) provides with respect to adjudication that the court must find by clear and convincing evidence that the child ". . . has been found by the Superior 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 C.G.S. 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 . . ."
The undersigned interprets C.G.S. § 17a-112(j)(3)(B)(i) to implicitly include this bracketed language that is explicitly stated in C.G.S. § 17a-112(j)(3)(B)(ii).
C.G.S. § 17a-112(j)(3)(B)(ii) provides with respect to adjudication that the court must find by clear and convincing evidence that the child ". . . is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to C.G.S. 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 . . ."
As used in both of these statutes, the term "`personal rehabilitation' . . . refers to the restoration of a parent to his or her former and constructive and useful role as a parent." In Re Eden F., 250 Conn. 674, 706 (1999). The statutes require the court ". . . to analyze the [parents'] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ( Id.) Our Appellate Court has also stated that ". . . failure to rehabilitate is defined as the failure of a parent to achieve expectations following the adjudication and disposition of the prior neglect petition." (Internal quotations omitted.) In re Emerald C., 108 Conn.App. 839, 844 (2008).
When Judge Winslow issued the amended specific steps orders on September 5, 2007, she was cognizant of the reasons for the children's 2005 neglect commitment to the petitioner, and she was aware that Justin and Hailee had by then been in DCF custody for nearly three years. She also knew that Justin needed psychotherapy, and had significant behavioral problems.
The amended specific steps orders that were issued by the court in 2007 were relatively modest in scope, and addressed specific needs of the family that the court believed to exist at that time. The court ordered the respondents to cooperate with the children's therapist in order that they would gain understanding about Justin's psychological problems, effectively recognize both children's emotional needs, and properly parent both children during their transition back home. Because Justin and Hailee had been in foster care for a long time, the court ordered family counseling to ensure that the reunification process would occur smoothly with therapeutic oversight, and intervention, if necessary. For similar reasons, the court also found that the respondents and the children needed in-home reunification services. Finally, in order to maintain and enhance communication and bonds of attachment, the court ordered that Kimberly A.-L. and Anthony L. were to visit Justin and Hailee as often as permitted by DCF.
The court emphasized the importance of its specific steps orders in comments to both respondents at the September 5, 2007 hearing. "If the respondents are to be have any hope of being successful in the motion to revoke commitment, then I hope that you will take very seriously what I've told you today by way of the permanency plan and the specific steps, and consider carefully whether or not you're prepared to follow the Court's orders in this respect. If you're not prepared to follow the Court's orders with regard to the permanency plan for reunification and the steps that I've required to do that, then the result of the motion to revoke commitment is probably a foregone conclusion. So you are on notice that you do it, or you don't get the kids back. I don't think I can be any clearer than that." (Transcript, September 5, 2007, p. 115, line 10-22.) Approximately eight months later, during the visitation hearing on May 12, 2008, Judge Winslow criticized the respondents for refusing to follow the specific steps that could have assisted them in making substantial progress towards reunification. (Transcript, May 12, 2008, p. 186, line 8-25.)
Unfortunately, the respondents failed to heed the court's admonishments, and they failed to obey significant specific steps orders pertaining to reunification. ". . . [W]e note that specific steps are considered to be "fair warning" to a parent of the potential termination of parental rights in a subsequent proceeding." In Re Devon B., 264 Conn. 572, 584 (2003). "Indeed, the failure to comply with specific steps ordered by the court typically weighs heavily in a termination proceeding." ( Id.) The court finds that during the three years and nine months that have passed since September 5, 2007, the respondents have not participated in any of the therapeutic services mandated in Judge Winslow's September 5, 2007 amended specific steps orders, with the exception of supervised visits prior to September 2008. It was also proven that the respondents have not had any visits or other contacts with Justin and Hailee since September 2008, despite repeated offers of third-party supervised visitation by the petitioner since then, and despite the court's order that they should visit the children as often as permitted by DCF.
Kimberley A.-L. and Anthony L. have demonstrated unstinting commitment to this litigation for many years, in an attempt to regain custody of their children, and to vindicate their legal rights, as they perceive those legal rights to be. However, the evidence presented during this trial proved that since September 2007, the respondents have also displayed a significant lack of understanding about the well-being of Justin and Hailee, and an inflexible unwillingness to comply with the court's specific steps orders for therapeutic services that could have possibly assisted the children, and hastened their return home. The evidence also established that the respondents, nearly six and one-half years after the original neglect adjudication, continue to deny that the court had the legal authority to issue the orders of commitment. The respondents do not accept any personal responsibility for the extended placement of Justin and Hailee in foster care, and instead blame only the child welfare and legal systems for the plight of these children. Although Judge Winslow found in 2007 that both children, and particularly Justin, needed to see Dr. Martinez, and hopefully would have benefitted from family counseling with their parents, the respondents have continuously and intractably declined to cooperate with the court-ordered therapy. The court concurs with the opinion expressed by Dr. Martinez that the respondents' refusal to cooperate with the children's individual therapy, and with family therapy, calls into question the type of care they would provide for these children if they were returned to the parents' custody. Likewise, the court finds that the respondents' written statements that they were prohibiting treatment for Justin and Hailee, without ever having met with the doctors face-to-face to discuss the treatment or to inquire about the circumstances and conditions that necessitated it, were additional evidence of poor parental judgment, and lack of insight about their children's welfare. Such evidence also indicates an unwillingness by the respondents to accept, or even to consider, future opinions or offers of assistance from mental health professionals in furtherance of the best interests of these children. The court draws similar conclusions from the evidence about the respondents' refusal to sign the authorization form for in-home reunification services, and from their refusal to visit the children under third-party supervision, or have any contact with them, for the past two years and nine months. This case has been mired in a state of legal gridlock for several years now. Clear and convincing evidence proved that Kimberly A.-L. and Anthony L. have made no appreciable progress toward reunification since September 2007, because they recognize neither the need for personal rehabilitation, nor the legitimacy of court orders that specify the things they must do in order to be reunited with the children.
Justin is now 13 years old, and Hailee is presently 7 years of age. They will both celebrate another birthday this coming October. They have now been in foster care continuously for approximately six years and nine months. Credible evidence about both children, as discussed further below, suggests that their emotional health has been adversely effected by the absence of permanency in their lives. As required by statute, the court has considered the ages and needs of both Justin and Hailee. The court finds from the evidence presented that it would be detrimental to the best interests of each child to allow the respondents any further time to engage in reunification services. The evidence also proved that there is little, if any, likelihood that the respondents would do so.
Pursuant to C.G.S. § 17a-112(j)(3)(B)(i), as to Justin, the court finds that the petitioner has proven by clear and convincing evidence that said child was found by the Superior Court to have been neglected in a prior proceeding, that Kimberly A.-L was provided specific steps to take to facilitate the return of the child to the parent pursuant to C.G.S. § 46b-129, and that Kimberly A.-L. 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 Justin's life. Pursuant to C.G.S. § 17a-112(j)(3)(B)(i), as to Hailee, the court finds that the petitioner has proven by clear and convincing evidence that said child was found by the Superior Court to have been neglected in a prior proceeding, that Kimberly A.-L. and Anthony L. were provided specific steps to take to facilitate the return of the child to the parents pursuant to C.G.S. § 46b-129, and that both Kimberly A.-L. and Anthony L. have 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 parents could assume a responsible position in Hailee's life.
Pursuant to C.G.S. § 17a-112(j)(3)(B)(ii), as to Justin, the court finds that the petitioner has proven by clear and convincing evidence that said child was found by the Superior Court to have been neglected in a prior proceeding and has been in the custody of the Commissioner of DCF for at least 15 months, that Kimberly A.-L. was provided specific steps to take to facilitate the return of the child pursuant to C.G.S. § 46b-129, and that Kimberly A.-L. has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the child, such parent could assume a responsible position in Justin's life. Pursuant to C.G.S. § 17a-112(j)(3)(B)(ii), as to Hailee, the court finds that the petitioner has proven by clear and convincing evidence that said child was found by the Superior Court to have been neglected in a prior proceeding and has been in the custody of the Commissioner of DCF for at least 15 months, that both Kimberly A.-L. and Anthony L. were provided specific steps to take to facilitate the return of the child pursuant to C.G.S. § 46b-129, and that both Kimberly A.-L. and Anthony L. have 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 parents could assume a responsible position in Hailee's life.
Abandonment, Per C.G.S. § 17a-112(j)(3)(A)
With the exception of facts related to certain predicate judicial rulings, and the context in which they were issued, the court bases its adjudication on this ground for termination of parental rights on evidence pertaining to events that occurred between April 18, 2007 (the date that the first TPR trial was resolved) and April 3, 2009 (the date when the current petition was last amended to allege the additional statutory ground of abandonment). See C.P.B. § 35a-7(a).
The petitioner alleged the statutory ground of abandonment, per C.G.S. § 17a-112(j)(3)(A) against Kimberly A.-L. in the termination of parental rights petition that it filed with respect to Justin. DCF also alleged counts of abandonment against Kimberly A.-L and Anthony L. in the petitions it filed with respect to Hailee. These counts were added on April 3, 2009 when Judge Esposito granted the petitioner permission to amend the petitions.
Under the statute, the court may find that abandonment has been proven if it determines by clear and convincing evidence that ". . . the child has been abandoned in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . ."
"Abandonment focuses on the parent's conduct . . . A lack of interest in the child is not the sole criteria in determining abandonment . . . General Statutes [§ 17a-112(j)(3)(A)] defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for a child, does not personally interact with the child, and demonstrates no concern for the child's welfare . . ."
"Section 17a-112(j)(3)(A) does not contemplate a sporadic showing of interest concern or responsibility for the welfare of a child. A parent must maintain a reasonable degree of interest in the welfare of his or her child. Maintain implies a continuing, reasonable degree of concern. The commonly understood general obligation of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide adequate domicile; and (5) the duty to furnish social and religious guidance." (Internal quotation marks omitted.) In Re Jermaine S., 86 Conn.App. 819, 839-40, (2004), cert. denied, 273 Conn. 938 (2005).
The evidence in the present case established that from April 18, 2007 through the end of May 2008, Kimberly A.-L and Anthony L. regularly visited Justin and Hailee every week for two hours at the DCF office in Waterbury. The court reaffirms and incorporates here by reference all of the findings made previously in this memorandum with respect to those visits. As previously found, the respondents had an unsupervised visit with Justin during July 2008. The respondents' visits were temporarily suspended when Judge Bear issued his first interim order in August 2008. By his subsequent interim order in August 2008, and by his final order in December 2008, Judge Bear modified the court's prior visitation orders in this case and granted DCF permission under C.G.S. § 17a-10a to establish a plan of visitation for the parents and the children. Starting in September 2008, the petitioner has offered the respondents one, two-hour visit per week with both children that was to be supervised by a third party.
The court reaffirms and incorporates here by reference all the findings made previously in this memorandum with respect to the respondents' lack of contact with Justin and Hailee since September 2008. With respect to this count, the court finds that from September 2008 through April 3, 2009 when the TPR petitions were amended to add the allegations of abandonment, the respondents did not have any visits or contacts of any kind with Justin and Hailee, despite the fact that the petitioner sent the parents a number of letters urging them to make arrangements with the agency to resume supervised visitation. The respondents did not send cards, gifts, or letters to the children, or acknowledge the children on their birthdays or on other significant holidays during this period, despite the fact that they could have done so through the petitioner, or in person, if they had agreed to the supervised visits.
There was credible evidence at trial that the respondents were not permitted to visit, telephone, or communicate by mail with Justin and Hailee at their respective foster homes.
The court also reaffirms and incorporates by reference here all of the prior findings made in this memorandum about the negative effect which the cessation of visits had upon Justin. That evidence established that the child was confused and saddened by the loss of contacts with his parents, and unsuccessfully wrote to them in December 2008 to urge that they start to visit him again. The court reaffirms and incorporates by reference here all of the prior findings made in this memorandum about the respondents' refusal to cooperate with the children's individual therapy and family therapy with Dr. Martinez, and the communications that they sent to the children's therapists and physicians telling them they were prohibited from treating Justin and Hailee.
The court also reaffirms and incorporates by reference here all of the prior findings made in this memorandum about the respondents' requests for the children's school, medical, psychological and DCF records. The clear and convincing evidence recounted above also proved that during the period in question, and thereafter, Kimberly A.-L. and Anthony L. filed numerous written requests and motions with the court, and sent numerous written requests to the petitioner, and others, seeking the restoration of their unsupervised visits, and the restoration of their custody of Justin and Hailee. Clear and convincing evidence at trial proved that the respondents, as self-represented parties, have vigorously pursued litigation seeking the restoration of their custodial, visitation, and other parental rights, in various trial and appellate courts throughout the time this case has been pending.
In support of their claim that they have not abandoned Justin and Hailee, the respondents rely heavily on the case of In Re Adoption of A.M.H., 215 S.W.3d 793 (Tennessee, 2007) a termination of parental rights matter decided by the Supreme Court of Tennessee.
In that case, the parents of a young girl originally placed the child in temporary foster care in 1999 under the provisions of a voluntary interim care agreement that specifically stated that the child was not to be placed for adoption. The parents subsequently agreed to a consent order in Juvenile Court transferring temporary custody and guardianship of the child to the foster parents. After relationships between the biological parents and the custodians deteriorated, the custodians sought an order of permanent custody of the child in the juvenile court, which was granted. Following an argument between the biological parents and the custodians at the custodian's home in early 2001 when the police were called, the parents stopped visiting the child there, but filed a petition with the court seeking restoration of their custody of the child. They also sought the assistance of the local media in their attempt to regain custody of their daughter. Tennessee law provides for the termination of parental rights on the basis of abandonment if the parent willfully fails to visit a child for four consecutive months preceding the filing of the termination petition. After the parents failed to visit the child for four months and five days, but while their petition for restoration of their custody rights was pending in the juvenile court, the custodians filed a petition for termination of parental rights and adoption.
A trial court terminated the parents' parental rights, finding that they had abandoned the child by failing to visit her for four months. The Tennessee Court of Appeals affirmed the termination on this ground. The Tennessee Supreme Court in 2007 overturned the lower courts' rulings, vacated the prior orders concerning permanent custody and guardianship, and ordered the juvenile court to implement a plan to reunify the child with the biological parents. The Tennessee Supreme Court held that the parents had not abandoned the child because their four-month hiatus in visitation was not willful. The court explained that "[a] parent who has abandoned a child by `willfully' failing to visit is unfit under constitutional standards . . . Therefore, under those circumstances, termination of parental rights is appropriate . . . Where the failure to visit is not willful, a failure to visit does not constitute abandonment. We have held that a parent who attempted to visit and maintain relations with his child, but was thwarted by the acts of others and circumstances beyond his control, did not willfully abandon his child." (Citations omitted; internal quotation marks omitted.) In Re Adoption of A.M.H., supra, 810. The court also held: "Where, as here, the parents' visits with their child have resulted in enmity between the parties and where the parents redirect their efforts at maintaining a parent-child relationship to the courts, the evidence does not support a finding of `willful failure to visit' as a ground for abandonment." Id., 810-11.
In a recent dissenting opinion in a termination of parental rights case, Justice Melvin of the Pennsylvania Supreme Court offered the following instructive guidance about the analysis that courts should employ in determining whether or not a parent's failure to maintain contact with a child constituted wilful abandonment ". . . [W]hile a parent must make a concerted, deliberate effort to maintain contact with her child, all circumstances must be considered when analyzing a parent's performance or non-performance of parental obligations. Further, where there are allegations that the custodial parent exhibited obstructive conduct, a parent's performance must be measured in light of what would be expected of an individual in [similar] circumstances." (Internal citations and internal quotation marks omitted.) In Re Adoption of L.J.B., 2011 Pa. LEXIS 1026 (April 29, 2011, Melvin, J., dissenting). Justice Melvin also cited an earlier case where the Pennsylvania Supreme Court held that ". . . a non-custodial parent's responsive behavior to obstructive conduct by a custodial parent would not be utilized as a sound basis for the involuntary termination of parental rights." ( Id.)
Another court has applied similar reasoning in a termination of parental rights case premised on abandonment grounds where a parent's access to the child was impeded by a third party. See Matter of Adoption of Barnett, 304 Pa.Super. 514 (1982), where a trial court terminated a mother's parental rights because she did not attempt to contact the child protection agency to inquire about her son for a year. On appeal, the judgment was reversed, because the reviewing court found that the agency had prohibited the parent from visiting the child. "[The mother] was forbidden by Children's Services from contacting her child; [she] cannot, therefore, be held accountable for her failure to continue visiting her child as she had been doing. Neither do we find the court's . . . conclusion to be a basis upon which to terminate parental rights. The rule is that a parent is to maintain a place of importance in his child's life, which means that the parent has an affirmative duty to love, protect and maintain communication and association with that child . . . It must not be forgotten, however, that the measures taken by the parent must be viewed in light of the existing circumstances . . . In the instant case, owing to the position of Children's Services regarding [the mother's] visitation rights, communication and association with the child [by the mother] were prohibited. In this respect, [the mother's] case is more akin to those cases where the court found that the custodian of the child prevented the natural parent from performing the duties, such as communication and association, that otherwise would have been required . . . More pertinent conclusions can be deduced from an examination of [the mother's] conduct during the time that visitation was permitted . . . During this time, [the mother] saw her child at least once a week for half a day . . . During the visit [the mother] would enjoy various activities with the child . . . The record also indicated that [the mother] requested additional visits, which were granted her on special occasions. This evidence hardly describes a mother with `no interest whatsoever' in her child, as was the lower court's conclusion. We therefore find this part of the court's decision to be without foundation." (Citations omitted; internal quotation marks omitted.) Id., 523.
Kimberly A.-L. And Anthony L maintain that their situation is analogous to that of the parents in the In Re Adoption of A.M.H. case. The respondents argue that the cessation of their visits with Justin and Hailee was involuntary, and was attributable to the erroneous and illegal rulings of the courts, and the animus of DCF. They appear to argue that these circumstances have required them to exclusively pursue litigation as the method of reclaiming their custody and maintaining their parental relationships with Justin and Hailee. However, this court does not agree. For the reasons discussed below, this court finds that the facts and precedents of the A.M.H. case, and the other cases cited by the respondents, are distinguishable from the case are bar, and do not resolve the present claim of abandonment.
In support of their claim that they had not willfully abandoned Justin and Hailee, the respondents have also cited several other cases, including the combined appeals of In Re W.B. IV and In Re D.D., M.H., W.B. IV, No. M 2004-01572-COA-R3-PT, Tennessee Court of Appeals, April 29, 2005. In arguing that they have not disregarded their parental obligations to the children and that they did not cause any breakdown of their relationships with the children, the respondents have also cited, inter alia, the case of Matter of Adoption of J.J.B., 119 N.M. 638 (1995). The court does not find the facts and holdings of those cases to be dispositive in the present matter.
Judge Bear's rulings in 2008 that modified the prior unsupervised visitation order, and permitted DCF to exercise statutory control over the parents' visitation in the best interests of the children under C.G.S. § 17a-10a, were affirmed by the Connecticut Appellate Court. The respondents' subsequent petitions to appeal those rulings further were denied by the Connecticut Supreme Court and the United States Supreme Court. Accordingly, Judge Bear's final visitation modification order in December 2008 must be regarded as a lawful one, and construed by this court as the operative court order in this case with respect to parental visitation. Because that ruling modified Judge Winslow's earlier order of unsupervised visitation, and thereby permitted DCF to offer the parents visits supervised by a third party, the respondents cannot succeed here on a claim that the petitioner was engaging in obstructionist behavior.
This court is aware that Judge Winslow and Judge Bear have made different assessments about the evidence in this case pertaining to both the underlying neglect adjudication, and the respondents' visitation in 2008. See footnote Number 5 of the Appellate Court's discussion in In Re Justin F., supra.
Furthermore, a claim that the poor relationship that existed between the petitioner and the respondents prevented the parents from seeing Justin and Hailee, or forced them to alternatively focus their exclusive attention on this litigation, is not supported by the evidence. Since September 2008, DCF has continually offered the parents weekly supervised visits with Justin and Hailee. Those visits, which the parents did not accept, would have been supervised by the employees of a private, contract agency, at premises other than the DCF office. This visitation plan would have precluded the necessity for DCF employees to be present, and could have possibly eliminated the chance of any hostility or tension arising during visits between the parents and the petitioner's employees. The respondents also could have had contact with their children at family counseling sessions that were to be conducted by Dr. Martinez, as ordered in the 2007 amended specific steps orders.
The clear and convincing evidence at trial that the petitioner offered the respondents supervised visits with Justin and Hailee since early September 2008, and repeatedly invited the parents to visit with the children since then, demonstrates the crucial distinction between the case at bar, and those referenced above. That evidence proved that Kimberly A.-L. and Anthony L. could have reasonably expressed their love, interest and concern for Justin and Hailee, and maintained personal contact with them, by visiting with the children as often as permitted by DCF, and by sending them cards, gifts and letters, during the period in question. The evidence proved that the respondents were aware of the offers of supervised visitation since September 2008, and did not accept them. The court finds that the parents' decision not to visit with the children under the terms established by the petitioner was a willful one.
There was no evidence introduced at trial suggesting that the respondents could not have participated in the third-party supervised visits during the time period in question, while simultaneously opposing that visitation order as they did in their appeal. The court infers, based upon the lack of any evidence to the contrary, that the parents could have engaged in the supervised visits, without prejudice to their appellate challenge. By doing so, the respondents could have interacted with Justin and Hailee, and maintained vital lines of communication and bonds of attachment, until their appeal was resolved. Additionally, the evidence also proved that the respondents had another avenue available to them. They could have participated in the administrative hearings that DCF scheduled to address their objections and requests about visitation, and appealed any decision they deemed to be adverse to the Superior Court under the provisions of the Connecticut Uniform Administrative Appeals Act. The evidence at trial proved that the respondents did not elect to visit under supervision during the pendency of the appeal, or to pursue their administrative remedies, despite their demonstrated familiarity with courtroom procedures, and state statutes.
The respondents also argue that they demonstrated their interest, concern and responsibility for Justin and Hailee's welfare by making numerous requests for information and records about the children from DCF, schools, mental health professionals and physicians. The credible evidence at trial proved that they made many such requests. However, the probative weight of this proffer was diminished to a degree by the evidence that some of the respondents' letters contained statements that the requests were being made in conjunction with the start of the second TPR trial. Even more significant, however, was the proof that the respondents refused to participate in the children's individual and family therapy with Dr. Martinez in September 2008, and that they sent strongly worded communications to Dr. Martinez (and several other professionals who were assisting the children) that purported to withhold permission to treat the children, and mentioned possible criminal and civil legal sanctions. The argument that they displayed reasonable concern for the welfare of their children by requesting their treatment and other records is diminished and, in some instances contradicted, by the clear and convincing evidence that the respondents attempted to withhold permission for such treatment, and that they refused to obey the court's specific steps orders to participate with Justin and Hailee in the therapy conducted by Dr. Martinez, as ordered by the court in the best interests of the children.
Clear and convincing evidence was introduced at trial that Justin suffered sadness, confusion and feelings of loss that caused emotional upheaval as the result of the decisions by his mother and stepfather since September 2008 not to visit with him. This court credited the evidence proving that Justin enjoyed his prior visits with the respondents, and has been distressed by his parents' failure to visit him for so long. Because the parents were aware that Justin enjoyed his prior supervised visits with them, they should have reasonably realized that their total absence from his life for an extended period of time would effect the child negatively. Similarly, clear and convincing evidence established that Kimberly A.-L. and Anthony L. disregarded the well-being of both children by failing to cooperate with therapy conducted by Dr. Martinez, and with the referral for in-home reunification services. As found above, those specific steps orders were prompted by Judge Winslow's findings in 2007 that such services would benefit Justin and Hailee, and were necessary prerequisites to facilitate the children's transition home. By volitionally disobeying those orders, the respondents precluded the possibility of reunification, extended the length of time Justin and Hailee have been in foster care, and delayed permanency for both children.
The court has considered the credible evidence referenced herein about the respondents' regular attendance at supervised visitation, and the positive nature of those supervised visits, prior to September 2008. The court has considered the evidence about the respondents' numerous requests for the children's records. The court has taken note of the respondents' level of commitment to the pursuit of this lengthy litigation, in which they have represented themselves, and have sought the restoration of their custodial, visitation and other parental rights. The court is well aware of the respondent's legal claims that they did not abandon the children because they have repeatedly made requests and moved the court for the restoration of custody, and for the resumption of unsupervised visitation with both children. The court finds, however, that such evidence is substantially out-weighed by the proof that, since September 2008, the respondents have not had any contact at all with Justin and Hailee, and have not sent the children any cards, letters, or gifts, and by the proof that, since September 2007, the respondents have continually rebuffed court orders and the petitioner's offers for therapy and services that could have possibly reunified the children with their parents. The evidence at trial proved that the respondents reasonably could have visited and personally interacted with the children by accepting the supervised visits that were offered by DCF since September 2008. The evidence at trial proved that the respondents could have reasonably displayed love and affection for the children by sending them presents and cards on their birthdays, and at Christmas. The evidence at trial proved that the respondents reasonably could have cooperated with therapy for the children, and with the referral for in-home reunification services, as ordered by the court in September 2007. The court finds that the respondents' failure to do those things was not reasonable. The court finds as proven by clear and convincing evidence that the respondents failed to maintain a reasonable degree of interest, concern and responsibility for the welfare of their children. (Emphasis added.)
With respect to Justin, the court finds that the petitioner has proven by clear and convincing evidence that Kimberly A.-L abandoned said child. With respect to Hailee, the court finds that the petitioner has proven by clear and convincing evidence that Kimberly A.-L and Anthony L. abandoned said child.
FACTUAL FINDINGS RE DISPOSITION
Per C.P.B. § 35a-9, during the dispositional phase of a termination of parental rights trial, "[t]he judicial authority may admit into evidence any testimony relevant and material to the issue of disposition, including events occurring through the close of the evidentiary hearing . . ."
Justin is currently 13 years old. He will turn 14 on October 24, 2011. As of this date, he has continuously been in foster care for approximately six years and nine months. (Petitioner's Exhibit 54, p. 1.) During the past academic year, he was enrolled in the sixth grade at a middle school. (Petitioner's Exhibit 56.) Justin has participated in such outside activities as karate and basketball. (Petitioner's Exhibit 55.) The court incorporates here by reference the earlier factual findings in this memorandum that Justin and Hailee have not seen, nor had any contact with Kimberly A.-L and Anthony L., since September 2008.
Justin has been involved in psychotherapy with Dr. Martinez since September 2007, and had previously been treated by a different psychologist. A DCF social study dated September 2010 notes: "Justin continues to work on his self esteem issues whereby he felt guilty and responsible for his parents' actions, reactions and their lack of contact. Justin struggled with escalating behaviors in October 2008 and 2009, most notably at the time of his birthday and again at the onset of the Christmas season 2008 and 2009. Justin is again beginning to have escalating behaviors, as the same time of year approaches. Justin exhibits explosive behaviors whereby he becomes verbally abusive to those closest to him." (Petitioner's Exhibit 56, page 4.) Dr. Martinez described similar behavior by Justin during her testimony at this trial. (Transcript, December 15, 2010, p. 25, line 12-14.) Dr. Martinez confirmed that Justin was upset by the loss of contact with Kimberly A.-L. and Anthony L. The psychologist also confirmed that the child's emotional problems escalate at certain times of the year:
Usually, around October, November, those have been, traditionally, very difficult months for him. His birthday is in October. He has memories of the last visits with his mother around that time.
He's very clear about the date, and he will come up and say `it's been one year since I saw my mother,' or `my mother didn't send me a birthday card.' `She didn't remember.' And what one sees is not just a sadness, but the disruptions in behaviors.
(Transcript, December 15, 2010, p. 35, line 1-14.)
According to Dr. Martinez, Justin displays "profound sadness" and "a tremendous sense of abandonment." ( Id., p. 136, line 5-9.) Although the psychologist has worked with Justin in therapy to deal with these feelings, they persist. ( Id., p. 36, line 19-23.) The psychologist also testified:
Justin's emotional responses and behavioral responses are very variable. He is fragile emotionally. Stressors destabilize him very, very easily. Even during these three years where . . . his environment has been fairly stable and he's made improvements, there have been incidences of destabilization when he faces these memories or the feelings of being abandoned by his parents.
( Id., p. 44, line 19-26.)
Dr. Martinez testified that Justin requires permanency in his life in order "to insure his mental health." ( Id., p. 45, line 10.) She also opined that having a "stable home," "known variables" and "people that he can count on," are all essential factors for Justin's emotional well-being. ( Id., p. 47, line 12-19.) The court found all of the foregoing evidence about Justin's behavior, emotional problems, and needs to be credible, and accepts it as fact.
Justin had been in the same professional foster home from July 2005 through approximately February 2011. (Petitioner's Exhibit 56, p. 4.) He resided there with his foster mother, Rhonda H., and five foster brothers. (Petitioner's Exhibit 54, p. 8.) All of the evidence presented during the first five months of this trial indicated that Justin was generally making a positive adjustment at this foster home, and had good attachments with Rhonda H., and the other children with whom he lived. (Petitioner's Exhibit 54, p. 8; Petitioner's Exhibit 56, p. 4.) Two DCF social studies noted: "Justin has bonded well to his foster mother and five foster brothers and he has expressed the desire to remain in the home and grow up with the family. Foster mother has expressed a desire to adopt Justin if he becomes legally free." ( Id.) Justin informed Dr. Martinez and Attorney Lynn Dawson, his guardian ad litem, that he wanted to remain with Rhonda H. and hoped to be adopted by her. (Transcript, December 15, 2010, p. 38, line 1-2; and Transcript, March 10, 2011, p. 125, line 17-23.) Dr. Martinez confirmed during her testimony that Justin had bonded with his foster mother, whom he trusted and viewed as an authority figure. ( Id., p. 45, line 6-7.) With respect to Justin's emotional development and his need for permanency, the therapist also testified:
In accepting this evidence as credible fact, the court notes that it has considered Respondent's Exhibit Q-1. That exhibit is a DCF narrative entry dated March 18, 2008 that states: "Justin reported he feels like a change. When worker asked him to clarify, he reported he thinks a change in his living situation is warranted, as he knows what it is like to live in foster care, and he should like to live with his mother."
The ambiguity in his life's circumstances and the inability of his foster mother to make firm decisions regarding his future care are not conducive to his development. I think he requires closure to this situation so that he knows where he belongs . . .
( Id. p. 32, line 24-27 and p. 33, line 1-2.) The court credits all of the foregoing testimony and documentary evidence.
Unfortunately, Justin's placement with Rhonda H. was disrupted during February 2011. Katarzyna Sikora-Kowolik, a social work supervisor with DCF's permanency unit, testified credibly on March 8, 2011 that Rhonda H. had concluded that she could no longer care for the child, and no longer wanted him to reside in her home. (Transcript, March 8, 2011, p. 179, line 12-13 and p. 186, line 11-12.) Ms. Sikora-Kowolik testified that DCF placed Justin in a professional foster care respite home. ( Id., p. 171, line 1-2.) She indicated that the petitioner is in the process of attempting to find another permanent, pre-adoptive placement for the child. ( Id., line 11-25.) The supervisor also testified that the foster parents with whom Justin was placed in February had expressed interest in caring for him on a long-term basis. ( Id., p. 172, line 4-8.)
Hailee was born on October 27, 2003. She is seven years of age, and will celebrate her eighth birthday next October. As of this date, she also has been in DCF custody for six years and nine months. (Petitioner's Exhibit 54, p. 2.)
Hailee entered the first grade this past September. (Petitioner's Exhibit 56, p. 5.) She is up-to-date with her medical and dental treatment, and has no health issues. ( Id.) A DCF social study prepared in June 2010 describes Hailee as a smart and articulate child who enjoys books, colors and creative play. (Petitioner's Exhibit 54, p. 9.) The report indicates that Hailee loves to sing and dance, and participates in gymnastics, swimming, dancing, and art class. ( Id.)
Through the present date, Hailee has resided continuously in the same foster home for approximately six years and four months. A DCF social study indicates that Hailee regards her foster parents as her psychological parents and turns to them for nurture, guidance, and comfort. (Petitioner's Exhibit 56, p. 5.) That report also noted that Hailee ". . . has made a great deal of progress academically, developmentally and socially under the guidance of her foster parents." ( Id.) Dr. Claudia Califano, Hailee's therapist at the Yale Child Study Clinic, testified that she has observed a "very healthy attachment" between Hailee and her foster mother, Lisa S. "I think Hailee gets a tremendous amount of comfort from [Lisa S.]. Hailee . . . feels very secure in the attachment with her and [Lisa S.] is loving and affectionate and appropriately responsive to Hailee with what she struggles with." (Transcript, January 6, 2011, p. 41, line 23-27.) Ms. Geary, the DCF social worker, also testified credibly that Hailee is well-adjusted in the foster home and views the foster parents as her psychological parents. (Transcript, September 20, 2010, p. 117, line 22-24.) Lisa S., Hailee's foster mother, testified that Hailee refers to her a "mom" and "mommy." (Transcript, September 21, 2010, p. 10, line 18-22.) She also testified that she and her husband wish to adopt Hailee. ( Id., line 14-17.)
Hailee has been involved with therapy at the Yale Child Study Clinic in New Haven since September 2008. She was previously treated by other therapists there before coming under the care of Dr. Califano, who is a psychiatrist.
Dr. Califano testified that Hailee initially presented with "a lot of anxiety" and had difficulty relating to other children and interacting with other people. (Transcript, January 6, 2011, p. 39, line 24-26.) The treatment goals for Hailee include decreasing her anxiety, and enabling her to go to school, have friends and play and ". . . live a regular kid life." ( Id., p. 40, line 2-6.) Because of Hailee's age, the psychiatrist employs a treatment modality known as play therapy, and the child responds well to this form of treatment. ( Id., line 9-24.) Dr. Califano testified that Hailee usually plays with animal toys during the therapy sessions, and will sometimes relate stories during the sessions about mommy and daddy animals who have abandoned their offspring. ( Id., p. 41.)
So she often comes in and she tells me about mommy and daddy animals who have left their babies and the babies have to find other mommies and daddies in the world.
( Id., p. 41, line 5-11.)
The psychiatrist also testified that the child has expressed the fears that her foster mother will die ( Id., p. 42, line 6-12), and that she would be required to leave her foster home if Lisa S. had a baby ( Id., p. 43, line 1-23.) Based on the foregoing evidence, the court finds that Hailee experiences feelings of insecurity, abandonment, and anxiety which have required her to participate in psychotherapy at a very young age. Dr. Califano observed that Hailee is upset because she does not have the same last name as her foster parents, and struggles on a daily basis with the fact that something is not quite settled in her life. She also opined that Hailee needs the stability of knowing that she is going to be raised by a particular family. ( Id., p. 44, line 1-11.) Dr. Califano testified that further delays in arriving at permanency for Hailee would be detrimental to the child. ( Id., line 17-18.) She also testified that removing the child from her foster parents now ". . . would cause tremendous, tremendous harm to Hailee." ( Id., line 22-23.) The court found the testimony and professional opinions of Dr. Califano to be credible, and accepts this evidence as proven fact.
The children's Guardian Ad Litem, Attorney Lynn Dawson, also testified during trial. The GAL supports DCF's recommendation that a termination of the respondents' parental rights to Justin and Hailee would be in each child's best interests. (Transcript, March 8, 2011, p. 208, line 13-19.)
The court incorporates here by reference, with respect to its findings on the issue of disposition, all of the prior adjudicatory findings that it made in this memorandum about the respondents' failure to comply with the reunification services required by the September 5, 2007 amended specific steps orders. The court also incorporates here by reference all of its prior findings concerning the respondents' failure to visit, or have any contact, with Justin and Hailee since September 2008.
This court is required under the provisions of C.G.S. § 17a-112(k) to make and consider certain findings in conjunction with its determinations about the best interests of Justin and Hailee, and the final disposition of this matter. The factual findings that follow are based upon clear and convincing evidence that was presented at trial:
1. The timeliness, nature and extent of services provided and made to the parents to facilitate reunification.
The court issued its amended specific steps orders to the respondents to facilitate reunification on September 5, 2007. During September 2007, and thereafter, the petitioner offered Kimberly A-L. and Anthony L. the following reunification services: supervised visitation, in-home reunification services, the court-mandated home visit, individual therapy for Justin and Hailee, the opportunity to participate in the children's individual therapy, and family therapy. With the exception of supervised visits from September 2007 through approximately July 2008, the respondents have steadfastly refused to participate in any of those reunification services. Since September 2008, the respondents have refused to engage in supervised visitation with Justin and Hailee, despite repeated communications from the petitioner inviting them to do so, and they have had no contact of any kind with their children. Based on the evidence presented, including the clear and convincing evidence about the oppositional attitude of the respondents, the court finds that the reunification services offered by DCF to the parents to facilitate reunification in accordance with Judge Winslow's amended specific steps orders of September 5, 2007, were timely and appropriate.
2. Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the Federal Adoption and Child Welfare Law of 1980, as amended.This court has found by the clear and convincing evidence recited above that Kimberly A.-L. and Anthony L. were unwilling to benefit from reunification efforts. Accordingly, per the provisions of C.G.S. § 17a-112(j)(1), and the holding of our Appellate Court in the case of In Re Jorden R., supra, this court is not required to make a factual finding in the present case that the petitioner made reasonable efforts to reunify the family. However, as found above, the undersigned believes that the reunification services that DCF attempted to make available to the respondents during September 2007, and thereafter, were reasonable, particularly in light of the ongoing refusal by the respondents to cooperate with any of those services, with the exception of supervised visits prior to September 2008. Therefore, this court also finds by clear and convincing evidence that the petitioners made reasonable efforts to reunite the parents with their children in accordance with the statutory mandate of this federal funding law.
3. The terms of any applicable court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order.The respondents never signed, nor agreed to, the amended specific steps orders that Judge Winslow issued orally at the hearing attended by the respondents on September 5, 2007. For reasons stated above, this court has found that neither parental agreement nor written assent are statutory prerequisites to the legal validity of such orders. This court has found that on September 5, 2007, pursuant to the clear and unambiguous provisions of C.G.S. § 46b-129(j), the court issued amended specific steps orders to both respondents and the petitioner, which were intended to facilitate the reunification of the family, and which all parties were legally obliged to obey. The terms of said orders are set forth with particularity in the transcript of the September 5, 2007 hearing (Petitioner's Exhibit 20) and on page 97 of the 2009 Appellate Court decision in the matter of In Re Justin F., supra, and are incorporated by reference here in their entirety. Clear and convincing evidence presented at trial proved, from September 5, 2007, and thereafter: that the petitioners knew the whereabouts of the respondents, and the subject children; that the respondents maintained adequate housing and legal income; that the respondents did not engage in substance abuse; and that the respondents did not have involvement with the criminal justice system. Clear and convincing evidence proved that proximate to September 5, 2007 and thereafter, that DCF offered the reunification services recounted above to the respondents, who declined to accept any of said services, with the exception of supervised visitation until September 2008. It was also proven by clear and convincing evidence that Kimberly A.-L. and Anthony L. have not visited with Justin and Hailee since September 2008, or had any contact with them, despite repeated contacts from the petitioner offering them third-party supervised visits with the children.
4. The feelings and emotional ties of the children with respect to the children's parents and any person who has exercised physical care, custody and control of the children for at least one year and with whom the children have developed significant emotional ties.As of the date of this decision, Justin and Hailee have both been in state foster care for approximately six years and nine months. Neither child has seen or heard from either of the respondents for the past 33 months. Clear and convincing evidence at trial proved that the children, and especially Justin, enjoyed the prior supervised visits with Kimberly A.-L, and Anthony L. The credible testimony of Dr. Martinez, and Children's Exhibit AA, proved that Justin has been saddened and emotionally distressed by his lack of contact with the respondents. Clear and convincing evidence proved that particular dates and times of the year which Justin associates with his parents engender unhappy feelings for the child, that destabilize his behavior. The credible testimony of Dr. Martinez proved that Justin's emotional distress sometimes prompts him to engage in behavior that can be quite angry and oppositional. The foregoing evidence was doubly probative. On one hand, it proved that Justin still has some positive feelings for, and memories about, the respondents. On the other hand, it was probative of the significant emotional harm the child has suffered as a result of the respondents' decision not to engage in supervised visits with him since September 2008. There was also credible evidence at trial that Justin had a strong bond of attachment with his prior foster mother Rhonda H., with whom he had resided for more than five years. Justin had indicated the desire to remain at that foster home, and had expressed the hope that he would be adopted by Rhonda H. Unfortunately, the child's bond with his foster mother was disrupted this past February when Rhonda H. determined that she could no longer care for Justin, and requested that he no longer live in her home.
Clear and convincing evidence proved that there are strong bonds of attachment between Hailee and the foster parents, with whom she has lived since she was approximately 16 months old. This evidence also proved that Hailee regards her foster parents as her psychological parents, and looks to them, as her primary caretakers, for comfort, nurture and guidance. There was credible evidence that Hailee has made favorable progress socially, academically and developmentally while in this foster home. The child's therapist, Dr. Califano, testified credibly about observing a strong bond between Hailee and Lisa S., and opined that tremendous harm would occur if the child was removed from the care of her foster parents. The court finds from all of the foregoing evidence that the child has strong feelings for, and emotional ties to, her foster parents, whom she now regards as the primary parental figures in her life. Hailee refers to them as her parents, and is unsettled by the fact that she does not share their last name.
Prior to August 2008, Hailee had regular contacts with both respondents. The child was aware that the respondents were her parents and had a positive relationship with them. The child has not seen, nor had contact with either respondent since September 2008. The credible evidence of the guardian ad litem established that in December 2009, Hailee was aware that she had another mommy and daddy, but did not know where they had gone, and had "vague memories" of them. (See also Children's Exhibit 22, p. 2.) The court finds that the parental ties that once existed between Hailee and her biological parents have been diminished both by the length of time she has now spent in her foster parents' care, and by the respondents' continuous absence from her life since September 2008.
5. The ages of the children.
Justin is 13 years of age. His date of birth is October 24, 1997. Hailee is seven years old. Her date of birth is October 27, 2003.
6. The efforts each parent has made to adjust such parent's circumstances or conduct or conditions to make it in the best interests of the children to return such children to the parental home in the foreseeable future, including but not limited to (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the children with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communications with the guardian or other custodian of the child.
From September 5, 2007 until September 2008, the respondents visited both children as often as they were permitted to do so. Since September of 2008, the respondents have not visited with Justin or Hailee, sent them cards, letters, or gifts, or had any other form of contact with them. Since September 2008, the respondents have refused to engage in third-party supervised visits with the children despite repeated communications sent to the respondents by the petitioner inviting them to do so. Clear and convincing evidence introduced during this trial established that the respondents do not accept the validity of the court decrees that adjudicated Justin and Hailee as neglected children, and permitted the petitioner to establish the contours of visitation under C.G.S. § 17a-10a. Similarly, clear and convincing evidence proved that the respondents have continuously refused to comply with significant amended specific steps orders that were issued in September 2007. The respondents did not cooperate with the children's individual or family therapy with Dr. Martinez, and they did not cooperate with the DCF referral for in-home reunification services. The court has found by clear and convincing evidence that the respondents have not made any appreciable progress towards reunification since September 5, 2007, and that they are unwilling to benefit from reunification efforts. All of this evidence compels the court to find that Kimberly A.-L. and Anthony L. have not demonstrated any willingness to adjust their circumstances, conduct, or conditions so as to make it in the best interests of the children to return them to the parental home in the foreseeable future.
7. The extent to which the parents have been prevented from maintaining a meaningful relationship with the children by the unreasonable acts of any other person, or by the economic circumstances of the parents.This court is aware of, and has considered, Judge Winslow's comments during proceedings in May 2008, and in her June 6, 2008 memorandum of decision, criticizing the petitioner for failing to support the goal of parental reunification and for seeking termination of parental rights. This court is aware of, and has considered, the evidence offered by the respondents in their effort to prove that DCF never offered them meaningful reunification services and decided, in December 2007, to pursue termination again. This court is aware of, and has considered, the claims of the respondents that the neglect adjudication and the visitation modification orders issued by Judge Bear are legally invalid. However, clear and convincing evidence established that since September 2008, the respondents have declined to visit Justin and Hailee, or have any other contact with them, despite the opportunities to do so. Clear and convincing evidence proved that since September 2007, the respondents have refused to cooperate with the petitioner's attempts to refer them for in-home reunification services, and have refused to engage in the children's individual and joint therapy with Dr. Martinez. Under those circumstances, the evidence presented at trial does not support a finding that the unreasonable acts of any other person or entity, or the parents' economic circumstances, prevented the respondents from maintaining a meaningful relationship with the children.
DISCUSSION RE 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 interests of the child." In Re Jermaine S., supra, 827.
In September 2007, Judge Winslow set amended specific steps orders that she determined Kimberly A.-L. and Anthony L. must follow in order to accomplish reunification with their children. Cardinal among those orders were requirements that both respondents cooperate with in-home reunification services, participate in the children's individual psychological treatment and family therapy, and visit the children as often as permitted by DCF.
Judge Winslow specifically told the parents on January 18, 2008 that their failure to recognize the emotional needs of their children was the "crux of the problem" that had led to removal of Justin and Hailee. It is clear that the court believed very strongly in September 2007, and subsequently, that both parents needed to become involved with the children's treatment in order to acquire necessary judgment, knowledge, and insight about the children's psychological problems, and the skills needed to effectively parent the children and meet their individual needs. Twice, in September 2007 and again in January 2008, the judge reminded Kimberly A.-L. and Anthony L. how essential it was that they cooperate with the children's therapist. Despite the court's orders and admonishments, the parents never participated in the children's sessions with Dr. Martinez, and they also refused to cooperate with the petitioner's referral for in-home reunification services. With the exception of cross-examination during court proceedings, the respondents have never met or spoken personally with the therapists for Justin and Hailee to discuss the children's psychological issues and treatment needs. All this evidence leads the court to find that the parents are presently no closer to successfully addressing the issues identified by Judge Winslow or to reunifying with Justin and Hailee than they were in September 2007, because they have consistently refused since then to follow the specific steps orders.
The court also finds from the evidence that the respondents do not recognize the very deleterious effect that their decision not to visit the children since September 2008 has had upon Justin and Hailee. The therapists for both children testified credibly about the feelings of abandonment that are displayed by both children. Justin, in particular, experiences emotional upheaval that sometimes causes his behavior to deteriorate, when dates or events remind him about his mother and stepfather. The court finds the respondents' refusal to accept supervised visits, and their failure to have any contact with Justin and Hailee for the past 33 months, is clear and convincing evidence that Kimberly A.-L. and Anthony L. still demonstrate poor parental judgment, a significant lack of understanding about the needs of their children, and an inability to place the needs and requirements of their children ahead of their own.
As of this date, Justin and Hailee have both been continuously in foster care for approximately six years and nine months.
A strong bond of attachment exists between Hailee and her foster parents. Given the extended length of time Hailee has lived with them, the child regards Lisa S. and her husband as her mother and father, and addresses them as such. Hailee has made great progress socially, academically and developmentally in this placement, and the foster parents wish to adopt her. Dr. Califano testified credibly that "tremendous, tremendous harm" would be done to Hailee if she were to be removed from this foster home.
Unfortunately, Justin's circumstances when the trial ended were far less favorable. His foster placement of approximately five years was disrupted in February 2011 when Rhonda H., whom Justin hoped would adopt him, indicated that she could no longer care for the child. At the time that the trial concluded, Justin was in a professional respite foster home, and DCF was attempting to identify another possible long-term permanent placement for him.
Justin and Hailee have waited for a very long time while this litigation has wended its way through the courts. The psychological experts and the children's guardian ad litem all testified that Justin and Hailee both have very real and immediate emotional needs to have the issue of their permanent placement resolved as soon as possible. The clear and convincing evidence presented at trial supports such claims. Connecticut case law is also supportive. "We have noted consistently the importance of permanency in children's lives . . . Virtually all experts, from many professional disciplines, agree that children need and benefit from continuous, stable home environments." In Re Jermaine S., supra, 836. "[L]ong-term stability is critical to a child's future health and development." (Internal citations omitted.) In re Devon W., CT Page 17247 124 Conn.App. 650, 659 (2010).
The court finds as proven by clear and convincing evidence that the termination of both respondents' parental rights is in Hailee's best interest, in order that she might be freed for adoption and permanently placed in a stable adoptive home. The evidence presented at trial strongly suggests that her foster parents, who wish to adopt the child and have functioned as her psychological parents for many years now, offer such a home.
The court finds as proven by clear and convincing evidence that the termination of Kimberly A.-L.'s parental rights is in Justin's best interests, in order that he might be freed for adoption, or be provided with other appropriate permanent placement. In making this ruling, the court is aware that at the conclusion of evidence in this proceeding, the petitioner had not yet identified with any certainty a prospective adoptive home, or other permanent placement for the child. However, given the respondents' long-standing unwillingness to benefit from reunification efforts, the length of time that Justin has been in foster care, Justin's significant psychological problems and his need to have permanency resolved, and the length of time that this litigation has been ongoing, the court finds that termination is in the child's best interests. Connecticut's Supreme Court has held that "the law does not preclude the termination of a biological parent's rights simply because adoption of the child by new parents is not imminent. Although subsequent adoption is the preferred outcome for a child whose biological parents have had their rights terminated . . . it is not a necessary prerequisite for the termination of parental rights. While long-term stability is critical to a child's future health and development . . . adoption provides only one option for obtaining such stability . . . Thus, the reluctance of [a child's] foster parents to proceed with adoption at the time of termination proceedings does not provide [an appellate court] with a reason to disturb the trial court's judgment [granting petitions to terminate parental rights]." (Citation omitted, internal quotation marks omitted.) In Re Davonta V., 285 Conn. 483, 492, (2008). Our Supreme Court also noted: "Termination of a biological parent's rights, by preventing further litigation with that parent, can preserve the stability a child has acquired in a successful foster placement and, furthermore, move the child closer toward securing permanence by removing barriers to adoption . . . Even if adoption is not forthcoming, termination can aid stability and lessen disruption because a parent whose rights have been terminated no longer may file a motion to revoke the commitment of the child to the custody of the commissioner . . . or oppose an annual permanency plan." (Citations omitted.) Id., 495-96. See also In Re Rafael S., 125 Conn.App. 605, 616-17 (2010); In Re Anthony H., CT Page 17248 104 Conn.App. 744 (2007).
The court will issue appropriate orders below terminating the respondents' parental rights to the children.
COLLATERAL LEGAL ISSUES
During this trial, and in their memorandum dated April 26, 2011, Kimberly A.-L. and Anthony L. have raised a number of legal arguments and claims about the validity of these proceedings, and the jurisdiction of the court to entertain the matter. The court will attempt to address them here.
Void Neglect Judgment
As touched on briefly above, Judge Winslow permitted the respondents to introduce evidence about the underlying neglect allegations during the first TPR trial. In the April 18, 2007 memorandum of decision denying the TPR petitions, Judge Winslow made findings that contradicted or discredited some of the evidence and claims that DCF had offered during the original neglect proceeding. As a result of Judge Winslow's findings, the respondents have continuously claimed that they proved during the TPR trial that they never neglected the children, and that Judge Bear's original judgments adjudicating Justin as neglected and Hailee as neglected and uncared for were without basis in fact and, hence, illegal and void. The respondents' claims about the import of Judge Winslow's findings regarding the original neglect judgment are not supported by either the actions, or the words, of that court. As noted earlier, Judge Winslow did not return the children to the respondents, nor did she vacate the original neglect judgment, or find that it was unfounded, when she denied the first TPR petitions. Subsequently, at a hearing held on January 18, 2008, she denied the respondents' motion to revoke commitment. At that hearing, the judge made statements to the parents about her belief that the children were appropriately committed to DCF, based on the parents' actions at the Bristol Hospital in September 2004. (See Transcript, January 18, 2008, p. 13, line 25-27 and p. 14, line 1-5 and p. 18, line 23-27 and p. 19, line 1-24.)
Additionally, the respondents arguments that Judge Winslow's findings at the first TPR trial nullified the earlier neglect judgment rendered by Judge Bear appear to run counter to the decision issued by our Appellate Court in the matter of In Re Stephen M., 109 Conn.App. 644, (2008). That decision, which was issued the year after Judge Winslow ruled on the first TPR petitions, dealt with a case where a court hearing a termination case discounted facts found at the earlier neglect trial by a different court. The Appellate Court found the actions of the court hearing the termination case to be erroneous.
"The best interests of the children, especially their interests in family stability and permanency, support the conclusion that findings in earlier child welfare proceedings cannot be collaterally attacked in later proceedings . . . We therefore protect the best interest of the children by requiring the parents immediately to appeal the decisions that . . . interfere substantially with their family integrity. Those parents must do so in a timely fashion not only to protect themselves but also to protect the children . . ."
"On the basis of those same public policy rights and public policy reasons, a trial court may not, in a subsequent proceeding, disregard and permit relitigation of, a factual or legal determination made or an issue decided in a prior proceeding. Such reconsideration is fundamentally inconsistent with the relevant statutory scheme and is unfair to the petitioner, who represents the state's parens patria interest, as well as unfair to the respondent parents and the children . . . The best interests of children is guided by their need for permanency . . . which cannot be achieved if there is no finality to the intermediate findings made along the path to termination of parental rights. We therefore conclude that a finding that a child is neglected and abused made by a trial court when adjudicating a neglect petition constitutes an appealable final judgment. If no appeal is filed in a timely fashion, the parents may not collaterally attack the trial court adjudication during a termination of parental rights trial, and the trial court adjudicating the termination of parental rights trial is bound by the findings made in the prior proceeding." In Re Stephen M., supra, 662-65.
In the case at bar, the respondents did not successfully appeal the predicate neglect and uncared for findings made by Judge Bear in 2005. Based on the In Re Stephen M. holding, this court concludes that the respondents incorrectly assert here that the findings of Judge Winslow during the first TPR trial voided the predicate neglect adjudication. As noted previously, based on that holding, this court did not permit the respondents to introduce evidence collaterally attacking the original neglect adjudications during this termination of parental rights trial.
The In Re Joseph W., Jr. Decision
The respondents also argue that the ruling of the Appellate Court in the matter of In Re Joseph W., Jr., 121 Conn.App. 605, (2010) permits them to relitigate and challenge the underlying neglect adjudication in the present case. (On June 28, 2011, after the respondents submitted their memorandum, the Connecticut Supreme Court affirmed the Appellate Court's ruling in that case. See In Re Joseph W., Jr. et al, SC 18660, June 28, 2011.) In that case, DCF filed neglect petitions with respect to two children. At the neglect hearing, the mother of the children entered a no-contest plea and the father, who was present at the hearing, did not enter a plea. After canvassing the mother, the court adjudicated both children as neglected and committed them to the custody of DCF. Several months later the father filed a motion to open the neglect and commitment judgments, and claimed that he had attempted to object to the mother's neglect plea at the earlier hearing, but the court would not permit him to speak. After a hearing, the court (Bear J.) issued an order denying the father's motions to open the judgments of neglect. But Judge Bear also ruled that if the father filed a pleading seeking a trial on the issue of whether the children were neglected, DCF would be required to prove neglect at the pending termination of parental rights trial. The father did so, and during the termination trial the court (Olear, J.) permitted him to introduce evidence about the issue of whether or not the children were neglected, notwithstanding the earlier adjudication. The Appellate Court subsequently held that "due to the unique procedural posture of this case, the trial court properly "opened the judgment of neglect" during the TPR trial because the respondent father "may have been denied the right to contest the neglect petitions." In Re Joseph W. Jr., 121 Conn.App. 605, 615, cert. granted, 297 Conn. 928 (2010). The court held that the father's challenge of the original neglect adjudication during the termination trial was not an impermissible collateral attack on the judgment, because the neglect finding resulted from a proceeding during which the father had been deprived of his right to participate. ( Id., 612, 615.)
The respondents rely on this case in arguing that they should have been entitled to attack the underlying neglect adjudications of Justin and Hailee during the current termination of parental rights trial. They contend that, like the father in the foregoing case, they were not permitted the opportunity to be heard during the original neglect trial. The court finds that the respondents' reliance on this case is misplaced. Contrary to the facts in the In Re Joseph W., Jr. case, the respondents here had the opportunity to participate in the neglect proceeding that was held during 2005. Judge Bear's memorandum of decision indicated that the respondents introduced several exhibits into evidence, and cross-examined a psychologist and a psychiatrist during the neglect trial. (Memorandum of Decision, (Bear, J.) December 1, 2005, p. 3, 7.) For that reason, this court finds that the holding of the In Re Joseph W. Jr. case is not applicable to the case at bar, because the respondents were afforded the opportunity to participate at the original neglect trial. Also, as previously noted, the respondents did not successfully appeal the judgments of the trial court. Accordingly, as specified in the In Re Stephen M. decision, supra, the respondents may not now collaterally attack or re-litigate the predicate neglect findings.
Double Jeopardy
The respondents argue that this action is barred by the "double jeopardy" clause of the Fifth Amendment to the United States Constitution. The respondents contend that because DCF has initiated a second set of termination of parental rights petitions against them, the petitioner is trying them for the same alleged "offense" twice, and is also trying to "punish" them for the second time for the same alleged acts.
The Fifth Amendment to the United States Constitution states, in pertinent part: ". . . nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb . . ."
An expansive body of federal and state case law has determined that, generally speaking, the constitutional prohibition against double jeopardy applies to those instances where the government is attempting to charge or punish an individual twice for the same crime. "In order for double jeopardy to exist there must be dual punishment of the same offense arising out of the same act." State v. Garvin, 43 Conn.App. 142, 150 (1996).
"A civil sanction . . . that serves a legitimate remedial purpose and is related rationally to that purpose does not give rise to a double jeopardy violation even if the sanction has some deterrent effect." (Internal quotation marks and internal citations omitted.) In Re Shane P., 58 Conn.App. 244, 257 (2000).
"When considering whether a civil sanction is characterized as remedial for purposes of the double jeopardy clause, we take a two-pronged approach. Under that approach . . . [the court must] assess: (1) the purpose the sanction is designed to serve; and (2) the nature of the particular sanction as applied to the defendant . . ." ( Id., 257-58). In Shane P., our Appellate Court applied that two-prong test in a case where DCF initiated a termination of parental rights petition against a respondent incarcerated for the crime of risk of injury to his own child. The court held that Connecticut's termination of parental rights laws were remedial in nature, and ruled that there was no double jeopardy violation in that case. "We conclude that the application of § 17a-112 to the respondent does not violate the double jeopardy clause. As stated in our case law, the legislature intended § 17a-112 to serve a remedial purpose — to protect the welfare of children in our state — and it served that purpose when the court applied it in the circumstances of this case." ( Id., 259.)
See also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69 (1963) for additional factors that may indicate whether a sanction is punitive or remedial in nature in terms of double jeopardy analysis.
Unlike the respondent in the Shane P. matter, the respondents in the present case were never charged with any type of criminal offense against their children. Given the exclusively civil nature of this proceeding, and its remedial purpose, the court finds the respondents' claim of a double jeopardy clause bar to be without legal merit.
Res Judicata and Collateral Estoppel
The respondents also argue that because the court denied the first set of termination petitions, the petitioner is barred from initiating a second TPR action by the doctrines of res judicata and collateral estoppel.
"The doctrines of res judicata and collateral estoppel are well established in our law. The two doctrines protect the finality of judgments, conserve the time of the court, and prevent wasteful relitigation. Res judicata or claim preclusion prevents a litigant from reasserting a claim that has already been decided on the merits. Collateral estoppel, or issue preclusion, prevents a party from relitigating an issue that has been determined in a prior suit." (Internal quotation marks omitted.) In Re John B., 20 Conn.App. 725, 731, (1990). "For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." In Re Stephen M., supra, 657 n. 21.
The Connecticut Supreme Court has considered the application of these doctrines in termination of parental rights cases. The Supreme Court noted: "The judicial doctrines of res judicata and collateral estoppel are based on the public policy that a party should not be able to relitigate a matter which it already has had an opportunity to litigate . . . Stability in judgments grants to parties and others the certainty in the management of their affairs which results when a controversy is finally laid to rest. The doctrines of preclusion, however, should be flexible and must give way when their mechanical application would frustrate other social policies based on values equally or more important than the convenience afforded by finality in legal controversies . . ."
"Because the issue of whether termination of parental rights is appropriate must be decided upon the basis of conditions as they appear at the time of trial, the doctrines of res judicata and collateral estoppel ordinarily afford very little protection to a parent who has once successfully resisted an attempt to terminate his rights to a child. Parents have a constitutionally protected right to care for their own children . . . This right is not free from intervention by the state, however, when the continuing parens patria interest of the state in the well being of children is deemed by law to supercede parental interests . . . An adjudication that a ground for termination did not exist at one time does not mean such ground has not arisen at a later time." In Re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19 (1983).
"In In re Juvenile Appeal (83-DE) case, [ supra], the Connecticut Supreme Court held that the doctrines of res judicata and collateral estoppel did not apply because the first termination case was dismissed by a trial court not on the merits, but rather because the one-year requirement of General Statutes § 17a-43a [now § 17a-112] should not have been waived." In Re John B., 20 Conn.App. 725, 729-30 (1990). The language from In re Juvenile Appeal (83-DE), quoted above is, accordingly, dicta.
The Connecticut Appellate Court has noted that "[t]ermination of parental rights proceedings generally arise out of a continuing and cumulative set of circumstances, in which the child is within the juvenile court's jurisdiction and, often, is subject to agency custody and supervision." (Internal quotation marks omitted.) In Re John B., supra, quoting Matter of Newman, 49 Or.App. 221, 227-28 (1980). "An order denying a petition to terminate parental rights seldom leads directly to the termination of wardship or of agency involvement. It is one thing to say that such an order bars a second termination proceeding when there has been no change in the operative facts which led to the initiation of the first proceeding; it is very different — and clearly wrong — to contend that, if new substantial material facts come into existence which justify the filing of a new termination proceeding, evidence and facts which were or could have been considered in the earlier proceeding cannot be considered, or reconsidered in the later one." ( Id., 731.) The Appellate Court also held that when "new facts that justify the bringing of a second termination petition come into being after the dismissal of the first proceeding, the doctrines of res judicata and collateral estoppel do not apply because courts are required in all termination proceedings to take into account the entire relationship between the parent and the child." ( Id., 732.)
In the present case, the undersigned, consistent with the rulings of predecessor judges who previously presided over this second trial, has taken a somewhat more restrictive approach with respect to the evidence presented in this matter. In light of the dismissal of the first TPR petitions, the court ruled that evidence at trial should be restricted as much as possible to parental acts or omissions that allegedly occurred after Judge Winslow's April 2007 decision. (The court did take judicial notice of prior predicate judicial rulings, and certain facts pertaining to the context in which they were issued, and, the court was required to determine and consider the length of time that Justin and Hailee have been in state foster care.) As noted above, the petitioner decided to initiate the second action in December 2007, and the TPR petitions were actually filed with the court in November 2008. The allegations in the petition, and the evidence presented at trial, focused largely on alleged acts and omissions of the respondents that violated the amended specific steps orders that were issued in September 2007, more than four months after the first termination proceeding concluded. These included the claims that the respondents refused to engage in the children's individual and family therapy with Dr. Martinez; that they failed to sign releases and cooperate with the referral for in-home reunification services; that they failed, before May 2008, to allow a DCF home visit; and that they failed, since September 2008, to visit, or have any contact whatsoever, with Justin and Hailee.
The record of this trial will reflect instances where the court ordered the redaction of certain documents, or proscribed certain testimony, in furtherance of this order.
The key factual allegations in the present matter were not presented during the first termination of parental rights trial. Thus, they have not previously been decided on the merits, and are not issues that were determined in that prior proceeding. The court finds that the doctrines of res judicata and collateral estoppel do not prohibit the litigation of the petitioner's second action for termination of the respondents' parental rights.
Improper Service
The respondents contend that the court lacks personal jurisdiction over them because the termination of parental rights petitions were not served upon them "in hand." On November 25, 2008, the petitioner filed the pending petitions to terminate parental rights. The summons attached to those petitions indicated that an initial hearing was scheduled for December 16, 2008. According to the marshal's return of service, of which this court takes notice, State Marshal Gerald Raimo attempted to personally serve the petitions to the respondents at their residence on December 1, 2008. The marshal's return indicates that ". . . once I identified myself, [the respondents] slammed the door, so I at this time read the papers through the door." The return of service is on a pre-printed form, on which is printed the following statement: "I left with and in the hands of the above-named respondent a true and attested copy of the original petition, order and summons." Marshal Raimo crossed out the words "and in the hands of" on the return. The return that was submitted by the marshal to the court reads: "I left with . . . the above-named respondent a true and attested copy the original petition, order and summons." On December 8, 2008, the respondents filed a motion to dismiss the petitions due to lack of jurisdiction on the grounds that they had not been served "in hand." A memorandum in the court file, of which this court also takes notice, indicates that at a hearing on December 12, 2008, the court (Bear, J.) advised both respondents of their rights and confirmed that abode service had been made upon them. The respondents admitted at the December 12, 2008 hearing that the petitions had been left on their porch. (Respondent's Exhibit N-4, p. 29, l. 12-25.)
Connecticut Practice Book § 33a-7 provides that, at the initial hearing, the court must determine whether all parties are present and must inform the respondents of their rights.
The respondents have previously filed two motions to dismiss the present case on the grounds that the court lacks jurisdiction due to defective service. A motion to dismiss on the same grounds of improper service was denied by Judge Esposito on April 3, 2009. On October 1, 2010, shortly after trial commenced before the undersigned, the respondents again filed a motion to dismiss in which they claimed that service of the termination petitions was defective because there had not been personally served by the marshal. That motion was denied by this court.
"A motion to dismiss . . . properly attacks the jurisdiction of the court . . ." Ferreira v. Pringle, 255 Conn. 330, 346, (2001). "The grounds which may be asserted in a [motion to dismiss] [include] . . . lack of jurisdiction over the person . . . [and] insufficiency of service of process." Zizka v. Water Pollution Control Authority, 195 Conn. 682 (1985). "Facts showing the service of process in time, form, and manner sufficient to satisfy the requirements of mandatory statutes in that regard are essential to jurisdiction over the person." (Internal quotation marks omitted.) Bridgeport v. Debek, 210 Conn. 175, 179-80, (1989).
The statute which governs the service of termination of parental rights petitions upon respondents is C.G.S. § 45a-716(c). That statute provides in relevant part: "[N]otice of the hearing and a copy of the petition [for termination of parental rights], certified by the petitioner, the petitioner's agent or attorney, shall be served at least ten days before the hearing by personal service or service at the person's usual place of abode on [the parents of the minor child] who are within the state, and by first class mail on the Commissioner of Children and Families and the Attorney General."
The respondents appear to interpret this statutory language to include the requirement that they must be personally served at their place of abode. This court does not agree with that interpretation. The plain language of C.G.S. 45a-716(c) indicates that abode service, as was made in this case, is legally sufficient notice under the statute. The court reaffirms here the earlier findings that the respondents were properly served in accordance with the statute, through abode service at their place of residence, and that the respondents' motion to dismiss due to lack of jurisdiction on the basis of defective service should be denied for that reason. The court hereby vacates a finding that it made during trial that the respondents were barred from challenging the lack of personal service because they allegedly closed the door when the marshal attempted to achieve personal service. Although the marshal's return indicated that this occurred, no evidentiary hearing was conducted on this issue. For that reason, the court vacates that particular finding.
In making this determination, the court is aware that the pre-printed return of summons form does not include any space to indicate abode service or make any reference to abode service. The court is also mindful of C.P.B. § 33a-2(b), which provides that a summons accompanying a petition for termination of parental rights "shall be served by the petitioner on the respondents." That rule is silent about whether abode service is permitted. However, if that section of the practice book were interpreted to require only personal service in termination of parental rights cases, it would conflict with C.G.S. § 45a-716(c), which permits abode service. It is axiomatic that rules of practice do not supercede statutes enacted by the General Assembly. C.G.S. § 51-14(a) specifically provides that practice book rules ". . . shall not abridge, enlarge, or modify . . . the jurisdiction of any of the courts."
Constitutional Claims
The respondents assert that they are relying in this matter upon the First, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth and Thirteenth Amendments to the United States Constitution and Sections One, Three, Four, Five, Seven, Eight, Nine, Eleven and Twenty of the First Article of the Connecticut Constitution (See Respondents' Memorandum dated April 26, 2011, p. 27-28.) The respondents have also cited an extensive number of cases that they claim are supportive of their position that the petitioner is erroneously and unconstitutionally seeking to terminate their parental rights. Some of these cases include, inter alia, Stanley v. Illinois, 405 U.S. 645 (1972); Santonsky v. Kramer, 455 U.S. 745 (1982); Troxel v. Granville, 530 U.S. 57, 65 (2000); Miranda v. Arizona, 384 U.S. 436 (1966); Roth v. Weston, 259 Conn. 202 (2002); Wisconsin v. Yoder, 406 U.S. 205 (1972); Pierce v. Society of Sisters, 268 U.S. 510 (1925) and Meyer v. Nebraska, 262 U.S. 390 (1923).
The respondents correctly point to the vital and constitutionally protected liberty interests that are implicated in all termination of parental rights proceedings. "The liberty interest at issue in this case — the interest of parents in the care, custody and control of their children, is perhaps the oldest of the fundamental liberty interests recognized by this court." Troxel v. Granville, 530 U.S. 57, 65 (2000). "Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children undeniably warrants deference and, absent a powerful countervailing interest, protection." In Re Emerald C., 108 Conn.App. 839, 862 (2008), citing In Re Juvenile Appeal (Anonymous), 181 Conn. 638, 640 (1980). ". . . [T]he relationship between parent and child is constitutionally protected." Parham v. J.R., 442 U.S. 584, 602 (1979).
The rights of parents to raise their children free from governmental interference are not however, without limitation. "Our Supreme Court . . . has recognized the state's continuing parens patria interest . . . in the well being of children." In Re Shane P., supra, 290, citing In Re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19. "It is indisputable that protecting the physical and psychological well-being of children is a compelling, as well as legitimate, state interest." In Re Shane P., supra, citing State v. Palangio, 24 Conn.App. 300, 304, cert. denied 218 Conn. 911 (1991).
The respondents' constitutional claims are very broadly asserted, and appear to pursue a number of disparate paths. The respondents claim in their April 26, 2011 memorandum that Judge Bear's decision in the visitation modification proceeding was an unconstitutional denial of their due process rights because that court did not properly apply the precedent of Roth v. Weston, supra. (Memorandum dated April 26, 2011, p. 12.) This court will not address that contention here inasmuch as Judge Bear's visitation modification decision was affirmed by the Appellate Court in its In Re Justin F. decision, supra, and the respondents' subsequent petitions for certiorari were rejected by the Connecticut Supreme Court and The United States Supreme Court.
The respondents also cited the Troxel v. Granville and Roth v. Weston decisions, and numerous other cases, in support of their contention that the petitioner is impermissibly interfering with their rights to privacy and to the care, custody and control of their children, and denying them appeal protection and due process of law, because they have never been found to be unfit parents, or to have caused harm to Justin and Hailee. These arguments appear to be predicated on their claims that they proved during the first TPR trial that there was no basis for the neglect adjudication, and that the original neglect and commitment orders issued in 2005 by Judge Bear are void. For reasons recounted at length above, the court did not find that the original neglect adjudication is void. Rather, the court is required to regard that adjudication as a valid predicate judgment in the context of this termination proceeding. The trial court decisions adjudicating Justin and Hailee as neglected children and committing them to DCF's custody in 2005, and denying the respondents' motions for revocation in 2008, were not successfully appealed by the respondents. Those decisions included legal findings at the time each was issued that it was then contrary to the children's well-being for them to be in the respondents' custody. Furthermore, during the adjudicatory phase of this trial, the court determined that the petitioner has proven the existence of adjudicatory grounds for the termination of the respondent's parental rights. Based on the foregoing, the respondents' claims of unconstitutional governmental intrusion into the affairs of their family must fail, and the paren patria interest of the state in protecting the children must be viewed as ascendent over the liberty interests of the respondents.
On page 35 of their April 26, 2011 memorandum, the respondents assert: "Because our two children are not found to exhibit any statutorily defined evidence of abuse or neglect, that evidence being substantive and not speculative, then the courts cannot permit the State to interfere with our family, as the courts have continued to allow DCF to do unlawfully." Likewise, on page 9 of their memorandum, the respondents noted: "We not only proved that we did not abuse and neglect our two children but also proved that the State has not met its burden of proof and failed to introduce evidence on which relief may be granted."
The respondents also appear to claim in their memorandum that they were not required to cooperate with DCF services because that would require them to assist the petitioner in presenting a case against them. "The State of CT cannot compel us, custodial parents, to contribute to the State's efforts to build a case against us, or to disclose personal information that will be used to discredit our parenting abilities and deprive us of our two children or at any other action in the process . . . Because compulsion was used to obtain the respondent's cooperation with the psychological evaluations and psychiatric evaluations or any other services, then any evidence discovered during those evaluations and therapeutic sessions must be excluded for purposes of adjudication, or for any aspect of this Sham and Unlawful Cause of action." (Memorandum dated April 26, 2011, p. 9.) In support of this claim, the respondents have cited Miranda v. Arizona, supra. Although psychological evaluations of the respondents were apparently introduced into evidence during the first TPR trial, none were offered into evidence during this proceeding, and the court is unclear why the respondents are making reference to, and seeking the exclusion of, evaluations that were not introduced during the present trial. The respondents' memorandum does not specifically refer in this section to Judge Winslow's amended specific steps orders, but the respondents' reference to "therapeutic sessions" in this portion of their memorandum leads the court to surmise that the respondents may be referring to the amended specific steps orders that they cooperate with the children's individual therapy and family therapy with Dr. Martinez, and that they cooperate with in-home reunification services. If the court is correct in that assumption, the respondents appear to be arguing that they had a constitutional right not to obey the specific steps orders that mandated their cooperation with those reunification services, because doing so would compel them to assist the state in building a case for the termination of their parental rights. To the extent that the respondents are raising such a constitutional or other legal challenge to Judge Winslow's amended specific steps orders here based on that argument, this court does not accept it. The Connecticut Appellate Court upheld the authority of Judge Winslow to issue those amended specific steps orders in its In Re Justin F. decision, supra, and found that the orders were issued in the best interests of the children. Additionally, the provisions of C.G.S. § 46b-129(j) authorize courts hearing child protection cases to issue specific steps orders to facilitate the reunification of children with their parents. Connecticut case law is clear that, in the absence of a compelling showing to the contrary, the enactments of our General Assembly are presumed to be constitutional. The respondents have not made such a showing here.
Inadequate Representation of Children
In their April 26, 2011 memorandum, the respondents cited several cases that pertain to the inadequate assistance, or conflicted representation, of children in child protection cases by attorneys or guardians ad litem. Both the attorney for the minor child and the guardian ad litem in the present case have recommended termination and adoption as being in the best interests of the children. The respondents appear to claim that the children's attorney and GAL did not appropriately and professionally represent the children.
The respondents have standing to raise such a claim because of their liberty interest stake in the outcome of this proceeding. In Re Christina M., 280 Conn. 474 (2006). However, the court finds that the respondents did not prove that either the attorney for the minor child or the guardian ad litem, acted unprofessionally or provided inadequate assistance to Justin and Hailee.
PENDING MOTIONS
As noted, thirty-three motions that were pending in this case were also simultaneously heard by the undersigned during this termination of parental rights trial. The court incorporates by reference below, with respect to all of these pending motions, all of the findings of fact that it previously made in this memorandum of decision.
Motions to Revoke Commitment/Objections to Motions to Revoke Commitment
The respondents filed Motions to Revoke Commitment on August 7, 2008, October 29, 2009, and June 30, 2010. These motions appear on the attached Exhibit A as Motions 1, 17, and 27. The respondents captioned each of these motions as "Motion to Revoke Unlawful and Void Commitment and Transfer of [Physical] Custody." On August 12, 2008, the attorney for the minor child filed an objection to the respondents' motion to revoke commitment. (Motion 4 on Exhibit A.) On November 9, 2009, the petitioner filed an objection to the respondent's motion to revoke commitment. (Motion 18 on Exhibit A.) Motions to Revoke Commitment are authorized pursuant to C.G.S. § 46b-129(4)(m) and C.P.B. § 35a-14A. Under the statute and the practice book rule, the respondents are required to prove by a preponderance of the evidence that cause for commitment no longer exists. If they satisfied that burden of proof, the party opposing their motion is required to prove by a preponderance of the evidence that revocation of commitment would not be in the best interests of the children.
The respondents filed 15 pleadings of a similar nature on various dates between February 19, 2009 and August 31, 2010. On each of these pleadings the following caption appeared: "Requesting the Immediate Release and Return of Our Two Children Back with their God Given (Fit Competent) Custodial Parents." These motions appear on the Attached Exhibit A as Motions 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 21, 23, 25, 30 and 32. Since these pleadings request the return of the children's custody, they appear to be Motions to Modify Disposition. C.P.B. § 35a-16 provides: "Motions to modify dispositions are dispositional in nature based on the prior adjudication, and the judicial authority shall determine whether a modification is in the best interests of the child or youth based upon a fair preponderance of the evidence. Unless filed by the commissioner of the department of children and families, any modification motion to return a child to the custody of the parent without protective supervision shall be treated as a motion for revocation." Since the foregoing pleadings were not filed by the commissioner, and the respondents request the return of the children to their custody without protective supervision, the court shall also treat these pleadings as Motions for Revocation of Commitment.
These pleadings were filed on February 19, 2009, March 9, 2009, March 26, 2009, April 27, 2009, May 7, 2009, June 16, 2009, July 21, 2009, September 3, 2009, October 26, 2009, January 22, 2010, March 2, 2010, April 13, 2010, May 7, 2010, July 16, 2010 and August 31, 2010.
Judge Winslow set amended specific steps orders in September 2007 and denied the respondents' earlier motion to revoke commitment in January 2008. This court has found that the respondents' failure since September 2007 to cooperate with therapy by Dr. Martinez and the referral for in-home reunification services, and their refusal since September 2008 to engage in supervised visits with Justin and Hailee, constituted grounds for the termination of their parental rights. The court has also found that the respondents have not made any appreciable progress toward reunification since September 2007. The respondents did not prove that cause for commitment of Justin and Hailee no longer exists, and the court finds that it is not in the best interests of the children that they be restored to the respondent's care and custody. All of the respondents' revocation motions are denied. The objections to the motions for revocation are sustained.
Motions for Visitation
The respondents have eight motions pending with the court pertaining to visitation. Six of the pleadings were captioned "Requesting Our Parental Visits Back." Motions titled in that manner were filed on January 22, 2010, March 2, 2010, April 13, 2010, May 7, 2010, July 16, 2010 and August 31, 2010. On June 30, 2010, the respondents filed motions captioned: "Motion to Reinstate Our Parental Unsupervised Visitation" and "Motion for Permission to Have Contact With Our Two Children at the Foster Places Without Third-Party Supervision." This court will treat all of the foregoing motions as motions for modification of the court's visitation orders. The evidence presented during this proceeding proved that after Judge Bear granted the petitioner authority to establish a visitation plan for the children with the respondents pursuant to C.G.S. § 17a-10a, the respondents did not attend the two administrative treatment plan hearings that DCF scheduled to address visitation. The respondents appealed Judge Bear's decision to the Connecticut Appellate Court, and that court denied their appeal and affirmed Judge Bear's visitation modification order, in its In Re Justin F. decision, supra. The respondents have refused to accept the supervised visits with Justin and Hailee that DCF has offered them since September 2008. The respondents have had no contact whatsoever with the children since then. The respondents did not cooperate with the court's 2007 specific steps orders that they participate in the children's individual and family therapy with Dr. Martinez, and cooperate with the referral for in-home reunification services. Both children are currently in psychotherapy, and both are dealing with abandonment issues. This court has found as proven by clear and convincing evidence that there are grounds for the termination of the respondents' parental rights, and that termination is in the best interests of each child. The respondents did not prove that it would be in the best interests of the children for the court to grant their various visitation motions, and the evidence presented during this proceeding militates against such a finding. All of the respondents' pending motions for visitation are hereby denied.
Motion for Review of Permanency Plan/Objection to Permanency Plan
On August 12, 2008, the petitioner filed a Motion for Review of Permanency Plan. This motion is listed as Motion 2 on Exhibit A. DCF's proposed permanency plan for both children was termination of parental rights and adoption. As noted, the prior permanency plan, that was approved by Judge Winslow on September 5, 2007, was for the reunification of Justin and Hailee with the respondents. On November 3, 2008, and on October 29, 2009 the respondents filed objections to DCF's proposed permanency plan of termination and adoption. Those objections are listed as Motions 4 and 16 on Exhibit A. These pleadings have been pending since 2008 and were consolidated for hearing by the court during this TPR trial for reasons of judicial economy with respect to similar legal issues. As noted above, the trial was stayed during the pendency of the Appellate Court's review of the respondents' appeals that were the subject of the In Re Justin F. decision, supra. Delays in this proceeding, which initially began on December 7, 2010, were also occasioned by the unfortunate death of one judge, and the recusal of another judge.
See: C.G.S. § 46b-129(k)(1).
The respondents' November 3, 2008 pleading is captioned: "Motion Objecting to DCF's Unlawful and False proposed Permanency Plan of TPR Adoption with a Malicious Motive." That pleading is dated October 31, 2008 and consists of 120 pages. The respondents' pleading under date of October 29, 2009 is titled: "Objection to Petitioner's Untimely and Fraudulent Proposed Permanency Plan; The 2nd Sham TPR Petitions; And Motion to Amend the 2nd Unlawful TPR Petitions."
Based on the clear and convincing evidence recounted above and incorporated by reference here, the court has found that the petitioner has proven grounds for the termination of both respondents' parental rights, and that termination of parental rights is in the best interests of both children, in order that they might be placed in adoptive homes. The petitioner's proposed permanency plan of termination of parental rights is found to be in the best interests of both children and is hereby approved. The court finds that the petitioner made reasonable efforts to achieve that permanency plan. The respondents' objections to the permanency plan are hereby overruled.
The respondents have correctly noted that the court has not conducted annual reviews of the petitioner's permanency plan, and the reasonableness of the petitioner's efforts to achieve it, since September 2007. (The petitioner has not filed a permanency plan since 2008.) Such annual court reviews are required by the federal Adoption and Safe Families Act, and the provisions of C.G.S. § 46b-129(k)(1). The respondents also correctly note that because there has been no ruling on the petitioner's 2008 proposed permanency plan and their objection to it prior to now, the only extent permanency plan in this case was the one calling for reunification which Judge Winslow approved in September 2007. (This court has previously found herein by clear and convincing evidence that DCF, by its offers of services, made reasonable efforts to achieve the prior permanency plan of reunification that Judge Winslow approved in 2007.) The respondents contend that the petitioner's failure to comply with the provisions of C.G.S. 46b-129(k)(1) should bar this termination of parental rights proceeding. However, the petitioner has not provided a statutory reference or common-law precedent that sufficiently supports such a claim.
Other Motions
On December 10, 2008, the respondents filed a pleading entitled "Motion Opposing the States" (DCF) request for this court to Approve The (False Malicious) Applications for Removal of Guardians (TPR Petition)." This pleading is listed as Motion 5 on Exhibit A. On February 19, 2009, the respondents filed the following pleading: "Motion in Opposition to the State's [CT DCF's] 2nd (False and Unlawful) Termination of Parental Rights Petitions Filed Falsely and Maliciously by the State [CT DCF] Against us, Kim Ant." (Motion 6, Exhibit A). Also, as noted in Footnote 38, supra, the respondents' October 29, 2009 pleading (Motion 16 on Exhibit A) objecting to the petitioner's 2008 proposed permanency plan also included objections to the pending TPR petitions and a motion by the respondents "to amend" the petitioners' 2008 termination of parental rights petitions.
Based on the clear and convincing evidence recounted above and incorporated by reference here, the court has found that the petitioner has proven grounds for the termination of both respondents' parental rights, and that termination of parental rights is in the best interests of both children. The court has found that both respondents were properly served and received proper notice of this proceeding, and that this court has jurisdiction over this matter.
The respondents have not established during this proceeding any appropriate basis for the dismissal of the pending termination of parental rights petitions. After consideration of the respondents' evidence and legal arguments, the court does not find any such ground for dismissal. The court has found that the alleged adjudicatory grounds of parental failure to rehabilitate and abandonment that were initiated by the petitioner against each respondent were properly pled. Therefore, the foregoing motions of the respondents referenced in this section, which the court construes to be motions to dismiss, are all hereby denied, and the respondents' objections are all hereby overruled.
ORDERS
Having found by clear and convincing evidence that adjudicatory grounds for the termination of parental rights have been proven with respect to Kimberly A.-L., and that termination of parental rights is in the best interests of both minor children, it is ORDERED that the parental rights of Kimberly A.-L. with respect to Justin F. and Hailee L. are hereby terminated.
Having found by clear and convincing evidence that adjudicatory grounds for the termination of parental rights have been proven with respect to Anthony L., and that termination of parental rights is in the best interests of the minor child, it is ORDERED that the parental rights of Anthony L. with respect to Hailee L. are hereby terminated.
The court further ORDERS that the Commissioner of the Department of Children and Families is hereby appointed the statutory parent of Justin F. and Hailee L., and is ordered to pursue the adoption of both children as expeditiously as possible. The court ORDERS said Commissioner to file all Motions for Review of Permanency Plan, Permanency Plans, and Quarterly Status Reports pertaining to each child on a timely basis, as required by law, until each child is adopted. The court also orders said Commissioner, and the Probate Court that processes each child's adoption, to notify the clerk of this court when the adoptions of Justin and Hailee are finalized.
SO ORDERED.
Dated at Middletown, Connecticut this 3rd day of August 2011.
EXHIBIT A (Pending Motions) CT Page 17264
1. 8-7-08 Motion to Revoke Unlawful and Void Commitment and Transfer of [Physical] Custody
2. 8-12-08 Motion to Review Permanency Plan
3. 8-20-08 Objection to Motion to Revoke Commitment
4. 11-3-08 Motion Objecting to DCF's Unlawful and False Proposed Permanency Plan of TPR Adoption with a Malicious Motive
5. 12-10-08 Motion Opposing the States (DCF) request for this court to Approve The (False Malicious) Applications for Removal of Guardians (TPR Petition) [Connecticut General Statute 45a-615]
6. 2-19-09 Motion in Opposition to the State's [CT DCF's] 2nd (False and Unlawful) Termination of Parental Rights Petitions Filed Falsely and Maliciously by The State [CT DCF] Against us, Kim Ant.
7. 2-19-09 Requesting the Immediate Release Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant.
8. 3-9-09 Requesting the Immediate Release Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant.
9. 3-26-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant.
10. 4-27-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant.
11. 5-7-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant (5).
12. 6-19-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant (6).
13. 7-21-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant (7).
14. 9-3-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant (8).
15. 10-26-09 Requesting the Immediate Release and Return of Our Two Children Back with Their God-Given (Fit Competent) Custodial Parents, Kim Ant.
16. 10-29-09 Objection to Petitioner's Untimely and Fraudulent Proposed Permanency Plan; The 2nd Sham TPR Petitions; And Motion to Amend the 2nd Unlawful TPR Petitions.
17. 10-29-09 Motion to Revoke Unlawful and Void Commitment and Transfer of [Physical] Custody (2).
18. 11-9-09 Petitioner's Objection to Motion to Revoke Unlawful and Void Commitment and Transfer of [Physical] Custody (2).
19. 1-22-10 Requesting the Immediate Release and Return of Our Two Children Back With Their God Given (Fit Competent) Custodial Parents, Kim Ant (10).
20. 1-22-10 Requesting Our Parental Visits Back (25).
21. 3-2-10 Requesting the Immediate Release and Return of Our Two Children Back With Their God Given (Fit Competent) Custodial Parents, Kim Ant (11).
22. 3-2-10 Requesting Our Parental Visits Back (26).
23. 4-13-10 Requesting the Immediate Release and Return of Our Two Children Back With Their God Given (Fit Competent) Custodial Parents Kim and Ant (12).
24. 4-13-10 Requesting Our Parental Visits Back (27).
25. 5-7-10 Requesting the Immediate Release and Return of Our Two Children Back With Their God Given (Fit Competent) Custodial Parents (13).
26. 5-7-10 Requesting Our Parental Visits Back (28).
27. 6-30-10 Motion to Revoke Unlawful and Void Commitment and Transfer of (Physical Custody) Dated 6-30-10.
28. 6-30-10 Motion to Reinstate Our Parental Unsupervised Visitation 6-30-10 (29).
29. 6-30-10 Motion for Permission to Have Contact With Our Two Children at the Foster Places Without Third-Party Supervision.
30. 7-16-10 Requesting the Immediate Release Return of Our Two Children Back With Their God-Given (Fit Competent) Custodial Parents, Kim Ant (14) Dated 7-12-10.
31. 7-16-10 Requesting Our Parental Visits Back (29) Dated 7-12-10.
32. 8-31-10 Requesting the Immediate Release Return of Our Two Children Back With Their God Given (Fit Competent) Custodial Parents, Kim Ant (15) Dated 8-30-10.
33. 8-31-10 Requesting Our Parental Visits Back (30) Dated 8-30-10.
EXHIBIT B
This court has taken judicial notice of the following:
12-1-05 Memorandum of Decision (Neglect Trial), Bear, J.
4-19-07 Memorandum of Decision (1st TPR Trial), Winslow, J.
9-5-07 Transcript of Hearing (Specific Steps), Winslow, J.
1-9-08 Order re Motion to Revoke, Winslow, J.
5-12-08 Transcript of Visitation Hearing (Unsupervised Visitation Order), Winslow, J.
6-6-08 Memorandum of Decision (Motion for Stay), Winslow, J.
7-17-08 Order (Motion for Clarification re Visitation), Winslow, J.
7-25-08 Order (RE Ex Parte Motion for Emergency Relief to Modify Visitation and Motion for Hearing), Bear, J.
8-4-08 Order (Application for Subpoena, Waiver of Fees), Bear, J.
8-25-08 Order (Order Temporarily Suspending Visitation), Bear, J.
9-8-08 Order (First Amended Order Re Judicial Notice), Bear, J.
9-12-08 Order (Second Amended Order Re Judicial Notice), Bear, J.
9-26-08 Order (Re Transcript Request)
12-9-08 Memorandum of Decision (Ex Parte Motion for Emergency Relief to Modify Visitation), Bear, J.
12-12-08 Transcript (Hearing Re Visitation, TPR Plea and Advisement), Bear, J.
12-16-08 Order re #11 Motion Re Visitation (Requesting Parental Visits Back), Bear, J.
4-29-09 Order re #19 Motion Re Visitation (Requesting Parental Visits Back), Bear, J.
6-11-09 Appellate Court Decision ( In Re Justin F.)
9-14-09 Order re #22 Motion Re Visitation (Requesting Parental Visits Back), Esposito, J.
9-14-09 Order re #23 Motion Re Visitation (Requesting Parental Visits Back), Esposito, J.
11-18-09 Memorandum Re Recusal, Bentivegna, J.
12-8-09 Order re #24 Motion Re Visitation (Motion to Reinstate our Parental Visits Back), Bentivegna, J.
3-29-10 Memorandum of Decision Re Motion for Recusal, Bentivegna, J.
6-8-10 Memorandum of Decision (Re Successor Judge and other issues), Bentivegna, J.