IN RE: Alexander M.1 (2010)

MEMORANDUM OF DECISION

TERMINATION OF PARENTAL RIGHTS PETITIONS

The commissioner of the department of children and families (the “department” or the “petitioner”) seeks the termination of the parental rights of the respondent mother, Lisa V. (Mother) and the respondent father, Jason M. (Father) to Alexander M. (Alexander) pursuant to a termination of parental rights (TPR) petition filed on September 21, 2009 and to Kyle M. (Kyle) and Joshua M. (Joshua) pursuant to TPR petitions filed on August 21, 2009.

In addition, pursuant to General Statutes § 46b-129(k), on August 12, 2009, the department filed a Motion to Review Permanency Plan for Kyle and Joshua.   The plan proposed was termination of parental rights and adoption.   Father filed an objection on September 9, 2009.   On September 21, 2009, the department filed a Motion to Review Permanency Plan for Alexander.   The plan proposed for Alexander was termination of the parental rights of the respondents and adoption.   On October 16, 2009, Father filed an objection to such plan.   On June 3, 2010, the department filed a Motion to Review Permanency Plan for each of the children.   The plan continued to be for termination of parental rights and adoption.   Father, on the first day of the TPR trial, orally objected to such plan.

The court has jurisdiction and there is no known action pending in any other court affecting custody of these children.   There is no claim of Native American affiliation of the children.

I

FACTUAL FINDINGS

The credible and relevant evidence offered at trial and a review of the judicially noticed court orders, memoranda and findings supports the finding of the following facts.   Unless otherwise specified, all facts are found by clear and convincing evidence.

A. Procedural History

On September 28, 2006, the department filed neglect petitions with respect to Alexander and Kyle. On July 25, 2007, Alexander and Kyle were adjudicated neglected and placed under protective supervision for a period set to expire on January 25, 2008.

On September 11, 2007, the department filed a neglect petition with respect to Joshua.

On October 18, 2007, the department filed ex parte motions for orders of temporary custody with respect to Alexander, Kyle and Joshua.   At the preliminary hearing on October 26, 2007, Mother agreed to sustain the orders of temporary custody with respect to all of the children and Father, who was not present, indicated through counsel an intention to contest the orders of temporary custody.   The orders were sustained without prejudice as to Father and the matter continued to November 2, 2007 for Father's contest thereof.   On November 2, 2007, Father agreed to sustain the orders of temporary custody.

On November 2, 2007, the department filed a motion to modify the dispositive order of protective supervision to commitment with respect to the prior neglect adjudication of Alexander and Kyle.

On January 16, 2008, the motion to modify the dispositive order of protective supervision to commitment was granted and Alexander and Kyle were committed to the custody of the department.   They remain committed to date.   Also on January 16, 2008, Joshua was adjudicated neglected and he was committed to the custody of the department.   He too remains committed to date.

On August 21, 2009, the department filed the TPR petitions with respect to Kyle and Joshua.

On September 21, 2009, the department filed the TPR petition with respect to Alexander.   On September 22, 2009, the department filed a motion to consolidate the hearing on the TPR petition filed with respect to Alexander with the hearing scheduled for the TPR hearings with respect to Kyle and Joshua.   The motion was granted on November 2, 2009.

On May 25, 2010, Mother executed a written consent to the termination of her parental rights with respect to Alexander, Kyle and Joshua.   After canvassing Mother, the consent was accepted by the court on the same date.

B. Mother and Father

Mother was born in September 1978 in New Britain, Connecticut.   She reported to the department that her father was an alcoholic who frequently fought with her mother.   Mother recalled one specific incident when paternal grandfather chased her paternal grandmother with knives.   Her parents separated and paternal grandmother had a series of boyfriends.   Mother disclosed to her therapist having been sexually abused when she was ten and thirteen by one of paternal grandmother's boyfriends.

Mother dropped out of school after the eleventh grade.   While in school she received special education services.   She has obtained from time to time only short-term entry level employment.

Mother met Father while she was in high school.

Father was born in December 1976 in North Miami, Florida.   Paternal grandfather was a Vietnam veteran who, reportedly, suffered from exposure to defoliants used during such conflict.   Father reported to Dr. Freedman, the psychologist who conducted the court ordered evaluations, that paternal grandfather developed cancer and a drinking problem as a result of such exposure.   Due to paternal grandfather's drinking and drug use, paternal grandmother left him while Father was young.   Father and paternal grandmother thereafter lived moved around, living with the paternal great grandparents, on their own and with paternal grandmother's boyfriends.   Paternal grandmother at one time re-married and father suffered physical and emotional abuse at the hands of his stepfather.   He was reportedly, at age fifteen, removed from paternal grandmother's care for a time due to his stepfather hitting him.

Father did not complete high school, but subsequently obtained his GED. He reported having completed one year of college.

He has held various jobs, but generally not for long periods of time.

Father was arrested in 2004 due to a domestic violence incident with Mother.   He attended anger management classes and the criminal case was not pursued, however the family's involvement with the department began.   The presenting issues at the time were the domestic violence in the home, the family's unstable housing, and Mother's and Father's unaddressed mental health needs.   On August 22, 2007, there was another report of domestic violence in the home.   On September 5, 2007, Alexander presented at Every Day medical center with first degree burn marks on his right arm and a small blister on his forearm.   Mother reported to the physician that the burns occurred when she was out running errands and Alexander was left in the care of Father.   She reported that Father's explanation for the injury to Alexander was that Father was making coffee, he placed a glass on the coffee maker to catch the coffee and the glass exploded causing the hot liquid to splash.   On September 9, 2007, Alexander and his siblings were examined by Dr. Livingston, a pediatrician in the suspected child abuse and neglect (SCAN) program at Connecticut Children's Medical Center (CCMC).  On that date, Mother relayed to Dr. Livingston that Father's explanation for the burns.   Alexander, however, despite his delayed language skills consistently reported to the physician at Every Day medical center, Mother and Dr. Livingston that Father was mad and threw the water at him.   Dr. Livingston reported that the burn marks on Alexander were consistent with a “scald injury from hot liquid in a splash pattern.   The pattern of injury suggests that [Alexander] may have been holding his arm up in front of his face at the time of the injury and it is noted that this is a common defensive posture.   Alexander reports that his father was angry and threw hot liquid on him, and this scenario is consistent with the injuries observed.”   (Exhibit 10, third page.)

During the children's examination by Dr. Livingston, Mother reported that approximately five months earlier she witnessed Father grabbing Alexander's arms and shaking him so hard that his head was flopping back and forth and also she saw Father harshly slapping Kyle in the face.   Mother also reported that Father called the child derogatory names.   Mother did not intervene to protect the children from Father.   Father has denied hitting or demeaning his children.

On September 21, 2007, Mother filed for a restraining order at the Superior Court for the New Britain judicial district.   On October 5, 2007, the court granted the order and further ordered that Father was to have no contact with the children.

On September 29, 2007, the police received a call reporting that dishes and other household items were being thrown from a window at the family's home.   The police, upon investigating, learned that Alexander had used a knife to cut open a screen and he was throwing things out through the opening.   Mother reported to the police that she was aware of the activity but was too tired to do anything about it.   The police reported the children were at risk of serious injury as they could have fallen out of the window or cut themselves.   The children were further reported to be quite dirty, smelling of urine and wearing dirty diapers.   Mother was arrested for risk of injury.   The children were placed with paternal grandmother and the respondents signed a service agreement stating that they would not attempt to remove the children from such home.

Mother after obtaining the restraining order resided with a maternal aunt in an apartment that was not large enough to accommodate Mother and the children.   The maternal aunt had a history with the department.   As a result of such factors, Mother was advised that she could not be considered a resource for the children while she remained in such home.

On September 19, 2008 another restraining order was issued in favor of Mother.   The order had an expiration date of March 19, 2009.   Father thereafter continued to have direct and indirect contact with Mother.   In addition to on-going telephone contact, Father was observed, on January 16, 2008, to pick up Mother from a visit.   On March 14, 2008, Father attended Mother's scheduled visit and refused to leave the visiting area and the building.   Father was arrested in December 2008 for violation of the restraining order.   On December 16, 2008, after Father was arrested for violation of the aforementioned restraining order, a criminal restraining order was issued for a term ending on June 25, 2009.

Mother began a relationship with another man, Enrique V. (Rick).  After a brief courtship they married in March 2008.   In October 2008, Mother and Rick moved into a two-bedroom apartment.   In May 2009, Alexander was reunified with Mother although he remained committed to the department.   At that time Mother was pregnant with Rick's child.   While Alexander was placed with Mother, Kyle and Joshua would visit.   Rick's behavior changed and he was observed to have become an angry, emotionally abusive stepparent and husband.   Despite participating in the Casey Family Services reunification program, Mother was unable to successfully parent Alexander.   As a result thereof, and due to concerns about Rick being abusive towards Alexander as well as towards Kyle and Joshua when they visited, on August 18, 2009, Alexander was again removed from Mother's care and placed in a foster home with his brother Joshua.

During that same time period, Father began a relationship with another woman, Temea.   Temea had children who were also in the care of the department.   Father and Temea were married after an extremely short courtship.   Father reported to Dr. Freedman that Temea, misguidedly, convinced him a marriage would be beneficial for both of them in terms of being reunified with their respective children.   Temea had a serious alcohol problem and there were reported instances of Temea engaging in extreme drinking binges.   The marriage was soon annulled.   In March 2010, Father asked the department if he could resume contact with Temea while at the same time acknowledging that he should have engaged in intensive therapy before beginning a relationship with Temea at all.

As set forth above, in December 2008, Father was arrested for violation of the restraining order issued for the benefit of Mother.   On January 15, 2009, Father was twice arrested as a result of separate incidents involving paternal grandmother.   In the first instance, the police were called by a third party who reported having Father as a client at the human resources agency in New Britain.   The caller reported Father was in the possession of an unknown quantity of Oxycontin pills.   On request, Father tendered the pills to the caller and the caller handed the pills to paternal grandmother who was trying to have Father enrolled in a substance abuse program.   Father reportedly became enraged at paternal grandmother and threatened to kill her if she did not return the pills.   She did so and Father left the scene prior to the police arriving.   Later that day, Father went to paternal grandmother's home and, reportedly, became upset and threw her phone to the ground, in anger, causing the phone to break.   Paternal grandmother reported being afraid of Father.   The police were called and Father was arrested in connection with both incidents.   As a result of the pending case and the subsequent arrests, Father was incarcerated for two months and then sent for thirty days to a residential alcohol treatment facility.

Additional facts will be set forth below as warranted.

C. The Children

Alexander was born in January 2003.   He was a healthy baby.   In 2004, he was tested for lead poisoning due to the condition of the apartment in which he, Mother and Father lived.   His levels were found to be elevated.   Shortly after his second birthday, he was evaluated by Birth to Three and found eligible for services due to having a significant language delay and developmental delays in his fine and gross motor skills.   After he aged out of Birth to Three, he was transitioned to preschool with special educational services.   After he commenced preschool, his parents moved and failed to enroll him at a school so he could obtain speech therapy and continue his special education.

Alexander has been diagnosed with ADHD, combined type;  post traumatic stress syndrome;  and mixed receptive-expressive language disorder.   In May 2008, he was provided with arch supports and braces and began to receive therapy due to problems with his feet, legs and gait.   In August 2008, it was determined that he has internal rotation of his hips and legs and he began to receive physical therapy as well as occupational therapy.   Alexander was recently successfully discharged from occupational therapy, but is continuing to receive physical therapy.   He also began individual counseling on or about May 2009.

Alexander repeated kindergarten during the 2009-2010 school year, but will be promoted to first grade for the next school year.   He continues to need and receive special education services.

After his initial removal he was placed in a safe home.   He was subsequently placed in another safe home and was for a time placed with Kyle in a therapeutic foster care home.   On May 28, 2009, while remaining committed to the department, he was reunified with Mother.   Despite having received intensive family reunification services, Mother was not able to successfully meet Alexander's needs;  for example, she failed to take him consistently to his occupational therapy appointments and to refill his prescription medication.   There were also concerns with Rick's treatment of Alexander, Kyle and Joshua.   As a result thereof, Alexander was again removed from Mother's care on August 18, 2009.   He was placed with the foster family that was caring for Joshua.   Alexander was familiar with the foster family as Mother had, while Alexander was placed with her, inappropriately used that family to provide weekend care for him.   This foster family has been meeting his needs and providing consistent nurturing care.

Kyle was born in February 2004.   He was born full term.   He too was evaluated by Dr. Livingston in October 2007.   He was found to have head lice.

Kyle was evaluated and found eligible for Birth to Three Services.   After age three, he was transitioned to preschool where he received special education services.   He continues to receive special education services while he attends kindergarten.   He will be promoted to first grade at the end of the current school year.

Kyle has developmental delays in his fine and gross motor skills as well as delayed language development.   He also has hypotonia and problems with his feet, legs and hips.   He receives occupational and physical therapy.

Kyle has been diagnosed with adjustment disorder/mixed anxiety and depressed mood and neglect and a rule out of post traumatic stress syndrome.   He has been receiving individual counseling since May 2009.   His current therapist testified at the TPR trial that the focus of the therapy has been on the reduction of symptoms that have arisen from his anxieties, including addressing some behavioral issues such as repeatedly soiling and wetting himself, tantrums and nightmares.   She further testified that he is at least two years behind developmentally.   She has continued to recommend that visits with Father be suspended due reports of Kyle's behavior declining after contact with Father and also as a result of Kyle's actions during play therapy when the topic of Father has been introduced.   After visits with Father were suspended, Kyle's behaviors markedly improved.

Kyle was in three placements before March 2009 at which time he was placed with his current foster family in a therapeutic foster home.   This foster family is meeting his significant needs by, among other things, taking him to and participating in his therapy and counseling sessions.

Joshua was born in October 2006.   He was born full term and was a generally healthy infant.   He too was evaluated by Dr. Livingston in October 2007.   At the time of that evaluation, Mother was not certain if his immunizations were up to date.   They are now.

In November 2007, he attended a multi-disciplinary examination and referred to Birth to Three.   At the time of the evaluation, he was noted to have a flat head which may have been caused by being left lying on his back for extended periods of time.   Upon further examination, it was determined his head would round out and that the condition was not causing any neurological problems.

Joshua does not require special education services.   He is enrolled in a Head Start program.

Joshua has had only one placement since he came into the custody of the department.   He is bonded to his foster family and they are committed to providing care to him.

Additional facts will be set forth below as warranted.

D. Specific Steps

Preliminary specific steps relating to Alexander and Kyle were ordered by the court for Father on July 25, 2007.   Final specific steps were ordered on November 2, 2007 with respect to all three of the children.   The court finds the following with respect to Father's compliance with the salient specific steps:

Keep all appointments set by or with the department.   Cooperate with home visits, announced and unannounced and visits by the child's court-appointed attorney or guardian ad litem.   Father has a history of being inconsistent with keeping his appointments with the department;  he has missed at least two administrative case reviews, despite having them rescheduled to accommodate his schedule.   Father has often scheduled and rescheduled meetings and then still not attended the same.

Keep child's whereabouts and your own whereabouts known to the department, your attorney and the attorney for the child.   Father has been generally compliant with this step.

Participate in counseling and make progress toward identified goals.   Cooperate with recommended service providers for parenting and individual counseling.   The recommended service providers were:  the parent aid program;  Catholic Family Services or Wheeler Clinic or other appropriate provider for individual counseling;  Central Connecticut Hospital Counseling Center.   The specific counseling goals for Father were to develop age appropriate parenting skills, learn appropriate discipline techniques and address issues of past trauma.

As for parenting skills, Father has not attended any parenting education classes despite contact information being given to and referrals having been made for Father.   In the spring of 2010, the worker again provided Father with the information for parenting classes at the YWCA. The YWCA does not accept referrals from the department and requires the parent to arrange for classes.   On March 24, 2010, Father put himself on the waiting list.   He was advised he could begin classes on May 17, 2010.   He did not attend the first two sessions and he was therefore placed by the YWCA back on the waiting list.

As for addressing his own mental health, he engaged in treatment at the Hospital of Central Connecticut (HCC) in 2007, but he stopped attending appointments in November 2007.   In April 2008, he reconnected with HCC. In June 2008, without recommendation to do so, he ceased attending individual therapy appointments although he continued to receive psychiatric services.   In August 2008, he was notified that HCC was going to terminate all services due to his failure to attend appointments.   He did schedule a therapy appointment thereafter, but he did not regularly attend sessions.   Father ceased involvement with HCC without having been successfully discharged.   In early 2010, Father reported to the department that he made an appointment at HCC to address his mental health and substance abuse issues.   When Father was asked to verify the date of his appointment, he was unable to do so.   As of the end of evidence in this matter, he had not re-engaged at HCC.

Father did obtain some therapy at Farrell Treatment Center while he was in-patient and also while he attended a follow-up intensive out-patient (IOP) program, however the focus was on substance abuse and not on addressing Father's mental health issues as identified by Dr. Freedman.

As for domestic violence, Father was referred to the DOVE program at Wheeler Clinic on January 31, 2008.   He missed a few sessions, but did complete the twenty-six-week program as of August 21, 2008.   Based on his continuing contact with Mother (in contravention of the terms of restraining orders) and his subsequent arrests, he did not benefit from the program.

Cooperate with court ordered evaluations or testing.   Father did attend three court ordered evaluations.

Cooperate with restraining and protective orders and/or other appropriate safety plan approved by the department and avoid further domestic violence incidents.   Father did not cooperate with this step.   As set forth above, Father continued to contact Mother while restraining orders were in effect and was arrested in December 2008 for violation of a restraining order.

Secure and maintain adequate housing and legal income.   Immediately advise the department of changes in the composition of the household.   Father has not satisfied this step.   Since the filing of the neglect petitions for Alexander and Kyle, Father has lived with Mother, with paternal grandmother, with Mother and Rick, been homeless, resided in-patient at Farrell Treatment Center, resided in a sober house and now resides in a one-bedroom apartment from which he is being evicted.

As for employment, he has been unable to consistently retain jobs that he has obtained.   On or about the beginning of March 2010, he was discharged from his last job, at a retail establishment, because he failed to timely submit to a drug screen.

Do not engage in substance abuse.   Father did not cooperate with the efforts of the department to verify that Father was not abusing substances.   He would not participate in a substance abuse assessment requested by the department and he would not sign releases to allow the department to refer him to a toxicology screen.

One of Father's witnesses, a DOVE program clinician, testified that while Father was engaged in the program (in 2008) Father was asked to take a drug screen and he refused to do so.

When ordered to do so by the criminal court, Father attended an inpatient treatment program at Farrell Treatment Center on March 4, 2009.   He successfully completed the program and was referred to the IOP which he also successfully completed.   Upon completion of IOP Father was referred to a men's relapse prevention group.   Father's attendance at the group was not mandated by the criminal court.   He began the group on July 23, 2009.   By August 25, 2009, Father had missed three out of six sessions and when he did attend he arrived late and thereby missed the drug testing.   He was shortly thereafter unsuccessfully discharged from treatment and he did not participate in drug testing at the program.

Also, as set forth above, Father has recently been discharged from his job due to his failure to submit to a drug screen within a timeframe mandated by his employer.   His failure to do so is indicative either of his fear of having a positive test and the resultant consequences thereof or due to his inability to recognize the importance of cooperating with his employer and demonstrating that he has refrained from substance abuse.   Either scenario is problematic.

Have no involvement or further involvement with the criminal justice system.   As set forth above, Father has not been compliant with this step.   He was arrested on December 15, 2008 for violation of a restraining order.   He was also arrested twice on January 15, 2009 for incidents involving his mother.

Visit the children as often as the department permits.   Father has not visited the children with any consistency.

After the OTC, Father was unable to visit due to the restraining order issued which prohibited him from having contact with the children.   In March 2008, therapeutic visitation supervised by My People Clinical Services began.   Father did not regularly attend visits.

In the fall of 2008, a court ordered psychological evaluation was performed to determine if continuing visitation with Father was in the best interest of the children.   The evaluation concluded supervised visits could continue provided Father was consistent with medication management.   A weekly visitation schedule was instituted in October 2008.   Between October 2008 and January 14, 2009, Father only attended four visits.   Due to the inconsistency of his visits, Father was asked to call on the morning of the scheduled visits to confirm he would be attending.   His attendance did not improve.   There were no visits while Father was incarcerated or while he was inpatient (in January 2009 to March 2009).   After he completed his inpatient treatment, Father reported that he wanted to resume visitation.   He attended a few visits with the children.   In May 2009, Alexander and Kyle were in therapy.   The department after consultation with the therapists and after considering the fact that the children's behaviors declined after visits determined that it was in the best interest of the children to suspend visits with Father.

Visits with Joshua were not suspended and there was nothing precluding Father from visiting Joshua on a weekly basis.   In June 2009, Father attended only two visits.   As a result of Father failing to call and cancel visits that he did not attend, his visitation schedule was reduced to one time a month.   Father did not visit or inquire about Joshua at all from July 2009 until November 2009.

In October 2009, the current social worker was assigned to the case.   She testified that despite sending Father a letter in October 2009 with her contact information, she had no contact with Father until an administrative case review in November 2009.   At such review Father did not ask about visiting with Joshua or the other children.   In January 2010, the department sent Father a letter inviting him to come in and discuss a visitation schedule and also to make follow up on services.   Father called and arranged for a meeting on February 10, 2010, which he then failed to attend.   In all a total of six meetings were set for February 2010 to discuss such topics and Father did not attend any of them.   A meeting was finally held on March 4, 2010 and a visit with Alexander and Joshua occurred at the end of the meeting.   Kyle was not in attendance as his therapist continued to recommend against visitation with Father.

Father's behavior at the March 4, 2010 visit was not appropriate.   For example, at the end of the visit, Alexander wanted a kiss and Father told him he was too old for kisses;  Alexander was only seven at the time.   During the visit, Father was also talking to the children about the on-going legal proceedings in a manner that was confusing, traumatizing and inappropriate.

After the March 4, 2010 meeting, a schedule of bi-weekly visits was established.   Father was advised that he needed to call and confirm the visit or it would be cancelled.   Father by the close of evidence had attended only about one-half of the visits that were available to him.

II

ADJUDICATION

The TPR petition filed by the department for the termination of Father's parental rights to Alexander, Joshua and Kyle alleges three alternative grounds as provided in General Statutes § 17a-112(j)(3), grounds A, B(i) and D. Only one ground need be established for the granting of a TPR petition.  In re Juvenile Appeal (84-BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984);  In re Shane P., 58 Conn.App. 234, 242-43 (2000).

A. Location and Reunification § 17a-112(j)(1)

In order to terminate parental rights, unless the court grants the petition due to the consent of the respondent parent, as is the case with Mother, the department must prove, by clear and convincing evidence, the statutory element requiring “reasonable efforts to locate the parent and to reunify the child with the parent.”  General Statutes § 17a-112(j)(1).   The court need not make that finding, however, if the evidence clearly establishes that the parent is unable or unwilling to benefit from reunification efforts.  In re Jorden R., 293 Conn. 539 (2009)

“The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof.”  Id. at 48.  “Although [n]either the word reasonable nor the word efforts is ․ defined by our legislature or by the federal act from which the requirement was drawn ․ [r]easonable efforts means doing everything reasonable, not everything possible.”  (Internal quotation marks omitted;  citation omitted.)  In re Ryan R., 102 Conn.App. 608, 619 (2007);  In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000).   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., supra, 93 Conn.App. 47.

As set forth above in the preceding findings of facts, Father has been referred to appropriate programs and services, including, without limitation, case management services, supervised visitations (including, at times, therapeutic supervised visitation), the DOVE program and HCC. The department was unable to refer Father to substance abuse treatment, if required, as Father would not submit to a substance abuse assessment.   After his arrests in January 2009, Father was ordered criminal court to attend and complete an inpatient alcohol abuse treatment program at the Farrell Center and therefore the department did not offer a similar program to Father.   The department further endeavored to make a referral for Father to obtain supportive housing-the fact the Father was ineligible therefore due to the children being out of his care, while nullifying the effectiveness of the referral, does not negate the fact that the department endeavored to assist Father.   The department, having previously provided the family with rental assistance, declined to provide direct rental assistance to Father.   The court finds the Department made reasonable efforts to reunify Father with Alexander, Kyle and Joshua.   Further, as found above, Father chose not to engage in many of the services made available to him and, to the extent he did engage in services he did not benefit as a result of such participation.   Based on Father's unwillingness and/or inability to benefit from the services, the court further finds that Father is unable to benefit from the reunification services afforded him.

B. Termination of Father's Parental Rights to Alexander, Kyle and Joshua on Ground A

The department claims Father has abandoned Alexander, Kyle and Joshua.   Abandonment focuses on the parent's conduct.   A lack of interest in the child is not the sole criterion in determining abandonment.  “Section [17a-112(j)(3)(A) ] 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.”  In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37 (2000).

The evidence is clear and convincing that Father has not visited the children or made inquiries as to their wellbeing with any degree of regularity or consistency.   Certainly his own actions led to period when he was prohibited from visiting with the children.   He has, however, occasionally expressed interest in and concern for his children.   He was concerned about the medication prescribed Alexander and he also a desire to meet with Alexander's therapist.   Father made appointments to meet the therapist at Klingberg-although he did not attend the same.   During his last meeting with Dr. Freedman, Father was aware that Alexander was taking Ritalin for his ADHD and that Alexander had inserts in his shoes to correct his stance and assist with his toeing in.   Father was also aware that Kyle had problems with muscle tone, but he was unaware of Kyle's other developmental issues.

The court finds Father's failures to be indicative of Father's immaturity, impulsivity and poor judgment.   The court does not find by clear and convincing evidence that Father abandoned the children within the meaning of the statute.

The court finds the petitioner has not satisfied her burden and Ground A is dismissed.

C. Termination of Father's Parental Rights to Alexander, Kyle and Joshua on Ground B(i)

The petitioner alleges that Father's parental rights to Alexander, Kyle and Joshua should be terminated because he has failed to achieve rehabilitation within the meaning of General Statutes § 17a-112(j)(3)(B).

On July 25, 2007, Alexander and Kyle were adjudicated neglected;  they were committed to the custody of the department on January 16, 2008.   On January 16, 2008, Joshua was adjudicated neglected and committed to the custody of the department.   Thus, the critical issue for this court is whether Father has achieved a sufficient degree of rehabilitation as would allow the court to find that he would be able to care for all or any of the children within a reasonable time considering the age and needs of each child.

“Personal rehabilitation as used in [Section 17a-112] refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [The statute] 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 ․ [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [such parent] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [such parent] can assume a responsible position in [such parent's] child's life.”  In re Amneris P., 66 Conn.App. 377, 384-85 (2001) quoting In re Eden F., 250 Conn. 674, 706 (1999).   In 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 children at issue.  In re Amneris P. supra, 66 Conn.App. 385.

In assessing rehabilitative progress, the question is not simply how far the parent has come, but has the parent come far enough to encourage the belief that within a reasonable period of time, the parent can assume the role as parent in the life of the child.  In re Stanley D., supra, 61 Conn.App. 230.   See also In re Sheila J., 62 Conn.App. 470, 479-80 (2001).  “What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.”  In re Stanley D., supra, 61 Conn.App. 231 (quoting In re Michael L., 56 Conn.App. 688, 694 (2000)).   Further, the court may, in considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may assume or resume within a reasonable time a useful role in the child's life, rely on events occurring after the date of the filing of the termination of parental rights petition.  In re Stanley D., supra, 61 Conn.App. 230.

With the above standards as the court's parameters, the court finds by clear and convincing evidence that Father has failed to achieve such a degree of rehabilitation so as to encourage the belief that within a reasonable period of time, he could assume his role as a parent for these children.   At the time of the neglect adjudication, Father's presenting problems arose from his substance abuse, reports of domestic violence, a history of acting violently, his mental health needs, lack of parenting skills, unstable employment and housing and an inability to provide a safe, stable and nurturing home for the children.

Father has, belatedly, acknowledged having a substance abuse problem.   He did complete the criminal court mandated in-patient treatment at the Farrell Center and the Intensive Outpatient Program (IOP) to which he was referred by Farrell.   He tested negative while attending the IOP. He was, however, further referred to a relapse prevention group.   Attendance and completion of that group was not mandated by the criminal court.   Father's attendance at the program was poor and when he did attend, he arrived late and thereby missed (or avoided) having drug testing administered.   Father also reportedly lost his most recent job because he failed to take a urine test within a time frame mandated by his employer.   Father has reported a willingness to enter a dual diagnosis program at HCC to address his mental health and his substance abuse, but he has not followed through on doing so.   The evidence does not support a finding that Father has successfully addressed his substance abuse.

He did not engage in therapy that may have assisted him in addressing his own troubled past which, in part, appears to preclude him from functioning at a level consistent with his intellect.

The court credits the testimony of Dr. Freedman that Father's overall variety of psychological and interpersonal problems has combined to make him marginally adjusted.   Over the course of the three evaluations, Father has not shown any sign that he has benefitted from counseling;  Father was no further along in October 2009 than he was two years earlier.   The counseling in which Father did engage was short-term-due to Father ceasing to attend the same.   Dr. Freedman further testified that the depths of the problems Father has demonstrated by history over time would not be adequately addressed by short-term counseling.

Despite Father's denial of domestic violence in the home, there are credible reports of the same.   There is also credible evidence of Father reacting violently towards paternal grandmother.   Father continues to deny abusing Alexander and Kyle. He also denies having burned Alexander by throwing boiling water on him.   Father has continued to report that it was an accident due to a glass breaking while it was on the heating element for the coffee pot.   Dr. Livingston, the SCAN doctor, noted that while it is “certainly possible for a glass to crack and break on a hot surface, but as a drinking glass is open at the top and the contents would not be under pressure in the scenario (described by Father), I think it implausible that a glass sitting on a coffeemaker would explode and spew hot liquid outward.”   As set forth above, Dr. Livingston found the burns to be consistent with a “scald injury from hot liquid in a splash pattern” which was consistent with Alexander holding his arms in a defensive position.   The credible evidence is that Father has engaged in abusive behavior towards Mother, the children and paternal grandmother and that he has not acknowledged doing so or addressed the underlying causes for his doing so.

Although he did complete a recognized domestic violence program, it is clear by his actions thereafter that he failed to gain a benefit from such program.

He has failed to engage in a parenting program that may have provided him with the skills and knowledge required to parent these three children.

He has indicated on many occasions his desire to parent these children.   He has not, however, demonstrated a consistent commitment to improving his own life nor to acquiring the skills, knowledge, and patience required to be reunified with the children nor has acknowledged the role that he played in the removal of the children and the breaking up of his family.

Father has not made himself available to the children on a consistent basis.   As Dr. Freedman noted, Father has “remained peripheral in the children's lives.”  (Exhibit 25, page 6.) Father has not acknowledged that his inability to be present for his children has negatively impacted them leading the children to have adverse reactions to visits with him.

Rehabilitation has a context and must take into consideration the age and needs of the child.   The linchpin to a determination of rehabilitation necessarily includes a finding that the parent can begin or resume parenting within a reasonable period of time.   The question is not simply one of rehabilitation;  it is whether the particular needs of the child can be met within a reasonable timeframe.   See, In re Amneris P., supra, 66 Conn.App. 384-85.

Alexander and Kyle have developmental delays and both are receiving physical therapy and individual counseling services.   While Alexander has successfully completed a course of occupational therapy, Kyle continues to require the same.   They will continue to need to receive the benefit of special education services, at least for the foreseeable future.   Alexander and Kyle require a caretaker who can in addition to meeting their basic needs for proper and nutritious food and providing them with safe and appropriate housing, consistently advocate for them to ensure they each receive the educational services they will require.   These children need consistency, stability and a parent with good enough judgment to know how to promote a healthy development and attend to their day to day and long-term needs-including taking them to their many therapeutic services.   Father is not in a position to provide the same;  he is not even aware of the extent of his children's needs.   Father did make some inquiries as to Alexander's issues and he expressed an interest in meeting with Alexander's therapist at Klingberg.   In fact, he made an appointment to meet with the therapist on September 8, 2009, but he failed to attend and failed to have the courtesy to call to cancel the appointment.   He then went to Klingberg on September 10, 2009-when he did not have an appointment-and made another appointment for September 15, 2009.   Again, he did not show or call to cancel.   Father by doing so further demonstrated that he cannot be relied upon to meet the needs of his children.

Joshua does not require such specialized attention.   He is a three and one-half year old child who, like his brothers, has been custody of the department for two and one-half of such years.   He too needs and deserves an appropriate caretaker who will provide consistent nurturance and guidance and who will model mature and appropriate behaviors.

Father has difficulty meeting his own needs and controlling his own behaviors.   He acts impulsively, irrationally and in an immature fashion.   At the time of the 2009 evaluation, Dr. Freedman found that Father had not made any notable improvement in his behaviors, parenting skills or in addressing his own mental health needs and accordingly, affording Father further time could not be reasonably expected to lead to a different result.  “Psychological testimony from professionals is appropriately accorded great weight in termination proceedings.”  In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999).

Taking into consideration the findings made above together with the age of the children, their time spent in the care of the department and their need to be raised in a home that can meet their respective needs, the court concludes, by clear and convincing evidence, Father has failed to rehabilitate to a degree as to allow for any reasonable assurance that the children could safely be returned to his care within any foreseeable time period.  “Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate;  it is ordered so as not to punish ․ Child[ren] by denying [such children] a safe, permanent home with proven competent care-takers because [such children's] biological [parent] has tried hard but continues to be incapable of providing such a home for [such children].”  In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998).   In this case, Father cannot be found to have even “tried hard.”

The court finds the petitioner has met her burden and Ground B(i), the “failure to rehabilitate” ground, for termination of Father's parental rights to Alexander, Kyle and Joshua has been proven by clear and convincing evidence.

D. Termination of Father's Parental Rights to Alexander, Kyle and Joshua on Ground D

The petitioner also seeks to terminate the parental rights of Father on the ground that there is no ongoing parent child relationship between Father and Alexander, Kyle and Joshua.

This ground is established when there is no ongoing parent-child relationship with the parent, which is defined 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 and where allowing further time for the establishment of the parent-child relationship would be detrimental to the best interest of the child.  General Statutes § 17a-112(j)(3)(D).  No ongoing parent-child relationship contemplates, among others, a situation in which, regardless of fault, a child either has never known his or her parent, or that no relationship has ever developed between them.  In re Juvenile Appeal (Anonymous), 181 Conn. 638, 645-46 (1980).

In the adjudicatory phase, the petitioner must establish as to respondent:  (1) that no ongoing parent-child relationship exists;  and (2) that the allowance of further time for the establishment of such a relationship would harm the interests of the child.  In re Jonathon G., 63 Conn.App. 516, 525 (2001).

The evidence establishes that the children do have a relationship, albeit diminished and tenuous, with Father.   During the last interactional evaluation in 2009, Alexander in particular demonstrated an attachment to Father.   Kyle and Joshua did so to a lesser extent.

Although Father did not exert anything near Herculean efforts to maintain a relationship with his children while they were in the custody of the department, the court finds the statutory ground of no ongoing relationship has not been proven by clear and convincing evidence.   The statutory definition of no ongoing relationship “is inherently ambiguous when applied to noncustodial parents who must maintain their relationships with their children through visitation.”  In re Valerie D., 223 Conn. 492, 532 (1992), quoting In re Jessica M., 217 Conn. 459, 467-68 (1991).

Father is not by virtue of this decision being commended for his efforts in maintaining a meaningful and positive relationship with his children as the evidence is clear and convincing that the children and Kyle in particular, have paid a price for Father's indifference and neglect.   However, that does not permit the court in this instance to find there is no ongoing parent child relationship.

Ground D is dismissed.

To conclude, the petitioner has established, by clear and convincing evidence, a statutory ground exists for the termination of Mother's and Father's parental rights to Alexander, Kyle and Joshua.   Having so determined, the court must next consider whether clear and convincing evidence has been presented that it is in the best interests of the children that the parental rights of the respondents be terminated.

III

DISPOSITION

During the dispositional phase, the trial court must determine whether termination is in the best interests of the children.  In re Quanitra M., 60 Conn.App. 96, 103 (2000).   Except in the case where termination is based on consent, as is the case with Mother, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a-112(k) ].  See In re Jonathon G., 63 Conn.App. 516, 528 (2001) (quoting In re Denzel A., 53 Conn.App. 827, 833 (1999)).   Accordingly, the court makes the following findings with respect to Father:

(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the children by an agency to facilitate the reunion of the child with respondent.   The court finds the department offered timely and appropriate services to Father and to the children.

(2) As to whether the department has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.   The court finds the Department made efforts with respect to Father that were reasonable under the circumstances.   In particular, the department engaged the services of Casey Family Services to determine if reunification of the children with Mother and/or Father was appropriate.   The service provider had difficulty in assessing Father as he kept missing appointments.   The provider, after meeting with Father, was concerned with his denial of his prior neglectful parenting and also with his agitated presentation.   The service provider did not feel that reunification with Father was appropriate.   The court finds the department acted reasonably in determining that efforts to reunify Father with the children, beyond the services offered to Father, would not be fruitful.

(3) As to 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, the court finds specific steps were ordered as to respondent Father.   As set forth above, Father complied with some of the steps, but he did not comply with many of the steps and further he has been unable to benefit from the programs and services in which he did partake.   The department complied with such steps.

(4) As to the feelings and emotional ties of the children with respect to the child's parents, any guardian of such children's person and any person who has exercised physical care, custody or control of each of the children for at least one year and with whom such child has developed significant emotional ties:  Alexander demonstrated an attachment to Father.   There is no evidence, however, that Alexander looks to Father as a caregiver who can meet his needs.   Kyle does not display a deep attachment to his Father.   It has been noted that his behavioral issues increase after visits with Father.   There is no evidence of a warm and nurturing parent child relationship between them.   At times, Joshua appears to enjoy seeing Father during visits, but again there is no evidence of a parent child relationship between them or that Joshua views Father as a caregiver.

Alexander has bonded with his current foster family.   He has been with them for somewhat less than a year having been placed with them in August 2009 after his second removal from Mother's care.   He was familiar with them as they provided informal respite care to Mother while Alexander was placed with Mother and as they have been Joshua's foster family since October 2007.   Joshua is very bonded to his foster family which consists of a foster mother, foster father and one other foster child.   Alexander and Joshua look to their foster family for comfort and solace.

Kyle has also bonded with his foster family with whom he has been placed since March 2009.   Kyle has been observed to run to his foster family members when he gets off the school bus.   He looks to them for comfort and solace.

The siblings are bonded to each other.   The foster families have begun to have visits in the community for the children and are committed to helping the children maintain their sibling bond.

(5) As to the age of the children:  Alexander is seven, Kyle is six and Joshua is three and one-half years old.

(6) As to the efforts the parents have made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the children to return such children home in the foreseeable future, including, but not limited to, (A) the extent to which the parents have maintained contact with the children as part of an effort to reunite the children 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 children;  the court finds as follows:  he has not maintained regular contact with the children.   His contact with the department has been irregular.   As noted above, the only thing Father is consistent with is his inconsistency;  he frequently makes appointments and then fails to attend them.   Father has not made efforts to address his parenting deficits nor is there clear and convincing evidence that he has adequately addressed his substance abuse issues.   He has not engaged in individual counseling to address his own past traumas.   The court finds he has not adjusted his circumstances, conduct and behavior to make it in the best interest of the children that they be reunified with him in the foreseeable future.   Giving Father a reasonable period of additional time would not bring his performance as a parent to an acceptable level.

(7) As to 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, the court finds no unreasonable conduct by the child protection agency, foster parent(s) or third parties nor does the court find economic circumstances of the respondent preventing a meaningful relationship with the children.

During closing arguments, Father argued that while the family was still intact (in 2007), he was the more capable parent and therefore he should have been encouraged to remain at home to provide the primary care for the children-with the resultant implication being that if that had been the case, the family would have remained intact.   Instead, the department, supported by Dr. Freedman's recommendation, encouraged Father to seek employment with the goal of the family being able to obtain stable housing and improve their precarious living situation.   There was a further argument of gender bias in that Father was the parent encouraged to go out and be the breadwinner.   The court does not credit that argument.   There is no evidence of gender bias by Dr. Freedman or the department.   The Father in arguing he was the more capable parent and that it was counter to the best interest of the family for the department to have encouraged him to gain employment ignores the fact that while he was in the home his parenting was neglectful.   Father also fails to take into account the recognized public policy of requiring a parent to financially support their children.   See In re Bruce R., 234 Conn. 194 (1995).   The evidence is that Father was, of the two biological parents, the one more likely to find gainful employment that would have allowed the family to improve their living situation and there is no evidence that in doing so, that is in obtaining gainful employment, that Father would then have been concomitantly prevented from maintaining a role as a responsible, caring parent for his children.   The two are not mutually incompatible.

The evidence in this case is clear that Father has dysfunctional behaviors as a result of alcohol and substance abuse, immaturity and impulsivity and poor judgment that is due in part to Father's unaddressed mental health issues.   Father has been and continues to be wholly unable to manage his own affairs let alone to raise these children to even minimally acceptable standards.

In addition to considering the evidence presented in this case, the court has also considered the totality of the circumstances surrounding the children including the children's interest in sustained growth, development, well-being, stability, continuity of their environment, length of stay in foster care, the nature of the children's relationship with the foster and biological parents and the degree of contact maintained with the biological parents.  In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000);  In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000);  In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999).   The court has also balanced the children's intrinsic need for stability and permanency against the benefits of maintaining a connection with the biological parents.  Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998).   The court has also considered the attorney for the children advocated for the termination of the respondents' parental rights.

Based upon all of the foregoing, the court by clear and convincing evidence finds termination of the parental rights of Mother and Father as to Alexander, Kyle and Joshua to be in the best interest of each of the children.

IV

REVIEW OF PERMANENCY PLANS

The Department further seeks to have the court approve the permanency plans of termination of parental rights and adoption filed on August 12, 2009 for Kyle and Joshua;  on September 21, 2009 for Alexander;  and on June 3, 2010 for all three of the children.   Father filed an objection to the August 12, 2009 and September 21, 2009 plans and made an oral objection to the June 3, 2010 plans.

General Statutes § 46b-129(k)(1) provides in pertinent part:  “Nine months after placement of the child or youth in the care and custody of the commissioner ․ or removal of the child ․ pursuant to Section 17a-101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan.”   The court is required to hold a permanency hearing even absent an objection.   The department has the burden of proving that the proposed permanency plan is in the best interests of the child.  General Statutes § 46b-129(k)(1).   At a permanency hearing held in accordance with this provision, the court shall approve a permanency plan that “is in the best interests of the child ․ and takes into consideration the child's ․ need for permanency.   The child's ․ health and safety shall be of paramount concern in formulating such plan.”   General Statutes § 46b-129(k)(2).

Having considered the evidence presented at the consolidated permanency plan hearing and the termination of parental rights trial, the court hereby finds by a preponderance of the evidence the plans for termination parental rights and adoption are in the best interest of each of the children.

The court hereby approves the plans filed on August 12, 2009, September 21, 2009 and June 3, 2010.   Objections to the plans are overruled.

The court further finds the department has made reasonable efforts to achieve the plans.

V

ORDERS

It is accordingly, ORDERED that the parental rights of Mother and Father to Alexander, Kyle and Joshua are hereby terminated.

The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for each of these children.

The Commissioner shall file, within thirty days hereof, a report as to the status of these children and such further reports shall be timely presented to the court as required by law.

The Clerk of the Probate Court with jurisdiction over the subsequent adoption of these children shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at New Britain of the date of each adoption is finalized.

Judgment shall enter accordingly.

It is so ordered.

Dated:  June 23, 2010

BY THE COURT,

Olear, J.

Olear, Leslie I., J.