IN RE: Aiyana B. (2010)

MEMORANDUM OF DECISION

This matter is before the court on an appeal from a decision of the Ellington Probate Court in which the court granted the petition of Johnnie D., the guardian of Aiyana B. to terminate the parental rights of the father, Augustus B. and the mother, Ashantia G. to their minor child, Aiyana.

The petitioner, Johnnie D., filed her petition in the Ellington Probate Court on April 10, 2008, pursuant to General Statutes § 45a-715 et seq. to terminate the parental rights of the above named biological parents to the child, born March 24, 2004.   Johnnie D. had been appointed by the probate court as the child's legal guardian after the court had removed both parents as guardians on August 23, 2005.   As to both parents the termination petition alleged the following grounds:  (1) that the child has been abandoned in the sense that the parents have failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child;  (2) that there is no on-going parent/child relationship as defined in Connecticut General Statutes § 45a-717(g) and to allow further time for the establishment or reestablishment of the parent/child relationship would be detrimental to the best interests of the child;  (3) consent to the termination of their parental rights, and (4) the child has been denied the care, guidance, or control necessary for the child's physical, educational, moral, or emotional well being, by reason of acts of parental commission or omission

On February 10, 2009, the probate court terminated the parental rights of the respondent rather on the grounds that the child has been abandoned by the father;  that there is no ongoing parent-child relationship;  and that the child has been denied proper care, guidance or control.   The court terminated the mother's parental rights on the grounds the child had been denied proper care, guidance, or control by reason of acts of parental commission or omission.   The court's ruling allowed the guardian to move forward with adoption proceedings.   The respondent mother filed a complaint dated February 26, 2009, to appeal from the order of the probate court to the Superior Court for Juvenile Matters at Rockville.   The probate proceedings were stayed on March 19, 2009, by the probate court, pending the resolution of the appeal.   The respondent father did not appeal the probate court decision and advised the court, at his first appearance in Juvenile Court, he did not wish to participate in the new trial.

The appeal was duly served on all parties and confirmed by the court.   The court finds that notice has been given in accordance with the General Statutes and the Practice Book. The court is aware of no other proceedings pending in any other court regarding custody of this child.   Accordingly, the court has jurisdiction.   The trial took place on February 8, 2010.   The respondent appeared and was represented by counsel, as were the petitioner and the minor child.   All parties present acknowledged that the termination of parental rights matter was not heard on the record in the Ellington probate court as such is defined by General Statutes § 45a-186a, and therefore the appeal to this court would be a trial de novo.  Baskin's Appeal from Probate, 194 Conn. 635, 641 (1984).

At trial the court received or heard evidence in the form of testimony from the following:  Johnnie D., the petitioner;  Jessica Fitzgerald, Department of Children and Families (DCF) social worker;  Donna Marotta, Hockanum Valley Community Council, Inc., therapist;  Dr. Kelly F. Rogers, PhD., clinical psychologist;  and Ashantia G., the respondent mother.   The court also received documentary evidence, including a psychological report and evaluation dated June 14, 2009 by Dr. Rogers;  DCF social study reports dated September 12, 2008, November 19, 2008, February 5, 2009, and June 1, 2009;  and a treatment report from Hockanum Valley Community Council, Inc., dated February 3, 2009.

The hearing on a petition to terminate parental rights comprises two phases.   In the adjudicatory phase the trial court must determine whether any of the statutory grounds alleged by the petitioner exist by clear and convincing evidence.   If a determination is made that one or more of the statutory grounds exist, the court then proceeds to the dispositional phase.   All facts noted by the court are found to exist by clear and convincing evidence.

Abandonment

The petitioner has alleged that Aiyana has been abandoned by her mother, in that she has failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child.   The criteria for abandonment is set forth in General Statutes § 17a-112(1)(3)(A) and § 45a-717(j)(2)(A), formerly § 45a-717(f).  Commenting on these statutes, in In re Ashley, 62 Conn.App. 307, 314-15 (2001), the Appellate Court concluded that:

Abandonment focuses on the parent's conduct ․ A lack of interest in the child is not the sole criterion in determining abandonment ․ General Statutes § 45a-717(f) defines abandonment as ‘the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ․’ Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child ․ Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child does not personally interact with the child and demonstrates no concern for the child's welfare ․

Section 45a-717(f) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child.   A parent must maintain a reasonable degree of interest in the welfare of his or her child.   Maintain implies a continuing, reasonable degree of concern ․

The commonly understood general obligations of parenthood entail these minimum attributes:  (1) express love and affection for the child;  (2) express personal concern over the health, education and general well-being of the child;  (3) the duty to supply the necessary food, clothing, and medical care;  (4) the duty to provide an adequate domicile;  and (5) the duty to furnish social and religious guidance.  (Citations omitted;  internal quotation marks omitted.)

See also In re John B., 56 Conn.App. 12, 20-21 (1999);  In re Roshawn P., 51 Conn.App. 44, 53 (1998);  and In re Rayna M., 13 Conn.App. 23, 34 (1987).

In testimony before the court the petitioner has not sustained her burden by clear and convincing evidence that mother has abandoned the child.   The mother placed the child with Johnnie D., two days after its birth, due to the mother's concerns that DCF, having initiated an investigation, would remove the child from her care.   The mother's two older children had been placed with maternal grandmother after DCF involvement.   After placing the child with Johnnie D. and her assumption of the role of guardian the mother was afforded open visitation with the child.   Although the DCF social study indicates that the Department had sought supervised visitation there is no evidence that it was ordered by the court.   The guardian did not restrict access and testified that mother did in fact take advantage of her opportunities to see the child.   Mother asked questions about the child's welfare and spent time with the child.   There is no evidence of any inappropriate behavior by mother during her visitation.   It was not until after the filing of the TPR petition that the guardian sought and received an order by the probate court on November 19, 2008, restricting the mother's access.   The probate court noted that the mother's visitation should be supervised until she addressed her mental health issues and provides proof of such treatment.   The court further ordered the mother to comply with all recommendations of an evaluator.   After the visitation order was entered the mother had fifteen supervised visits in the last year.   The last visit occurred Thanksgiving of 2009, due to a disagreement over the identification of approved third-party supervisors.   The guardian testified mother calls child on a regular basis;  and takes the child shopping when she has funds.   The court realizes the mother has not financially supported the child except for sporadic purchases, and failed to send the child letters and cards, however, these transgressions are more a result of her mental health issues than a deliberate disregard for the child's needs.   The petitioner's evidence does not support the grounds that mother has abandoned the child.

No Ongoing Relationship

In order to support this count the petitioner must show no ongoing parent-child relationship which contemplates “a situation in which, regardless of fault, a child either has never known ․ her [parent], so that no relationship has ever developed between them, or had definitely lost that relationship, so that despite its former existence it has now been completely displaced.”   (Internal quotation marks omitted.)  In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645-46, (1980).

The law regarding “no ongoing parent-child relationship” is explained by the Supreme Court as follows:

Section 45a-717(f)(3) defines an “ongoing parent child relationship” as “the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child.”   We have recognized that the statutory definition “is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation.”   In re Jessica M., supra, 467-68.   In such a case, we held that “the ultimate question is whether the child has no present memories or feelings for the natural parent.”  (Emphasis added;  internal quotation marks omitted.)  Id.

In In re Christian P., 98 Conn.App. 264, 268-70, 907 A.2d 1261 (2006), the Appellate Court explained the criteria to be used by the court in determining whether there is no parent-child relationship within the meaning of General Statutes § 17a-112(j)(3)(D):

General Statutes § 17a-112(j)(3)(D) provides that the court may grant a petition to terminate 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 ․”

This part of the statute requires the trial court to undertake a two-pronged analysis.   First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop ․ 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.  (Citations omitted;  internal quotation marks omitted.)  In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).

In In re Jessica M., 217 Conn. 459, 586 A.2d 597 (1991), our Supreme Court defined an ongoing parent-child relationship as it applies to noncustodial parents.   The court stated that termination of a noncustodial parent's rights requires a finding that “the child has no present memories or feelings for the natural parent.”  (Internal quotation marks omitted.)  Id., 468.   When the child does have present memories or feelings, there must be a finding that “no positive emotional aspects of the relationship survive.”  Id., 470.   We recognize that “the evidence regarding the quality of [a parent's] relationship with [a] child must be reviewed in the light of the [parent's] limited access to visitation at the time of the petition.”  (Internal quotation marks omitted.)  In re Alexander C., 67 Conn.App. 417, 425, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003).

If the petitioner fails as to the first phase, that no relationship exists at the present, the court need not move to the second phase which goes to whether it is in the child's best interest to allow additional time for the parent/child relationship to develop.   The evidence from the guardian and the DCF worker does not support a finding that a child-parent relationship does not exist.   The only indication of such a finding came from Dr. Rogers during his testimony.   When asked if such a relationship existed he stated that he did not see any formation of a parent child relationship.   No further explanation was elicited.   However, in his written report, which is more detailed than his oral testimony, he cites numerous behaviors that are indicative of an existing parent child relationship.   In his report he addressed the positive relationship between child and mother.   He noted that the child immediately identified mother as “mommy.”   They openly displayed love and affection towards each other.   They interacted personally with one another and mother displayed appropriate pro-social behavior.   The child sat on the mother's lap and chatted affably.   Eye contact was frequent and reciprocal and the two touched frequently.   Child returned mother's gestures of affection with hugs.   The child protested the mother's departure from the interview process.   Later in his testimony Dr. Rogers stated that during the evaluation the “child and mother had almost constant contact.   A physical comfort.”   Based on this evidence the court can not so easily conclude that a parent child relationship does not exist.   There is no doubt that the evidence presented to the court supports the conclusion the child recognizes Johnnie D. as her psychological parent but the evidence also indicates that the child has positive feelings for her biological mother.   In a sense it is ironic the guardian's diligence in allowing mother to maintain contact with the child throughout the mother's difficulties with her mental health problems now comes back to deny her the ability to terminate the mother's rights based on the existence of a relationship she fostered and supported.   In the end it should not be viewed negatively but as a testament to the guardian's devotion to the child that she allow her to maintain the parental relationship that allowed the child, as noted by Dr. Rogers, to recognize Ashantia G. “as the biological mother and a person to whom loyalty is owned.”   From these facts and others it is the finding of the court that a present mother-child relationship exists.

Consent

There is no evidence that mother at any time consented to the termination of her parental rights.

Denial of Care ․ By Reasons of Acts of Commission or Omission

The final count alleged by the petitioner is that the mother's rights should be terminated because she has committed acts of commission or omission which have denied the child the care guidance or control necessary for physical, educational, moral, or emotional well being within the meaning of § 17a-112(j)(3)(C).  No claim is made that mother in anyway physically abused or sexually assaulted the child.

The case law on this ground for termination has been properly and succinctly summarized by Judge Keller in In re Lourdes R., 2002 Ct.Sup. 8203, 32 Conn. L. Rptr. 699 (June 28, 2002) ‘where she held:

General Statutes § 17a-112(j)(3)(C) authorizes the termination of parental rights where “the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational moral or emotional well-being.”   In order to meet its burden of proving this ground by clear and convincing evidence, the petitioner must prove that specific acts of parental commission or omission have caused serious physical or emotional injury to the child.  In re Sean H., 24 Conn.App. 135, 144-45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1978 (1991).

See In re Luke G., 40 Conn.Sup. 316 (1985);  In re Theresa S., 196 Conn. 18, 491 A.2d 355 (1985). (legislative history of § 45-61f(f) makes it clear that it was added to the law so that seriously abused children could be removed permanently from care of the parent inflicting such abuse);  In re Kelly S., 29 Conn.App. 600, 614 (1992) (the statute authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to the child);  In re Theresa S., supra (this section of the TPR statute “requires proof of specific conduct that caused serious injury to the child).”

The petitioner did not prove at trial that the child ever suffered serious physical or emotional injury from the mother.   Based on the credible evidence produced at trial, the court finds the petitioner failed to prove this ground against the mother by clear and convincing evidence.

Conclusion

At this point the court must comment about what this case did not address.   The petitioner did not claim the probate court had at some point made a finding that the child had been neglected or was uncared for and that presently the mother had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time and considering the age and needs of the child, such parent could assume a responsible position in the life of the child.   There was an abundant amount of testimony regarding the mother's unaddressed mental health issues, her lack of insight and future treatment needs.   However, in the end that testimony was not conclusive as to the grounds claimed by the petitioner to support her allegations to terminate the mother's parental rights.

The father has not appealed the probate court's termination of his parental rights.   Accordingly, the judgment and order terminating his parental rights is maintained by this court.

Having failed to prove by clear and convincing evidence that the grounds for termination of the parental rights of Ashantia G. exist, the guardian's petition for termination of the parental rights of Ashantia G. is denied.   Judgment is rendered in favor of the respondent mother.   The matter is returned to the Ellington Probate Court for any further proceedings consistent with this decision.

SO ORDERED

Simon

Judge of the Superior Court

Simon, Jorge A., J.