Opinion
H14CP15011580A H14CP15011581A H14CP15011582A
02-07-2018
In re Madison M.[1] In re Deanna S.; In re Emma Grace S.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Frazzini, Stephen F., J.T.R.
MEMORANDUM OF DECISION
STEPHEN F. FRAZZINI JUDGE TRIAL REFEREE
On April 27, 2017, the Commissioner of Children and Families (commissioner) filed petitions under General Statutes § 17a-112 seeking to terminate the parental rights (TPR) of Donald S. to the three children named above. The petitions alleged that the respondent father has failed to rehabilitate, pursuant to § 17a-112(j)(3)(B)(i), and that the minor children have been denied, by acts of commission or omission on his part, the care, guidance or control necessary for their physical, educational, moral or emotional well-being, pursuant to § 17a-112(j)(3)(C). Mr. S. appeared on the initial hearing date for the petitions, was advised of his rights and appointed counsel, and entered denials to the allegations of the petitions.
On April 15, 2016, this court found Mr. S. to be the father of Deanna and Emma Grace based on birth certificates naming him as such. On the first day of trial in the present matters, this court granted petitioner’s motion for finding of paternity that Mr. S. is Madison’s biological father, as he himself acknowledged that day.
TPR petitions were also filed that same day as to the mother, whose parental rights have since then been terminated based on her consent.
General Statutes § 17a-112 states, in relevant part: " (j) The Superior Court ... may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected, abused or uncared for in a prior proceeding, or (ii) is found to be neglected, abused or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child; (C) the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights ..."
Trial began on October 24, 2017, and continued for one additional day. Mr. S. appeared with his attorney, and before trial began he was advised in accordance with In re Yasiel R., 317 Conn. 773, 794, 120 A.3d 1188 (2015). The court also notified the parties that, pursuant to § 2-1 of the Connecticut Code of Evidence, it would take judicial notice of the contents of the court file, including memoranda of hearings and court orders, involving these children except that factual assertions contained in pleadings, motions, or other documents filed by the parties would be taken as substantively true only if independent evidence thereof was introduced and found credible in this proceeding or was subject to the finality principles of res judicata or collateral estoppel.
During trial, the court heard testimony from the following witnesses: Brenda Matta, a social worker employed by the Department of Children and Families (DCF or department); Joseph Lopa, a detective in the New Britain Police Department; and Michael Pierce, a counselor supervisor for the Department of Correction (DOC). In addition, the parties introduced the following exhibits into evidence:
the specific steps ordered for the father;
the TPR social study regarding the three children dated May 11, 2017, and two addenda dated July 27, 2017, and October 23, 2017;
a redacted copy of the father’s certified criminal conviction record dated September 6, 2017, from the Department of Emergency Services and Public Protection;
a redacted copy of a DOC document showing the dates of the father’s incarceration in DOC facilities, his time in each facility, and his disciplinary history while incarcerated;
the DOC Offender Accountability Plan showing programs that DOC recommended for the father;
a copy of the Protection Order Registry showing pending criminal charges against the father and full no-contact protective orders entered in those proceedings prohibiting him from having any contact or other types of interactions with the three children who are the subject of the pending TPR petitions;
one page of the DCF Running Narrative for January 8, 2016; a redacted copy of a DCF Investigation Protocol regarding a department investigation that began on May 22, 2015, after Deanna’s school reported that the child had complained that her mother’s boyfriend had hit her; and
an " ABHS Progress Report" from Wheeler Clinic dated August 27, 2015, showing the father’s participation in substance abuse treatment there in 2015.
The Investigation Protocol was introduced into evidence by the Father. The court thus accepts as proven and true any information contained in that exhibit supporting the petitioner’s case.
Evidence ended on October 31, 2017, and the parties presented closing arguments that same day. On November 15, 2017, the court issued an order directing the parties to address issues related to the adjudicatory grounds pleaded by the petitioner. The parties submitted written responses to the court’s order on December 1, 2017, and further argument was heard on the court’s order on December 6, 2017, when the parties were before the court for hearing on the commissioner’s motions to approve permanency plans (MRP) for TPR and adoption that had been filed on November 3, 2017, and the father’s objections thereto. The evidence on the TPR petitions was incorporated into the MRP hearing, and the petitioner also offered the MRP social study into evidence on the permanency plans.
The court has determined that the order entered on November 15, 2017, the parties’ written submissions in response to that order, and the oral argument on the issues raised in the court’s order and the parties’ responses that occurred on December 6, 2017, were all " necessary for a well-reasoned decision." See Cowles v. Cowles, 71 Conn.App. 24, 26, 799 A.2d 1119 (2002) (holding that the one hundred twenty-day period time limit set forth in General Statutes § 51-183b for rendering of an opinion after trial of a cause " begins to run from the date that the parties file post-trial briefs or other material that the court finds necessary for a well reasoned decision" ). See also Frank v. Streeter, 192 Conn. 601, 604-05, 472 A.2d 1281 (1984) (same); Jordan v. Jordan, 125 Conn.App. 207, 209 n.4, 6 A.3d 1206 (2010) (same), cert. denied, 300 Conn. 919, 14 A.3d 333 (2011); O.J. Mann Electric Services, Inc. v. Village at Kensington Place Ltd. Partnership, 99 Conn.App. 367, 374 n.5, 913 A.2d 1107 (2007) (same); Bramwell v. Dept. of Correction, 82 Conn.App. 483, 488, 844 A.2d 957 (2004) (same); Northeast Savings, F.A. v. Scherban, 47 Conn.App. 225, 231, 702 A.2d 659 (1997) (same), cert. denied, 244 Conn. 907, 714 A.2d 2 (1998). Bonito v. Bonito, 140 Conn.App. 697, 702-03, 59 A.3d 882 (2013). As the Appellate Court noted in Abele Tractor & Equip. Co., Inc. v. Sono Stone & Gravel, LLC, 151 Conn.App. 486, 499-500, 95 A.3d 1184 (2014), " In Frank, our Supreme Court held that the completion date of the trial, for purposes of § 51-183b, includes the filing of briefs, and it reasoned that " [w]hen litigation raises difficult questions of law, a trial court is well-advised to request briefs and to defer its written decision until such time as the court has had the opportunity to deliberate and to reach a thoughtful, reasoned conclusion." Frank v. Streeter, supra, at 605, 472 A.2d 1281."
The court is not aware of proceedings pending in any other court regarding the custody of the children and has jurisdiction. As neither of the children’s parents has claimed native American heritage, the requirements of the Indian Child Welfare Act are not pertinent to these proceedings. The court has carefully considered the petitions, the MRPs, the evidence presented on both, and the information or materials judicially noticed according to the standards required by law. These matters are now ready for decision. For the reasons discussed below, the petitions are granted, the MRPs are approved, and the commissioner is appointed statutory parent for each child.
I
PRELIMINARY FINDINGS OF FACT
All three of these children have special needs, discussed more thoroughly below, that their parents had neglected to meet before the filing of the neglect petitions that initiated the pending child protection cases. DCF had substantiated both parents at least twice for medical neglect- in 2011, for not following through with important medical appointments for Madison and Deanna, and in 2012, for cancelling appointments for then three-month-old Emma Grace against the advice of her doctor. Although the Investigation Protocol asserted that " [t]he case was closed on 7/1/13 due to the children being up to date medically and the parents meeting the children’s needs" ; father’s exhibit B, Investigation Protocol, p. 4; the evidence shows otherwise. The parents continued to miss medical appointments for Emma Grace after those substantiations, including three missed appointments with an ear, nose and throat specialist between March and May 2013, missed appointments with a neurologist in March 2013, and with a neonatologist in April 2013, and two missed pediatrician appointments in November 2013.
" On 6/7/11, the Department received a referral of medical neglect of Madison and Deanna by Stacie M. [mother] and Donald S. due to both parents not following through with important medical appointments for the children as the children had delays and were not getting to their appointments." Father’s exhibit B, Investigation Protocol, p. 4.
" On 5/8/12, the Department received a report of medical neglect by Ms. M. due to her not being able to be contacted by VNA or the PCP due to Emma having a developmental delay and Ms. M. cancelling appointments against the advice of the PCP." Father’s exhibit B, p. 4.
In the fall of 2013, school authorities were unable for a time to reach the parents to talk with them about escalating behavioral problems that Madison was exhibiting in school, such as leaving school twice, exposing herself, making sexual gestures, swearing and screaming at school employees, and throwing an eraser at another child. In 2015, Madison missed forty days of school. Her school sent several letters to the parents and made phone calls to the home in attempts to obtain the parents’ cooperation in making sure Madison attended school regularly, but the parents never provided adequate documentation for the absences, such as doctors’ notes.
" On 10/2/13, DCF Careline received a report ... [exhibit is redacted]. The caller stated that Madison has some behavioral problems due to her diagnosis of ADHD. Ms. M. told the school that she began some medication management for Madison. However, Madison told them that she has not been given the medication consistently. The caller stated that Madison’s behaviors are escalating: left the school on 2 occasions, has exposed herself, swears and screams at staff, makes sexual gestures, and threw an eraser and hit a peer. The caller stated that when the school has tried to contact Mother about Madison’s behavior, the voice mail is full and they are unable to leave a message. This occurred on 9/9/13, 9/13/13, and 9/30/13. Today, 211 was contacted due to Madison’s behavior and the school has not been able to reach Ms. M." Father’s exhibit B, p. 4.
In September 2014, then six-year-old Deanna, who is developmentally delayed, was found wandering outside the home in a dirty and disheveled condition and without any parental oversight. Both parents were substantiated by DCF for physical neglect and arrested for risk of injury. On April 29, 2015, a school staff member contacted DCF reporting that Deanna had a six-inch red mark on her back side, was claiming that " daddy hit her with a knife ... because she was not a good girl," and that " she wants him to stop hitting her because it hurts." The caller further reported that when asked again " how she was hit ... she said with a belt and then said he uses both a knife and a belt." The school also reported that " the child could not say when this happened" and " is not afraid to go home." The caller described Deanna as " cognitively low" and functioning " at a 3-year developmental level." Father’s exhibit B, p. 5. The DCF Investigation Protocol is not clear why the department decided not to substantiate either parent for neglect at that point.
In October 2016, the father was convicted on that charge and sentenced to seven years in jail, suspended after eighteen months, and three years probation.
Statements that Deanna made to her teachers a month later did lead to DCF action, however. On May 22, 2015, Deanna told her teacher that " Tony and Dave" were living in the home with her mother and Tony " threw her on the bed last night on purpose." She also told her teacher that Tony had " hit her on the hand with either a knife or razor" and that " when she is a good girl he will tickle her on her chest and it is supposed to feel good ... She said that Tony is scary and mean. She is afraid to go home because she is afraid of Tony ... She followed up by saying Madison got hit. She then changed what she said and said no, as Madison is a good girl." Id., 6. The child’s statements were reported to DCF, which assigned the report for a " same day" response. At the school, the investigative social worker also observed a long scratch on Deanna’s left arm. The child had said to the school nurse that her sister caused the scratch but had told her teacher that " Tony cut her arm with a knife." Deanna told the social worker that she " didn’t know how it happened." She also said that her father was not living in the home, that " David and Tony" were living there, and that " there are no adults in her home scare her except for ‘Old Dave.’ She doesn’t know why he scares her except that he is bad to her." Id. She gave contradictory statements, saying both that " ‘Old Dave’ has hit her with a belt but then that he doesn’t hit her." Id. The social worker also went to the home, where she interviewed the mother and all three children. The mother denied that Tony was living in the home. On another home visit two days later, the social worker met with both the mother and father.
Initially, Mr. S. kept in contact and cooperated with DCF during the investigations of the April 29 and May 22, 2015 reports. On May 12, 2015, for example, he told the investigative social worker that Madison had been restrained at school and that he had scheduled a PPT because she no longer wanted to go to school. When the DCF social worker asked him on May 26, 2015, to call the children’s pediatrician so that DCF could check on the children’s medical care, he did so. On June 2, 2015, he called the DCF social worker and reported that baby Emma Grace had been injured after falling down the stairs in her stroller onto the pavement. He also told the social worker that he had a history of substance abuse and an ongoing problem of alcohol abuse, for which the worker referred him to Wheeler Clinic for an ABH evaluation of mental health and substance issues. On June 5, 2015, he attended that evaluation, which referred him for an intensive outpatient program there. He then began the IOP program, which consisted of three sessions a week and regular substance abuse testing, and successfully completed it in July. He was then referred to a relapse prevention group; and he enrolled in that group on July 22, 2015, although he only attended two sessions before being discharged " unsuccessfully" in late August after telling the Wheeler staff that he was moving to New Haven. See Father’s exhibit C, ABHS Progress Report, dated August 27, 2015, p. 1. While he was still in contact with the department, DCF monitored his progress at Wheeler.
" T.C. 6/12/15 ISW S. Clark spoke with Maritza at Wheeler and she reports that father recently attended his first IOP group. His groups are Monday, Tuesday, and Friday. He began this past Tuesday. They do breathalyzers and drug screens. He will be attending 12 sessions and then he will be placed into Relapse Prevention. She reports that he is very engaging and compliant." Father’s exhibit B, p. 9.
Mr. S. moved out of the family home for approximately a month after the April 2015 report that he had hit Deanna with a knife, but he returned for a brief period at the end of May. The mother told DCF that in January of that year she had begun a romantic relationship with Anthony L. (and according to the TPR social study she married him in July of that year), but both parents told DCF on May 26, 2015, that they had reconciled, Mr. S. had returned home, and they were " going to try and work things out." Father’s exhibit B, p. 7. In early June, however, there was a domestic violence incident between the parents, during which Mr. S. became abusive toward the mother after becoming intoxicated. He was arrested for breach of peace and interfering with a police officer, and a protective order was entered. The bail commissioner also referred him for substance abuse treatment. From that point forward, DCF had no contact with him until February of the following year. In July 2015, the mother’s soon-to-be new husband told DCF that Mr. S. was no longer living with the mother and children. Three months later, in October, Madison told DCF that she had not seen her father for several months, and the mother reported that he had not seen the children since July and that she did not know his whereabouts.
The DCF Investigation Protocol states as follows: " ISW [Investigative Social Worker] S. Clark spoke with mother and she reports that father came over last night to make pizza for the children. Mother explained that when he first came over she didn’t know he was drinking but then he kept going into the bathroom and must have been drinking because he started getting nasty towards mother. She tried to get him to leave but he wouldn’t so she left with Tony and the children. When they came back father was passed out in the backyard so mother called the police and he was arrested. He was also bothering one of the tenants. Madison saw him passed out through the window. Then when he woke up he started ringing the door bells and was screaming." Father’s exhibit B, p. 9. Since this was an exhibit introduced into evidence by the father, the court is accepting these statements as an accurate account of what happened.
Mr. S. was arrested again in August 2015 on motor vehicle charges, but in September of that year he twice failed to appear in court on the pending criminal and motor vehicle charges and rearrest warrants were issued both times. Sometime in mid-2015, a criminal investigation began regarding allegations made by the mother that Mr. S. had sexually molested Madison. The police eventually concluded that there was insufficient evidence to bring charges against him, but it was during the pendency of this investigation that the father’s whereabouts became unknown, he did not appear in court on then-pending criminal and motor vehicle charges, and the rearrest warrants were issued. After social worker Matta was assigned to the case in December 2015, she tried to contact him by making telephone calls to the phone numbers that DCF then had for him, but either those numbers were not working or her calls were not returned. She did call a friend of the father and left a message for the father. Upon locating two potential addresses for him on a recently-issued arrest warrant on the Judicial Branch website, she sent letters to him at those addresses but got no response. She also engaged in a " placement research search," in which she asked family members and did a Lexis search for his location, but did not obtain an address for him or a method of contacting him.
On December 18, 2015, the department invoked a 96-hour hold on these three children after receiving a report that their mother and her new husband were consuming large amounts of alcohol while caring for the children. Mr. S.’s whereabouts were then unknown. Four days later, the department filed petitions alleging that the children were neglected by being permitted to live under conditions injurious to their well-being and by being denied proper care and attention. The department also sought and obtained orders of temporary custody (OTC) for each child, who have been in DCF care ever since. The department filed a motion for order of notice by publication for Mr. S., which this court also granted, in view of the facts that the petitions and OTCs did not provide a current address for him and an affidavit from a DCF social worker stated that his current whereabouts was then unknown. Neither parent attended the preliminary hearing on the OTCs seven days later or the initial hearing on the neglect petitions on January 27, 2016. At the preliminary OTC hearing, the court, Cohn, J.T.R., found abode service of the OTC on the mother and sustained the OTC without prejudice to Mr. S., on whom publication was pending. At the initial hearing on the neglect petition in late January 2016, the court, Cohn, J.T.R., found service on the mother and notice by publication on Mr. S., confirmed that the department had filed appropriate military affidavits showing that neither parent was in the military service, entered defaults against both parents for failing to appear, adjudicated the children to be neglected, committed them to the commissioner, and entered final specific steps for each parent.
On February 29, 2016, social worker Matta received a telephone call from Deanna’s teacher, who told Matta that the school had received a phone call from someone at a particular telephone number purporting to be the father. Matta called that number and spoke to Mr. S., who admitted that he knew the children were in the care of the department but claimed not to know why. He said he wanted to see his children, but refused to provided Matta with his address. He was loud, threatening, and verbally abusive in that conversation and eventually hung up on her. Sometime between March and July of 2016, Matta called him again at that same number, but there was no answer and she left a voice message for him.
Social worker Matta testified credibly that he said he was going to " go after" and " get" everyone who was involved in the DCF case.
In July 2016, Mr. S. was arrested and incarcerated on new criminal and motor vehicle charges. By then, he had numerous criminal and motor vehicle charges pending against him- the September 2014 Risk of Injury charge, the June 2015 charges of breach of the peace and interfering with an officer, the August 2015 motor vehicle charges, the three failure to appear charges in connection with those matters, and the new July 2016 criminal and motor vehicle charges. The various charges against him were all resolved with convictions on September 28, 2016, for failure to appear in the second degree, for which he received a suspended one-year sentence and two years of conditional discharge, and reckless driving, for which he was ordered to pay a fine of $100, and on October 7, 2016, when he was convicted of risk of injury to a minor and sentenced to a period of incarceration for seven years, suspended after eighteen months, and three years of probation, and of failure to appear in the first degree, for which he received a concurrent sentence of eighteen months. He remained incarcerated through the end of the TPR trial and MRP hearing, with a scheduled discharge date on those sentences in December 2017.
In September 2016, all three girls disclosed that their father had sexually abused them in their mother’s presence. On September 16, 2016, the court, Abery-Wetstone, J., granted an emergency motion ex parte filed by DCF and the children seeking permission to end visits by the parents " until DCF completes a full investigation of the current sexual abuse allegations and until it is therapeutically recommended that visits recommence." Joint Emergency Motion for Suspension of Visits dated September 16, 2016, p. 1. The motion also asserted that all three children did not want to have any visits with their father. (Only the mother had been visiting with the children since their removal from parental custody on the OTCs, since Mr. S.’s whereabouts had been unknown.)
On October 27, 2016, which had been previously scheduled for hearing on the department’s MRPs filed earlier that year, the assistant attorney general informed the court that Mr. S. " has been caught and is incarcerated." FTR, 11:01:07 a.m.- 11:01:10 a.m. The court issued a writ of habeas corpus, and Mr. S. first appeared in these matters on November 9, 2016, at which time he was appointed counsel. His newly-appointed attorney stated her objection to the recently-filed MRPs seeking approval of permanency plans for all three children of TPR and adoption. The matters were continued a month for an evidentiary hearing on the permanency plans, but on the continuance date Mr. S.’s attorney withdrew his objection. A permanency plan hearing often entails consideration of a parent’s progress toward rehabilitation as a court considers whether to adopt a permanency plan for reunification or termination of parental rights. During the permanency plan hearing that day, the department’s social study in support of the MRPs, which contained a three-page recitation of the specific steps that been ordered for the father on January 27, 2016, and the department’s description of whether he had complied with the various steps, was introduced into evidence. The court, Abery-Wetstone, J., then approved permanency plans for termination of parental rights and adoption.
FTR, or " For The Record," is software used by the court monitor that digitally records court proceedings and notes the hour, minute and second of each recorded statement.
After Mr. S. was incarcerated, social worker Matta sent him monthly letters requesting his cooperation. Matta testified credibly that the letters " would identify me as the social worker and that I am requesting his participation in the case planning process involving his three children and ... and I would give him my direct ... line." FTR, October 24, 2017, 12:12:42 p.m.- 12:12:57 p.m. Matta described that case planning process as including a semiannual administrative case review (ACR), whose purpose is " to review the case plan that the S.W. developed," the presenting issues in the family, and the needs of the children and parents. Parents may attend and participate in the ACR, but this father never responded to any of social worker Matta’s invitations for him to participate in the case planning process. Matta spoke again with Mr. S. in a December 2016 telephone call, but he told her then that he did not want the department to contact him anymore (although she continued sending him monthly letters requesting his cooperation). Matta had one other telephone call with him on May 5, 2017, in which she requested information for the TPR social study, but halfway though that telephone call he became angry and stopped answering questions.
While serving the period of incarceration imposed in October 2016, Mr. S. had not participated in any services or programs as of the close of evidence. On June 19, 2017, the Department of Correction notified him that DOC was recommending, based on his disciplinary history while incarcerated and criminal history, that he participate in addiction and victim impact programs (and work a " 5 or 7-day job" ). Father’s exhibit A, Offender Accountability Plan, June 19, 2017. Prior to then, he had not requested any programs or services from DOC. On August 16, 2017, he was arrested on numerous charges of committing various class A and class B felonies for having sexually molested these three children. Those charges remain pending, and bail has been set in the amount of $1.5 million. The criminal court has also entered a full, no-contact protective order on behalf of each of these children.
II
ADJUDICATORY PHASE OF TPR PROCEEDING
In the adjudicatory phase of a proceeding under § 17a-112(j), the court must determine whether the commissioner has proven by clear and convincing evidence both a statutory ground for termination of parental rights, and, except in certain instances not applicable here, that the department complied with its reasonable efforts obligations. See In re Michael R., 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998); In re William R., III, 65 Conn.App. 538, 546, 782 A.2d 1262 (2001).
Under Practice Book § 35a-7(a), in the adjudicatory phase of the proceeding, " the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights." See also In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). " In the 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." (Emphasis omitted; internal quotation marks omitted.) In re Jennifer W., 75 Conn.App. 485, 495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003). There have been no amendments to the contested TPR petitions regarding the claims against Mr. S. since they were filed, and the filing dates of those petitions are therefore the adjudicatory dates on those petitions.
A
REASONABLE EFFORTS FINDINGS
In TPR proceedings brought under § 17a-112(j), the court must determine whether there is clear and convincing evidence that the department made reasonable efforts to locate the parent and to reunify the children with him or her, unless the court finds that the parent was unable or unwilling to benefit from reunification efforts. " When making its reasonable efforts determination during the adjudicatory phase, the court is limited to considering only those facts preceding the filing of the termination petition or the most recent amendment to the petition ..." In re Paul O., 141 Conn.App. 477, 483, 62 A.3d 637, cert. denied, 308 Conn. 933, 64 A.3d 332 (2013).
General Statutes § 17a-112(j) provides in relevant part: " The Superior Court ... may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ..."
Although requiring DCF to make " reasonable efforts" to reunify the child with the parent, neither the statute nor the federal act from which the reasonable efforts requirement is drawn defines either the term " reasonable" or the term " efforts." See, e.g., In re Eden F., 48 Conn.App. 290, 311, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999). Absent any statutory definition, our courts have instead used the commonly understood meanings of both terms. Id., 311-12. As Judge Foley has aptly observed, " providing services to rehabilitate the deficient parent is the crucial ingredient to reasonable efforts." In the Interest of Jessica H., Superior Court for Juvenile Matters, Child Protection Session at Middletown (April 20, 1998, Foley, J.). Moreover, " [t]he reasonableness of the department’s efforts must be assessed in the context of each case. The word reasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof ... [R]easonable efforts means doing everything reasonable, not everything possible ... [R]easonableness is an objective standard ... and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Internal quotation marks omitted.) In re Gabriella A., 154 Conn.App. 177, 182-83, 104 A.3d 805 (2014), aff’d, 319 Conn. 775, 127 A.3d 948 (2015). The evidence in this case proved clearly and convincingly that as of the adjudicatory dates for the petitions the department had made reasonable efforts to locate Mr. S. and that he had been unwilling or unable to benefit from reunification efforts.
1. Reasonable Efforts to Locate
After Mr. S. stopped cooperating with DCF and his whereabouts became unknown during the period that there were rearrest warrants pending for him, the department continued to try to contact him by calling telephone numbers he had provided, sending letters to him at addresses found for him, and scouring internet resources. When the department learned that he was incarcerated, its attorney notified the court and its social worker continued sending him monthly letters despite his unwillingness to cooperate with DCF. Under these circumstances and the other shown by the evidence, the petitioner proved by clear and convincing evidence that it made reasonable efforts to locate Mr. S.
2. Reasonable Efforts to Reunify
The evidence proved clearly and convincingly that Mr. S. was unwilling and unable to benefit from reunification efforts. From before the filing of the neglect petitions until after the children were committed, his whereabouts were unknown and he had stopped cooperating with the drug treatment services to which the department had referred him. When social worker Matta did talk with him in February 2016, he refused to tell her where he was living and hung up on her. While he was still in the community, his unwillingness to cooperate with the department, provide DCF with his location, complete the substance abuse treatment that had been recommended for him, or respond to DCF’s efforts to contact him prevented the department from being able to offer him any services or take any steps toward reunification. After his incarceration in July 2016, DCF could not provide any services or programs to him that would aid in reunification, Mr. S. himself never requested any services from the department of corrections, and in December 2016 he told social worker Matta not to contact him again.
B
STATUTORY GROUNDS FOR TERMINATION
1. Failure to Rehabilitate After Finding of Neglect, § 17a-112(j)(3)(B)(i)
As one statutory ground for terminating Mr. S.’s parental rights to these three children, the TPR petitions allege, pursuant to § 17a-112(j)(3)(B)(i), that the children have previously been found neglected or uncared for, and that he has failed to achieve such a degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of each child, he could assume a responsible position in the life of either child. " ‘Personal rehabilitation’ as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent ... [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable ‘within a reasonable time.’ ... [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in her child’s life." (Citations omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999). For the reasons discussed below, the court finds this ground to have been proven by clear and convincing evidence.
a. The Ages and Needs of the Minor Children
The failure to rehabilitate ground for termination of parental rights requires the court to assess the rehabilitative status of a parent in relationship to the ages and needs of the particular children in question. All three of these children have many serious mental health, behavioral and other problems, including all three having been diagnosed with post-traumatic stress disorder (PTSD). As of the end of evidence, Madison and Deanna had attended eighteen medical appointments since January 2016, and Emma Grace had attended twenty-two or twenty-three such appointments. With their many needs, these children not only need a caretaker who will meet their basic childhood needs but will also coordinate and make sure that they attend all their appointments for therapy, medication and other medical services, ensure that they take their medications as prescribed, and will follow specialized recommendations adapted to the needs of each particular child. Each child needs " the care and patience of a parent who can keep her safe, nurture her, implement skills taught by providers and make changes where appropriate in order for Madison [and her siblings] to fully benefit from services." Petitioner’s exhibit 4, TPR social study dated May 11, 2017, p. 18.
Their ages and needs are also relevant to and must also be considered for other issues before the court.
(1) Madison
In addition to PTSD, eleven-year-old Madison is diagnosed with attention deficit hyperactivity disorder (ADHD) and disruptive mood disorder. She has been in four different foster care placements since removal. She was originally placed with both sisters, and all three were moved to a second placement in August 2016 because of the first foster parent’s inability to meet their many needs. In the second home, all three disclosed that they had been sexually abused by their father. After that disclosure, Madison became more verbally and physically aggressive and began displaying an increasing number of sexualized behaviors. The foster parents " felt overwhelmed by her behavior" and " there was a clinical recommendation that Madison not be placed with her siblings." Petitioner’s exhibit 4, p. 6. She was then placed in a short-term foster home until the department found a therapeutic foster home for her on March 1, 2017. In December 2016, the therapist who had been working with both Madison and Deanna " reported that based on Madison’s increased sexualized behaviors and the concerns with inappropriately touching her sisters, she needed a higher level of care [and] he was unable to provide appropriate therapy to Madison." Id. Since then, she has been in weekly psychotherapy with a doctoral level therapist, who has also been working with Deanna and Emma Grace. The therapy with all three girls had progressed to the point in July 2017 that there was a joint sibling therapy session that the therapist reported went well.
In her fourth foster placement, Madison initially exhibited physically and verbally aggressive, disruptive and sexualized behavior, including at one point even causing one thousand dollars of damage to the foster father’s automobile. By May 2017, her conduct in the home had became so problematic that DCF and her therapist believed that she needed " a sub-acute residential placement in order to stabilize." Petitioner’s exhibit 4, p. 12. Her behavior in the foster home improved, however, and the July 2017 and October 2017 updates to the TPR social study reported her verbal and physical aggression and sexualized behaviors had decreased. The child has repeatedly insisted, however, that " she wants to be placed in a Caucasian family, which has resulted in her foster parent’s in deciding not to adoption [sic]." Petitioner’s exhibit 6, Addendum to TPR social study dated October 23, 2017, p. 3 At the end of evidence, the department was " actively recruiting" for a new therapeutic foster home for her. Id .
At school, Madison struggles on a daily basis and typically becomes agitated, unfocused and disobedient of classroom rules after a few hours in school. As early as 2013, DCF records show that Madison was having behavioral problems in school, as described above in footnote 9 on page 6. She also missed a lot of school while in her parents’ care. During the current school year, she has already been placed in a secluded setting several times. She has difficulty interacting with her peers at school and at times swears or verbally attacks the students in her classroom. She is classified as a special education student and receives numerous services at school, but at the last PPT it was decided she needs a more therapeutic educational setting than her local school. Since then, at least one clinical day school has turned her down for placement because of her aggressive behaviors, and at the close of evidence the school district was awaiting responses on referrals made to three other clinical day schools. She needs weekly intensive therapy to address her past trauma and maintain mental health stability and is on medication for that purpose also, for which she must attend monthly medication management appointments to ensure the medication is working properly.
(2) Deanna
Deanna is eight years old. She was born addicted to methadone, was also exposed in utero to lead, and is developmentally approximately two years behind her chronological age. Like her older sister, she is diagnosed with PTSD and ADHD, needs intensive weekly therapy to address her past trauma and current mental health issues, and also requires monthly medication management appointments to ensure that her psychotropic medications are working properly. She has also been diagnosed with sensory processing disorder, as a result of which she does not function well if there is too much background noise, and social communication disorder/autistic spectrum disorder. She engages in self-soothing conduct such as humming and rocking. She has delays in both her fine motor skills and language. She does not understand social cues that most children her age would and may not respond to a conversation directed toward her. Because of her cognitive limitations, certain therapeutic models do not work well for her, but the social studies introduced into evidence show a gradual improvement in her behavior at home. She sees a developmental specialist because of her developmental delays. Deanna also receives special education services.
An ophthalmologist to whom Deanna was referred after her removal reported in January 2016 that she had very poor vision and should have been wearing glasses for years. Because she had not, her vision had worsened. She was diagnosed with Strabismus, a muscle disorder which the social worker likened at trial to " a lazy eye" and requires annual monitoring. Fortunately, she is now wearing glasses, her vision is improving, and surgical intervention is unnecessary. After being placed in DCF care, she also needed dental surgery, including crowns on five of her teeth and removal of two teeth.
Deanna is in her third foster home. After Madison’s removal from the second home and separation from her sisters, the second foster family had difficulty following therapeutic recommendations not to engage in conversations with Deanna and Emma Grace about the abuse they had reported but " to instead deflect the conversation to a more positive and secure topic to minimize re-trauma and enhance Deanna’s [and Emma Grace’s] feeling of security in the home and her relationship with her caretakers." Petitioner’s exhibit 4, p. 7. Deanna has been in her current foster home since March 2017, and her relationship with the foster parents has progressed to the point that they would like to adopt her and she calls them " Mom" and " Dad."
(3) Emma Grace
Emma Grace is almost six years old, and has numerous medical and mental health diagnoses. These include PTSD and ADHD, like her siblings. In addition, she has been diagnosed with Pierre Robin Sequence, a genetic disorder that affects the facial structure of the skull, results in a smaller brain than average, and can lead to cognitive delays. She was also born with a cleft palate, which has been surgically corrected, but needs ongoing monitoring since it can affect speech development. As discussed above, the DCF Investigation Protocol shows repeated neglect of Emma Grace’s serious congenital medical problems by her parents, who lived together with the children until mid-2015. Once placed in DCF care, she was diagnosed with Strabismus, " Acquired Esotropia (crossed eyes from weakness in brain[’]s fusional system, and farsightedness." Petitioner’s exhibit 4, p. 9. New prescription eyeglasses did not adequately address the seriousness of her lazy eye, and in December 2016 she began wearing an eye patch on her " good eye" several hours a week. By April 2017, her eyes were improving. At an appointment with an ear, nose and throat (EMT) specialist in October 2016, she had fluid in her ear and could not complete the hearing test. In January 2017, there was still fluid in each ear, possibly because of the congenital cleft palate. Twice since removal she has had tubes placed in her ears to drain the fluid, but the fluid has remained and could affect her speech. At present, the fluid in her ears affects her ability to hear correctly and pronounce certain words correctly. As of the time of trial, this problem persisted and required ongoing assessment and treatment.
The evidence also shows that Emma Grace was born with Fibrolipoma of Filum Terminale and Nonallopathic Lesion of Sacral Region, which DCF social worker Matta explained at trial as spinal conditions that do not affect mobility and essentially mean that she has a gap in her spinal column filled with fatty tissue.
Like her sisters, Emma Grace has mental health and behavioral needs warranting therapeutic foster care while in state custody. She has displayed aggressiveness toward her sister and a dog in the foster home and is in weekly psychotherapy with the same doctor who works with her sisters and is a specialist in trauma and sexual abuse. She underwent a recent psychological evaluation, which resulted in a recommendation for " PMI," a " parent modification intervention," explained at trial by social worker Matta as working with the foster parents on behavior modification before trying medication. The foster parents need to meet at least monthly with a psychiatrist at the University of Connecticut Child Development Services to help them learn how to adapt their behaviors to the child’s needs. The psychiatrist’s recommendation at the first such meeting was that the foster parents spend at least ten minutes a day just with Emma Grace, provide positive reenforcement to her at least ten times a day, and work with her on modifying specific behaviors, such as her aggression toward animals or problems sharing. Every three to four months the foster parents must also meet with a developmental specialist.
b. Father’s Rehabilitative Status
" [I]n assessing rehabilitation, the critical issue is ... whether [the parent] has gained the ability to care for the particular needs of the child at issue." In re Danuael D., 51 Conn.App. 829, 840, 724 A.2d 546 (1999). The crux of the adjudicatory ground of failure to rehabilitate is whether a parent has sufficiently addressed the problems and deficiencies in parenting that led to state intervention so that the parent can, considering the age and needs of the child, assume a responsible position in the child’s life, or will be able to do so within a reasonable time in the future. What is a reasonable time is a factual determination that must be made on a case-by-case basis, depending on the age and needs of the particular child. In re Shannon S., 41 Conn.Supp. 145, 154, 562 A.2d 79, aff’d, 19 Conn.App. 20, 560 A.2d 993 (1989).
In these particular cases, the evidence proved clearly, convincingly, and without doubt that Mr. S. had and has failed to rehabilitate himself such that he could, considering the ages and needs of these three children, assume a responsible position in any of their lives as of the adjudicatory date, at the time of trial, or in a reasonable period thereafter. As the evidence discussed above clearly shows, he has a long-standing substance abuse problem and has been convicted of and incarcerated for criminal conduct on numerous occasions. He began treatment for his substance abuse problem in 2015, and the Wheeler Clinic records show that he initially cooperated with treatment and appeared to be making progress. Numerous drug and alcohol screens were negative during that treatment, and he regularly attended Wheeler for a couple of months, but he then left treatment before completing it. In addition, the 2015 DCF investigation revealed that he had been violent and threatening toward these children and their mother while he lived with them, and until he addresses any proclivity for domestic violence he would not be a suitable care taker for the children. As of the adjudicatory date and at the time of trial, his failure to address these issues precluded him from being ready to assume a responsible position in their lives then or in the reasonable and foreseeable future.
Then six-year-old Deanna told her school on April 29, 2015, that " daddy hit her with a knife ... [H]e uses a knife and a belt ... [S]he wants him to stop hitting her because it hurts." Father’s exhibit B, p. 5. On May 22, 2015, the mother told DCF investigative social worker Clark that " father shoots a bow and arrow at the door when he drinks. She stated that he drinks daily and when he does he gets rude." Id., 7. On October 21, 2015, then nine-year-old Madison told Clark that " [s]he remembers when her parents were living together, they used to argue all the time. She remembers seeing her father push her mother." Id., 12. That same day, Deanna told Clark that " [s]he remembered her parents arguing all the time when they were together." Id. The Investigation Protocol also stated that " Mother reported there was constant DV when she was in a relationship with the children’s father." Id., 13.
At fifty years of age, Mr. S. has been incarcerated for five periods totaling more than one-third of his adult life. After his last discharge from incarceration in May 2000, he was arrested only one more time, in 2008 for a charge of assault in the third degree, until his arrest in September 2014, on the risk of injury charges. He was then arrested four more times during the next two years, however. His failure to appear twice in criminal and motor vehicle court in September 2015 on then-pending charges resulted in multiple charges of failure to appear only a few weeks after he stopped attending substance abuse treatment at Wheeler Clinic and had been discharged unsuccessfully there. For almost a year, his whereabouts were unknown and he was evading law enforcement authorities. As of the filing date of the TPR petitions and through the time of trial, he had not successfully addressed the habits of substance abuse and criminal misconduct that have characterized much of his adult life. He had done nothing to learn how not to use violence to solve problems in the home. Because of his confinement at the Department of Correction, he was not ready on the date that the petitions were filed or at the time of trial, and will not be ready within a reasonable time, to assume a responsible position in the lives of any of these three children in view of their ages and needs and these lifetime habits that he has not yet adequately addressed but must ameliorate before he could be counted on to meet their many and complex needs. Although he is currently facing very serious criminal charges in connection with the allegations of sexual abuse made by these three children, the disposition of those cases cannot be presumed. He was due to complete the sentences imposed in 2016 a month after the close of evidence on these petitions. Even were he to be released from incarceration due to exoneration on the pending charges, however, he has not shown any rehabilitation from his history of substance abuse, criminal behavior and domestic violence such that he can assume a reasonable position in the lives of these three children within a reasonable period of time.
Mr. S.’s substance abuse problem and history of domestic violence are potentially amenable to amelioration if he were to attend and participate earnestly in treatment and services. His criminal conviction record suggests that he knows how and is sometimes able to live law abidingly, since for almost fifteen years, from 2000 through mid-2014, he was arrested only once and was not re-incarcerated during that period. These issues- substance abuse, criminality, and domestic violence- are discrete, identifiable problems. Equally concerning about Mr. S.’s readiness at the close of evidence to assume a responsible position in the children’s lives, however, is his long history of neglecting the children and their serious needs. Even when living with the children, he did not attend to their serious problems, as the children’s present predicaments show. Madison was allowed to miss school rather than the parents working with school authorities to try to address her challenging behaviors. Deanna’s and Emma Grace’s vision problems were ignored, as well as Emma Grace’s hearing problems. Then, for a year, while evading law enforcement authorities, he abandoned the children, leaving others to care for the children and try to address their problems. Since he has been incarcerated, he has not taken any of the opportunities offered to him to participate, even if only by telephone, in trying to address their problems.
The evidence shows that each one of these children needs frequent and regular contact with professional and medical providers working with them, including attending weekly therapy appointments, and Emma Grace needs a caretaker who will regularly meet with the behavioral specialists and then assiduously follow their recommendations at home. Release from incarceration, successful participation in substance abuse treatment and domestic violence services, and avoiding further substance abuse, domestic violence and criminality will not mean, by themselves, that the father would be ready to assume a responsible position in their lives. Before this father will be ready to assume a responsible position in these children’s lives and could be trusted to do so, he would need to exhibit, while living in the community, a substantial period of dedication to the children, attention to their needs, and concern about their well-being, attributes that he has not exhibited at all since he went on the run in 2015. Yet these children must have these needs met now and cannot wait for a father not yet ready or able to do so. Hence, as of the close of evidence, he was not ready to assume a responsible position in the lives of the children, in view of their ages and needs, within a reasonable time.
c. Prior Adjudication
The failure to rehabilitate ground for termination of parental rights under § 17a-112(j)(3)(B)(i) also requires that the children had been previously found neglected, abused, or uncared for, and that requirement is satisfied by their adjudication as neglected on January 27, 2016.
d. Specific Steps
The remaining issue to consider is whether the requirement for a TPR on this statutory ground that " the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent," as our Supreme Court construed this portion of the TPR statute in In re Elvin G., 310 Conn. 485, 78 A.3d 797 (2013), overruled in part on other grounds by In re Shane M., 318 Conn. 569, 122 A.3d 1247 (2015), prevents an adjudication on this ground in these three cases. The evidence shows that specific steps were ordered for Mr. S. at least twice, but there is no evidence that copies of the steps were ever actually placed in his physical possession. This issue is one of the subjects on which the court sought post-trial responses from the parties in the order of November 15, 2017.
In In re Elvin G., unlike the present case, no specific steps were ever ordered for the father. When the children there were adjudicated neglected, they were originally placed under protective supervision with their mother, for whom specific steps were ordered, but no steps were ordered for the father, who had spent most of his children’s lives in prison. When they were later committed to DCF, specific steps were again ordered only for the mother. In granting a TPR on this ground, the trial court reasoned that " the issuance of specific steps to the respondent, given the circumstances of this case, would have been futile." Id., 497. The court concluded that the department " could not offer him, or refer him to, any programs" while he was incarcerated. Id.
" The [trial] court reiterated that the respondent had been incarcerated since before the neglect adjudication; that the department could not offer him, or refer him to, any programs; that the children had dire and drastic needs that required immediate and ongoing attention; and that the respondent could not even begin to address those needs on a necessary day-to-day basis until his release, which, at the time of the neglect adjudication, was years away. The trial court reasoned further that it would be impossible for the respondent to complete standard specific steps such as securing and maintaining housing for the children, refraining from activity that would expose him to the criminal justice system, and finding legal employment. The court stated, in summary: ‘In order to attend to the bare basic minimum needs of a child, a parent must be available to the child or have a reasonable prospect of being available to the child. Any orders of the court for [the respondent] to engage in efforts to rehabilitate could not have been followed by [the respondent] because neither the Superior Court, nor [the department], has the authority to dictate to the Federal Bureau of Prisons the activities in which a prisoner must engage. [The department] has no authority whatsoever to offer services to an incarcerated prisoner, much less the ability to do so.’ The court concluded that the department had established, by clear and convincing evidence, that the respondent had failed to rehabilitate." In. re Elvin G., 310 Conn. 485, 497-98, 78 A.3d 797 (2013).
The father appealed on the ground that he had never been provided with specific steps, but in affirming the trial court the Supreme Court concluded " that the provision of specific steps to the respondent under the particular circumstances of this case could not have made a difference and, consequently, that the absence of specific steps was harmless error that did not preclude termination of the respondent’s parental rights." Id., 499.
In sum, we agree with the trial court that, given the length of the respondent’s incarceration and his disciplinary infractions, his history of failing to parent his children, and the children’s myriad and specialized needs, the provision of specific steps would not have made a difference because the department could not provide the necessary assistance and monitoring, and the respondent could not even begin to interact regularly with the children and demonstrate the requisite progress, until his release from prison which, at the time the termination petitions were filed, still was years away. Accordingly, the lack of specific steps, in the circumstances of this case, was harmless error.
Id., 512-13. In a footnote to that decision, the Supreme Court emphasized the " futility" of specific steps in that instance: " The benefit of hindsight makes it ... apparent, however, that in the present case, even if such steps properly had been provided at that time, they could not have made a difference in the trial court’s later finding of the respondent’s failure to rehabilitate. Consequently, the trial court’s procedural impropriety does not require reversal of the judgments." Id., 506, n.20.
The present case, however, is substantially different from Elvin, where no specific steps were ever issued for the father. Here, specific steps were ordered for this father, twice, and reaffirmed on a third occasion:
Judge Abery-Wetstone signed an order of specific steps for the father when she entered the ex parte order of temporary custody, as required by General Statutes § 46b-129(b) and Practice Book § 33a-6(d).
At the preliminary hearing on the OTCs, Judge Cohn agreed that the ex parte steps would remain in place until the plea date on the petitions, in compliance with § 46b-129(c)(6) and Practice Book § 33a-7(8).
When the children were committed to DCF, Judge Cohn signed the ex parte steps as final specific steps, as directed by the Supreme Court in In re Elvin G .
General Statutes § 46b-129(b) provides in relevant part: " Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth." Similarly, Practice Book § 33a-6(d) provides as follows: " Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth."
Section 46b-129 provides in relevant part: " (c) The preliminary hearing on the order of temporary custody or order to appear or the first hearing on a petition filed pursuant to subsection (a) of this section shall be held in order for the court to: ... (6) Make any interim orders, including visitation orders, that the court determines are in the best interests of the child or youth. 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 to retain custody of the child or youth ..." (Emphasis added.) Practice Book § 33a-7 also provides in relevant part: " (a) At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall: ... (8) ... order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth ..."
In In re Elvin G., the Supreme Court stated that " specific steps are statutorily required ... as part of an adjudication of neglect. Pursuant to § 46b-129, which governs such adjudications, at the time a trial court finds a child to be neglected and, as a result, commits him or her to the custody of the commissioner or another authorized party, the court must ’order specific steps that the [child’s] parent must take to facilitate the return of the child ... to the custody of such parent.’ General Statutes § 46b-129(j)(3)." In re Elvin G., supra, 310 Conn. 504.
Here, the father’s own conduct, not a judicial failure, prevented delivery of the specific steps to the father.
While Mr. S. was evading law enforcement authorities and avoiding contact with DCF, it was impossible for the department to provide him copies of the specific steps, as it had no address for him and he would not answer DCF telephone calls to the number at which it was able to make contact with him once in February 2016. His abusive and threatening language and then hanging up on social worker Matta during that telephone call prevented her from describing the steps to him orally. By not appearing during the neglect proceeding, by moving away and then concealing his whereabouts from DCF, and by refusing to cooperate with the department when DCF was able to make contact with him, this father effectively prevented communication about or delivery of the specific steps to him while he was on the run from the law. His conduct during this time thwarted any possibility of his receiving formal " notice and guidance ... as to what should be done to facilitate reunification and prevent termination of rights" ; In re Elvin G., supra, 310 Conn. 507-08; completely frustrated the salutary purposes of specific steps of " (1) helping the respondent live a legal and responsible lifestyle, (2) establishing a bond between the respondent and the children, and (3) ensuring that the respondent had the skills and resources necessary to parent troubled children" that had been identified by the Supreme Court in In re Elvin G. ; id., 509-10; and prevented DCF from being able to offer him any more services or treatment, to assess his participation in and benefit from those services, or to monitor his compliance with court-ordered directives. This father’s conduct on the run had the same deleterious impact on his relationship with his children as the disciplinary infractions of the incarcerated father in In re Elvin G. - limiting his contact with the children and impeding his ability " to make progress in bonding with the children, learning to parent them and meeting their specialized needs." Id., 510-11.
After Mr. S. left his treatment at Wheeler in 2015, and then concealed his whereabouts, the department could not offer him, or refer him to, any more programs or services, and his own conduct prevented him from securing the benefits of such services. The court set specific treatment goals for Mr. S. regarding his parenting skills, mental health, and substance abuse history in the specific steps, but progress toward those goals could not occur in the absence of meaningful treatment which his conducted prevented. These children, like those in In re Elvin G., have " dire and drastic needs that [require] immediate and ongoing attention; and ... the respondent could not even begin to address those needs on a necessary day-to-day basis" ; id., 497; either while he was on the run and after his incarceration. Both before and after his re-incarceration, it was impossible here, just as In re Elvin G., " for the respondent to complete standard specific steps such as securing and maintaining housing for the children, refraining from activity that would expose him to the criminal justice system, and finding legal employment." Id. In view of this father’s decision to remove himself from the children’s lives and to avoid contact with their caretaker after they had been placed in DCF care and the children’s many, difficult and specialized needs, " the provision of specific steps would not have made a difference because the department could not provide the necessary assistance and monitoring, and the respondent could not even begin to interact regularly with the children and demonstrate the requisite progress" ; id., 512; while he was on the run or incarcerated. While in DOC custody, he has not requested any services or participated in any programs and is on a waiting list for programs that DOC believes would benefit him.
The delivery of the specific steps to Mr. S. after his rearrest would have accomplished nothing in terms of the goals of those steps. Even after he was incarcerated, he refused to communicate with the DCF social worker and directed her not to contact him. The department social worker nonetheless continued to send him letters asking him to participate in the case planning process for the children. Although his incarceration prevented him from attending the ACRs in person, he could have participated by telephone. Those conferences would have provided an opportunity to talk about the presenting issues- why the children were removed, the barriers to reunification, and the needs of the children- and would have furnished him an opportunity to learn more how to rehabilitate himself, but he refused to participate.
Moreover, in this case, one of the key purposes of the specific steps- notifying the parent of conduct and services they should undertake to regain or retain custody, was nonetheless accomplished. In 2015, before the children had been removed and the neglect petitions filed, a DCF social worker spoke with Mr. S. about addressing his alcohol abuse problem, referred him for a mental health and substance abuse evaluation and then for substance abuse treatment, and followed up on his progress in that treatment until he stopped having contact with DCF and ended his substance abuse treatment.
The TPR statute requires that " the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent," but does not define the term " provided" or specify what would qualify as such. In ordinary meaning, " provide" means to supply or make available something that is wanted or needed. See " Definition of Provide," available at https://www.merriam-webster.com/dictionary/provide (last visited on January 30, 2018). The term " provide" may also have the connotation, however, of putting something " into the possession of someone for their use or consumption." See " Synonyms and Antonyms of Provide," available at https://www/merriam-webster.com/thesaurus/provide (last visited January 30, 2018). To the extent that the term " provide" entails making available, the specific steps ordered here multiple times for the father had been provided and made available to him. That fact is particularly true after he had finally appeared and been appointed counsel, as the specific steps were court orders in the court file and available to his attorney and an MRP social study detailing the steps and the department’s account regarding his compliance with those steps was introduced into evidence at the MRP hearing on December 6, 2017, that was attended by the father and his attorney. Moreover, the neglect statute merely provides that the court shall " order" specific steps. To the extent that " provide" also encompasses something being placed into the actual possession of another, however, there is no evidence that anyone ever delivered a copy of the specific steps ordered for the father into his physical possession. One may infer, however, that he may have been aware of the contents of the specific steps after he had appeared in this action.
Practice Book § 32a-7, captioned " Records," provides in relevant part: " (c) Each counsel and self-represented party in a child protection matter shall have access to and be entitled to copies, at his or her expense, of the entire court record, including transcripts of all proceedings, without the express consent of the judicial authority."
As the Supreme Court observed in In re Elvin G., the specific steps serve many purposes, one of the most important of which is guiding a parent toward appropriate conduct and services that will aid in reunification and avoid loss of parental rights. (" Specific steps provide notice and guidance to a parent as to what should be done to facilitate reunification and prevent termination of rights." Id., 507-08.) When a parent absconds and avoids contact with DCF, that parent prevents the specific steps from having any such impact or benefit. The parent’s own conduct prevents physical delivery of specific steps or communication about their contents and thwarts their beneficial purposes. To the extent that the statutory requirement that a parent be provided with specific steps is satisfied by a court entering such orders and making them available in the court file, that requirement was satisfied here. To the extent that steps being provided for Mr. S. requires physical delivery of the steps to him, or direct communication from DCF or the court of the contents of those steps to him, Mr. S.’s conduct prevented such while he was on the run, and his incarceration afterwards prevented the steps from having any salutary purposes.
Here, as in In re Elvin G., the lack of physical delivery or direct communication of the specific steps to Mr. S., if error, was induced by his own conduct, would not have made any difference while he was on the run or after he had been incarcerated, and is not an impediment to termination of parental rights on this statutory ground. Mr. S. has failed to rehabilitate. He was not ready, when the petition was filed or at the time of trial to assume a responsible position in the lives of these three children, in view of their own ages and needs. In view of his long-term neglect of these children’s many complex needs, his lack of treatment for the substance abuse problem, and the criminality that led to his initial separation from the children, he will not be ready to assume a responsible position in their lives within a reasonable time. While he was on the run, physically delivering or communicating the steps to father was an impossibility caused by his own conduct that should not defeat TPR for his failure to rehabilitate. After he had been incarcerated, months after the children had been committed, delivering the steps to him would have been futile and should not defeat TPR for his failure to rehabilitate.
2. Acts of Omission or Commission Denying Child Proper Care, Guidance or Control Necessary for Child’s Well-Being- § 17a-112(j)(3)(C)
The summary of facts in support of this ground alleges that the children have accused their father of molesting them, that they made consistent disclosures of " Mr. S. touching their genital area," that Deanna had disclosed that " Ms. M. was present during the time that Mr. S. was sexually abusing the girls," that they do not want to see him, and that the court has suspended his visits with him. Summary of Facts, p. 9. The petitioner also acknowledges there that " Mr. S. denied all allegations that he was the perpetrator of sexual abuse." Id. Since Mr. S. is incarcerated pending disposition of the criminal charges resulting from these allegations, there has been a judicial finding of probable cause that he committed those offenses. The evidence that the children made these disclosures was admitted without objection or qualification, and hence is admissible for the truth of those statements. But virtually no evidence was presented here about what allegedly occurred, when it happened, or what the children said.
See Gerstein v. Pugh, 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 (1975), holding that the fourth amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. See also Practice Book § 37-12, which provides in relevant part: " (a) If a defendant has been arrested without a warrant and has not been released from custody by the time of the arraignment or is not released at the arraignment pursuant to Section 38-4, the judicial authority shall, unless waived by the defendant, make an independent determination as to whether there is probable cause for believing that the offense charged has been committed by the defendant ... If no such probable cause is found, the judicial authority shall release the defendant from custody."
There was evidence, however, that a year before his arrest on these charges the mother of the children had made allegations to the police that Mr. S. had molested Madison, but that the investigating police officer did not find her allegations credible. The officer concluded instead that the mother was instigating the child to make the allegation. (" Det. feels that mother was coaching Madison on what to say ... Madison did tell Det. Lopa to ask her mother ... as her mother knows more about what happened than she does." Father’s exhibit B, p. 11.) These earlier allegations arose at a time when the mother had recently left Mr. S. and married Anthony R., the children had told DCF that they were afraid of Anthony, and Madison had an injury which " doctors ... reported to the Careline that it’s a 70% chance someone inflicted the injury on Madison." Id. These facts certainly show that the mother would have had a motive for placing police attention on Mr. S. in order to divert any focus from her new husband. The statements of affection that the children had made about their father to DCF in 2015, discussed below on page 47, also raise question about whether any molestation had occurred as of that time, but, according to the mother in 2015 he had no contact with them after he went on run from the law.
In light of the suspicious circumstances about the earlier allegations, the vague nature of the current allegations, questions about Mr. S.’s opportunity to abuse the children after their statements of affection for him, and the court’s lack of opportunity to hear from police or the forensic interviewer about the children’s statements or to hear testimony from the children themselves in order to assess the reliability and credibility of those allegations, the court cannot find by clear and convincing evidence that Mr. S. committed the acts of sexual abuse alleged in paragraphs one and two of the summary of facts for this ground. Unless he had done so, his incarceration on those charges, the court-ordered suspension of visitation by him based on those charges, and the children’s desire not to see him would not be sufficient factual bases to prove by clear and convincing evidence that he had engaged in acts of omission or commission fitting within the broad parameters of this statute.
It has been recognized for many years, that " [t]he question of whether the interviews of the child victims of alleged sexual-abuse were unduly suggestive and coercive requires a highly nuanced inquiry into the totality of circumstances surrounding those interviews. Like confessions and identification, the inculpatory capacity of statements indicating the occurrence of sexual abuse and the anticipated testimony about those occurrences requires that special care be taken to ensure their reliability." State v. Michaels, 136 N.J. 299, 306, 642 A.2d 1372 (1994). Although Connecticut has never adopted the requirement established for New Jersey courts in that case of a pretrial " taint hearing," in State v. Aponte, 249 Conn. 735, 738 A.2d 117 (1999), our Supreme Court did recognize the danger of a child being influenced by suggestive questioning: " [Y]oung children are sensitive to the status and power of their interviewers and as a result are especially likely to comply with the implicit and explicit agenda of such interviewers ... [c]hildren ... are more willing to go along with the wishes of adults and to incorporate adults’ beliefs into their reports ... A critical finding of psychological research is that young children, particularly preschool age children, appear to be more suggestible as a basic psychological characteristic than older children and adults." (Citation omitted; internal quotation marks omitted.) Id., 750-51. Our Supreme Court has also acknowledged that " improper interviewing techniques can create a significant risk that the interrogation itself will distort the child’s recollection of events, thereby undermining the reliability of the statements and subsequent testimony concerning such events." (Internal quotation marks omitted.) State v. Carrion, 313 Conn. 823, 839-40, 100 A.3d 361 (2014), citing Washington v. Schriver, 255 F.3d 45, 57 (2d Cir. 2001), for that proposition. In
Under Practice Book § 31a-1(d) " [a] petition or information may be amended at any time by the judicial authority on its own motion ... prior to any final adjudication." In a post-trial order, the court directed the parties to address the question of whether the court should, sua sponte, amend the petitions on its own motion on this statutory ground to incorporate the factual allegations contained in paragraphs one through nine of the summary of facts alleged by the petitioner in support of termination of parental rights on ground B(i), failure to rehabilitate. All parties submitted written responses to and later presented oral argument on the court’s inquiry. After considering the parties’ arguments, the court has decided not to amend the petition. Amending the petition to incorporate those allegations in the summary of facts for the acts of omission and commission ground would have the effect of changing the adjudicatory date, and, hence, the date by which the petitioner’s proof in the adjudicatory phase of these proceeding is measured. Such a change in the adjudicatory date would mean that the father would have received additional notice before the adjudicatory date of the specific steps ordered for him (for example, by virtue of their introduction into evidence during the TPR trial and their inclusion within the 2017 MRP social study) and could prejudice his claim that the failure to deliver specific steps to him defeats the failure to rehabilitate ground for termination.
In its written submission and oral argument, the petitioner also argued that the court could consider all the evidence presented at trial in determining whether this ground was proven, even if not specifically pleaded in the summary of facts for that ground. In effect, the petitioner argues that evidence presented in support of the failure to rehabilitate claim, and which had been encompassed within the allegations contained in the summary of facts on that ground, could be considered on the acts of omission and commission ground even if not specifically within the scope of the facts alleged in the summary of facts on this latter ground.
Both the termination of parental rights statute and practice book require that a TPR petitioner plead with factual specificity. The preprinted TPR form used by the petitioner here contains a paragraph four stating as follows: " The summary of facts, the particular grounds upon which termination is sought, is attached hereto and made a part hereof." Page seven of that summary of facts contained a specific section, roman numeral IV, with a caption stating: " Facts Supporting the Claimed Grounds for Termination of Parental Rights." Directly below that caption for Section IV was a new paragraph entitled " GROUND B1: Failure to Rehabilitate After Adjudication as to Madison M., Deanna and Emma S. father Mr. S." Nine numbered paragraphs followed. Thereafter, a new paragraph stated " GROUND C: Acts of Omission or Commission as to Madison M. And Deanna by father, Donald S." " Five numbered paragraphs followed. The direct implication of the separate sections, stating separate factual allegations for the two different grounds, is that each ground rests upon the factual allegations asserted for that ground, in compliance with the directive of General Statutes § 45a-715(b) that the TPR petition " set forth with specificity ... the facts upon which termination is sought."
The TPR statute for petitions brought by the commissioner is General Statutes § 17a-112. Subsection (a) of that statute states in relevant part: " (a) In respect to any child in the custody of the Commissioner of Children and Families ... may petition the court for the termination of parental rights with reference to such child.
In light of the facts that the numbered paragraphs that followed this caption referred to facts allegedly happening to all three of the children who are the subject of this petition and that the TPR petition form sought to terminate the father’s parental rights as to all three children on this ground, the court assumes that the omission of Emma’s name in the caption was a scrivener’s error that does not prevent the petitioner from pursuing this ground as to her, as father was on the required notice that this ground was claimed as a basis for terminating his parental rights to all three of his daughters.
It is of course true that evidence presented in a TPR trial may be considered for a multitude of purposes, and, as the dissenting opinion in our Supreme Court’s decision on the retrial of In re Egypt E. recently noted, " the petitioner is not required to present a completely independent factual basis for each ground alleged." (Emphasis in original.) In re Egypt E., 327 Conn. 506, 537 (2018) (McDonald, J., dissenting). Unlike a summary of facts typically used for neglect petitions, where all the alleged facts are often set forth undifferentiated between the different types of neglect or abuse claimed, the petitioner here pleaded different sets of facts in the summary of facts for the two statutory grounds. The broad nature of allegations in the summary of facts for the failure to rehabilitate ground fairly allows consideration of all the evidence. The summary of facts for the other ground, on the other hand, narrowly focused its allegations on claiming that the father’s alleged sexual abuse constituted " the specific conditions which have resulted in the condition" ; Practice Book § 33a-1(a); of denying the children proper care, guidance and attention, and in evaluating the evidence with regard to this ground the court concurs with the position of the respondent father that the court should decide the case on the bases on which petitioner chose to plead its case.
In the portion of the summary of facts supporting the failure to rehabilitate ground, the petitioner set forth an omnibus of allegations- unknown whereabouts, inability to support the family or meet the children’s needs on a daily basis, long history of criminal behavior, mental health concerns, and substance abuse, and the 2016 allegations of sexual abuse- all as a basis for claiming that Mr. S. had failed to rehabilitate.
For the foregoing reasons, the court finds that this ground was not proven by clear and convincing evidence.
III
DISPOSITIONAL PHASE OF TPR PROCEEDING
Having concluded that clear and convincing evidence proved a statutory ground for termination of the father’s parental rights to these three children, the court must next proceed to the dispositional phase, in which " there must be a showing by clear and convincing evidence whether termination is in the best interests of the child." In Re Brian T., 134 Conn.App. 1, 11, 38 A.3d 114 (2012). On disposition the court may consider information through the close of the evidentiary hearing.
A
STATUTORY FACTORS
In making the dispositional decision in a nonconsensual TPR proceeding, the court is mandated to consider and make written findings regarding seven factors specified in General Statutes § 17a-112(k). See, e.g., In re Tabitha P., 39 Conn.App. 353, 362, 664 A.2d 1168 (1995). " The ... factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered ... There is no requirement that each factor be proven by clear and convincing evidence." (Citation omitted.) In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003). As required by the statute, the court has considered the statutory factors and makes the following written findings with regard to the commissioner’s petitions to terminate the father’s parental rights to these three children, and the court has considered these findings in determining that terminating his parental rights is in the children’s best interests.
General Statutes § 17a-112 provides in pertinent part as follows: " (k) Except in the case where termination of parental rights is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent; (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended from time to time; (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (4) the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (5) the age of the child; (6) the efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications .or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent."
1. " The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent " - § 17a-112(k)(1).
Well before the neglect petitions had been filed and the children placed in DCF custody, the department had identified Mr. S.’s need for substance abuse treatment and referred him to an appropriate resource to evaluate his treatment needs for substance abuse and mental health issues. By the time the children were in DCF custody, however, Mr. S. was concealing his whereabouts and not cooperative with DCF. When he was eventually rearrested and in state custody, he told DCF not to contact him. Under these circumstances and the others proven by the evidence, DCF initially provided timely and appropriate services to the respondent father but was then unable to offer any other services to facilitate reunification.
2. " [W]hether [DCF] has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act of 1997, as amended " - § 17a-112(k)(2).
The father’s lack of cooperation made it impossible for the department to offer him reunification services. The efforts made by DCF to reunite him with the children included trying to contact him while he was evading the law, sending him correspondence asking him to cooperate with the department both before and after his rearrest, and inviting him to participate in case review meetings. DCF made reasonable efforts to reunite the family under these circumstances.
3. " [T]he 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 " - § 17a-112(k)(3).
Although specific steps were ordered by the court twice, the father never signed them or agreed to cooperate with them.
4. " [T]he feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties " - § 17a-112(k)(4).
There is evidence contained in the 2015 Investigation Protocol suggesting positive emotional feelings then on the part of both Madison and Deanna toward their father. On May 22, 2015, Deanna told social worker investigator Clark that " she misses father." Father’s exhibit B, p. 6. On May 26, 2015, Madison told Clark " that she is happy father is coming home today." Id., 7. There were also contrary indications in that exhibit, however, such as Deanna telling a school employee on April 29, 2015, that " she wants him [the respondent father] to stop hitting her because it hurts." Id., 5. The evidence does show, however, that in September 2016 all three girls said they did not want to see their father. In fact, they have not seen him since being placed in DCF care December 2015, and for several months before that. Under these circumstances, any positive feelings or emotional ties they may once have felt toward him have probably become extremely weak and attenuated.
The children have not seen their mother since before the court ordered suspension of visits in early September 2016. They said then that they did not want to see her. Their therapist recommended no contact between the girls and either parent. They have not lived with her for almost two years. Their positive feelings and emotional ties toward her have probably subsided considerably.
As of the close of evidence, Madison had been in her fourth foster home for almost ten months, longer than in any of her earlier foster homes. She has been unable to form a significant emotional tie to any of her foster parents. The fact that the most recent update to the TPR social study reported in October 2017 that she was then saying that she wanted to be placed with a Caucasian family shows a lack of strong emotional ties or bonds to the current foster parents.
Deanna and Emma Grace were placed in their current foster home in March 2017. Within a few months, both of them were already calling their foster parents " Mom" and " Dad," thereby suggesting a strongly developing positive bond.
5. " [T]he age of the child " - § 17a-112(k)(5).
Born on April 4, 2006, Madison is 11 years and 10 months old.
Born on January 14, 2008, Deanna just turned 8 years old.
Born on February 23, 2012, Emma Grace is 5 years and 11 months old.
6. " [T]he efforts the parent has made to adjust [his] circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child " - § 17a-112(k)(6).
Since these three children were placed in DCF care, the respondent father has made absolutely no effort to adjust his circumstances, conduct, or conditions to make it in the best interest of any of these children to return them to his home in the foreseeable future. Although he expressed a desire in February 2016 to see the children, he refused to tell DCF where he was living so that visitation might have been arranged. He evaded law enforcement authorities and had no other contact with DCF for almost a year, between summer 2015 and summer 2016. Even after he had been rearrested, he would not cooperate with DCF and told the department’s social worker not to contact him again.
7. " [T]he extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent " - § 17a-112(k)(7).
There is no evidence that any unreasonable act on the part of the mother or any other person has prevented the father from maintaining a meaningful relationship with the children, or that his economic circumstances did so.
B
BEST INTEREST OF THE CHILDREN
The final element of the termination of the parental rights statute, § 17a-112(j), requires that, before granting a petition for such termination, the court must find " by clear and convincing evidence that ... (2) termination is in the best interest of the child ..." The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child’s welfare. In determining that terminating the respondent father’s parental rights is in the best interest of these three children, the court has considered various factors, including their interests " in sustained growth, development, well-being, and in the continuity and stability of [their] environment" ; Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985); each one’s age and needs; the length and nature of their stay in foster care; the lack of contact each child has had with their father since mid-2015; the potential benefit or detriment of their retaining a connection with their biological parents; their genetic bond to him; In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999); and the seven statutory factors and the court’s findings thereon. The court has also balanced each child’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with their biological father. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child’s physical and emotional well-being must be weighed against the interest in preserving family integrity).
In consideration of all these factors and after weighing all of the evidence, the court finds that clear and convincing evidence established that it is in the best interests of all three of these children to terminate the parental rights of their father. He has been an absent figure in their life for two and one-half years. The children’s own therapist recommends that it is best for them not to see him. Court orders have prevented him from having any contact with them for more than a year. His own actions before those court orders showed substantial disregard for their well-being. These three children have many complex needs and their best interest lies in having a caretaker who will provide them with stability and is capable of meeting those needs on a consistent and permanent basis. Mr. S.’s actions in the past showed him unwilling to accept that responsibility then, and he has done nothing to show himself willing or able to do so now. For example, even though court orders have prevented him from having any direct contact with the children, the department social worker has continued to invite him to participate in case planning for them, but he has refused to do so.
Although Mr. S. was scheduled to be discharged last month from the sentences imposed in 2016, he will remain incarcerated for the indefinite future on the pending criminal charges, as he does not have ability to post the one and a half million dollar bond. Even were he to make bail, however, the protective orders prohibit him from having any contact with the children to ameliorate the deterioration in his relationship with them. If he were released from incarceration or the charges disposed in a way that did not prevent further contact with the children, such as by acquittal or dismissal, moreover, he must still address his serious substance abuse problem and show over a period of time that disinterest in the children, substance abuse, domestic violence, and criminal conduct no longer prevent him from assuming a responsible role in the children’s lives.
Each of these children presents challenging demands that their caretaker must meet. Madison has been unable to form a bond or develop significant emotional ties with a caretaker. She has struggled in her foster homes and at school. On the cusp of adolescence, she has serious emotional and behavioral problems that require persistence and dedication on the part of her caretaker. The middle child, Deanna, is developmentally delayed, has difficulty communicating, and still engages in self-soothing behaviors. The youngest of these three, Emma Grace, has complex medical issues and needs a caretaker willing to accept the responsibility of learning appropriate ways to manage her behaviors. All three girls have been diagnosed with post-traumatic stress disorder and have complex mental health needs and need a parent or caretaker who can and will work effectively and cooperatively with the child’s therapist. They all have many appointments and need a caretaker who will make sure they attend them and that all follow-up instructions are followed. All three girls receive special education services and need a caretaker who will take the time and devote the effort to helping each child receive maximum benefit from those services. The social study’s description of Emma’s needs is accurate for all three children: each one’s " needs require the care and patience of a parent who can keep her safe, nurture her, implement skills taught by providers and make changes where appropriate in order for [the child] to benefit fully from services." Petitioner’s exhibit 4, p. 23. When this father chose to absent himself from these children’s lives in mid-2015, he showed he was willing to meet none of these needs or carry out any of these responsibilities. His refusal to cooperate with the department’s efforts to meet the girls’ needs after he was rearrested exhibited the same lack of concern for, interest in, and willingness to address those needs. It is in each child’s best interest to terminate his parental rights and to offer each of them the possibility of finding a parent who will show such interest, will assume that responsibility, and will furnish the permanency and stability that Mr. S. was unwilling to provide.
IV
PERMANENCY PLANS
The permanency plan proposed by the department for each child is termination of the parental rights of the mother and father and adoption. The MRP is governed by General Statutes § 46b-129(k) and Practice Book § 35a-14. Under each provision, the commissioner has the burden of proving by a fair preponderance of the evidence that the proposed permanency plan is in the best interests of the child or youth. Under the statute, " [a]t a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child’s or youth’s need for permanency. The child’s or youth’s health and safety shall be of paramount concern in formulating such plan." General Statutes § 46b-129(k)(2). The practice book makes clear that a permanency plan is a dispositional issue:
General Statutes § 46b-129 provides in relevant part: " (k) (1)(A) ... The commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth ... (2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child’s or youth’s need for permanency. The child’s or youth’s health and safety shall be of paramount concern in formulating such plan."
Practice Book § 35a-14 provides in relevant part: " (d) Whether to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made are dispositional questions, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interests of the child or youth to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made upon a fair preponderance of the evidence. The commissioner of the department of children and families shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth and that it has made reasonable efforts to achieve the goal of the existing plan. (e) At each hearing on a motion for review of permanency plan, the judicial authority shall ... (2) review the status of the child or youth, (3) review the progress being made to implement the permanency plan, (4) determine a timetable for attaining the permanency plan, (5) determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and (6) determine whether the commissioner of the department of children and families has made reasonable efforts to achieve the goal of the existing permanency plan. The judicial authority shall also determine whether the proposed goal of the permanency plan as set forth in General Statutes § 46b-129(k)(2) is in the best interests of the child or youth by a fair preponderance of the evidence, taking into consideration the child’s or youth’s need for permanency. The child’s or youth’s health and safety shall be of paramount concern in formulating such plan. If a permanency plan is not approved by the judicial authority, it shall order the filing of a revised plan and set a hearing to review said revised plan within sixty days." ---------
Whether to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made are dispositional questions, based on the prior adjudication, and the judicial authority shall determine whether it is in the best interests of the child or youth to approve the permanency plan and to find that reasonable efforts to achieve the goal of the existing plan have been made upon a fair preponderance of the evidence. The commissioner of the department of children and families shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth and that it has made reasonable efforts to achieve the goal of the existing plan.
Practice Book § 35a-14(d). The petitioner has met its burden of proof. See § 46b-129(k)(1)(A). As discussed herein, the proposed permanency plan is found to be in each child’s best interest and approved. The department is further found to have made reasonable efforts to achieve those plans. The motions for approval of the proposed plans are thus granted. The clerk shall establish dates for the department to file the next permanency plans and for hearing on those plans and notify the parties thereof.
V
ORDERS
The court having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for the termination of the respondent’s father’s parental rights to these three children and having further determined and found by clear and convincing evidence, upon all of the facts and circumstances presented, that it is in the best interest of all three children to terminate the parental rights of the respondent father it is therefore HEREBY ORDERED:
The parental rights of Donald S. to Madison, Deanna, and Emma Grace are hereby terminated. Since the parental rights of their biological mother have already been terminated, the Commissioner of Children and Families is appointed statutory parent for all three children pursuant to § 17a-112(m) so that they may be placed for adoption.
Pursuant to § 17a-112(o) and Practice Book § 35a-14(g), the statutory parent shall file a written report on the case plan, the permanency plan, and the status of the child with the clerk of the Superior Court for Juvenile Matters at New Britain on or before March 9, 2018, at 9:00 a.m. and every three months thereafter on implementation of the plan.
BY THE COURT
As the Supreme Court noted in In re Elvin G., the statutory language requiring an order of specific steps at commitment had been added to § 46b-129 in 1997. (" The quoted language was added to § 46b-129 in 1997. Sec Public Acts 1997, No. 97-319, § 19. At that time, subsection (j) was designated as subsection (d). In 1998, subsection (d) became subsection (j). See Public Acts 1998, No. 98-241, § 5." In re Elvin G., supra, 310 Conn. 504, n.17.) As originally adopted, the statutory language requiring an order of specific steps at commitment directly followed the statutory language authorizing commitments. Since then, however, the language requiring an order of specific steps has gradually been separated, textually, from the language authorizing commitments. Today, that subsection of the neglect statute is separated into separate numbered clauses, with the language about dispositional alternatives after an adjudication of neglect in the second clause and the language requiring an order of specific steps in the third clause, which principally addresses proceedings for revocation of commitment. See Public Acts 2001, No. 01-142, § 6; Public Acts 2009, No. 09-185, § 3; and Public Acts, Spec. Sess., June 2012, No. 1, § 273. Nothing in the legislative history since the legislature’s original mandate in 1997 for an order of specific steps at commitment, however, suggests any legislative intent to change the requirement that specific steps be ordered at commitment. See, generally, 44 S. Proc., Pt. 11, 2001 Sess., pp. 3193, 3223-25; 44 H.R. Proc., Pt. 15, 2001 Sess., pp. 5046-59; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 4, 2001 Sess., pp. 1114, 1115-19, 1243-44, 1246-50; 52 S. Proc., Pt. 17, 2009 Sess., pp. 5673, 5701-03; 52 H.R. Proc., Pt. 19, 2009 Sess., pp. 6065-76; Conn. Joint Standing Committee Hearings, Select Committee on Children, Pt. 2, 2009 Sess., pp. 493-94; Conn. Joint Standing Committee Hearings, Human Services, Pt. 1, 2009 Sess., pp. 305-600; Conn. Joint Standing Committee Hearings, Judiciary, Pt. 21, 2009 Sess., pp. 6848-49; 55 H.R. Proc., Pt. 26, 2012 Spec. Sess., pp. 8603-8871; and 52 S. Proc., Pt. 55, 2012 Spec. Sess., pp. 4635-4768.
State v. Merriam, 264 Conn. 617, 835 A.2d 895 (2003), our Supreme Court adopted several factors suggested by the United States Supreme Court in Idaho v. Roberts, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), for considering the reliability of hearsay statements made by a child who was allegedly the subject of sexual abuse. These include " (1) the degree of spontaneity inherent in the making of the statements; (2) consistent repetition by the declarant; (3) the declarant’s mental state; (4) use of terminology not within the average ken of a child of similar age; and (5) the existence of a motive to fabricate or lack thereof." State v. Merriam, supra, 264 Conn. 639. The court in Merriam reiterated the emphasis of the court in Idaho v. Roberts, however, that " the unifying principle underlying the enumerated factors is that they relate to whether the child declarant was particularly likely to be telling the truth when the statement was made." (Internal quotation marks omitted.) Id. In State v. Merriam, the court also reiterated the Supreme Court’s comment " that the list of factors it had identified was not exclusive, that it was not endorsing any particular mechanical test for determining particularized guarantees of trustworthiness and that courts have considerable leeway in their consideration of appropriate factors." (Citation omitted; internal quotation marks omitted.) Id., 639-40. In the pending matters, none of the types of information necessary to assess the reliability or credibility of these children’s allegations of sexual abuse were introduced into evidence.
The petition shall be in the form and contain the information set forth in subsection (b) of section 45a-715 , and be subject to the provisions of subsection (c) of said section ." (Emphasis added.) General Statutes § 45a-715 provides in relevant part: " (b) A petition for termination of parental rights ... shall set forth with specificity: ... (6) the facts upon which termination is sought, the legal grounds authorizing termination, the effects of a termination decree and the basis for the jurisdiction of the court: (c) If the information required under subdivisions (2) and (6) of subsection (b) of this section is not stated, the petition shall be dismissed ." (Emphasis added.) Practice Book § 33a-1 is captioned " Initiation of Judicial Proceeding; Contents of Petitions and Summary of Facts," and provides: " (a) The petitioner shall set forth with reasonable particularity, including statutory references, the specific conditions which have resulted in the situation which is the subject of the petition . (b) A summary of the facts substantiating the allegations of the petition shall be attached thereto and shall be incorporated by reference." (Emphasis added.)