Opinion
H12CP14015368A
11-15-2016
In re Marcus S. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Marcia J. Gleeson, J.
This case presents a petition by the Department of Children and Families (department or DCF) asking that the parental rights of the respondent biological father, Mervin S. (Father), over the minor child, Marcus S. (Marcus or child), be terminated. Also pending before the court at the time of trial was Father's motion to transfer guardianship to Marcus' paternal grandmother; Father withdrew this motion, however, on the third day of trial, June 10, 2016. The parental rights of Marcus' biological mother (Mother) were terminated by the court, Bear, J., on February 29, 2008, after a contested trial. Accordingly, no findings as to Mother need be made pursuant to General Statutes § 17a-112(k).
Father opposes the petition. The statutory ground alleged in the petition against Father is that Marcus has been found, in a prior proceeding, to have been uncared for and Father has failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time and considering the age and needs of Marcus, he could assume a responsible position in Marcus' life. See General Statutes § 17a-112(j)(3)(B). The petition was corrected by agreement on February 1, 2016, to reflect that reasonable efforts to reunify are not required for Father because the court approved a permanency plan other than reunification.
This matter was tried before the court on June 1, 2, and 10, 2016. Father was present and was represented at trial by counsel. Also present were attorneys for the department and the child, and the child's guardian ad litem (GAL). All counsel participated in the examination of witnesses and participated in the trial. By agreement, the GAL also participated in some aspects of the trial. The department called four witnesses and introduced eleven exhibits. Father called two witnesses and introduced seven exhibits. Marcus' attorney called no witnesses and introduced no exhibits. All parties submitted post-trial briefs, the last of which was filed on July 20, 2016.
The court finds that it has proper jurisdiction of the matter and that there are no pending actions affecting the custody of Marcus and no claims of Native American tribal affiliation. The court has carefully considered the petition, all of the evidence and testimony presented, including the demeanor and credibility of the witnesses, and the post-trial briefs of counsel, according to the standards required by law. On the basis of the evidence presented, and for the reasons that follow, the court grants the petition and terminates the parental rights of Father.
" It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any . . . testimony." (Internal quotation marks omitted.) In re Rafael S., 125 Conn.App. 605, 611-12, 9 A.3d 417 (2010); see also In re Katia M., 124 Conn.App. 650, 663, 6 A.3d 86, cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010). " The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties . . ." (Internal quotation marks omitted.) Musolino v. Musolino, 121 Conn.App. 469, 476, 997 A.2d 599 (2010). Moreover, " [i]t is the right and the duty of the [trier of fact] to draw reasonable and logical inferences from the evidence . . . In considering the evidence introduced in a case, [triers of fact] are not required to leave common sense at the courtroom door . . ." (Citation omitted; internal quotation marks omitted.) Welsch v. Groat, 95 Conn.App. 658, 666-67, 897 A.2d 710 (2006).
I
FACTS
Having weighed all of the evidence and assessed the credibility of the witnesses, the court finds the following relevant facts to have been proven by clear and convincing evidence.
On June 1, 2016, the court granted by agreement the department's motion for judicial notice dated May 27, 2016. Accordingly, the court has taken judicial notice of court records, including court memoranda, orders, and transcripts made in these cases, for their existence, content, and legal effect. See C. Tait & E. Prescott, Connecticut Evidence (4th Ed. 2008) § § 2.3.4(d), 2.4.1, and 2.4.2.
A
Procedural History and Preliminary Facts
On December 9, 2003, the department moved for and was granted an order of temporary custody (OTC) on the basis of its concerns that Marcus had suffered serious, unexplained injuries at the age of three and one-half months. On December 18, 2003, the OTC was sustained by the court, Taylor, J. On October 21, 2004, the court, Graziani, J., approved a permanency plan of reunification of Marcus with his parents. On February 28, 2005, the court, Graziani, J, adjudicated Marcus neglected and committed him to the care and custody of the department. On September 23, 2005, the court, Santos, J., revoked the commitment and ordered protective supervision with Father for a period of six months.
On January 30, 2007, the department invoked a ninety-six-hour hold on Marcus, and on February 2, 2007, the department filed an OTC and a coterminous petition for neglect and termination of parental rights (TPR). On February 9, 2007, the OTC was sustained by agreement as to Marcus' mother, Barbara W. (Mother), but was contested by Father. On February 15, 2007, a contested hearing was held on the OTC, and on February 16, 2007, the OTC was sustained by the court, Taylor, J., as to Father.
After several days of a contested trial, on February 29, 2008, the court, Bear, J., adjudicated Marcus neglected, issued an order of commitment to the department, granted the TPR as to Mother, and denied the TPR as to Father. On December 15, 2008, after a contested hearing, the court, Bear, J., transferred legal guardianship of Marcus to his paternal grandparents, Hyacinth S. (Grandmother) and Leon S. (Grandfather) (collectively, Grandparents).
On January 9, 2014, the department filed an ex parte motion for an OTC and a neglect petition alleging physical abuse of Marcus by Grandmother, Grandparents' inability to supervise Marcus, Grandmother's deteriorating health, and Father's inability to care for Marcus. The OTC was granted by the court, Burgdorff, J., on January 9, 2014, and was sustained by the court, Dannehy, J., on January 17, 2014.
On April 1, 2014, the court, Dannehy, J., granted the department's oral motion to amend the neglect petition to allege the ground of uncared for/specialized needs, adjudicated Marcus as such, and committed him to the department. Final specific steps for Father were ordered by the court, and the former guardians, Grandparents, were removed from the case as parties.
On November 18, 2014, the court, Dannehy, J., rejected a permanency plan to transfer guardianship of Marcus to Mother. On January 8, 2015, the court, Dannehy, J., approved the permanency plan of TPR and adoption for Marcus. On April 2, 2015, the department filed a TPR petition regarding Marcus. Father was properly served, appeared in court with his attorney on April 30, 2015, and entered a denial to the petition. On October 19, 2015, Father filed a motion to transfer guardianship to Grandparents, to which the department objected on January 29, 2016. On November 19, 2015, the court, Dannehy, J., approved the permanency plan of TPR and adoption. On February 1, 2016, the motion to transfer guardianship and objection were consolidated for trial with the TPR petition by the court, Gleeson, J., and thereafter the matter proceeded to trial as above.
1
Mother
Mother was born May 18, 1985. As set forth above, Mother's parental rights were terminated on February 29, 2008. Additional facts will be set forth as warranted.
2
Father
Father was born in Kingston, Jamaica, on June 4, 1975. He was raised by his father and stepmother from the age of two. His father worked as a welder, and his stepmother was employed at a factory. Father reported that his father and stepmother had had a great relationship and that he had had a great childhood. He has four brothers and three sisters. His biological mother passed away in 2005. Father reportedly moved to the United States at the age of thirteen and completed high school in Connecticut at Prince Technical School in 1995. He also completed four months of computer training at Buckley High School in Hartford, Connecticut, for which he received a certificate of training. Father reportedly worked as a bus driver for Avis between 1997 and 1999, as a driver for Lindsey Limousine between 2000 and 2001, in shipping and receiving at Brooks Brothers between 2001 and 2011, and as a line chef at River House Restaurant in 2012. Father reported that he attended the Culinary Arts School in Cromwell, Connecticut, in 2009 but did not complete the program. More recently, he has worked as a bus driver for Hartford Hospital and as a driver for Premier Limousine. At the time of trial he was working full-time as a driver.
Father reportedly met Mother in 1999, and their relationship resulted in the birth of Marcus in July 2003. Father and Mother's relationship reportedly ended approximately a year after Marcus was born. Father thereafter resided with another paramour, with whom he had a child--Marcus' half-brother, Marvin--in 2005.
Father's parents now live in Florida, and Father currently lives in his parents' Hartford home. There is a bedroom available for Marcus. The department has no concerns about the physical conditions of the home.
As detailed below, Father's involvement with the department dates back to 2003, when Marcus was three and one-half months old.
Additional facts will be set forth as warranted.
3
Marcus and Father
Marcus was born to Mother and Father in Hartford, Connecticut, on July 8, 2003.
On October 24, 2003, Marcus' pediatrician contacted the department to report that Mother had brought the three and one-half-month-old Marcus to be examined because Marcus could not move his left arm. As this injury was initially misdiagnosed as " nurse maid's elbow, " a condition not related to abuse or neglect, the allegation of medical neglect against both parents was not substantiated by the department. On December 5, 2003, the same pediatrician contacted the department to report that Marcus had sustained a mid-shaft fracture of his right arm and that the parents' explanation was not consistent with the injury. The department immediately removed Marcus from the home. On December 9, 2003, a pediatrician affiliated with the Connecticut Children's Medical Center (CCMC) Suspected Child Abuse Program reported to the department that in September 2003, Marcus had suffered a proximal left tibia fracture. An OTC was granted and subsequently sustained as set forth above. Thereafter, CCMC confirmed that the previous injury to Marcus' left arm, which had been originally diagnosed as nurse maid's elbow, was in fact a fracture of the distal left humerus. During its investigation of the injuries, the department identified additional issues, including domestic violence and parenting. Father acknowledged that he could have accidently injured Marcus, and the department substantiated physical abuse and medical neglect of Marcus by Father and physical neglect and medical neglect by Mother. Father was arrested in connection with the mid-shaft fracture of Marcus' right arm, but the state's attorney eventually decided not to prosecute him. On January 13, 2004, the department referred Father for parenting classes, supervised visitation, and group anger management classes. Upon completion of the group sessions, Father was recommended for individual counseling with the same provider, Richard Mellow, which Father attended biweekly beginning in the fall of 2004. Father also underwent an evaluation by Dr. David Mantel, and recommendations from that evaluation were incorporated into the individual counseling sessions.
On February 28, 2005, Marcus was adjudicated neglected and was committed to the department. In 2005, Father was referred to KIDSAFE CT's (KIDSAFE) reunification program. Despite considerable conflict between Mother and Father during the reunification process, Father successfully completed the program, and on July 20, 2005, Marcus was reunited with his father but remained committed to the department. At the time of the reunification, Father was residing with his paramour, who three months earlier had given birth to Marvin. Marvin's mother also had a daughter, R.M., who lived with them.
On September 23, 2005, the court revoked the commitment, continued Father's physical custody of Marcus, and entered an order of protective supervision for six months. Mother continued to have supervised visitation with Marcus. On December 22, 2005, protective supervision was terminated and the court transferred future issues regarding custody and visitation to the Superior Court for Family Matters.
Although the department closed its file on January 24, 2006, the department's involvement with the family persisted, primarily because of ongoing domestic violence between Mother and her paramour, some of which had resulted in the arrest of one or both.
On October 16, 2006, the department reopened its case after a police officer reported his concerns that the children in Mother's household had been exposed to ongoing domestic violence between Mother and her paramour. The department learned that Mother had obtained joint custody of Marcus through the family court and that the child was dividing his time between the two homes. On October 30, 2006, Mother made claims that Father had medically neglected Marcus by dropping Marcus off at school with a high fever and that she had observed bruises on his neck that looked old and resembled burns. These claims were not substantiated by the department.
On January 26, 2007, after three-year-old Marcus returned from spending several days in Mother's care, Father observed marks and bruising on Marcus' back, but, instead of taking Marcus for medical attention, Father called his attorney for advice. On January 28, 2007, after speaking to his attorney, Father called the department hotline to report the marks and bruises.
On January 29, 2007, Father reported the marks and bruises to Marcus' Head Start teacher and took Marcus to a pediatrician. Both the teacher and the doctor reported the contacts to the department, which commenced an investigation. The pediatrician reported to the department that the primary reason Father had given for bringing Marcus in was to have Marcus seen for ringworm. The pediatrician also reported that Father had mentioned that Marcus had a mark on his back and complained that his mother had hit him. On January 29, 2007, pediatricians at CCMC also examined Marcus. Over time, Marcus was inconsistent in describing how the bruises and marks on his back originated. On several occasions, Marcus said that " Mommy hit me with a belt" but also told a forensic pediatrician that Father had hit him and Mother was there. Neither of the CCMC pediatricians who examined Marcus could state that Marcus' injuries were the result of abuse, but the forensic pediatrician opined that such injuries were " highly suspicious for abuse." Neither Mother nor Father had an explanation for the bruises, and the department investigator was unable to determine which parent was responsible. On January 30, 2007, the department invoked a ninety-six-hour hold on Marcus and placed him in nonrelative foster care. An OTC and coterminous petition for neglect and TPR followed on February 2, 2007. The OTC was sustained as to Father after a contested hearing as stated above.
In April 2007, Father re-engaged with individual counseling with Richard Mellow but attended only sporadically. Father also attended individual parenting sessions at KIDSAFE. Father refused to participate in an updated psychological evaluation with Dr. Mantell as ordered by the court, but he did complete an interactional assessment. Thereafter, the forensic psychologist reported that: " The psychological parenthood of Marcus was difficult to determine. He has been in so many places, with so many combinations of caretakers, that he himself is confused on this topic . . . Marcus has experienced multiple injuries, multiple disruptions in primary relationships, and has been exposed to multiple caretakers in multiple caretaking contexts and also to repeated [c]ourt interventions by several courts. It is essential that his life be stabilized and calmed with a single caretaking setting that has an assessed potential to provide him with stability, safety, and nurturant care." At the time of the report, Marcus was just under four years old.
On May 10, 2007, the department placed Marcus with Grandparents.
During the contested TPR trial, a forensic psychologist who evaluated Father, Mother, and Marcus on three occasions stated that he was unable to " unravel the mystery" of which parent caused any of the three fractures in 2003 or the January 2007 bruising and scratches on Marcus' back. On February 29, 2008, the court, Bear, J., adjudicated Marcus neglected and committed him to the department, granted the TPR as to Mother, and denied the TPR as to Father. The court also found that it was in Marcus' best interest to remain in his placement with Grandparents and that it was not in Marcus' best interest to be returned to Father. The court then ordered the department to prepare specific steps for Father. During the trial, Father stated through his counsel that he wanted Marcus to stay with Grandparents.
Once Marcus was committed to the department, Father did not participate in services, and Father's visitation with Marcus was infrequent. Father told the department on several occasions that he was too busy for services. Although the department had also engaged My People's Clinical Services to assist Father with his supervised visitation, Father terminated My People's Clinical Services due to his time constraints.
On October 20, 2008, Grandmother reported to the department that Marcus had been sexually perpetrated at church by a ten-year-old boy. On November 20, 2008, the department referred Marcus for therapy and Grandmother agreed to ensure that Marcus attended regularly.
On December 15, 2008, after a contested hearing, guardianship of five-year-old Marcus was transferred to Grandparents by the court, Bear, J. Father did not appeal. Marcus remained with Grandparents, and during this period, the next investigation of Father by the department involved not Marcus, but another child who resided in Father's household.
On June 1, 2012, Father was substantiated by the department for the sexual abuse/exploitation of his paramour's child, R.M., resulting from the child's disclosure of having been subjected to oral/genital sexual contact with Father in 2008 and 2009, when she was between five and six years old. Father was then placed on the department's central registry as a perpetrator of sexual abuse of a child. At the time of these events, Father was residing with R.M and R.M.'s mother, who is also the mother of Father's son Marvin. On August 24, 2012, Father was arrested and charged with two counts of sexual assault of a minor in the first degree and one count of illegal sexual contact with a child. On April 10, 2013, Father pleaded guilty to three substituted counts of coercion and was sentenced on each count to one year of imprisonment, execution suspended, three years probation, consecutive, for a total effective sentence of three years of imprisonment, execution suspended, three years probation. The supervision of his probation was assigned to the sex offender unit, and the conditions of his probation included no contact with the victim, psychiatric/mental health evaluation and treatment, no possession of any weapons, no new arrests, and to arrange for third-party visitation with any minor children, including his biological children, through the department or another approved party. Father was also required to attend sexual offender treatment weekly with therapist Theresa Reed from the spring of 2013 until the end of his probation. Father's attorney filed a motion with the criminal court to modify the conditions of his probation to allow unsupervised contact with minors, but the motion was denied by the court in January 2016. As set forth below, Father was compliant with the conditions of his probation and successfully completed his probation on April 10, 2016.
On May 31, 2013, Grandmother contacted the department, stating that Marcus' behaviors had become too difficult to manage, and on June 3, 2013, Grandmother asked the department to remove Marcus from her home. Grandmother reported that Marcus would refuse to get up in the morning to attend school. On June 6, 2013, Grandmother informed the department that Father visited Marcus very infrequently and was not a consistent presence in Marcus' life. Physical and emotional neglect of Marcus by Grandmother were not substantiated at that time by the department, and Marcus remained in Grandparents' home. The family was referred for multidimensional family therapy (MDFT) services through Catholic Charities, and the department closed the case on July 17, 2013.
On October 8, 2013, the department received a report from Jovin Girard, the family's MDFT case manager, alleging physical and medical neglect of Marcus by Grandparents. Girard reported that, while Grandmother was receiving inpatient care for rehabilitation of a broken ankle, Marcus had been left in the care of his eighty-nine-year-old great-grandmother (Great-grandmother), whose own limitations left her unable to adequately care for Marcus. Great-grandmother was essentially the sole caretaker, as at that time, Grandfather generally did not return home from work until 11 p.m. On October 8, 2013, department social workers attempted to visit the family but went to the wrong house. On October 11, 2013, the department went to the correct home and spoke with Great-grandmother. Marcus was not home, and Great-grandmother did not know where he was. Great-grandmother reported that Marcus had not attended school that day, as he had refused to get out of bed. The MDFT worker tried to get him up but was unsuccessful. Great-grandmother reported that Marcus did not listen to anyone and sometimes left the house and did not return until 9 p.m.
On October 16, 2013, Grandmother was discharged from inpatient care and returned home. The next day, the department went to the home and met with Grandmother and MDFT case manager Girard. Both Grandmother and Girard expressed concerns that Grandparents were no longer able to adequately care for Marcus, as Grandmother had health concerns and Grandfather's work schedule meant that he was not home to help take care of Marcus. Marcus would often not obey her and would refuse to shower, brush his teeth, or go to school. Marcus was bullied at school, had trouble socializing and making friends, and had difficulties with academics. Girard often escorted Marcus to and from school, as Marcus would not come home directly after school if unsupervised, and Girard often helped Marcus with his homework. Grandmother complained that Marcus used the stove without permission to cook food and had once lit a candle, so she was concerned about fire. When asked about relative resources, Grandmother said that Father was not a support to Marcus and that, although Father was living with his girlfriend on the next street over, he seldom visited Marcus and was not involved in Marcus' life, even while Marcus was having behavioral issues.
On October 16, 2013, the department also met with Marcus, who at that time was ten years old and was in the fourth grade. When asked about Father, Marcus said that Father had visited him at Grandparents' home, but Marcus could not recall the last time he had seen his father. The social worker learned that sometimes Grandmother made Marcus sleep on the floor in the hallway instead of in his room and that he was unable to sleep at those times because he was afraid of the dark. The social worker asked to see Marcus' room and Grandmother unlocked Marcus' room with a key. The room was clean and adequately furnished but was not decorated for a child and there were no toys or other items that would indicate that a child resided there. When asked why the door was locked, Grandmother complained that Marcus would leave paper wrappers under his bed and leave his clothing on the floor. When asked why Marcus sometimes was forced to sleep on the floor in the hallway, Grandmother gave the same response.
Girard made a referral for Marcus for trauma therapy at the Village for Families and Children (Village), where Marcus attended an intake appointment on October 30, 2013. Girard also arranged for Marcus to attend an after-school program at the Boys and Girls Club, which began on October 22, 2013.
On November 19, 2013, the department received a report from Katharine Smith, a social worker at Marcus' school, alleging physical abuse of Marcus by Grandmother. Smith reported that Marcus arrived at school that morning with a cut on his face, which Marcus explained was caused by Grandmother hitting him with a can of furniture polish when he refused to go to school. Marcus was treated by the school nurse. Social worker Feliciano met with Grandmother that same day on November 19, 2013. Grandmother told the social worker that she had trouble getting Marcus out of bed that morning to attend school and that during the struggle she had accidently hit Marcus in the face with a bottle of furniture polish. Grandmother also reported that both had fallen during the altercation and that she was concerned for Marcus' and her own safety. Grandmother had also called the police, who transported Marcus to school that morning. Grandmother had asked the department to remove Marcus from her care but stated that Marcus could remain in her home until January to allow time for a placement resource to be located.
On November 25, 2013, a school worker notified the department that a " planning and placement team" (PPT) conference had determined that Marcus was eligible for special education services and would receive additional support with math and reading.
On November 26, 2013, a considered removal meeting was held at the department office. Father had been notified of and invited to attend the meeting by the department on November 22, 2013. On November 25, 2013, Father told the department that he would attend the meeting, but he failed to do so. At the meeting, Grandfather stated that Father had not been involved in Marcus' life and had not visited Marcus in about three months. Mother attended the meeting at the invitation of Grandmother and offered herself as a placement resource, stating that, after the TPR, she had changed her life, was married with a new child, and was working and stable. Grandmother had allowed Mother to have telephone calls and visits with Marcus after the TPR and had no reservations at that time about Mother as a placement resource for Marcus.
Over the next several weeks, Grandmother continued to advocate for Mother, and the department began to investigate Mother as a possible resource. On December 12, 2013, Grandmother also offered a family friend from her church, L.H., as a placement resource. Marcus was acquainted with L.H. and had been to her home. L.H. completed an application for a special study home, and the department planned to start visits with Marcus in January.
In the interim, the situation at Grandparents' home did not improve. Grandmother continued to complain to the department about minor issues, such as Marcus failing to fold his clothes or to hang up his gym uniform, and had to be reminded by the department that Marcus was just ten years old. When confronted about these and other issues, Marcus' behaviors would escalate. When Marcus would misbehave, Grandmother would threaten him with going to a foster home, and the department had to tell Grandmother not to scare Marcus with such threats again.
On December 18, 2013, Marcus began weekly, individual psychotherapy with Catherine Nguyen, a licensed clinical social worker at the Village, and was seen by Dr. Ramesh Hemnani at the Village for medication management. Marcus was diagnosed with attention deficit/hyperactivity disorder (ADHD), combined type; generalized anxiety disorder; and disruptive behavior disorder NOS; for which he was prescribed Vyvanse, Clonidine, and Prozac. Marcus' goals in therapy were to increase his ability to express his feelings, to behave appropriately and safely, and to improve his behavior at home and at school.
On December 19, 2013, Grandmother called the department to report that, as she was trying to get Marcus up for school, he closed the door in her face and physically resisted her attempts to push the door open. Marcus reportedly then locked himself in his room and refused to come out until Mother's husband was called and calmed Marcus down, at which point he finally got ready for school. Grandmother repeated that she wanted Marcus removed in January. Later that same day, a department social worker received a call from school social worker Smith informing her that Marcus was having behavioral issues in school that morning and was in her office. The department tried to reach Father by telephone at this time, but Father did not respond.
On January 3, 2014, the department substantiated physical neglect as to both Grandmother and Grandfather, but physical abuse was not substantiated.
On January 6, 2014, department social worker Feliciano visited Grandparents' home, where she was met by Hartford police officers, two MDFT workers, and emergency medical technicians/paramedics from the Harford Fire Department, all of whom had responded to Grandmother's call to 9-1-1 reporting out-of-control behavior by Marcus. Grandmother reported that Marcus had bitten her, that she had struck Marcus in the head with her cane during an incident that afternoon, and that Marcus had again locked himself in his bedroom. Marcus was evaluated by the Wheeler Clinic Emergency Mobile Psychiatric Services (EMPS) unit. EMPS deemed Marcus to be safe, and the department placed Marcus in the special study home of L.H. that same day. An OTC and neglect petition followed as above. During this time period, the department transported Marcus for supervised weekly visits with Grandparents at their home.
On April 1, 2014, the court, Dannehy, J., granted the department's oral motion to amend the neglect petition to allege the ground of uncared for/specialized needs, adjudicated Marcus as such, and committed him to the department. Final specific steps for Father were ordered by the court, and Grandparents were removed from the case as parties.
On June 22, 2014, the department reminded Father about the services required in his specific steps. The department referred Father to the Father-Inclusive Parenting Program at Radiance Innovative Services, a program designed for noncustodial fathers. Father began the program on July 3, 2014, and successfully completed it on September 25, 2014.
Marcus remained in the home of L.H. for approximately five months until L.H. asked the department to remove Marcus because she was unable to manage his ongoing behaviors, including lying, stealing, and manipulation. The department determined that Marcus needed a higher level of care and, in July 2014, placed him in a therapeutic foster home through the Village. The foster home consisted of a foster mother (FM2) and foster siblings. As set forth below, this placement, too, would last only for several months.
On July 18, 2014, the department notified Father that he had been scheduled for a substance abuse and mental health evaluation and Father responded that he was not able to attend. On August 15, 2014, Father participated in an assessment, which resulted in no recommendations for follow-up treatment.
During the period between mid-May 2014, and late September 2014, Father was often late for visits with Marcus by thirty to forty-five minutes, sometimes up to an hour or more. On several occasions during this period, Father did not show up even after confirming a visit. When Father did visit, there appeared to be little interaction between Father and Marcus, little affection between them, and Father's participation was passive. On June 22, 2014, Marcus and the supervising social worker arrived at Grandparents' house, but no one answered the door. After the social worker called Father to inquire, Father stated that he would be there soon. After twenty minutes, Father appeared, and, because Grandparents were not at home, Father suggested cancelling the visit, saying that he would just see Marcus the next week. After the social worker suggested that they instead complete the visit at a McDonald's or a park, Father agreed to go to the park up the street. Marcus played on the swings and in the sprinklers while Father watched. Marcus suggested going to the park again for the next visit, but they did not visit there again.
On July 6, 2014, the supervising social worker observed that there was very little interaction between Father and Marcus during that visit and also observed that Marcus ate his dinner alone in the kitchen while Father and Grandparents ate in the dining room. Marcus' birthday was two days away, but Father did not bring him a present. During Marcus' next visit to Grandparents' home on July 13, 2014, Marcus commented that his birthday had recently passed without any celebration, and Grandparents decided to take Marcus to a buffet restaurant for his birthday. Father arrived at Grandparents' home without a birthday gift for his son, and, after Marcus complained to him about not getting anything for his birthday, Father gave him some money but did not go with the family to the restaurant to celebrate Marcus' birthday.
The lack of interaction between Father and Marcus was noted by the supervisor several times after visits. On more than one occasion, Marcus would not eat with the family but would sit in another room. During another visit, Marcus sat in a back room for the entire visit, coming out only occasionally to speak with his family. During other visits, Marcus would play with Grandparents' tablet or cellphone while the adults talked.
On July 27, 2014, Marcus was suspended from the Boys and Girls Club after he admitted to having stolen several hundred dollars from staff during his membership.
In August 2014, Father inquired about bringing nine-year-old Marvin to visit with Marcus and asked if the department could arrange that. Father reported the existence of a protective order between him and Marvin's mother but that it did not extend to Marvin. Father told the department that he had not seen Marvin in two years because he did not get along with Marvin's mother. The department was not able to facilitate a visit for a child not in its care but agreed to the visit if it was facilitated by a third party. Marvin visited with Marcus at Grandparents' home in early September 2014.
On September 21, 2014, FM2 reported to the department that Marcus had been caught stealing at CVS and had to go to court that week.
Father did not visit Marcus at all for a six-month period beginning in late September 2014. On October 5, 2014, Father reported by telephone that he was on his way for a visit with Marcus, and then Father did not show up. Marcus called Father's cellphone twice while waiting, but Father did not answer. Father also stopped returning telephone calls from the department and did not visit Marcus again until the spring of 2015, as detailed below.
In furtherance of a contemplated permanency plan of transfer of guardianship to Mother, the department had sanctioned overnight, weekend visits with Mother, Mother's husband, and their four-year-old daughter, J.V., Marcus' half-sister. After these visits, Mother reported to the department that Marcus was lying, taking things that did not belong to him, and behaving aggressively, on one occasion punching her daughter J.V. in the nose. On October 6, 2014, Mother reported to the department that during an overnight visit Marcus had put his hand in J.V.'s panties and touched her vagina, telling her not to tell anyone. Marcus admitted that he had done so but stated that they were just playing. Mother told Marcus that in the future he could call her as much as he wanted but that Marcus would not be permitted to return to her home. Upon hearing this from his mother, Marcus cried openly.
The permanency plan was dated October 8, 2014, and was filed on October 14, 2014.
On October 10, 2014, Marcus spent the weekend in respite care because FM2 was out of town. On October 17, 2014, during transport from his school to the foster home, Marcus told the social worker that he did not like that foster home because they had beaten him and told him not to let anyone know what goes on in their house. When asked to elaborate, Marcus' story was inconsistent; he said he did not know and variously described the occurrence as happening after he had wet the bed, after he had asked for food, and while he was standing next to his foster sister. After consulting with a supervisor, the social worker transported Marcus to the foster home, where he was upbeat on arrival. Marcus also told other social workers and therapist Nguyen that FM2 hit him. When asked about this, Marcus would say he had been joking, and as Nguyen found his stories to be inconsistent, it was felt that these were false reports.
On October 21, 2014, FM2 reported that Marcus had wet the bed twice in the last week and that his behaviors had been escalating since his mother had stopped seeing him. The social worker's narrative on that date noted that FM2 " has been advocating for Marcus and believes he needs consistency. She is willing to continue care for Marcus at this time . . . We will need to further explore special recruitment for a forever home for Marcus." At around this same time, in addition to his ongoing poor academics and being victimized at school by bullying, Marcus' behaviors at school were also escalating. On October 23, 2014, school social worker Smith reported to the department that Marcus appeared to be fragile and struggling. Marcus was often late to school and would slip out and disappear during the school day.
Marcus was removed from his second foster home and placed in his present therapeutic foster home on November 9, 2014. This pre-adoptive foster home consists of foster mother Tonya, (FM), her husband, foster father Kevin (FF), and their dog. FM and FF are foster parents licensed through the Village. In order to become licensed as therapeutic foster parents by the Village, they had attended training classes of four hours duration, three times a week, for a period of three months. They had also attended various trainings given by FM's employer, the Institute for Professional Practice, in Meriden, Connecticut.
This was Marcus' third foster placement following his removal from Grandparents' home. At first, Marcus was distant and mistrustful with his foster parents. He continued to engage in maladaptive behaviors reflective of his past neglect and abuse, including lying, stealing, oppositional behavior, and poor impulse control. After such behaviors, FM would immediately address the issue by talking through the transgression with Marcus and, if necessary, would discipline him by taking away a game or a TV show that he enjoyed. FM learned to read and adapt to Marcus' physical and verbal cues, and over time Marcus became less reticent and more willing to express himself in the foster home.
During the transition period, therapist Nguyen referred Marcus to the Intensive In-Home Child and Adolescent Psychiatric Services (IICAPS) program through the Village, which he began on January 14, 2015.
IICAPS is an intensive home-based treatment model for children and adolescents with severe emotional/psychiatric disturbances.
In order to minimize Marcus' transitions, the department decided that he would remain enrolled at the Rawson School in Hartford for the remainder of the school year despite his serious and ongoing issues there, and then be transitioned to his new school system in the fall of 2015. After Marcus had been in his foster home for about six weeks, the Rawson School reported a big improvement in his behavior. Marcus told his school worker that he had finally found a family and that he felt loved and at peace. When issues did arise at school, his FM advocated for Marcus.
On March 4, 2015, Nguyen informed the department that after March 24, 2015, she would be unable to continue as Marcus' therapist, as she was leaving her employment with the Village. On April 7, 2015, Marcus began weekly cognitive behavioral therapy with Jamie Gargano, a clinical therapist who is a licensed master social worker at the Institute for Professional Practice in Meriden, Connecticut. This therapy is discussed in more detail below.
Marcus continued with IICAPS until his discharge in May 2015. His IICAPS clinician noted: " He reportedly has strong relationships with adults, including teachers and foster parents, in which he aims to please and nurture those around him." Marcus' discharge plan from his IICAPS clinician, dated May 20, 2015, stated: " Marcus would benefit from a stable, continuous relationship with a therapist to develop coping and self-advocacy skills, process his multiple moves, and build self-esteem. Marcus would benefit from a permanency plan which would include [the department] to continue with the TPR process. The foster family would benefit from having more time together as a family and building their own advocacy skills to get the support and services that they need to ensure a permanent home for Marcus. Marcus would benefit from attending a local school. A PPT must be had to ensure a smooth transition plan. The family would benefit from ongoing case management support from Boys and Girls Village and from [the department] to ensure permanency." At the time of discharge, Marcus' diagnoses were ADHD, combined presentation; generalized anxiety disorder; disruptive mood dysregulation disorder; asthma; problems with primary support group; educational problems; and problems related to social environment; and his medications were Vyvanse, Clonidine, and Prozac.
In March of 2015, after being absent from Marcus' life since the previous September, Father attended an Administrative Case Review (ACR). During the ACR, when the department pressed the issue that Father had not visited Marcus in six months, Father said he had not visited Marcus because of his work schedule. The department arranged a specific weekly supervised visitation plan for Father to see Marcus on Sundays after Marcus returned from church with Grandparents. It was agreed that after church the supervisor would call Father to confirm and that Father would visit Marcus at Grandparents' home.
ACRs are held every six months by the department to bring relatives, teachers, and service providers together to receive updates on the child's progress. Father failed to attend an ACR on March 17, 2014, and again on September 10, 2014.
Once this procedure was instituted, Father began to attend visits regularly beginning in May 2015. The visits were two hours long and generally consisted of Father and Marcus watching a video together, and sometimes Father would cook a meal or snack for them. On at least one occasion they tinkered with electronics, and on another, they picked apples in the backyard and did yard work, but all of these visits were homebound. Over time, Marcus repeatedly asked his Father if they could go fishing or play basketball together or go to the movies during their visits. Father would promise Marcus that they would go fishing or play basketball on the next visit, and Marcus would look forward to that visit and then be disappointed when the promised activity did not occur. The supervisor assured Father that the visits could take place outside of the home, but Father never followed through on his promises or took any initiative to plan for an activity that his son requested. He did not ask, for example, to change the time or date of a visit to accommodate going to the movies or to another activity. Father once implied that they never went fishing because a license was needed, but Father never bothered to obtain one. Between May 2015, and the time of trial in June 2016, only one visit took place outside of the home; on that occasion, Marcus and Father went to a mall after finding the local Chuck E. Cheese's to be closed. Several visits were cancelled when Marcus went to New York with his foster parents, and one visit was cancelled by the social worker because of inclement weather, but Father never asked for any of these cancelled visits to be made up. During several visits, Father asked Marcus about his misbehavior; after one reported incident of theft, Father told Marcus that Marcus had not learned that behavior at home and suggested that there would be consequences in the future if it happened again. Over time, Marcus and Father have developed an affectionate relationship and do share a bond.
Marcus finished the school year in Hartford and then entered the sixth grade in his local school system in the fall of 2015. His FM has actively involved herself in Marcus' education and has acted as his advocate. She arranged for Marcus to participate in a seasonal after-school basketball program, which he greatly enjoyed. When the basketball program is not in session, Marcus has been cared for after school by a neighbor until one of his foster parents returns home from work. FM regularly helps Marcus with his homework. Marcus has remained in a special education program at his new school, but he has improved his grades from a very low average to Bs and Cs.
In early summer, 2015, Grandparents announced that they were moving to Florida, and, on several occasions, they suggested to Marcus they would take him to Florida with them. Father also discussed moving to Florida but expressed concern about finding a job. This precipitated a change in Marcus. During the time period when Grandparents were preparing to move to Florida, Marcus told his foster parents that he would be moving to Florida with them and began expressing for the first time his desire to live with Grandparents or with Father. Previously, Marcus had consistently maintained that he wanted to stay permanently with his foster family and to visit with his biological family. Once Grandparents had moved and Marcus understood that he was not moving to Florida, Marcus said that he needed to live with Father so that he could take care of Father.
A department social worker testified that, in September 2015, " the conversations came up about court. [Marcus] was worried if he was going to have to testify, you know, saying that his Dad told him he was going to have to testify, and he needed to tell that he wanted to stay with Father. So he was very anxious about that. You know, he would make statements that yes, I want to live with Dad, my Grandmother's not here, I need to take care of him. So, he was mainly worried that he wanted to take care of his father because his father was by himself."
The TPR trial was originally scheduled to commence on November 15, 2015, but, at the request of Marcus' attorney, it was continued until February 16, 2016, and continued again until June 1, 2016, at the request of the GAL.
On another occasion, in December 2015, Father urged Marcus to write a letter to the department regarding his wishes, and Marcus wrote the following: " I don't whant [sic] to be in foster care no more and I wish I can have my phone so that I can call my Dad because the phone there does not work and I my [sic] phone for school for looking up some thing at school and after school."
In contrast, Marcus at other times stated to his foster parents, therapist, and several social workers that he wanted to remain permanently with his foster family. Marcus has continued to switch back and forth between the two positions when talking to Father, his foster parents, and social workers; however, his statements about wanting to live with Father most often coincide with Marcus being punished by his foster parents for misbehavior by taking away his Xbox or other electronics. In additional contrast, as set forth in more detail below, when confiding in his therapist shortly before this trial, Marcus told her that he wanted the court to decide where he should live.
Despite Marcus' considerable progress while in the foster home, there continued to be bumps in the road. In January 2016, FM reported to the department her concern that Marcus had touched the family dog on the penis during play. It is not clear whether this involved caressing or grabbing to hurt the dog. The department in turn reported the incident to Marcus' therapist at the Village. A department internal meeting was held to determine whether Marcus should undergo an evaluation for problem sexualized behavior or whether a referral for more intensive treatment was needed, but no decision was reached. A follow-up meeting was scheduled but had to be cancelled because of the death of FM's mother in the spring of 2016. Not long thereafter, Marcus got out of bed to use the bathroom and urinated into a bucket in the kitchen. Although these were isolated incidents, in the past, Marcus had accessed pornography on the internet, had inappropriately touched his half-sister at Mother's home, and had himself been the victim of a perpetration. Inexplicably, as of the time of trial in June 2016, the department was still in the process of completing an appropriate referral to evaluate Marcus' sexualized behaviors.
The court appointed a GAL for Marcus, who filed an appearance on or about February 9, 2016. After the GAL was appointed and was to meet with the child, Father started a conversation with Marcus about Marcus' status, telling him that Marcus just needed to be clear about where he wanted to live. When the supervisor intervened, telling Father that that topic of conversation and Father's statement to Marcus were inappropriate, Father nevertheless tried to continue the same conversation, but the supervisor stopped Father again with a look.
During the trial, the GAL testified that she had met with Marcus on two occasions: once in April 2016, and once in May 2016. On the second occasion, she asked Marcus where he wanted to live and what that would entail in terms of switching schools, although the question was not asked in terms of permanence. Marcus replied that he wanted to live with Father, but, when asked about what he liked about being at Father's, Marcus did not refer to Father but, rather, said that he missed the school that he had in Hartford and his friends there.
4
Jamie Gargano, LMSW
On April 7, 2015, Marcus began weekly cognitive behavioral therapy (CBT) with Jamie Gargano, a clinical therapist who is a licensed master social worker at the Institute for Professional Practice in Meriden, Connecticut. Marcus has continued in therapy through the time of trial. At trial, Gargano testified, inter alia, to the following.
At the time of his intake, Marcus had been engaging in maladaptive behaviors reflective of his past neglect and abuse, including lying, stealing, oppositional behavior, and poor impulse control. He had very low self-esteem, had poor academics, and was also being bullied at school.
Gargano used and continues to use a trauma-focused therapy, CBT, and role-playing to help Marcus to identify and take responsibility for his behavior and to analyze and understand the feelings he experienced before and after the behavior. This in turn helps Marcus to identify the source of the anxiety that triggers his behavior. Role-playing assists the process because Marcus has a difficult time verbalizing his emotions.
Gargano testified that Marcus has specialized needs for stability and structure in his life in order to function. " He needs a very structured environment . . . he needs to have a very structured routine, otherwise . . . his mind starts to go into somewhere else and that's when he starts getting into trouble with doing things to gain that attention."
Gargano testified that " in his current placement, there is very much structure. You know, he has a bedtime, a certain time to be up in the morning. He knows what to expect. And for Marcus if there's not consistency, then he's going to feel very anxious and then that's when, again, his behaviors will increase." Marcus also needs a caretaker with communication skills to be able to intuit through observation and engagement how Marcus is feeling because Marcus will not express it without assistance.
Gargano testified at trial that, since Marcus began living with his present foster family, his " stability with his academics has increased, his anxiety has decreased, [and] his behaviors have decreased, him knowing that he has a place to call home." Gargano also noted that Marcus continues to present with a flat affect, but he smiles much more than he used to. " [H]e is able to identify his feelings and emotions which is a huge, huge, step" but still has a difficult time when he has to express emotion, sometimes instead tuning in to how others are doing and assuming a caretaking role " like he wants to kind [of] take care of other people versus taking care of himself." In addition to being better able to verbalize his feelings, Marcus is now able to admit his wrongdoing and take responsibility for his actions.
Gargano testified that Marcus identifies FM and FF and their extended relatives as his family. Marcus has consistently called FM " mom" since February 2016, identifies Tonya as a mother figure, and has a very strong connection with her. Gargano was surprised by this in view of what she described as Marcus' resistance to forming attachments to anyone. Marcus calls FF " Kevin" and sometimes, but not often, " dad." Marcus' connection with FF is not as strong as his connection with FM, but Gargano noted that Marcus " struggles with male figures in general." Marcus refers to his foster parents' relatives as " my cousins" or " my aunts" when discussing them with Gargano. Marcus identified his FM's mother as his grandmother and was very upset by her death in March.
Gargano testified that, during all of their time in therapy, Marcus has never spontaneously discussed Father, or discussed him at all, without specific and repeated prompting from her and has never stated that he misses his father. Gargano observed that " in his mind he does lack the relationship status to his biological parent."
During Gargano's testimony, counsel for the child asked: " So what is [Marcus'] understanding of a parental role?" Gargano responded: " [W]hen I asked him what does it mean when parents care about you and love you--and we actually made a--he wrote it down, a sheet on how he knows that someone loves him and cares about him--and he said 'they take care of me. They provide for me. They bring me to school. They cook me dinner. They bring me places.' With that in turn, I asked him, how does he know that Kevin and Tonya care about him and love him. And he just kind of reiterated all of those things that I just mentioned. And I asked him how he knows that dad loves and cares about him. And he says--he paused, and then he says, he's not sure . . . I did tell him when he--you know, when he does know, when he feels comfortable, that he can let me know. And he hasn't."
Marcus has been very ambivalent in expressing where he wants to live and who he wants to be with. Marcus " feels pressured and guilty" and experiences " extreme guilt" and suffers greatly from having divided loyalties. Gargano testified that two weeks before trial, Marcus asked Gargano if she was going to court and whether she would have to testify, and when she answered in the affirmative, " he didn't ask any other questions. And I asked him what he wanted, and he said it was up to the court."
Gargano was asked: " And in your conversation with Marcus about these upcoming court proceedings and you testifying, did Marcus have any interest in coming to court and letting the court know what he wanted?" She answered: " No. Because he clearly said to me that he wanted the court to decide where he was living."
Marcus' current diagnosis is attention deficit disorder and oppositional defiant disorder with underlying anxiety, and his present medications are Vyvanse and Clonidine.
Gargano testified that, because of the uncertainty of his permanency, Marcus is " stuck" in place in his therapy and that, until he has permanent stability, he will be unable to address the underlying trauma issues that brought him into care. Marcus still needs to address his past trauma history, his removals and resulting losses, his sexualized behaviors, and, eventually, to process the outcome of the permanency issue.
Gargano stressed that Marcus needs an answer to the question of his permanency now: " the longer we prolong it, the more we are hurting this child."
Additional facts will be set forth as warranted.
B
Specific Steps
On April 1, 2014, final specific steps for Father were ordered by the court. The court finds the following with respect to the specific steps and as to Father's compliance therewith.
Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child(ren)'s court-appointed attorney and/or guardian ad litem .
As set forth above, Father has largely complied with this step.
Let DCF, your attorney and the attorney for the child(ren) know where you and your children are at all times .
Father has kept his whereabouts known to the department.
Take part in counseling and make progress toward the identified treatment goals and cooperate with service providers recommended .
Father completed the recommended services.
Accept in-home support services referred by DCF and cooperate with them .
No referrals for such services were made, as Father was ordered to have no unsupervised contact with minors as a condition of his probation.
Submit to substance abuse evaluation and follow the recommendations about treatment .
Father completed a substance abuse and mental health evaluation in August 2014; no recommendations for treatment were made.
Submit to random drug testing .
No such testing was recommended.
Not use illegal drugs or abuse alcohol or medicine .
There is no evidence of such use or abuse.
Cooperate with recommended service providers; cooperate with court-ordered evaluations or testing .
Father completed the recommended services.
Sign releases allowing DCF to communicate with service providers to check on your attendance, cooperation and progress toward identified goals, and for use in future proceedings in this court .
Father complied with this step.
Sign releases allowing your child's attorney and guardian ad litem to review your child's medical, psychological, psychiatric and/or educational records .
Father has complied with this step.
Get and/or maintain adequate housing and legal income .
Father has maintained steady employment. Father has continued to live in Grandparents' home.
Immediately let DCF know about any changes in the make-up of the household to make sure that the change does not hurt the health and safety of the children .
Father has complied with this step.
Not get involved with the criminal justice system. Cooperate with the Office of Adult Probation or parole officer and follow your conditions of probation or parole .
At the time the steps were ordered, Father had over two years remaining on his probation. Father complied with this step by successfully completing his probation on April 10, 2016, and, at the time of trial, there had been no additional arrests.
Cooperate with the children's therapy .
Marcus' therapist did not request Father's participation in his therapy.
Keep the children in the State of Connecticut while this case is going on .
Father has complied with this step.
Visit the children as often as DCF permits when clinically recommended .
As set forth above, initially, Father visited sporadically, was often late to visits, and missed a number of visits. Father did not visit Marcus at all for approximately six months between late September 2014, to March 2015. Father has visited consistently since May 2015.
Within thirty (30) days of this order, and at any time after that, tell DCF in writing the name, address, family relationship and birth date of any person(s) who you would like the department to investigate and consider as a placement resource for the child(ren) . Father complied with this step.
II
DISCUSSION
" In order to terminate a parent's parental rights under [General Statutes] § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes § 17a-112(j)(1); (2) termination is in the best interest of the child; General Statutes § 17a-112(j)(2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112(j)(3)." (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009), overruled in part on other grounds by State v. Elson, 311 Conn. 726, 746-47, 91 A.3d 862 (2014).
" The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112[(j)(3)] exists by clear and convincing evidence . . . If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child . . . The best interest determination also must be supported by clear and convincing evidence." (Internal quotation marks omitted.) In re Melody L., supra, 290 Conn. 163. " Except in the case where termination is based on consent, in determining whether to terminate parental rights under [§ 17a-112], the court shall consider and shall make written findings regarding" the seven statutorily enumerated criteria. General Statutes § 17a-112(k).
A
Adjudicatory Phase
1
Reasonable Efforts
In order to terminate parental rights, unless the court grants the petition due to the consent of the respondent parent, the department must prove, by clear and convincing evidence, that it " has made reasonable efforts to locate the parent and to reunify the child with the parent." General Statutes § 17a-112(j)(1). " [The] court need not make that finding, however, if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts . . ." In re Shaiesha O., 93 Conn.App. 42, 47, 887 A.2d 415 (2005); see also In re Jaiden S., 120 Conn.App. 795, 800-01, 993 A.2d 1017, cert. denied, 297 Conn. 923, 998 A.2d 167 (2010). The department is not required to prove both. In re Anvahnay S., 128 Conn.App. 186, 191, 16 A.3d 1244 (2011).
" 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." (Internal quotation marks omitted.) In re Anvahnay S., supra, 128 Conn.App. 192. Although " [n]either the word reasonable nor the word efforts is . . . defined by our legislature or by the federal act from which the requirement was drawn"; (internal quotation marks omitted). In re Ryan R., 102 Conn.App. 608, 619, 926 A.2d 690, cert. denied, 284 Conn. 923, 924, 933 A.2d 724 (2007); " [r]easonable efforts means doing everything reasonable, not everything possible." (Citation omitted; internal quotation marks omitted.) Id.; In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).
" 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 . . . See Practice Book § 35a-7(a) . . . In re Melody L., [ supra, 290 Conn. 148-49] (reasonable efforts finding is distinct from analysis of whether there exist grounds for termination of parental rights); In re Shaiesha O., [ supra, 93 Conn.App. 48-49, and 49 n.5] (2006) ('in determining whether the department has made reasonable efforts to reunify a parent and a child . . . the court is required in the adjudicatory phase to make its assessment on the basis of events preceding the date on which the termination petition was filed')." In re Paul O., 141 Conn.App. 477, 483-84, 62 A.3d 637, cert. denied, 308 Conn. 933, 64 A.3d 332 (2013).
The court finds that the department made reasonable efforts to locate Father, as the evidence clearly established that Father was properly served and that he was present for the trial of this matter. The court also finds by clear and convincing evidence that the department made reasonable efforts to reunify Father and Marcus under the specific facts and circumstances of this case. As detailed elsewhere in this decision and as evidenced by the testimony and exhibits presented, on June 1, 2012, Father was substantiated by the department for the sexual abuse/exploitation of his paramour's child and was placed on the department's central registry as a perpetrator of sexual abuse of a child. On August 24, 2012, Father was arrested and charged with two counts of sexual assault of a minor in the first degree and one count of illegal sexual contact with a child, and, on April 10, 2013, Father pleaded guilty to three substituted counts of coercion and was sentenced on each count to one year, execution suspended, three years probation. The conditions of his probation prohibited Father from having any unsupervised contact with any minor children, including his biological children. At the time of Marcus' third removal and subsequent adjudication, Father had over two years remaining on his probation. Father was also attending weekly sexual offender treatment and was subject to mental health and substance abuse evaluations required by his probation. These limitations resulted from Father's own actions. As of the adjudicatory date of April 2, 2015, the department had offered multiple services to Father to facilitate a reunification with Marcus, including, without limitation, parenting education services, a mental health and substance abuse screening, supervised visitation, and case management services. These services had been offered by the department despite Father's limitations and offender status and despite the court-approved permanency plan of TPR and adoption. The court also notes that Father was offered a multitude of other services over many years, from which he had apparently gained no lasting benefit. The court also finds, from the clear and convincing evidence, that Father has been unable or unwilling to benefit from the reunification efforts.
2
Ground for Termination: General Statutes § 17a-112(j)(3)(B)
The department alleges that Father's parental rights to Marcus should be terminated because he has failed to achieve rehabilitation within the meaning of General Statutes § 17a-112(j)(3)(B). On April 1, 2014, Marcus was adjudicated uncared for due to specialized needs and committed to the department. Pursuant to § 17a-112(j)(3)(B), a ground for termination exists if the parent of a child who has been found by the court to have been neglected or uncared for in a prior proceeding fails to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time and considering the age and needs of the child, he or she could assume a reasonable position in the life of the child.
" Personal rehabilitation as used in [§ 17a-112(j)(3)(B)] refers to the restoration of a parent to his or her former constructive and useful role as a parent . . . In conducting this inquiry, the trial court must analyze the respondent's rehabilitative status as it relates to the needs of the particular child . . . The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child . . . Although the standard is not full rehabilitation, the parent must show more than 'any' rehabilitation . . . Successful completion of the petitioner's expressly articulated expectations is not sufficient to defeat the petitioner's claim that the parent has not achieved sufficient rehabilitation." (Citation omitted; internal quotation marks omitted.) In re Destiny R., 134 Conn.App. 625, 647, 39 A.3d 727, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).
" [A] finding of rehabilitation is not based on a mechanistic tabulation of whether a parent has undertaken specific steps ordered. The ultimate issue the court must evaluate is whether the parent has gained the insight and ability to care for his or her child given the age and needs of the child within a reasonable time." In re Destiny R., supra, 134 Conn.App. 627. In making this determination the court may properly rely upon events occurring after the date of the petition when considering whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time. In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000).
An inquiry regarding personal rehabilitation also requires an historical perspective of the respondent's child caring and parenting abilities. In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003); In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999); see also In re Christopher B., 117 Conn.App. 773, 786-87, 980 A.2d 961 (2009) (trial court properly relied on respondent's history with department prior to filing of most recent neglect petition). Such an inquiry allows the court to consider a broad historical perspective of the respondent's child caring and parenting abilities. In re Tremaine C., 117 Conn.App. 590, 597, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009); In re Anna Lee M., 104 Conn.App. 121, 128, 931 A.2d 949, cert. denied, 284 Conn. 939, 937 A.2d 696 (2007). " Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998).
The court may also properly consider a respondent's history in caring for other children " to gain perspective on the respondent's child caring and parenting abilities to determine if [he] had achieved rehabilitation." In re Dylan C., 126 Conn.App. 71, 82, 10 A.3d 100 (2011).
Applying the standards set forth above, the court finds by clear and convincing evidence that Father has failed to achieve such a degree of rehabilitation so as to encourage a belief that within a reasonable time he could assume a role as Marcus' parent. At the time of the uncared for adjudication, Father's presenting problems were, inter alia, his lack of a relationship with Marcus and his inability to provide for him a safe, healthy, and nurturing environment. As set forth in detail above, Father has historically shown poor judgment and a poor track record of parenting, beginning with Marcus' first removal from Father and Mother's care in 2003, when Marcus was only three and one-half months old. Following the removal, Father was referred for parenting classes, supervised visitation, group anger management classes, individual counseling, a psychological evaluation, and a reunification program. Marcus was reunified with Father in July 2005, and later with Mother, but, when Father noticed injuries to Marcus after returning from Mother's care, Father called his lawyer instead of a doctor and did not take Marcus for medical attention for several days. Marcus was removed again in January 2007. While a coterminous petition was pending, Father re-engaged in counseling but attended only sporadically and refused to participate in an updated psychological evaluation ordered by the court. An interactional assessment revealed that four-year-old Marcus had experienced so many injuries, disruptions in his primary relationships, and caretakers, that he was confused about who his psychological parents were.
After the first TPR trial, which terminated Mother's rights but not Father's, Marcus was committed to the department but not returned to Father's care. Specific steps were ordered to assist Father with reunification; however, regrettably, Father did not participate in services, telling the department that he was too busy, and Father seldom visited Marcus, instead terminating the supervised visitation service that the department had provided for him. His failure to work toward reunification resulted in Marcus' transfer of guardianship to Grandparents, after which Father played little to no role in Marcus' life and seldom visited him. In 2013, when Marcus' behaviors grew out of Grandparents' control, the department contacted Father, but he continued to be largely absent from Marcus' life. Father did not bother to attend a considered removal meeting in November 2013, after initially agreeing to do so. At that time, Father had not seen Marcus in three months and thereafter was not often responsive to the department's telephone calls. It is noteworthy that during that time period, Father had not visited his younger son, Marvin, for two years, because Father did not get along with Marvin's mother. After Marcus was removed from Grandparents' home, adjudicated as uncared for, and committed to the department, Father still did not visit regularly, was often late to or cancelled visits, and showed little interaction with or affection for his son during visits. As Marcus' behaviors continued to escalate and he continued to disrupt from his placements, Father stopped visiting Marcus entirely for approximately six months, later blaming his work schedule. Even after the permanency plan of TPR and adoption was approved in January 2015, Father did not resume visits or otherwise take steps to initiate a resumption of visits after his lengthy absence from his son's life. At the time the TPR petition was filed on April 2, 2015, Father had still not seen his son since September 2014. Indeed, it was only after the department forced the issue did Father resume visiting with Marcus in May 2015, and there is no evidence that Father altered his work schedule to do so or did anything other than acquiesce to the department's arrangement, leading the court to the reasonable inference that, previously, Father had simply not bothered to see his son. Once Marcus stabilized and was doing well in his present foster home and it became convenient for Father to reenter his son's life, he did so, albeit on a limited scale. There is no evidence, for example, that Father involved himself in any other aspect of Marcus' life, such as his educational progress or his medical appointments. Father's visiting relationship with Marcus has been remarkable in its passivity. Since resuming visitation, all of Father's visits with Marcus--with the one exception of a trip to a mall--have taken place at Father's residence, and all of Marcus' entreaties for Father to engage with him in activities away from the home have been ignored. Father has never taken any initiative to schedule or otherwise structure a visit outside of his home to accommodate his son, nor has Father asked for cancelled visits to be made up.
As detailed above, Marcus has specialized needs for stability and structure in his daily life and needs a caretaker who understands his therapeutic requirements and has discerning communication skills. Father is aware that Marcus continues to have behavioral issues and that he needs to continue in therapy. The court finds no evidence, however, that Father understands or even acknowledges that Marcus' maladaptive behaviors originate from the trauma he has endured as an abused and neglected child, or that Father understands and acknowledges his own role in, and responsibility for, Marcus' trauma. To the contrary, Father has stated that he believes that Marcus " acts out" because he wants to be with Father and that returning Marcus to his care will solve Marcus' issues. Father thus both minimizes and trivializes his son's current, significant behavioral issues and mental health needs.
Historically, Father has shown a pattern of passivity and complacency in his relationship with Marcus: He was " too busy" to attend or complete some services and too busy with his job to visit Marcus. At the time of trial, Father was still employed full-time as a driver, and there is no evidence that Father has plans to adjust his work schedule or that Father has an adequate plan to provide the structure, consistency and discipline that Marcus needs to adequately function in life.
The court acknowledges that Father loves Marcus and says he wants to be a parent to him. " Lamentably, motivation to parent is not enough; ability is required." In re G.S., 117 Conn.App. 710, 718, 980 A.2d 935, cert. denied, 294 Conn. 919, 984 A.2d 67 (2009); see In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941 (2005) (" [t]he sad fact is that there is a difference between parental love and parental competence"), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006); see also In re Ashley S., 61 Conn.App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001).
When the court considers the level of structure, discipline, and discernment that Marcus requires in a caregiver and reviews the record of the last thirteen years, the court is forced to conclude that Father is no better able to parent Marcus now than he was at the time the TPR petition was filed. Accordingly, taking into consideration the above findings together with Marcus' age and the length of time he has spent in the department's care, the court concludes that the department has proven by clear and convincing evidence that Father has failed to achieve such degree of rehabilitation so as to encourage a belief that he could assume a role as Marcus' parent within a reasonable time, and, therefore, the court finds for the department on this ground. Having so determined, the court must next consider whether it is in the best interest of Marcus that the parental rights of Father be terminated.
B
Dispositional Phase
1
General Statute § 17a-112(k) Criteria
The court has found by clear and convincing evidence that the necessary statutory ground alleged by the department for the termination of Father's parental rights has been proven. Except in a case where termination is based on a parent's consent, before making a decision whether to terminate parental rights, " the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Devon W. 124 Conn.App. 631, 648, 6 A.3d 100 (2010); In re Jermaine S., 86 Conn.App. 819, 835, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005); In re Vanna A., 83 Conn.App. 17, 26, 847 A.2d 1073 (2004). As Mother's rights were previously terminated, these criteria and this court's findings as to Father, which have been established by clear and convincing evidence, are as follows.
" 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 . . ." General Statutes § 17a-112(k)(1). As set forth above, the court finds that the department offered timely, appropriate, and reasonable services to Father.
" [W]hether the [department] has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended . . ." General Statutes § 17a-112(k)(2). As noted above, the department made reasonable efforts to reunify Father with Marcus by providing Father with, inter alia, a mental health and substance abuse evaluation, case management services, parenting services, and supervised visitation.
" [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 . . ." General Statute § 17a-112(k)(3). As more particularly discussed above, the court finds that specific steps were ordered as to Father through which the department offered him appropriate and reasonable services and that, although Father complied with the services, he was unwilling or unable to adequately benefit from them.
" [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 . . ." General Statute § 17a-112(k)(4). After disrupting from his guardians' home and from two previous foster homes, Marcus has successfully resided with his present, nonrelative, therapeutic foster parents for approximately two years. Marcus is affectionate with and bonded to his foster parents, especially his foster mother, whom he calls " mom." Marcus has on occasion referred to his foster father as " dad" but generally calls his foster father by his first name. He responds to his foster parents in a very positive way and considers them and their extended family to be his family. Marcus lived with father since 2007 but through weekly visits, has more recently developed an affection for and emotional bond with Father, whom he calls " dad." Marcus has, over time, repeatedly expressed his wish to remain in the home of his foster parents and, more recently, has expressed at other times that he wants to live with Father in order to take care of him. Just prior to trial, Marcus told his therapist that he wants the court to decide where he should live.
" [T]he age of the child . . ." General Statute § 17a-112(k)(5). Marcus is thirteen years and four months old. He was born on July 8, 2003.
" [T]he 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 . . . General Statute § 17a-112(k)(6). As set forth above, Father has made some such efforts, including attending supervised visitation; however, Father has not played a significant role in Marcus' life, his visitation has not always been consistent, and there have been gaps in visitation, including a gap of six months. More recently, Father has visited consistently.
" [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." General Statute § 17a-112(k)(7). There has not been any such conduct that has prevented the maintenance of a meaningful relationship between Father and Marcus, nor have economic circumstances stood in the way of development of a meaningful relationship. Rather, Father was in part prevented from maintaining a meaningful relationship with Marcus by his own unreasonable actions of criminal misconduct, which resulted in a three-year period of probation and included the condition that he have no unsupervised contact with minors.
2
Best Interests of the Child
The court must now address the issue of whether termination of parental rights is in the best interest of Marcus. This is part of the dispositional phase of a termination proceeding. See In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992) (" [o]ur statutes and caselaw make it crystal clear that the determination of the child's best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence" [emphasis in original]). " The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. These legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle." In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001). As former Chief Justice Peters has noted, " [c]ases involving the termination of parental rights are always difficult . . . Accordingly, the court [seeks] the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety." In re Christina M., supra, 90 Conn.App. 566-67.
Counsel for Marcus argued against the TPR, and Marcus' GAL likewise did not recommend that the court terminate Father's parental rights. During the trial, the GAL testified that she had met with Marcus once in April 2016, and once in May 2016. Prior to her two meetings with Marcus and her testimony at trial, the GAL had not reviewed Marcus' department history back to 2003 and was thus familiar only with the recent record beginning with Marcus' third removal, which occurred in 2014. During her second meeting with Marcus, she asked him where he wanted to live and what that would entail in terms of switching schools, although the question was not asked in terms of permanence. Marcus replied that he wanted to live with Father, but, when asked about what he liked about being at Father's, Marcus did not refer to Father but, rather, said that he missed the school that he had attended in Hartford and his friends there. Marcus' response, however, does not ring true, as the evidence at trial largely points to the reverse: that, at the time of his removal from Grandparents' home in Hartford, Marcus had, over time, repeatedly refused to get out of bed to attend school; that, if forced to go to school, he would leave the premises; that he had trouble socializing and making friends; and that he was bullied at school. The GAL testified that the circumstances of Father's arrest were of concern to her, as was Father's parenting ability. The GAL testified that Father's ability to parent Marcus " is definitely an area of concern for me in that aside from these two-hour visits once a week with Marcus, there has been nothing else to indicate that his parenting of Marcus is where it needs to be given Marcus' specialized needs." The GAL agreed with therapist Gargano that Marcus is in need of permanency now, yet she did not recommend that the court terminate Father's parental rights. Rather, the GAL opined that it would be in Marcus' best interest for Father " to engage in some sort of more individualized one-on-one parenting family therapy, whatever the department deems necessary, to ensure that Father is fully capable and able to meet Marcus' specialized needs; and this could be done in a supervised setting by the appropriate service providers." The court does not agree. That alternative would leave Marcus in his present state of limbo while awaiting the uncertain development of Father's ability to safely parent him.
To allow additional time for Father to receive such additional services in view of Marcus' age, length of time in foster care, and specialized needs, runs counter to our courts' long-recognized preference for permanency. The question is not simply one of rehabilitation; it is whether the particular needs of Marcus can be met within a reasonable timeframe. See In re Amneris P., 66 Conn.App. 377, 384-85, 784 A.2d 457 (2001). The unfortunate reality is that Marcus has been in and out of care since the age of three and one-half months and has endured two removals from his parents' home and a third from Grandparents' care in January 2014.
Marcus has now been in care for nearly three years, and, after disrupting from two foster homes, Marcus has successfully resided with his present foster family for almost two years. Marcus has not lived with Father since January 2007, and Father has not been in any form of parenting role since then.
The court placed significant weight upon the testimony of Gargano, a neutral party to whom Marcus could express his thoughts independent of any pressure, real or imagined, from Father or his foster parents or from those representing the department or appointed by the court. When asked about his wishes, Marcus clearly stated to his therapist that he wanted the court to decide where he should live. During her testimony, Gargano explained Marcus' ambivalence about expressing his preferences and pointed to the pressure and extreme guilt that Marcus experiences because of his divided loyalties. Gargano stressed the importance of a timely permanency decision for Marcus' emotional well-being, without which he will remain " stuck" in his present place in therapy and in his present behaviors. The court found Gargano's testimony to be credibly persuasive. The court may, in its discretion, give great weight to the opinions of a professional in a termination proceeding. See In Re Emerald C., 108 Conn.App. 839, 860, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150 (2008); In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999); In re Christina V., 38 Conn.App. 214, 221, 660 A.2d 863 (1995).
The department has presented compelling evidence that Marcus needs permanency, stability, and structure now . He has thrived in his current foster home, which has provided a structured, safe, and loving environment where he is well cared for. His foster parents love and wish to adopt him, and his foster mother has indicated that she is willing to allow ongoing post-adoption contact with Father and Grandparents. He has a strong bond with his foster family and is especially close with his foster mother. He needs the permanency and stability his foster parents continue to provide for him. As our courts have long observed, the deleterious effects of prolonged temporary care are well known. In re Juvenile Appeal (83- CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983). " It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents. There is little that can be as detrimental to a child's sound development as uncertainty . . ." Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 513-14, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Marcus needs this closure to resolve the uncertainty in his young life now. The court is obliged to agree with the department and thus concludes that the clear and convincing evidence in this case establishes that Marcus is entitled to the benefit of having resolved without further delay the uncertainty as to the availability of his biological parent as a caretaker. Accordingly, the court finds that termination is in the best interest of Marcus.
In considering whether termination of Father's parental rights would be in Marcus' best interest, the court has examined multiple relevant factors, including Marcus' interest in physical safety; sustained growth, development, well-being, structure, stability and continuity of his environment; his length of stay in foster care; the nature of his relationship with his biological parent; the degree and quality of contact maintained with his biological parent; and his genetic bond to Father.
The court has also balanced Marcus' crucial need for physical safety, physical and emotional stability, validation, consistency, structure, and permanency, against the potential benefit of maintaining a connection with his biological parent. See Pamela B. v. Ment, 244 Conn. 296, 313-14, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity). After such scrutiny and consideration of Marcus' age and the totality of the circumstances, the court finds by clear and convincing evidence that termination of Father's parental rights is in the best interest of Marcus.
ORDERS
It is hereby ordered that the parental rights of Father are TERMINATED as to Marcus.
The Commissioner of Children and Families is appointed statutory parent for Marcus. The department is to file with the court, no later than thirty days following the date of judgment, a written report as to the status of Marcus, as required by statute, and such further reports shall be timely presented to the court as required by law.
Judgment may enter accordingly.