IN RE: Samantha G. (2009)

Presently before the court are the following:

1. A petition filed by the commissioner of the department of children and families (DCF) to terminate the parental rights of the respondent mother, Dawn G.¹ (Dawn), with respect to the minor child, Samantha G. (Samantha).

2. A petition filed by the commissioner DCF to terminate the parental rights of the respondent father, David G. (David), with respect to the minor child, Samantha G.

3. DCF's permanency plan for Samantha of termination of parental rights/adoption.

MEMORANDUM OF DECISION

I. FACTUAL AND PROCEDURAL BACKGROUND 2

A. INTRODUCTION

This case has a factual and somewhat convoluted procedural history which started on January 25, 2008.   Set forth below are those portions of the history of this case that are germane to this decision.   For the most part the history is set out in chronological order.

The pleadings filed by the parties, the memorandums of hearing (court action sheets) and the Judicial Information System (JIS) are the sources for the factual and procedural history given below.

The factual and procedural history given below is not given because it is standard procedure to give this history.   Nor is it given to satisfy the need for “boiler plate” language in a decision.   Rather, the history of the case as it came to trial frames the issues, adds “meat” to the “bones” of the termination of parental rights and reveals the attitudes and positions of the respective parties during the pendency of the case.

Unless otherwise specified, all the facts below are found by clear and convincing evidence.

This court finds it has jurisdiction and that there is no known action pending in any other court affecting the custody of this child.   There is no claim of Native American affiliation for this child.

B. FACTUAL AND PROCEDURAL HISTORY

1. Samantha was born to the respondent mother on January 22, 2008.   David is Samantha's father.

2. On January 25, 2008, DCF filed an application for an order of temporary custody (OTC) alleging that Samantha was in immediate physical danger from her surroundings and that continuation in her home was contrary to her welfare.   The OTC was granted and a preliminary hearing on the OTC was ordered for February 1, 2008, in the Superior Court for Juvenile Matters in Waterbury (SCJM/Waterbury), Kahn, J. Also, on January 25, 2008, DCF filed a concomitant neglect petition on behalf Samantha.   DCF alleged that Samantha was neglected in that she was being denied proper care and attention physically, educationally, emotionally or morally (denied proper care and attention), and that she was being permitted to live under conditions, circumstances or associations injurious to her well being (conditions injurious).

3. On February 1, 2008, David appeared before the court, Kahn, J., and the following transpired:  counsel was appointed for David, he waived any defects in service and service on him was confirmed, he was advised of his rights, the OTC was sustained by agreement, specific steps were ordered for him, and he entered a pro forma denial to the neglect petition.

4. On October 2, 2008, the respondent father entered a written plea of nolo contendere to the allegation of conditions injurious.   DCF withdrew the allegation of denied proper care and attention.   The court, Randolph, J., canvassed the plea and accepted it.   The disposition was commitment of Samantha to the commissioner of DCF.

5. On October 23, 2008, DCF filed a permanency plan for Samantha, which called for a transfer of guardianship of Samantha to the father's aunt, Samantha's paternal great aunt, Gloria L. (Gloria).

6. On February 2, 2009, DCF filed a motion to transfer guardianship of Samantha to Gloria.   DCF withdrew that motion on March 3, 2009.

7. On March 4, 2009, the respondent father made an oral motion to transfer guardianship of Samantha to Gloria.   He filed a written motion to transfer guardianship of Samantha to Gloria on March 10, 2009.

8. On March 18, 2009, DCF filed a permanency plan for Samantha, which called for termination of parental rights/adoption.

9. A termination of parental rights (TPR) petition was filed on March 19, 2009.   The plea date for the TPR was ordered for April 8, 2009.   The TPR petition sought to terminate the parental rights of the respondent father in regards to Samantha.   DCF alleged that Samantha had been found in a prior proceeding to have been neglected and/or uncared for, and that the respondent father had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Samantha, he could assume a responsible position in Samantha's life (failure to rehabilitate-Ground B1).

10. On March 30, 2009, DCF filed a motion to cease all visits between Samantha and David, based on Samantha's medical condition.

11. Also, on March 30, 2009, the respondent father amended the motion to transfer that he had filed on March 10, 2009.   In the amended motion, he no longer requested that guardianship be transferred to Gloria.   Instead, the respondent father requested that guardianship of Samantha be transferred to Rosemary K. (Rosemary),³ another aunt of the respondent father and Samantha's paternal great aunt.

12. On April 1, 2009, the court, Randolph, J., approved the permanency plan filed by DCF on October 23, 2008, calling for transfer guardianship of Samantha to Gloria.

13. On April 8, 2009, David appeared before the court, Randolph, J., and the following transpired:  counsel was appointed for David on the TPR petition, he was advised of his rights, service was confirmed on him, and he entered a pro forma denial to TPR petition.   In addition, the motion to cease visits was granted until Samantha's medical condition improved, and the motion to approve the permanency plan that DCF had filed on March 18, 2009, was consolidated with the TPR trial.

14. On May 18, 2009, the court, Randolph, J., denied the respondent father's amended motion to transfer guardianship of Samantha to Rosemary.

15. The case was not able to be resolved in the SCJM/Waterbury, and so the TPR trial and other outstanding motions were transferred to the regional Child Protection Session in Middletown (CPS/Middletown) on May 18, 2009.

16. On July 31, 2009, DCF filed a series of motions, concerning the respondent father, seeking the disclosure of substance abuse records, the entry of a protective order, and an order permitting testimony, commonly called a Romance motion (In re Romance M., 30 Conn.App. 839, 622 A.2d 1047 (1993), appeal dismissed, 229 Conn. 345, 641 A.2d 378 (1994)).

17. On August 21, 2009, DCF filed a motion for disclosure of records asking the court to order the disclosure and release the following records of the respondent father:  (1) records of the office adult probation (OAP), and (2) records of the department of correction (DOC).

18. On September 18, 2009, the court, Bentivegna, J., granted the Romance motion and the motion to disclose.

19. On October 20, 2009, the first trial date, before the commencement of evidence, the respondent mother entered a consent to the termination of her parental rights concerning Samantha.   This court canvassed the respondent mother and found her consent to be knowingly, voluntarily and intelligently entered, with the adequate advice and effective assistance of counsel, and accepted the consent.   The respondent mother withdrew a motion she had filed earlier seeking to revoke Samantha's commitment and return the child to her.   She also withdrew her objection to the permanency plan.   This court did not make a best interest finding after accepting the consent.   Instead, this court stated that it would make a best interest finding in conjunction with the best interest finding concerning the respondent father, assuming DCF sustained its burden of proof on the adjudicatory ground alleged in the TPR petition as to the father.   If DCF did not sustain its burden of proof, then this court would then make a best interest finding only as to the respondent mother.   As such, this court allowed the respondent mother and her counsel to remain in court for the trial, limiting the questions counsel for the respondent mother could ask to those pertaining to best interest.

20. October 22, 2009, the respondent father filed a motion seeking to transfer the guardianship of Samantha to Susan S. (Susan), the respondent father's mother and Samantha's paternal grandmother.   The trial management order dated June 26, 2009, states that all motions are to be filed by July 10, 2009.   As the motion was untimely filed, this court denied the motion.

21. DCF called following witnesses:

Sylvia Santos, an employee of the Morris Foundation.

Joseph Futschik, the President of the Family Intervention Center.

Amy Colella, the DCF social worker assigned to this case from February 2008, until approximately August 2009.

Rosemary K., Samantha's paternal great aunt, and current foster mother.

22. In order have an expeditious trial, it is common practice at CPS/Middletown for parties to pre-mark potential exhibits, some of which may not be introduced during the course of a trial.   This accounts for the “gaps” in the petitioner's exhibit list below.

DCF introduced the following exhibits:

Petitioner's Exhibit # 7-A certified Connecticut criminal record for David.

Petitioner's Exhibit # 9-LabCorp drug test results for David for July 2008.

Petitioner's Exhibit # 10-LabCorp drug test results for David for January 2008, and February 2008.

Petitioner's Exhibit # 12-Social study in support of termination of parental rights dated March 18, 2009, written by Amy Colella.

Petitioner's Exhibit # 13-Study in support of the permanency plan dated March 18, 2009, written by Amy Colella.

Petitioner's Exhibit # 15-Status report dated March 18, 2009, written by Amy Colella.

Petitioner's Exhibit # 20-Specific steps for the respondent father ordered by the court, on February 1, 2008.

23. The respondent father called following witnesses:

Anthony Gay, the DCF supervising social worker for this case from December 2007, to the present.

Susan S., the respondent father's mother and Samantha's paternal grandmother.

In addition, the respondent father testified on his own behalf.

II. ADJUDICATORY FINDINGS

A. INTRODUCTION

“The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his [or her] parent ․ [As such, it] is a most serious and sensitive judicial action.”  (Citation omitted;  internal quotation marks omitted.)  In re Jonathan M., 255 Conn. 208, 231, 764 A.2d 739 (2001);  In re Bruce P., 234 Conn. 194, 200, 662 A.2d 107 (1995).   In fact, the “[t]ermination of parental rights has been called the civil equivalent of the death penalty.”  In re Emerald C., 108 Conn.App. 839, 862, 949 A.2d. 1266 (McLachlan, J., dissenting), cert. denied, 289 Conn. 923, 958 A.2d 150 (2008).  “[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 [General Statutes] § 17a-112[ (j)(3) ] exists by clear and convincing evidence.”  (Internal quotation marks omitted.)  In re Melody L., 290 Conn. 131, 163, 962 A.2d 81 (2009).   According to Practice Book § 35a-7(a), in this phase, “the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.”   See In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).

If a determination is made that one or more of the statutory grounds exist, the court then proceeds to the dispositional phase.   In this 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.   In making this determination, the trial court can consider any testimony that is relevant and material to the issue of the disposition, including testimony as to events occurring through the close of the evidentiary hearing.   Practice Book § 35a-9;  see also In re Sheena I., 63 Conn.App. 713, 721, 778 A.2d 997 (2001) (court may consider events occurring after adjudicatory date).

B. REASONABLE EFFORTS

In order to terminate the parental rights of the respondent father, DCF must initially show by clear and convincing evidence that it has made reasonable efforts to locate the parent and to reunify the child(ren) with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts.   See General Statutes § 17a-112(j)(1).   The court need not make such a finding, however, “if the court has determined at a hearing pursuant to [General Statutes] section 17a-111b, or determines at trial on the petition, that such efforts are not required ․” General Statutes § 17a-112(j)(1);  see also In re Stephen M., 109 Conn.App. 644, 666, 953 A.2d 668 (2008).   Moreover, “[t]he language of [§ 17a-112(j)(1) ] is clear:  A finding that it is no longer appropriate for the department to make reasonable efforts to reunite the family must be made only once ․ Common sense also tells us that it would be a waste of judicial resources to require courts to make redundant findings.”  (Internal quotation marks omitted.)  In re Stephen M., supra, 666-67, citing In re Kachainy C., 67 Conn.App. 401, 412, 787 A.2d 592 (2001).

In analyzing 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 Melody L., supra, 290 Conn. 144.   The court must look to events 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, 48-49, 887 A.2d 415 (2005).

The location of David has never been an issue.   Although David lived a transitory life style, and has been incarcerated several times, DCF always knew of his whereabouts.   It is important to note David's locations during the pendency of this case.

When Samantha was born, David was homeless.   Prior to his present incarceration, which began on August 20, 2008, the respondent father lived with his mother, in a motel/hotel, in a single-family home and in an apartment.   His rent was paid by his mother.   He was incarcerated for a short period of time from March 27, 2008, until April 10, 2008, when he was released on bond, which his mother posted.   He failed to appear for a court date on August 6, 2008, and was subsequently re-arrested on August 20, 2008.  (See Trial Transcript, October 20, 2009, pp. 39, 63;  Trial Transcript, October 22, 2009, p. 18;  and Petitioner's Exhibit # 12, p. 3.) He has been incarcerated since August 20, 2008.

In order to reunify David and Samantha, DCF provided them with case management, visitation, and referred David to the various agencies listed below.

(1) Morris Foundation, for substance abuse evaluation and treatment

(2) Family Intervention Center, for substance abuse evaluation and treatment and for mental health services.

It is important to note, however, that during those periods of time when David is incarcerated, DCF cannot obtain services for him, refer him to any services or arrange services for him.   David must seek out his counselor at the correctional facility to obtain services.  (See Trial Transcript, October 20, 2009, p. 67.)

Therefore, this court finds, by clear and convincing evidence, that DCF has made reasonable efforts to locate the respondent father and to reunify him with Samantha.

C. FAILURE TO REHABILITATE (GROUND B1)

DCF has alleged the ground of failure to rehabilitate as to David.   DCF alleges that David is the parent of child, Samantha, who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding and that he has failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Samantha, he could assume a responsible position in her life.   This ground tracks the language contained in General Statutes § 17a-112(j)(3)(B).  Regarding the first element, Samantha was found to have been neglected on October 2, 2008.

“[P]ersonal rehabilitation ․ 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 ․ It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life.”  (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 149.   In addition, “[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Emphasis in original;  internal quotation marks omitted.)  In re Anthony H., supra, 104 Conn.App. 757-58.

1. REHABILITATION AS OF THE ADJUDICATORY DATE

There are a number of issues that are problematic for David and many of them are interconnected.   The main issues are:  substance abuse, parenting issues, maintaining adequate housing, maintaining legal income and involvement with the criminal justice system.   Many of the specific steps that were issued to David were designed to help him address these issues, and so this court will refer to them.   In addition, there are other issues for which specific steps were ordered.   Petitioner's Exhibit # 20 are the specific steps for the respondent father.

Substance Abuse

The specific steps concerning substance abuse are as follows:

Submit to substance abuse assessment and follow recommendations regarding treatment, including inpatient treatment if necessary, aftercare and relapse prevention.

Submit to random drug testing, time and method of the testing shall be at the discretion of DCF.

Cooperate with recommended service providers for substance abuse assessment/treatment.

Do not engage in substance abuse.

The respondent father was born on January 24, 1986.   He was twenty-two years old when Samantha was adjudicated neglected;  twenty-three years old when the TPR petition was filed.

The respondent father has a long history as an abuser of multiple substances.   Specifically, “Mr. G. reported he began using marijuana at 12 years of age.   He then began using cocaine at 16 years of age and prescription painkillers at 18 years of age.”  (Petitioner's Exhibit # 12, p. 3.)

The respondent father was referred to the Morris Foundation (Morris) for substance abuse and evaluation in early 2008.   On January 28, 2008, he submitted to a urine test at Morris.   The sample was analyzed by LabCorp.   The respondent father tested positive for marijuana, with a THC level of 148 ng/ml.⁴  (Petitioner's Exhibit # 10.)   The respondent father was again tested on February 26, 2008, at Morris.   Again he tested positive for marijuana, with a THC level of 280 ng/ml.  (Petitioner's Exhibit # 10.)   The recommendation for the respondent father was that he attend weekly support groups.   He did not successfully complete the substance abuse program at Morris.  (Petitioner's Exhibit # 12, p. 4.)

The respondent father was incarcerated from March 27, 2008, until April 10, 2008.   Upon his release from incarceration, he was re-referred to Morris.   He did not comply with the program, missing two appointments for an evaluation.   (Petitioner's Exhibit # 12, p. 4.)

The respondent father was referred to The Family Intervention Center (FIC) in July 2008, for substance abuse evaluation.   Joseph Futschik, the president of FIC, evaluated the respondent and, after compiling “a history of mental health, substance abuse use, legal, [and] family issues”;  (Trial Transcript October 20, 2009, p. 26);  concluded that the respondent father was addicted to marijuana.  (See Trial Transcript, October 20, 2009, p. 26.)   Urine tests confirmed Futschik's diagnosis.   Just as happened at Morris, FIC took urine samples from the respondent father, and the samples were analyzed by LabCorp.   On July 7, 2008, the respondent father tested positive for marijuana, with a THC level of >300 ng/ml.  (Petitioner's Exhibit # 9.)   Futschik's recommendation was that the respondent father attend a weekly addiction group that met every Thursday.   On Thursday, July 17, 2008, the respondent father attended a group session.   Also, on July 17, 2008, the respondent father tested positive for marijuana, with a THC level of >300 ng/ml.  (Petitioner's Exhibit # 9.)   The respondent father could have attended four Thursday group sessions between July 17, 2008, and his arrest date of August 20, 2008.   The respondent father did not attend any of these sessions.  (See Trial Transcript, October 20, 2009, p. 29.)

Parenting Issues

The specific steps concerning parenting issues are as follows:

Participate in family and parenting counseling and make progress towards identified treatment goals.

Cooperate with recommended service providers for parenting counseling.

According to the social study in support of the permanency plan, “[t]he Department provided information on parenting classes on 4/24/08, father refused the program ․ Mr. G. was provided information on counseling services on 4/21/08.   Mr. G. did not follow through with obtaining counseling services.   He has not participated in family counseling.”  (See Petitioner's Exhibit # 13, pp. 2-3.)   The phrase “he did not participate” is somewhat inaccurate.   According to Amy Colella, even though the respondent father would not have had to pay for the service, the respondent father, “refused the service.”   (Emphasis added.)  (Trial Transcript, October 20, 2009, p. 38.)

Housing

The specific step concerning housing is:

Secure and/or maintain adequate housing.

As stated earlier, prior to his incarceration, David had a transitory life style.   He was homeless when Samantha was born.   He has also lived with his mother, in a motel/hotel, in a single-family home and in an apartment.   His rent was paid by his mother.  (Trial Transcript, October 20, 2009, p. 39.)   In one of these residences, he had roommates.   He would not provide Colella with information on these individuals.  (Trial Transcript, October 20, 2009, p. 64.)   He was incarcerated for a short period of time in March and April 2008.   He was arrested on August 20, 2008, and has been incarcerated since that time.   The operative word in the specific step is maintain.   Living in four different residences, for which someone else is paying the rent, over a six-month period is not “maintaining adequate housing.”   In his cross examination of Colella, counsel for the respondent father attempted to have Colella conclude that the respondent father had addressed the issue of his housing.   Colella responded that “[t]he housing issue is ․ not just about having housing, a roof over your head, it's about who you're living with, can you financially support this housing.”  (Trial Transcript, October 20, 2009, p. 65.)

Income

The specific step concerning income is:

Secure and/or maintain legal income.

According to the social study in support of the permanency plan, the respondent father had inconsistent employment prior to his incarceration.   In addition, the respondent father's mother gave him money to support himself, including money to pay his rent.  (See Petitioner's Exhibit # 13, p. 4.)

Involvement with the criminal justice system

The specific step regarding involvement with the criminal justice system is:

Have no further involvement with the criminal justice system.

The respondent father's criminal history notes that he was arrested for a violation of probation.  (Petitioner's Exhibit # 7.)   The occurrence date of the offense is stated as March 26, 2008, and the verdict date is December 15, 2008.   Also, on August 6, 2008, the respondent father failed to appear in court and was charged with failure to appear in the first degree.   The verdict date for this offense is also December 15, 2008.

Visits

The specific step concerning visits is:

Visit child as often as DCF permits.

Both DCF and Gloria provided for visits between the respondent father and Samantha prior to his incarceration in August 20, 2008.   The respondent father was inconsistent with the visits provided by Gloria.   He refused to participate in visits supervised by DCF;  (Petitioner's Exhibit # 12, p. 6);  and so had no DCF supervised visits from April 2008, through August 2008.  (Trial Transcript, October 20, 2009, p. 41.)

Between August 20, 2008, and the adjudicatory date of March 19, 2009, DCF provided the respondent father with visits with Samantha once a month, at the correctional facility where he was incarcerated, it is fair to conclude from all the testimony and exhibits that these early visits between Samantha and the respondent father did not go well.   They were marked by Samantha crying and refusing to interact with the respondent father or let him hold her and her clinging to the social worker.  (Petitioner's Exhibit # 12, p. 4.)

CONCLUSION

Specific steps were issued by the court for David.   Specific steps are what a respondent parent must do to be re-united with his or her child.   They provide a framework and real direction for a parent to address those issues that stand in the way of that parent assuming a responsible position in the life of his or her child.   To determine if a parent has rehabilitated is not a matter of placing a check mark (v) next to a specific step signifying compliance, adding up the check marks, comparing that number to all the specific steps, and then determining if a parent has complied.

The respondent father has failed to comply with all the programs to which he was referred in order to address his substance abuse, and he continued to use marijuana.   He flatly refused to participate in any parenting counseling programs.   He did not maintain consistent employment.   He had transitory housing.   He did not take advantage of visits with Samantha offered by DCF.

In short, the respondent father has not done what he needed to do to address those issues that stand in the way of his assuming a responsible position in the life of Samantha.

The failure of the respondent father to take advantage of the services offered to him is not surprising.   In her testimony, Coella stated, “he was very upset because he felt he did not need substance abuse services or any services, and continually stated-minimize his-well, he did not minimize his drug use, he said that using marijuana was not a big deal, and that he was very angry at the Department that he had not reunified yet, and said that he will not do anything the Department asked them to do including visitation.”  (Emphasis added.)  (See Trial Transcript, October 20, 2009, p. 42.)   To paraphrase certain sport equipment ads, attitude matters a great deal.

As stated earlier, during those periods of time when David is incarcerated, DCF cannot obtain services for him, refer him to any services or arrange services for him.   David must seek out his counselor at the correctional facility to obtain services.

The respondent father testified concerning his efforts to engage in services while he was incarcerated.   He testified that he was unable to enroll in programs while incarcerated awaiting disposition.   Once he was sentenced, he could participate in programs.   He testified that he is presently signed up for a number of programs, one for substance abuse, one for violent offenders, and a third program the nature of which he has forgotten.   He also testified that there is a long waiting list for each of these programs.  (Trial Transcript, October 22, 2009, pp. 63-65.)

To paraphrase Judge Dooley, when the respondent father had the opportunity to address the issues, that prevented him from parenting Samantha prior to his incarceration, he did absolutely nothing to improve his situation or address the issues that plagued his family.   He did not address his substance abuse problem and continued to use marijuana.   He did not participate in any parenting counseling programs.   He did not maintain consistent employment.   His housing was transitory.  In re Mariah P., 50 Conn.Sup. 594, 617, 954 A.2d 286 (2007), aff'd, 109 Conn.App. 53, 949 A.2d 1292, cert. denied, 289 Conn. 946, 595 A.2d 1012 (2008).

Therefore, this court finds, by clear and convincing evidence, that David had not rehabilitated as of the adjudicatory date of March 19, 2009.

2. IS REHABILITATION LIKELY?

In In re Anthony H., supra 104 Conn.App, 757-58, the Appellate Court stated, “[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Internal quotation marks omitted.)   Therefore, this court must next examine the actions of the respondent father after the adjudicatory date to determine whether he has rehabilitated in the time between the adjudicatory date and the last trial date to the extent that it is foreseeable he may resume a useful role in Samantha's life within a reasonable time.

As stated above, the respondent father did not take advantage of the services that were offered to him by DCF prior to his incarceration.   He did attend programs while he was incarcerated and learned something from those programs.   Nevertheless, his history gives little reason to hope for rehabilitative success on the part of the respondent father.

Visits

DCF has provided the respondent father with visits with Samantha once a month while he has been incarcerated.   They missed some of the visits because Samantha was hospitalized in March 2009.  (Trial Transcript, October 20, 2009, pp. 53, 92.)   Another visit was canceled by the correctional facility.   If a missed visit was not made up, the next visit would be extended to make up for it.  (Trial Transcript, October 22, 2009, pp. 30-31, 71-72.)   The visits between the respondent father and Samantha did not go well at first.   They have improved slightly.   However, Colella testified that when “the visits are alone with Samantha, he [the respondent father] will interact with her.   But when the visits are with the sibling and Samantha, more attention was on the sibling than Samantha, and Samantha would basically-the majority of the time entertain herself.”  (Trial Transcript, October 20, 2009, p. 71.)   Anthony Gay agreed, noting that his review of the record led him to conclude that “[the visits] have gotten better within the last month or so;  but overall, she's still clinging during visitations to the worker and not interacting with dad throughout the entire visit.”  (Trial Transcript, October 22, 2009, p. 27.)

The ability of parents to raise their children cannot be viewed within the time frame of a particular case.  “In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain a historical perspective of the respondent's child caring and parenting abilities ․ 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.”  (Citation omitted;  internal quotation marks omitted.)  In re Anna Lee M., 104 Conn.App. 121, 128, 931 A.2d. 949, cert. denied, 284 Coin. 939, 937 A.2d 696 (2007).

The respondent father has three children.   He has a son, Matthew, whose date of birth is May 8, 2004.   Dawn is not Matthew's mother.   Matthew resides with his mother.  (Petitioner's Exhibit # 12, pp. 3-4.)   The social study for the TPR states that the respondent father maintains contact with Matthew though that child's mother.  (Petitioner's Exhibit # 12, pp. 2-3.)   According to the respondent father, he speaks with Matthew from prison, and, when he was not incarcerated, he saw Matthew as much as possible.  (Trial Transcript, October 22, 2009, p. 83.)   There is no testimony that the respondent father was ever the custodial parent of Matthew.   There is no evidence regarding the respondent father's parenting of Matthew.   Samantha has been in the custody of DCF since she was three days old.   The respondent father has never parented Samantha, he has only visited her.   On December 29, 2008, Dawn gave birth to a son, David G., Jr. (David Jr.).   The respondent father is David Jr.'s father.   David was incarcerated when David Jr. was born.   The respondent father has never been David Jr.'s custodial parent.

The conclusion that this court draws from this history is that David has fathered three children, but he has never been a custodial parent of any of them.   His continued involvement with the criminal justice system has rendered him unavailable to parent his children for long periods of time.   He has never had to adjust his life to accommodate the many demands that infants and toddlers place on a parent.   There is no evidence that he ever changed a diaper, rocked a child to sleep, or comforted a child that got hurt.   The analysis that a court usually undertakes is to decide whether a parent rehabilitated him or herself to the degree that it is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.   In this case, however, the analysis is whether David can assume, not resume, a useful role in Samantha's life.   This lack of prior parenting experience makes it difficult for the respondent father to assume a useful role in Samantha's life.

The respondent father has not rehabilitated between the adjudicatory date and the last trial date, and it is not foreseeable that he will rehabilitate within a reasonable period of time so that he could achieve a responsible position in the life of Samantha.

Therefore, this court finds that the adjudicatory ground of failure to rehabilitate has been proven by clear and convincing evidence.

IV. DISPOSITION

In the dispositional phase of a termination of parental rights case, the court must consider whether the petitioner has proven, by clear and convincing evidence, that termination is in the best interest of the child.  In re Melody L., supra, 290 Conn. 163.   In making this determination, the trial court can consider all events occurring prior to the date(s) of the dispositional hearing, including those occurring after the filing of the petition.  In re Sheena I., supra, 63 Conn.App. 721.

A. STATUTORY CRITERIA

Before making a decision as to whether to terminate the respondent mother's and the respondent father's parental rights, the court must consider and make findings on each of the seven criteria set forth in General Statutes § 17a-112(k).  In re Davonta V., 285 Conn. 483, 487 n.5, 940 A.2d 733 (2008).   “The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered ․ There is no requirement that each factor be proven by clear and convincing evidence.”  (Internal quotation marks omitted.)  In re Janazia S., 112 Conn.App. 69, 98, 961 A.2d 1036 (2009).   In order to best address every issue, the court will discuss each of the seven considerations separately.⁵

As stated earlier, the respondent mother entered a consent to the termination of her parental rights regarding Samantha.   This court accepted the consent, but did not make a best interest finding at that time.   As such, the best interest analysis for the respondent mother will be made below, along with the best interest analysis for the respondent father.   Some of the statutory factors are inapplicable to the respondent mother because she has consented to the TPR.

The court finds that the following have been established by clear and convincing evidence.

1. The court must first look at the timeliness, nature and extent of services offered, provided and made available to the parent and child by an agency to facilitate the reunion of the child with the parents.

David

In order to reunify David and Samantha, DCF provided them with case management, visitation, and referred David to the various agencies listed below.

(1) Morris Foundation, for substance abuse evaluation and treatment.

(2) Family Intervention Center, for substance abuse evaluation and treatment and for mental health services.

During those periods of time when David is incarcerated, DCF cannot obtain services for him, refer to him to any services, or arrange services for him.   David must seek out his counselor at the correctional facility to obtain services.

Dawn

This statutory factor is inapplicable to the respondent mother because she entered a consent to the TPR petition.

2. Whether the department of children and families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

David

This court finds that DCF made reasonable efforts to reunite the respondent father with Samantha pursuant to the Federal Adoption Assistance and Child Welfare Act of 1980, as amended (Act).   For the reasons set forth previously, the court finds that DCF offered services to the respondent father to reunify him with Samantha pursuant to the Act. The respondent father did not successfully complete these programs.   As stated above, during those periods of time when David is incarcerated, DCF cannot obtain services for him, refer him to any services or arrange services for him.   David must seek out his counselor at the correctional facility to obtain services.

Dawn

This statutory factor is inapplicable to the respondent mother because she entered a consent to the TPR petition.

3. Whether the terms of any applicable court order entered into and agreed to by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order(s).

David

Specific steps were ordered for the respondent father.   As of the adjudicatory date, he had not complied with the steps that were designed to help him address the issues that prevent him from parenting Samantha.   Again as stated earlier, during those periods of time when David is incarcerated, DCF cannot obtain services for him, refer him to any services or arrange services for him.   David must seek out his counselor at the correctional facility to obtain services.

Dawn

This statutory factor is inapplicable to the respondent mother because she entered a consent to the TPR petition.

4. The feelings and emotional lies of the child with respect to the child's parent, any guardian of the child 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 ties must be addressed.

David

Samantha was removed from David's care when she was three days old.   The court previously discussed the issues involving visitation both before and after the adjudicatory date.

Colella testified that the last visit she supervised between David and Samantha was in the beginning of September 2009.   She testified as follows:

Samantha's interaction with him is fine in that she's not screaming, she's not crying.   She will go to him and hug him.   But there's not-it's as if-it's just any other person is willing to play with her, interact with her ․ I have witnessed one visit where ․ Mr. G. would say, where's daddy, go see daddy, and she would repeat daddy.   I do not know that it was daddy because that's who she recognizes as daddy.   There have been other visits where she has not called him daddy.   That was only one time.

(Trial Transcript, October 20, 2009, pp. 73-74.)

When counsel for the respondent father asked Colella if the respondent father and Samantha have developed a relationship, she responded, “I unfortunately, would not call it a relationship as much as Samantha just being more comfortable as she has gotten older with I don't want to say strangers, but people she's not very familiar with.”  (Trial Transcript, October 20, 2009, p. 93.)   Later, when counsel for the respondent father asked Colella if she thought that Samantha and the respondent father are “more bonded now,” Colella responded, “I wouldn't term it as bonded.   Again I feel that it's more of Samantha being, as she has gotten older, more comfortable with people that she's not familiar with as long as somebody's in the room with her that she is familiar with.”  (Trial Transcript, October 20, 2009, p. 98.)   Gay echoed this conclusion.   His review of the record led him to conclude that the relationship between Samantha and the respondent father is “not a bonded relationship.”   (Trial Transcript, October 22, 2009, p. 27.)

The feelings and emotional ties of Samantha with respect to the respondent father will be analyzed in more detail in Section IV B below.

Dawn

“Relative foster mother, relative respite foster mother and paternal grandmother reported Mrs. G. is not bonded to Samantha.”  (Petitioner's Exhibit # 12, p. 3.) This is not surprising, as Samantha was removed from her mother's care when she was three days old.   Both DCF and Samantha's foster mother provided for visits between the respondent mother and Samantha.   The respondent mother was inconsistent with these visits and did not take advantage of all the visits offered to her.  (Petitioner's Exhibit # 12, p. 5.)

Samantha lived with Gloria from the time she was four days old until July 2009.   During this time, Rosemary was a respite provider, taking care of Samantha three days a week.   Since July 2009, Samantha has been living with Rosemary, her husband and their son.  (Trial Transcript, October 20, 2009, p. 127.)   Rosemary testified that she and her husband are willing to adopt Samantha.  (Trial Transcript, October 20, 2009, p. 128.)   Because they have a close, ongoing relationship with Samantha, this court will treat Rosemary and her husband as individuals who have exercised physical care, custody or control of Samantha for at least one year and with whom Samantha has developed significant ties.   When Colella wrote the study in support of the TPR, Samantha was living with Gloria, and Rosemary was providing respite care.   Colella succinctly stated the following about the relationship between Samantha and her great aunts and their respective families:  “Samantha is bonded to both foster and respite providers and feels comfortable in both homes.”  (Petitioner's Exhibit # 12, p. 4.) During her testimony, Colella added, the adverb “very” when describing how bonded Samantha is with Rosemary and her family.  (Trial Transcript, October 20, 2009, p. 53.)

5. The age of the children.

As of the last trial date, Samantha is approximately one year and nine months old.

6. The efforts the parent has made to adjust her or his circumstances, conduct or conditions to make it in the best interest of the child to return to such 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.

David

Other than signing up for various programs while he was incarcerated, the respondent father has done nothing 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.

As stated earlier, prior to his incarceration in August 2008, the respondent father was inconsistent with the visits with Samantha that were provided by Gloria.   He refused to participate in visits supervised by DCF, and so had no DCF supervised visits with Samantha from April 2008, through August 2008.   Starting in August 20, 2008, DCF provided the respondent father with visits with Samantha, once a month, at the correctional facility where the respondent father was incarcerated.   If a visit was missed, DCF would either reschedule the visit or extend the length of the next visit to make-up for the missed visit.

All the evidence leads this court to conclude that while Samantha was living with Gloria, the respondent father maintained contact with Gloria.   He has not maintained this level of contact with Rosemary since Samantha was placed with her.   The respondent father has maintained contact with DCF.

Dawn

The first section of this statutory factor is inapplicable to the respondent mother because she entered a consent to the TPR petition.

As stated earlier, both DCF and Samantha's foster mother provided for visits between the respondent mother and Samantha.   The respondent mother was inconsistent with these visits and did not take advantage of all the visits offered to her.   Gloria provided visits for Dawn with Samantha, therefore, the respondent mother had communication with Samantha's custodian.   Dawn also maintained contact with DCF.

7. The final consideration is the extent to which a parent has been prevented from maintaining a meaningful relationship with his or her child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any person or by the economic circumstances of the parent.

Based on the evidence and testimony given at the hearing, this court is unaware of any unreasonable act or conduct by anyone, including any agency, or of any economic circumstance that prevented the respondent father or the respondent mother from having a meaningful relationship with Samantha.

All of the seven statutory criteria have been established by clear and convincing evidence and support the conclusion that terminating the parental rights of the respondent father and the respondent mother are in the best interest of Samantha.

B. BEST INTEREST OF THE CHILD ANALYSIS

In making the best interest determination, the trial court can consider any testimony that is relevant and material to the issue of the disposition, including events that occurred through the close of the evidentiary hearing.   Practice Book § 35a-9;  see also In re Sheena I., supra, 63 Conn.App. 721 (court may consider events occurring after adjudicatory date).

During the pendency of this case, the respondent father has proposed four plans for Samantha:

Plan # 1-On March 10, 2009, the respondent father proposed transferring guardianship of Samantha to Gloria;

Plan # 2-On March 30, 2009, the respondent father proposed transferring guardianship of Samantha to Rosemary;

Plan # 3-On October 22, 2009, prior to his testimony, the respondent father proposed transferring guardianship of Samantha to Susan;

Plan # 4-During his testimony, the respondent father proposed that Samantha live with him after he is released from incarceration.  (Trial Transcript, October 22, 2009, pp. 70, 78.)

Things change.   People change.   Circumstances change.   Nevertheless, the respondent father's proposal of four plans over the course of seven months leads this court to conclude that he has not put much thought into each plan.   Rather, each plan he has proposed seems to be a device to counter the termination of his parental rights, rather than a plan to provide long-term stability for Samantha.

The respondent father's plan for reunifying with Samantha is as follows.   Once he is released from incarceration he, Dawn and his sons will live together.   His mother will give them money for housing.   He will then find a job so that he can support his family.   The respondent father stated that when he is in a position to take care of Samantha, she would then reside with him, Dawn and his sons.   Until that time, Samantha should remain with Rosemary.  (Trial Transcript, October 22, 2009, p. 95.)

The respondent father testified that his date of release from incarceration is August 5, 2011.  (Trial Transcript, October 22, 2009, p. 69.)   He also testified that he is a good candidate for parole and, “most [I] likely will be [paroled] in February [2010] and I will be released from custody into the care of my mother because my mother is going to be my sponsor.”  (Trial Transcript, October 22, 2009, p. 69.)   The respondent father seems confident he will be paroled in February 2010.   His confidence is not warranted.   If and when the respondent father will be paroled is problematic and contingent on many factors.   To paraphrase Benjamin Franklin, nothing in life is certain but death and taxes.

Once he is released from incarceration, one of the problems the respondent father will face is housing.   He is not eligible for supportive housing because he is a convicted felon.  (Trial Transcript, October 20, 2009, p. 39.)   The respondent father testified that he could not live with his mother and stepfather because his stepfather is a convicted felon and DCF would not allow this.  (Trial Transcript, October 22, 2009, pp. 67, 70.)   This court interprets the respondent father's remarks to mean that DCF would not place a committed child with a convicted felon, or would not agree to a period of protective supervision in which a child would be living with a convicted felon.   Therefore, the respondent father would have to live on his own.   As stated earlier, his ability to do this would depend, especially immediately following his release from incarceration, on his mother paying his rent.   Susan has testified that she would help the respondent out financially.   This court finds this testimony to be credible, at this time.   However, as stated earlier, circumstances and people change.   Susan could get into a dispute with her son and change her mind.   She may lose the source of her income and not be able to give him money.   Or she could just get tired of supporting her son.

Another problem for the respondent father is employment.   He testified that he has had various jobs in the past, including roofing, landscaping and working in a factory.   While it certainly is commendable that the respondent father worked prior to his incarceration, nevertheless he does not have a history of consistent employment in any one area.   He does not have a job waiting for him, nor has he a sought to obtain job skills.   Finding a job in normal economic times would be difficult for him;  finding a job in difficult economic times will be very difficult.

Many times during his testimony, the respondent father spoke of living with his “family,” i.e., with his wife, Samantha and his sons:  “I want to come home as soon as possible to be with my family”;  (Trial Transcript, October 22, 2009, pp. 69-70);  “I want to come home to my family”;  (Trial Transcript, October 22, 2009, p. 76);  “So I'm going to have to do what I need to do able to provide for my family.”  (Trial Transcript, October 22, 2009, p. 77.)   In commenting about his perspective in prison, the respondent father stated that prison “changes the whole perspective and the way you think of how it-you know, how your life should be with your kids, with your wife, with your family.”  (Trial Transcript, October 22, 2009, p. 82.)   He also stated, “you know, me and my wife is bonded with our daughter;  we're like a family.”   (Trial Transcript, October 22, 2009, p. 82.)   When the respondent father was asked who he considered to be part of his family, he responded, “[m]y wife, my son-my sons and my daughter.”  (Trial Transcript, October 22, 2009, pp. 77-78.)   Well, perhaps not his wife.   Counsel for the respondent mother asked the respondent father if, during a conference at the beginning of the trial, he told his wife, “I'm going to divorce your bitch ass.”  (Trial Transcript, October 22, 2009, p. 101.)   The respondent father testified that, “I think I might have said something along those lines ․” (Trial Transcript, October 22, 2009, p. 101.)

The respondent father has a long-standing and serious marijuana problem.   He did not take advantage of any of the programs to which DCF referred him.   The social study in support the TPR petition notes that “Mr. G. reported to the Department his continued use of marijuana and prior to incarceration he reported that he will not stop his drug use.”  (Petitioner's Exhibit # 12, p. 6.) Colella testified that the respondent father told her, prior to his August 2008 incarceration, that, “he was gonna continue using marijuana, and he did not see a problem with that ․ even though we had a discussion that that [his continued use of marijuana] would prevent reunification even with the child and mother, being that he resided with mother.”  (Trial Transcript, October 20, 2009, pp. 42-43.)   Twice, the respondent father stated during the course of his testimony that he did not have a problem with marijuana.  (Trial Transcript, October 22, 2009, pp. 90, 91.)   This is troubling.   The respondent father refuses to face the fact that he has a longstanding marijuana problem.

While Colella was supervising a visit between the respondent father and the respondent father's younger son,⁶ the subject of this TPR trial came up, and the respondent father's continued use of marijuana was also discussed.   Counsel for the respondent father asked Colella a series of questions about this discussion.

Question:  What specifically did you discuss with Mr. G. about marijuana use and his future intentions concerning such use?

Answer:  Well, we were discussing about, due to another child being in care, he was talking about reunification possibly with him.   And we were discussing that if he were to do reunification if he were to be paroled, he would have to comply with the specific steps and do treatment.

He felt he did not need treatment as all he was doing-as all it was that he was doing is marijuana.   He did use the terminology that he was a pothead, and that marijuana is almost legal, so it's not a big deal, as it's only a fine when you get arrested for it.   And that since he's doing urines for parole, he shouldn't have to do treatment for us because he wouldn't be using anyway.

Question:  He told you that he wasn't gonna be using marijuana when he got out?

Answer:  Due solely because he's gonna be on parole, and that he did not want to go back to prison and have a dirty urine.

(Emphasis added.)  (Trial Transcript, October 20, 2009, pp. 76-77.)

The respondent father testified that if DCF or his parole officer referred him to a program he would attend, “I'm going to do it, I'm going to comply with everyone [sic] that is told for me to do.”  (Trial Transcript, October 22, 2009, p. 90.)

Based on this testimony, this court concludes that the respondent father's claim that he will stop using marijuana is based solely on his fear of returning to prison if he violates the terms of his parole.   Once he is no longer on parole, and the threat of incarceration is no longer hanging over the respondent father's head, he is likely to go back to being a “pothead.”

The respondent father's plan is based on the shaky assumption that he will be paroled in February 2010.   His history of being on probation is not good.   On May 7, 2003, he received a six-year suspended sentence and a ten-year period of probation after being found guilty of risk of injury to a minor.   He violated his probation for the first time or June 9, 2004, and was found to be in violation of his probation on September 30, 2004.   He was sentenced to six years suspended after two years, and ten years probation.   His second violation of probation occurred on March 26, 2008.   He was sentenced on December 15, 2008, to a “flat” three years to serve, that is, a period of incarceration of three years, with no probation.  (Petitioner's Exhibit # 7.)   The respondent father acknowledged that the procedure for a violation of probation is much more cumbersome than a parole violation.  (Trial Transcript, October 22, 2009, pp. 76-77.)   Yet, if and when he is granted parole, he expects not be violated.   His claim that he does not need a substance abuse program is unrealistic.   Once he is longer on parole, and DCF is no longer involved, the incentives he has for remaining substance free will be gone.   He is not eligible for supportive housing, and, if he is a custodial parent for Samantha and DCF is still involved, he cannot live with his mother and stepfather.   He is dependent upon his mother for financial assistance.   Finding a job, given his history and job skills, will be difficult.   He speaks of his desire to live as a family, yet he tells his wife he is going to divorce her.   If he does get divorced, he has not formulated a plan as to who will provide day care for his three children under six years old while he works.

The respondent father's testimony is replete with statements as to how he has matured while incarcerated, how he does not want to be re-incarcerated, how he wants to find a job and how much he misses and wants to be with his family.   It is part of human nature to want to give those who have made a mistake a second chance;  an opportunity to rehabilitate;  to excise their demons and live a “normal” life.   This court would like to have that outlook with the respondent father.   However, given all of the above, the respondent father's plan is simply not viable.

Certainly, the fact that the respondent father is incarcerated impedes his chances of developing a relationship with Samantha.   He testified that there is “a bond with my daughter”;  (Trial Transcript, October 22, 2009, p. 72);  “absolutely a bond between me and my daughter ․ she knows me, I'm her father that she sees once every month for an hour.”  (Trial Transcript, October 22, 2009, p. 85.)   On the one hand, the respondent father states that “she does know me as her father,” but he acknowledges that the visits may be “confusing” for Samantha (Trial Transcript, October 22, 2009, pp. 74-75).   The respondent father claims that he bonded with Samantha prior to his incarceration on the basis of his visits with her during the approximate seven-month period of her life before he was incarcerated.   He claims that Samantha knows him as her father and calls him dad.   As stated earlier, Colella testified that she supervised a visit where Samantha called the respondent father “daddy.”   Gay testified, “my understanding is that Samantha will call Mr. G. ‘dad’ as the worker preps her prior to visits telling her you're going to see daddy.”   (Trial Transcript, October 22, 2009, p. 28.)

This court finds that the respondent father's testimony concerning his bond with Samantha is not credible.   As stated earlier, the respondent father was inconsistent with the visits that were provided by Samantha's foster mother and refused to participate in visits that were to be supervised by DCF. When he had the chance to develop a relationship with Samantha, he chose not to do so.   While he thinks he may have “bonded” with Samantha, in reality Samantha views him as a visiting resource.

As stated earlier, the respondent father's plan, which is based on his being paroled soon, is not viable.   The respondent father was asked the following questions by the Assistant Attorney General:

Question:  So it's your position that she should just remain with your aunt until you get yourself in a situation where you're able to resume care for her?

Answer:  Yes.

Question:  Okay. No matter how long that takes?

Answer:  Yes. As long as she's with my-as long as she's with my aunt.

(Trial Transcript, October 22, 2009, p. 95.)

Not only is the respondent father's plan not viable, he would have Samantha wait until he is able to assume the responsibility of taking care for her.   Again, to paraphrase Judge Dooley, this court cannot leave Samantha in legal limbo for the unspecified period of time that would be required to see if the respondent father can parent Samantha.  In re Mariah P., supra, 50 Conn.Sup. 618.

As stated earlier, Samantha is bonded to her present foster family.   Rosemary provided so much respite care for Samantha that she was, in essence, a co-foster mother until Samantha came to live with her in July 2009.   Susan testified that Rosemary provided excellent care for Samantha.  (Trial Transcript October 22, 2009, p. 53.)   Medically, there are no present concerns for Samantha, and, when there is a medical issue, Rosemary addresses those issues.   Samantha is meeting all her developmental milestones.  (Trial Transcript, October 20, 2009, p. 53.)   In fact, the Birth to Three program has recently discontinued their involvement with Samantha because developmentally, she is in advance of her chronological age.  (Trial Transcript, October 20, 2009, p. 128.)

As Judge Flynn stated in Votre v. County Obstetrics Group P.C., 113 Conn.App. 569, 571, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009),”If there are those of us who have not been the parent, we have all been the child.   That experience teaches us that there is no closer human bond, nor a more painful loss.”   No court approaches a TPR case without the knowledge that if the court grants the TPR, the closest of human bonds will be broken.   However, only terminating the parental rights of the respondent father can put Samantha on the road to the permanency and stability that she deserves.

V. RULINGS

Based on the foregoing findings, this court determines, by clear and convincing evidence, that:

1. The petition filed by the commissioner of DCF to terminate the parental rights of the respondent mother, Dawn G., with respect to the minor child Samantha is granted.

2. The petition filed by the commissioner of DCF to terminate the parental rights of the respondent father, David G., with respect to the minor child Samantha is granted.

3. DCF's permanency plan for Samantha of termination of parental rights/adoption is approved.

This court further orders that the commissioner of DCF be appointed statutory parent for Samantha.   The commissioner shall file with the Superior Court for Juvenile Matters at Waterbury, no later than thirty days following this judgment, a written report of efforts to affect a permanent placement for Samantha and file further reports as are required by state and federal law.

The clerk of the Probate Court with jurisdiction over any subsequent adoption of Samantha shall notify in writing the deputy chief clerk of the Superior Court for Juvenile Matters at Waterbury of the date when the adoption is finalized.

Gerard F. Esposito

FOOTNOTES

FN1. The respondent mother's last name is listed on the initial pleadings as S. The court action sheet for October 2, 2008, states that the respondent mother and the respondent father were married in May 2008, and that the respondent mother's last name is now G. In other pleadings the respondent mother's last name is given as S.-G. For the sake of simplicity and consistency this court will refer to the respondent mother as Dawn G. or Dawn..  FN1. The respondent mother's last name is listed on the initial pleadings as S. The court action sheet for October 2, 2008, states that the respondent mother and the respondent father were married in May 2008, and that the respondent mother's last name is now G. In other pleadings the respondent mother's last name is given as S.-G. For the sake of simplicity and consistency this court will refer to the respondent mother as Dawn G. or Dawn.

FN2. The mother of Samantha is Dawn. The neglect petition, order of temporary custody, and termination of parental rights petition name Dawn as the respondent mother.   She was represented by appointed counsel during the course of these cases.   The termination of parental rights petition concerning the respondent mother was resolved prior to trial.   The factual and procedural history that follows will, therefore, primarily reference the respondent father..  FN2. The mother of Samantha is Dawn. The neglect petition, order of temporary custody, and termination of parental rights petition name Dawn as the respondent mother.   She was represented by appointed counsel during the course of these cases.   The termination of parental rights petition concerning the respondent mother was resolved prior to trial.   The factual and procedural history that follows will, therefore, primarily reference the respondent father.

FN3. Some of the witnesses referred to Rosemary as Rose. This court will refer to her as Rosemary, the name she gave when she testified..  FN3. Some of the witnesses referred to Rosemary as Rose. This court will refer to her as Rosemary, the name she gave when she testified.

FN4. THC is shorthand for tetrahydrocannabinol, the active principal of cannabis..  FN4. THC is shorthand for tetrahydrocannabinol, the active principal of cannabis.

FN5. General Statutes § 17a-112(k) states:  “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding:  (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent;  (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended;  (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order;  (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties;  (5) the age of the child;  (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child;  and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”.  FN5. General Statutes § 17a-112(k) states:  “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding:  (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent;  (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended;  (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order;  (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties;  (5) the age of the child;  (6) the efforts the parent has made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child;  and (7) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

FN6. David Jr. was born on December 29, 2008.   It is reasonable to assume that David Jr. did not visit his father in prison until he was at least three months old.   As such, the earliest this visit could have occurred was sometime in April 2009..  FN6. David Jr. was born on December 29, 2008.   It is reasonable to assume that David Jr. did not visit his father in prison until he was at least three months old.   As such, the earliest this visit could have occurred was sometime in April 2009.

Esposito, Gerard F., J.