Opinion
H12CP14015780A
06-20-2016
In re Samarius M. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Michael R. Dannehy, J.
This case presents a petition by the Department of Children and Families (DCF) requesting that the parental rights of Jucilla C. and John Doe be terminated.
On January 15, 2016, DCF filed a petition to terminate parental rights. Jucilla C. was properly served. She appeared in court and was appointed counsel. A guardian ad litem (GAL) was also appointed.
The statutory grounds alleged in the petition against the mother were that the child had been found in a in a prior proceeding to have been neglected; and that mother had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child. C.G.S. 17a-112(j)(3)(B)(i). DCF also alleged that there was no ongoing parent-child relationship. C.G.S. 17a-112(j)D.
The matter was tried to the court on June 6, 2016. The respondent mother was present and was represented at trial by counsel as well as a guardian ad litem. Also present were attorneys for DCF and the child. Mother was advised of her rights pursuant to In re Yasiel . The attorneys were given the opportunity to cross-examine witnesses, as well as call witnesses and present evidence. The petitioner offered five exhibits. The court also granted a motion for judicial notice. Neither the respondent nor the child's attorney presented evidence.
The court finds that it has proper jurisdiction of the matter and that there are no pending actions affecting the custody of the minor child. The court has carefully considered the petition, all of the evidence and testimony presented, and the arguments of counsel, according to the standards required by law. On the basis of the evidence presented and for the reasons stated below, the court finds in favor of the petitioner and hereby terminates the parental rights of Jucilla C. The court terminated John Doe's rights in an oral decision at the conclusion of the evidence.
FACTS
The court finds the following facts by clear and convincing evidence:
Procedural History
Samarius (DOB 11/19/06) was placed under an ex parte Order of Temporary Custody (OTC) on November 7, 2014 following the death of his legal guardian, his maternal grandmother (MGM). The OTC was sustained on November 14, 2014. The child was adjudicated as a neglected child on March 5, 2015. Specific Steps were issued on both of those dates. The court approved a permanency plan of Termination of Parental Rights and Adoption on October 29, 2015.
Mother
Jucilla C. was born on July 15, 1992 to Courtney C. and Nathaniel M. in Hartford, Connecticut. She is the oldest of five children born to Courtney C. Mother maintains periodic contact with her siblings who are either in the care of DCF or the Department of Developmental Services (DDS) and placed in foster or group homes in Connecticut.
Jucilla C. attended school in Hartford and received special education services. She was diagnosed with Mild-Moderate Mental Retardation and deemed legally incompetent beyond restoration in 2008 in a delinquency matter. She was evaluated again in 2015 for this case and was found again to be incompetent and non-restorable. Mother also has a significant history of mental health issues resulting in hospitalization and various placements with the Department during her adolescent years. She was committed to the Department on June 9, 2008 due her mother's inability to meet her specialized needs. She was placed in a residential facility for three years and subsequently discharged to a group home setting.
Jucilla C. does not have a history of employment and receives Social Security disability benefits. She transitioned to the care of the Department of Developmental Services (DDS) at the age of 21 and is living in a group home located in Windsor, Connecticut. She requires twenty-four-hour supervision.
The respondent gave birth to her only child, Samarius, on November 19, 2006 when she was 14 years old She lived with her mother at the time of Samarius' birth and Courtney C. became the child's primary caretaker. She was subsequently appointed his legal guardian in 2010. MGM died on October 3, 2014 which led to Samarius' current placement with DCF. As a result of residing in the same home and sharing the same mother-figure/guardian, Samarius and his mother developed a sibling-type relationship rather than a parent-child relationship. Samarius is currently residing in foster care and has monthly supervised visitation with Jucilla C.
The respondent mother has been involved with the Department of Children and Families since 2007. The Department received a total of three reports between 2007 and 2010 concerning allegations of emotional and physical neglect. The investigations resulted in substantiated case findings of physical neglect in 2010 due to concerns of inadequate supervision. She was removed from her mother's care on two occasions. She was found to have specialized needs that were severe, longstanding and chronic, resulting in her placement with DCF in a residential facility and ultimately in her current group home. She was deemed to be incompetent and unable to understand the nature of the proceedings and unable to assist in her defense on two occasions. The first occurred in 2008 when she was before the court in a delinquency matter and again in 2015 in conjunction with the present case. Both evaluations indicated that her limitations were severe and longstanding and she would never be restored to a level of competency that would allow her to participate in a court proceeding.
Child
Samarius is a nine-year-old male of African American descent born on November 19, 2006. Prior to entering the care of the Department, Samarius was residing with his maternal grandmother who obtained legal guardianship of him in July 2008. When she passed away unexpectedly in October 2014 there were no relatives able or willing to care for Samarius resulting in his commitment to DCF.
Upon placement with the Department, Samarius was placed in a DCF licensed special study foster home with Tom and Andrea E. where he remains to date. Mr. and Mrs. E. cared for Samarius in a previous placement with the Department in 2010 and maintained a relationship with the family after Samarius was reunified with MGM in 2013. Mr. and Mrs. E. are also caring for Samarius' maternal aunt, Naytanya M. who is the daughter of MGM. Samarius and Mr. and Mrs. E. present with a mutual attachment and bond and Samarius has expressed a desire to remain in their care. Mr. and Mrs. E. are also willing to care for Samarius permanently and are in support of his adoption.
Samarius is up-to-date with immunizations and routine medical care and he was last seen for a physical examination by Dr. Duffy on January 15, 2015. Samarius is diagnosed with asthma that is treated with an albuterol inhaler and a nebulizer as needed. Samarius is also prescribed Ritalin to address behaviors associated with the diagnosis of ADD. Samarius is small in stature, which was identified by medical providers as a genetic characteristic.
Samarius has a history of trauma related to the death of, and his separation from, his maternal grandmother/legal guardian, Courtney C. He is currently engaged in weekly trauma-focused individual counseling services to address feelings and behaviors associated with the death of MGM and his separation from relatives. Samarius began treatment in January 2016 and is in the preliminary phase with no specified diagnosis at this time.
Samarius grew up in a household with his maternal aunt, Naytanya M. and uncles, Ezekiel and Zion C. who are also in the care of the Department. Samarius considers his aunts and uncles to be siblings. Samarius also views the respondent as his sibling and oftentimes has either refused to attend visitation or would present with a high level of anxiety and frustration causing the visits to end early. The Department is currently facilitating monthly visitation between Samarius, mother and extended relatives in an effort to maintain lifelong biological connections.
Prior to the commencement of the trial, the court found that the respondent mother was not competent. A guardian ad item was appointed for her. In making its decision to proceed to trial and to grant no further continuances for mother to regain her competency, the court reviewed the case of In re Alexander V., 223 Conn. 557, 564, 613 A.2d 780 (1993).
In examining the due process issues implicated, our Supreme Court found that " there is a cognizable risk that a parent unable to assist his or her attorney or to understand the proceedings might suffer an erroneous termination of parental rights regardless of whether a guardian ad litem has been appointed pursuant to Connecticut General Statutes § 45a-708(a)." In re Alexander V., supra, 563. In weighing that risk, the court reviewed the procedural safeguards set forth in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), in rendering its decision to proceed with the trial. As previously found, in the case of In re Aida M. and Carmelo O., Superior Court for Juvenile Matters, H12-CP96-000640, and H12-CP96-00064, (March 25, 1997, Foley J.), the court concluded that the multi-factored balancing test set forth in Matthews must be considered to ensure that all due process rights of the incompetent parent have been addressed before proceeding to a trial on the merits. It is an effort to balance the interests of the incompetent mother in maintaining her family free of coercive state interference with the interest of the child in a safe and healthy childhood. The first of the four concerns in Matthews is:
1. " Is it likely that the evidence presented could be refuted by a competent parent?"
In this case there is clear and convincing evidence of failure to rehabilitate as well as no ongoing parent-child relationship. There were numerous items in evidence that mother has significant cognitive limitations which are permanent as well as mental health issues which affect her ability to parent effectively. She has never had a parent child relationship and requires twenty-four hour supervision in a group home to meet her own needs.
2. The second concern is " whether the parent could be restored to competence within a reasonable time, considering the age and needs of the child?"
The evaluators were of the opinion that mother's cognitive limitations were severe, longstanding and chronic. They were recognized at an early age and there have been no significant improvement of her deficits since her last evaluation in 2008.
3. " If the mother were competent, is there proof of the existence of or prospect of an existing parent-child relationship?"
There is no evidence that a parent child relationship exists and no desire on the child's part to develop one.
4. " Was the respondent mother effectively represented by counsel and the guardian ad litem, given the difficulties attendant to such representation?"
In this case, prior to the date scheduled for trial, the guardian met with the respondent and her attorney on several occasions to develop a trial strategy. She attended the trial and conferred with mother and the attorney for mother.
The court concludes that all of the factors to be considered by the court under a Matthews' analysis support proceeding to trial. The likelihood of an erroneous termination decision is slight in view of the substantial evidence establishing the failure to rehabilitate and lack of a parent-child relationship. That remote possibility is greatly outweighed by the child's needs and the opportunity for counsel and her guardian to prepare for the trial. The court concludes that in the conduct of this trial, mother has been provided with the due process protections to which she is entitled. Permitting any further delay will not necessarily result in any further improvement in mother's condition and the child's best interest requires the court to proceed without further delay.
Reasonable Efforts
In order to terminate parental rights absent consent, DCF must prove, by clear and convincing evidence that it made " reasonable efforts to locate the parent and to reunify the child with the parent . . . unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts . . ." General Statutes § 17a-112(j)(1). " Because the two clauses are separated by the word 'unless, ' this statute plainly is written in the conjunctive. Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts." (Emphasis in original.) In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009).
In reviewing reasonable efforts, " [t]he 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. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn . . . [R]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2001). The court must look to events that occurred prior to the date the petition was filed to determine whether reasonable efforts at reunification were made. In re Shaiesha O., 93 Conn.App. 42, 47, 887 A.2d 415 (2006).
The court finds that DCF has made reasonable efforts to locate the parent.
The primary issues leading to the child's removal were the mother's cognitive limitations, mental health issues, lack of relationship and placement in a DDS group home.
The Department (DCF) made reasonable efforts to reunify the child with his mother under the circumstances of this case. It is well documented that mother's cognitive limitations are severe and long-standing. These limitations include impaired memory function, both long and short term. No intervention, therapy or counseling would rectify this. Mother's involvement with DDS also limited DCF's ability to make efforts to reunify. For example, in-home services are not appropriate in a group home setting. Due to mother's own needs and the need for 24-hour supervision, DCF could not make referrals for appropriate housing to facilitate reunification. The one aspect over which DCF did have control was to provide visitation on a consistent basis in the hope that it would foster a mother and child relationship. Their ability was hampered by the negative impact the visits had on the child. At one point, the child's attorney moved to cease visitation.
The court also finds that mother is unable to benefit from reunification services. Mother requires the supports that are provided in a group home. She is incapable of living independently. Mother's cognitive limits, with her inability to retain information, prevent her from benefitting from any parenting program. Visitation will not create a parent-child relationship since the child is resistant to visits, is negatively affected by visits and perceives his mother more as a sibling due to being raised in the same home by the same caretaker.
It should be noted that these findings are not based on mother's cognitive limitations, in and of themselves, but are based on how these limitations manifest themselves and limit her ability to benefit from reunification efforts.
Adjudication
Each statutory basis set out in General Statutes Sec. 17a-112(j) is an independent ground for termination. In re Baby Girl B., 224 Conn. 263, 618 A.2d 1. The petitioner is required to prove at least one of the grounds alleged in its petition by clear and convincing evidence.
Failure to Rehabilitate
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, considering the age and needs of the child, such parent could assume a responsible position in the life of the child, then grounds for termination exist. General Statutes § 17a-112(j)(3)(B)(i).
Personal rehabilitation, [as used in the statute] refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage his own life but rather whether [he] has gained the ability to care for the particular needs of the child at issue." (Internal quotation marks omitted.) In re Zowie N., 135 Conn.App. 470, 503, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d 170 (2012). Furthermore, " [i]n making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Internal quotation marks omitted.) In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011).
The parent's compliance with the court ordered expectations entered at the time of the neglect adjudication are relevant but not dispositive to the rehabilitation finding. In re Luis C., 210 Conn. 157, 554 A.2d 722 (1989). The ultimate question is whether the parent at the time of the filing of the termination petition is more able to resume the responsibilities of a parent than he or she was at the time of the commitment. In re Michael M., 29 Conn.App. 112, 614 A.2d 832 (1992).
This is not a case of mother resuming a parental role but a case of mother assuming the role of a parent. From the time the petition was filed until the present day there has been no change in mother's ability to assume a responsible role in her child's life. There is no evidence that she is capable of living in the community. She will never be able to obtain appropriate housing. She has not been able to improve her ability to parent the child since she cannot retain information provided to her by parenting programs and is unaware of Samarius's developmental needs. Continued visitation will not create a bond since Samarius has no desire to establish one and is negatively impacted by continued visits. Mother will not be able to achieve such a degree of rehabilitation that she could assume a responsible role in her child's life.
The petitioner has established this ground by clear and convincing evidence.
No Ongoing Relationship
The court may grant a petition for termination of parental rights " if it finds by clear and convincing evidence that . . . there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child." General Statutes § 17a-112(j)(3)(D).
" In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance . . . The ultimate question is whether the child has no present memories or feelings for the natural parent . . . Feelings for the natural parent connotes feelings of a positive nature only." In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001). (Internal quotation marks omitted.) Id.
There is no ongoing parent-child relationship between Samarius and his mother. He does not recognize the respondent as his mother; he sees her more as a sibling. She has never addressed any of his emotional, physical, moral or educational needs. To allow time for such a relationship to develop would not be in the child's best interest since he has made it clear that he does not wish to establish one. He has stated he wants to be adopted by his current foster parents.
The petitioner has established this ground by clear and convincing evidence.
DISPOSITION
General Statute § 17a-112(k) Criteria
The court has found by clear and convincing evidence that the necessary statutory grounds alleged by the petitioner for the termination of the parent's parental rights have been proven. Before making a decision on whether or not to terminate the respondents' parental rights, the court must now consider and make findings on each of the seven criteria set out in General Statute § 17a-112(j). In re Romance M., 229 Conn. 345, 641 A.2d 378 (1994). These criteria and this court's findings, which have been established by clear and convincing evidence, are as follows.
(1) " The timeliness, nature, and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent."
As referenced above, the Department did not offer very many services to facilitate the reunion of the mother with her child as a result of mother's involvement with DDS, but the services that were provided, such as visitation, were done in a timely fashion.
(2) " Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant the Federal Child Welfare Act of 1980, as amended."
DCF made reasonable efforts to reunify mother and by providing regular visitation.
(3) " The terms of any court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which the parties have fulfilled their expectations."
The court issued specific steps to the parties. Both parties fulfilled their obligations to the best of their abilities under the circumstances of this case.
(4) " The feelings and emotional ties of the child with respect to the parents, any guardians of his 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."
There is no bond between Samarius and his mother. He is very distant from his mother during visits and does not want to be alone with her. Visitation has produced anxiety and behavioral problems for him. He is very bonded with his foster parents referring to them as " mom" and " dad" . He is comfortable in their home and has expressed a desire to be adopted by them.
(5) " The Age of the Child"
Samarius is about nine and a half years old.
(6) " The effort of the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return to his home in the foreseeable future including but not limited (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 with the guardian or other custodian of the child."
The respondent mother has been unable to adjust her circumstances or conduct to allow reunification with Samarius through no fault of her own. Her own needs, namely twenty-four hour support in a group home, have made it impossible for her to alter her own circumstances. She has maintained regular contact with the child and DCF.
(7) " The extent to which a parent has been prevented from maintaining a meaningful relationship by the unreasonable act of any other person or by the economic circumstances of the parent."
The parent did not face any unreasonable interference from any person and no economic circumstance preventing them from establishing or maintaining a meaningful relationship with the children. Mother was provided with transportation assistance for visitation. The court provided her with an attorney and a guardian ad litem to represent her at no cost.
Best Interests of the Child
The court must now address the issue of whether termination of parental rights is in the best interest of the child. This is part of the dispositional phase of a termination proceeding. In re Valerie D., 223 Conn. 511.
In determining the issue of the best interests of the child, the court has considered the adjudicatory and dispositional evidence in its entirety. The court has concluded by clear and convincing evidence that there is no permanency plan that could have secured the best interests of Samarius that is less restrictive than termination of parental rights. The mother is incapable of resuming her parental role and no alternatives have been proffered. See In re Azareon Y., 139 Conn.App. 457, 60 A.3d 742; In re Julianna B., 141 Conn.App. 163, 61 A.3d 606 (2013).
The court has considered Samarius' best interests, including his health, safety and need for permanency. " 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, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). Samarius has been in his current foster home for almost half of his life considering his previous removal. He shares this home with his maternal aunt whom he considers to be a sibling. He is comfortable in this home and is part of this family. He wants to be adopted. His need for permanency and security far outweighs maintaining his mother's parental rights considering the fact that no intervention will allow her to provide a permanent home for him. The court recognizes that his mother loves him but that is not enough to sustain her parental rights.
CONCLUSION
Based upon the foregoing findings and having considered all of the evidence and statutory considerations, and having found by clear and convincing evidence that grounds exist for termination of parental rights, the court further finds by clear and convincing evidence, based upon all the facts and circumstances presented, that it is in the child's best interest to terminate the parental rights of Jucilla C. The court previously terminated John Doe's parental rights.
The court therefore appoints The Department of Children and Families as Statutory Parent for the child.
SO ORDERED.