Opinion
No. H12-CP02-008534-A
March 30, 2007
MEMORANDUM OF DECISION PLAINTIFF'S MOTION FOR TEMPORARY INJUNCTION
On February 23, 2007, this court terminated the parental rights of the mother, the father of Melody L. and Melinda L., and the father of Jenira R., Jaime R., and Neri R. In re Melody L., Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 23, 2007).
In such decision, as to the mother, the court ruled that
(1) because of her circumstances and issues set forth in such decision, after each child was removed from her, after each neglect adjudication occurred, and prior to the filing of the TPR petitions and thereafter, the mother failed to achieve the degree of personal rehabilitation
(a) that encouraged the belief that prior to the filing of the TPR petitions,
(b) that would encourage the belief that within a reasonable time after the filing of such petitions, or
(c) that would encourage the belief, within a reasonable time in the future, considering the ages and needs of each child, she could assume a responsible position in the life of each of the above-named children; and
(2) each of the children except Neri, who was not born at the time of the multi-year events set forth in the court's decision leading to the removal of the children from her, has been denied by the mother, by reason of acts of parental commission and omission including, but not limited to, a pattern of sexual abuse and severe physical abuse involving multiple acts, and the mother's failure to act to prevent such abuse, the care, guidance or control necessary for each of their physical and emotional well-being. Id., 81-82.
With respect to each of such children, the court found that it was in each of her or his best interests that each parent's parental rights be terminated. For example, with respect to Melody, the court set forth that it considered, inter alia, the evidence presented concerning Melody's unhealthy, dangerous, abusive situation and circumstances at the time of and prior to the filing of the neglect petitions; the trauma inflicted upon her, from which she suffers at present although more than four years have elapsed since her removal from the mother's care, custody and control; her current situation, needs and circumstances; the length of time she has been out of the mother's care, custody and control and in foster care; and the reports of her needs, behavior and continuing issues after being removed from the mother's care, custody and control. Id., 84.
The court found, by clear and convincing evidence, that it was in the best interest of Melody, and that it was necessary for her growth, development, safety, security, stability, and permanency, that the rights of the mother and the father be terminated. Id.
The court made similar findings with respect to each of the other children. See pages 85-87.
On March 23, 2007, pursuant to Practice Book §§ 61-11 and 61-12, the mother moved for a stay of the court's order terminating the mother's parental rights while the mother's appeal to the Appellate Court, filed March 9, 2007, was pending.
"Sec. 61-11. Stay of Execution in Noncriminal Cases . . . (b) Matters in which no automatic stay is available under this rule[.] Under this section, there shall be no automatic stay . . . in juvenile matters brought pursuant to chapters 26 through 35a . . . (e) Motions to request stay[.] Requests for a stay pending appeal where there is no automatic stay shall be governed by Section 61-12."
"Sec. 61-12. Discretionary Stays[.] In noncriminal matters in which the automatic stay provisions of Section 61-11 are not applicable and in which there are no statutory stay provisions, any motion for a stay of the judgment or order of the superior court pending appeal shall be made to the judge who tried the case unless that judge is unavailable, in which case the motion may be made to any judge of the superior court . . . A temporary stay may be ordered sua sponte or on written or oral motion, ex parte or otherwise, pending the filing or consideration of a motion for stay pending appeal. The motion shall be considered on an expedited basis . . ."
The mother alleged that she intended to file an appeal, that a stay of the court's "order" would "cause the legal status of the children to remain as committed to the care, custody and guardianship of the commissioner of the department of children and families ("DCF"), that DCF would "need to continue the visits between the mother and the children . . ." the children have a "very close relationship" with the mother, and should the mother "be successful on appeal the cessation of visit[s] would cause irreparable harm" to the children and the mother.
Each of the children were committed to the care, custody and guardianship of DCF at the time of the filing of the TPR petitions and thereafter prior to the court's February 23, 2007, decision and orders terminating the mother's parental rights.
Pursuant to General Statutes § 17a-10a, DCF has statutory duties and responsibilities with respect to visitation with the children committed to it: "Sec. 17a-10a. Visitation with child in care and custody of commissioner. Visitation of child with sibling. (a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship.
(c) If such child has an existing relationship with a sibling and is separated from such sibling as a result of intervention by the commissioner including, but not limited to, placement in a foster home or in the home of a relative, the commissioner shall, based upon consideration of the best interests of the child, ensure that such child has access to and visitation rights with such sibling throughout the duration of such placement. In determining the number, frequency and duration of such visits, the commissioner shall consider the best interests of each sibling, given each child's age and developmental level and the continuation of the sibling relationship.
(d) The commissioner shall include in each child's plan of treatment information relating to the factors considered in making visitation determinations pursuant to this section. If the commissioner determines that such visits are not in the best interests of the child or that the number, frequency or duration of the visits requested by the child's attorney or guardian ad litem is not in the best interests of the child, the commissioner shall include the reasons for such determination in the child's plan of treatment."
On March 26, 2007, the attorney for the children also filed a motion to stay the execution of the court's TPR orders while the children's appeal to the Appellate Court, filed March 13, 2007, was pending. Both the mother and the children referred the court to the Supreme Court's decision in Griffin Hospital v. Commission on Hospitals Health Care, 196 Conn. 451, 455, 493 A.2d 229 (1985). That decision approved a "balancing of the equities" test in determining whether a stay of the court's decision should be issued during an appeal, including standards of the type utilized in connection with whether to issue an injunction: "While we thus approve the `balancing of the equities' test employed by the trial court, we do not in its application eschew such factors as the likely outcome of the appeal, the irreparability of the prospective harm to the applicant, or the effect of delay in implementation of the order upon other parties as well as upon the public interest. We have vested a large measure of discretion in trial judges in terminating or granting stays and, upon review, the issue usually is whether that discretion has been abused." Griffin Hospital v. Commission on Hospitals Health Care, supra, 196 Conn. at 458-59. With respect to the mother's motion for stay, in TPR cases the children are presumably encompassed by the phrase "other parties."
In child protection cases, a focus mandated by statute is permanency for each child. Permanency has also been the focus of Appellate Court review of trial court decisions, such as in In re Davonta V., 98 Conn.App. 42, 907 A.2d 126 (2006). In such decision, the Appellate Court considered the testimony of a forensic psychologist on the importance of permanency to a child, and such Appellate Court recognized the trial court's discretion to accept such testimony of such forensic psychologist instead of the contradictory testimony of the guardian ad litem.
See, e. g., General Statutes § 17a-110: ". . . Permanency planning for children. Definitions. Procedure after commitment hearing. Regulations. Central registry. Duties of commissioner. (a) As used in this section, "child" means a person under the age of eighteen years; "foster child" means a child placed temporarily in a home, pending permanent placement; "permanent home" means a home for a child with the child's genetic or adoptive parents considered to be such child's permanent residence; and "permanency placement services" means services that are designed and rendered for the purpose of relocating a foster child with such child's legal family or finding a permanent home for such child, including, but not limited to, the following: (1) Treatment services for the child and the genetic family; (2) preplacement planning; (3) appropriate court proceedings to effect permanent placement, including, but not limited to, the following: (A) Termination of parental rights; (B) revocation of commitment; (C) removal or reinstatement of guardianship; (D) temporary custody; (4) recruitment and screening of permanent placement homes; (5) home study and evaluation of permanent placement homes; (6) placement of children in permanent homes; (7) postplacement supervision and services to such homes following finalization of such placements in the courts; and (8) other services routinely performed by caseworkers doing similar work in the Department of Children and Families.
(b) At a hearing held in accordance with subsection (k) of section 46b-129 and section 17a-111b, the court shall determine the appropriateness of continuing efforts to reunify a child with the child's family. If the court finds that such efforts are not appropriate, the Department of Children and Families shall within sixty days of such finding either (1) file a petition for the termination of parental rights, (2) file a motion to revoke the commitment and vest the custody and guardianship of the child on a permanent or long-term basis in an appropriate individual or couple, or (3) file a written permanency plan with the court for permanent or long-term foster care, which plan shall include an explanation of the reason that neither termination of parental rights nor custody and guardianship is appropriate for the child. The court shall promptly convene a hearing for the purpose of reviewing such written plan. When the court finds that the efforts to reunify a child with the child's family are not appropriate, the department shall use its best efforts to maintain such child in the initial out-of-home placement, provided the department determines that such placement is in the best interests of the child, until such time as a permanent home for the child is found or the child is placed for adoption. If the permanency plan calls for placing the child for adoption or in some other permanent home, good faith efforts shall be made to place the child for adoption or in some other alternative home."
"When asked her opinion regarding whether termination of the respondent's parental rights was in the child's best interest, Berkowitz replied, `It's likely that that would be the case, because that would prevent a continuation of the children being in legal limbo. Because as long as [the respondent's] parental rights are still in existence, and [the child is] still in foster care, there's always the possibility of a change, so they can't really settle in. They can't really attach to somebody else, and they can still hang on to the fantasy that [the respondent's] going to come back and they're going to live happily together forever after. Whereas if [the respondent's] legal rights are severed, and they attach and they stabilize and they have some permanency and some family belongingness, and then [the respondent] does rehabilitate and is there and could be a kind of extra family resource, there could be some purpose to — if it's in their best interest — for some open adoption or open permanent foster care or contact that would be in their best interest. But otherwise, it's just continuing the psychological limbo that they live in and that they feel like no one wants them permanently.'"In re Davonta V., 98 Conn.App. at 51 (footnotes omitted).
"Although the court heard contradictory testimony from the child's guardian ad litem, Mildred Doody, it was entitled to credit Berkowitz' testimony as more reliable. `It is within the province of the trial court, as the fact finder, to weigh the evidence presented and determine the credibility and effect to be given the evidence . . . Where testimony is conflicting the trier may choose to believe one version over the other . . . as the probative force of the evidence is for the trier to determine.' (Citation omitted; internal quotation marks omitted.) Briggs v. McWeeny, 260 Conn. 296, 327, 796 A.2d 516 (2002)." In re Davonta V., 98 Conn.App. at 51-52.
The Appellate Court also recently has "recently observed that `[t]he sad fact is that there is a difference between parental love and parental competence.' In re Christina M., 90 Conn.App. 565, 575, 877 A.2d 941, cert. granted on other grounds, 276 Conn. 903, 884 A.2d 1024 (2005)." In re Halle T., 96 Conn.App. 815, 817, 902 A.2d 670 (2006). In such decision, the Appellate Court also noted: "Our case law contains numerous examples of a parent, who, despite an admirable attempt, was unable to achieve rehabilitation sufficiently and, as a result, lost his or her parental rights. See, e.g., In re Vanna A., supra, 83 Conn.App. 22-25; In re Sheila J., supra, 62 Conn.App. 479-82 (respondent's efforts at rehabilitation too little, too late and court's finding that she failed to achieve sufficient rehabilitation despite some level of stability not clearly erroneous); In re Shyliesh H., supra, 56 Conn.App. 172-75 (although respondent testified that he loved child, trial court's finding that he lacked insight, responsibility to cope with her significant psychiatric disorder supported determination of failure to achieve rehabilitation)." In re Halle T., supra, 96 Conn.App. at 838-39.
In In re Rachel J., 97 Conn.App. 748, 761, 905 A.2d 1271 (2006), the Appellate Court noted, with respect to a claim that the trial court erroneously found that it was in the child's best interest to terminate the parental rights of the respondent parent: "The respondent offers scant analysis of this claim, which is predicated solely on the court's finding that a bond existed between [minor child] R and the respondent. Our courts consistently have held that even when there is a finding of a bond between parent and a child, it still may be in the child's best interest to terminate parental rights. See, e.g., In re Tyqwane V., 85 Conn.App. 528, 536, 857 A.2d 963 (2004); In re Ashley S., 61 Conn.App. 658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001); In re Quanitra M., 60 Conn.App. 96, 106, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000). Furthermore, the existence of a bond between parent and child can spawn negative consequences, such as in this case, in which R attempted to protect the respondent from discovery of the abuse." (Footnotes omitted.) As in Davonta V., the trial court in Halle T. focused on the child's need for permanency: "The court, in considering the best interest of the child, inter alia, focused on her need for permanency, the positive situation with the foster parents and the respondent's continuing inability to obtain a competent understanding of her medically complex status and its corresponding negative long-term effects on her future development." In re Halle T., supra, 96 Conn.App. at 841.
If the court, inter alia, (a) in the face of the compelling evidence placed before it of the mother's continuing failure to parent and to protect her children, which such failure led to the involvement with her family of child protection agencies in Florida, New York and Connecticut, and the removal from her of the children in this case, (b) in the face of the mother's subsequent inability to care for Jaime and the teenage older brother after they were reunified with her in 2005, and (c) in light of the circumstantial evidence of the mother's likely relapse into substance use and/or abuse after such children were placed with her in 2005, were to enter a stay of its TPR orders, it would deny each of the children such opportunity for long-awaited permanency necessary for their safety, security and development.
Three of the children have lived together with the same foster family for in excess of four years.
The court concludes that the neither the mother nor the children have a reasonable likelihood of success on appeal. Sadly, the mother has not been able in the past, and has no realistic expectation in the reasonable future of being able adequately to care for and to support financially all of her children who are named in this case, in addition to being able to support herself and her other minor child who currently lives with her (an adult child also lives with her). She has exhausted the state and federal benefits that were available to her, and at the trial she was a student who worked part-time at the community college she was attending. The minor child who lives with her has many special needs and issues that require a substantial amount of the mother's time and attention and have caused her to change her college program to a less intense program so she can be available to him. While they were in the mother's home, such child was threatening, aggressive and bullying to his siblings and half-siblings who are the subjects of this case, and, because of his behavior at the supervised visits between the mother and the children, in the fall of 2006 he was barred from attending such supervised visits.
"At the outset, we note the standard of review and legal principles germane to our discussion. `Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous . . .
'On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling.' (Citations omitted; internal quotation marks omitted.) In re Sheena I., 63 Conn.App. 713, 719-20, 778 A.2d 997 (2001); see also In re Javon R., 85 Conn.App. 765, 768-69, 858 A.2d 887 (2004); In re Kristy A., 83 Conn.App. 298, 305-06, 848 A.2d 1276, cert. denied, 271 Conn. 921, 859 A.2d 579 (2004)." In re Halle T., supra, 96 Conn.App. at 822. See also In re Brittany J., Conn.App. (April 3, 2007). However, at the non-evidentiary hearing on the motions for stay, the attorney for the children stated that the children had appeal issues in addition to claims of insufficiency of evidence, including the role of the GAL at trial, the weight to be given to the forensic psychologist reports and conclusions and the weight to be given to a decision involving the teenage older brother.
The court thus concludes that entry of a stay will cause harm to the children by delaying their stability, security, development and growth, and the court denies each of the pending motions for such stay.
The attorney for the children has alleged, inter alia, in the motion for stay that the mother "has supported the children's relationships with their foster parents and maintains a cordial relationship with them herself . . ." and that the mother "has not impeded the growth of the children's bonds and relationships with the foster parents in the past." Neither of these allegations is consonant with the evidence at trial. The mother has lacked a positive, trusting and cordial relationship with the foster family that has cared for three of the children for in excess of four years.
Bear J.