IN RE: Jake et al.1 (2010)

MEMORANDUM OF DECISION

This is a contested action brought by the Commissioner of the Department of Children and Families (DCF) to terminate the parental rights of Christine D. and Cornelius D. to their twin seven-year-old sons, Jake and Ryan. The parents have appeared and are represented by counsel.   The children are represented by counsel.   Neither parent claims Indian Tribal affiliation.   The court is aware of no other proceedings pending in any other court regarding the custody of these children.   This court has jurisdiction.

The petition, filed on March 26, 2010, alleges that as to both respondents, that the children were found in a prior proceeding to have been neglected or uncared for and the parents have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and the needs of the children, either of them could assume a responsible position in the life of the child.  C.G.S. § 17a-112(j)(3)(B)(I).

The court heard the testimony of seven witnesses including social workers, a psychologist, and family support specialist.   A host of documents were entered into evidence including social studies, psychologists reports and service providers notes.   With respect to all findings regarding the termination of parental rights, those findings are made by clear and convincing evidence.

FACTS:

Jake and Ryan D. are the twin sons of Christine and Cornelius “Bruce” D. Bruce, date of birth 1950, is twenty-one years older than Christine, date of birth 1971.   The birth of the twins, on February 2, 2003, was the result of in vitro fertilization.   The parents who were married and living together at the time of birth, separated when the boys were about four years old.   The parents enjoy an unusually compatible relationship although they remain separated.   They had a joint legal custody relationship with visitation as often as Bruce desired.   The children, following their separation, had remained in the residential care and custody of Christine.

At about age two, Christine was sufficiently concerned about the children's conduct and orientations that she had them medically evaluated.   Confirming her suspicions, the twins were diagnosed with severe autism.   During the first four years while Bruce was in the home, between the two of them they managed the boys.   This was no small achievement as will be seen since they require hyper-vigilance twenty-four hours a day without cessation.

From the bits and pieces of early childhood history, it is likely that the parents increased their intake of alcoholic beverages and cigarettes.   Their relationship deteriorated under the stresses both acquired and self-imposed.   One or more episodes of domestic violence have been reported although only one is specifically noted.   Separation and divorce resulted.   Bruce, who at all relevant times was fully employed, came to the house two or three times per week after work to assist with the care of the boys until they went to bed, usually around seven o'clock.   So he was at home for the first four years and continued to parent even after the separation.

In November 2007, DCF received reports regarding inadequate care of the boys.   Whatever the allegations of inadequate care, substantiated or not, it was obvious to DCF from their first visit that due to the twin's autism, services were required.   DCF has been involved with the case ever since the first reports of neglect.

During the pendency of this present case, a psychological evaluation was obtained.   The psychologist, in her report of August 3, 2009, reported the following early history of this case.   Her findings are consistent with all other social studies, affidavits and testimony at trial:

In addition to the above mentioned referrals, both DCF and school personnel have raised significant concerns regarding the boy's physical hygiene, the cleanliness of the home environment, mother's drinking, and mother's ability to provide a structured, safe environment for her children.   The children have been in school smelling like they have not been bathed, and with dirt and feces under their finger nails.   The DCF report described mother's home during several unannounced home visits in the following manner:  “messy and dirty ․ empty beer bottles and crumbs of food on the floors ․ clothes and shredded papers everywhere.   Ryan was playing with a pile of dust that he had gotten in his hands ․ empty Coors light beer bottles on the kitchen table ․ dishes over filling the sink including a pot with mold growing on it ․ messy and cluttered ․ The kitchen table was observed to be full of paper, food and utensils.   There were paper shreds on the floor.   The toys and clothes were all over the floor and furniture in the home.   The children were observed in their diapers only.”   The school reported that Ryan came to school smelling like urine and feces.   His diaper was soaked with urine and it appeared that it had not been changed for a while.   He also had feces on the top of his feet and on his nails.   Ms. D. allegedly reported that she bathed the boys two or three times per week due to them not liking baths.

Camp Horizons was sent into the home for several months, but there were no changes within the home.   Camp Horizons allegedly reported the home to be “a disaster” and that it “stunk to high heaven.”   It was also reported that Ms. D. seemed “oblivious” in regards to her children.   During both Camp Horizons and DCF visits, Ms. D. opened and drank beer or beers during their time with her.

By November of 2008, the school reported concerns that both boys had regressed in their behavior and overall functioning at school.   The boys' attendance at school had also been quite erratic for several months.   In November of 2009, another referral was received by DCF and Ms. D. responded by pulling the boys out of school.   Mother was referred for parenting classes at Natchaug Hospital and the DCF worker recommended that Ms. D. make an appointment at Yale New Haven Hospital for the boys.   The boys had also not received recent dental care and mother was strongly encouraged to make dental appointments.   Ms. D. refused individual therapy and a substance abuse evaluation under the advisement of her attorney.   However, she agreed to an autism assessment for both boys at UMASS as there were waiting lists at Yale.2 However, Ms. D. never made the call to UMASS claiming that she could not call out of state with her phone.   It took another month for the call to take place during an unannounced DCF visit at which time the social worker allowed Ms. D. to use her cell phone.   The UMASS evaluations were scheduled for April of 2009.   By March of 2009, Ms. D. no longer allowed DCF to enter her home.   In late March of 2009, DCF received another referral alleging physical abuse of Jake.

Throughout the time when DCF received intermittent referrals alleging abuse and neglect of the boys, Plainfield educators also expressed significant concerns regarding the boys' progress at school.   Ms. Sharon White, an autism teacher, allegedly stated:  “the boys inconsistent attendance in such a highly structured setting makes consistent progress difficult ․ the biggest downfall is that their behaviors regressed to that of children who have never had a consistent follow through ․ even after a long weekend, it will take 3 to 5 days of consistent implementation of behavioral protocols and interactions with adults for both boys to be more ‘themselves'.   It must be noted that this increase in regression especially after long weekends had gotten worse over the last year or longer ․ Notes regarding the need for diapers, wipes, alternative foods for lunch and/or snack, and juice have been met with no response.”   Ms. White went on to share that the boys can be extremely loving, affectionate, and happy when having a good day.   However, she continued to report:  “They have visible dirt on their bodies that is almost always there.   They both have a distinct odor/smell about them.   Most days there is identifiable food particles and/or nasal mucus stuck in their hair ․ with the family not promptly sending in supplies (i.e. food and juice), we do not have any items that are motivating enough for the boys to want to work/learn.”

The occupational therapist, speech and language therapist, and physical therapist all agreed on the following regarding Ryan:  “Despite the progress that Ryan has made last winter (2007/2008), he has not progressed much more in any of the related service areas.   Ryan often comes in wearing dirty clothes that he has worn in days past, with dirt and food caked on him, and with dirt and fecal matter under his typically too long and therefore unsafe fingernails.   Dirt has been found on his scalp and in his hair and strong body odor is not an uncommon occurrence ․ The apparent lack of attention to needs and care of basic needs has affected progress in the areas of speech and language and motor skill development simply by increasing Ryan's stress and anxiety, making learning and engagement very difficult.   The recent increase in aggression, the continued decrease in engagement, the lack of improvement/progress in related service areas, and the overall lack of attention to his basic needs and cleanliness are extremely concerning and should be taken as serious non-verbal signs of other possible issues going on in Ryan's life that need to be addressed.”  (Exhibit KK pp.1-3)

As previously indicated, DCF became involved in November 2007.   In early 2008, DCF contracted with Camp Horizons, an organization that provides family support services for families who have individuals with developmental disabilities.   Donald Hernberg, a support specialist, visited the home and made a report and recommendations.  (Exhibit F).  His mission was “to develop supports and strategies to relieve the challenging home situation and optimize the boys' opportunities developing skills and capacities.”   The first issue he presents is as follows:  “Christine is alone with the boys almost entirely during the hours they are not in school.   They require line of sight supervision at all times.   There is little opportunity to cultivate communication and independence skills with her sons in face of their immediate support issues.”   He testified that he had observed an overwhelmed woman attempting to oversee two boys, managing their environment and sequence their events for each day.   The home was disheveled in terms of sanitation, organization and preparation.   A predictable and structured environment was always an issue and never achieved.”

As will be developed, it is possible that Christine will never be able to parent these children on a full-time basis given her own cognitive limitations and personal inadequacies.   But at least initially, recommendations were made by Mr. Hernberg, that would have greatly reduced the stress on Christine, and possibly, allowed for the children to remain in the home.

The word “over-whelmed” appears frequently in reports from the school and from the social workers who investigated this case.   The “line of sight supervision” which Mr. Hernberg referred to means that Christine had to actually watch these two challenging children, keep them always in view.   The boys had virtually no speech and were not toilet trained at the time, nor are they to date.  ‘All the time’ includes at night since Ryan commonly woke up in the middle of the night and stayed awake for several hours each night.   Christine had no help.   As a consequence, Mr. Hernberg's very first recommendation to DCF was “Obtain in home support 4 hours daily to assist with the boys' learning of functional skills, communication and provide individualized support for the critical times of the day.”

During the next six months;  May, June, July, August, September, and October, Christine did not get the recommended support.   In point of fact, Christine never got the level of support recommended by the Camp Horizons support specialist.   According to social studies, DCF made recommendations for counseling, substance abuse evaluations and support groups.   Exactly how this over-whelmed woman, fully responsible for these two challenging children, is supposed to find time for these services is not explained.   Given Christine's resistence to treatment and counseling, her cognitive limitations, poor organizational skills, low to below average intelligence, and use of alcohol, it is quite probable that Christine would not have benefitted.   It did not help that her lawyer was advising her against substance abuse evaluation, individual counseling and allowing DCF in-home inspections.   But she surely would have benefitted from respite relief, and assistance in teaching her children daily functioning skills, if DCF had promptly provided in-home support for four hours a day as recommended.   They didn't.

Exhibit E, shows a cover sheet for a referral to “Kaleidoscope” prepared on or about August 11, 2008, which appears to have been prepared by Christine's assigned social worker, requesting respite care and therapeutic staff support for Christine.   The referral form mentions twice that mother is overwhelmed.   It reports that mother is dedicated to the care of the boys.   The authorizing DCF supervisor approves six hours per week for six weeks, that is for a total of 36 hours altogether, not the four hours per day, five days per week, fifty-two weeks per year 1,040 hours per year, suggested inferentially, by Mr. Hernberg.

It is not explained why it took DCF four months to act on the recommendation for in-home support, nor why ‘the first session with the therapeutic staff member at Kaleidoscope was two months after that approval.   The first three-hour session with the family was on November 11, 2008.   The Kaleidoscope worker was scheduled to meet Christine two three-hour sessions per week for six weeks.   Less than one week after the first session, on November 17, 2008, DCF filed a neglect petition on this family.

The court is left to speculate.   If the services had been promptly in place, six months earlier, would the neglect petition have been required?   Did DCF truly offer appropriate, accessible and available services to this family?   Did DCF make reasonable efforts to maintain the family in the home?   These two issues surface again.³

The Mother:

Dr. Robin Grant-Hall prepared a report to the court based upon her psychological evaluation of Christine;  (Exhibit KK) her findings and recommendations are very helpful.

Ms. D. reported that she has been diagnosed as having Bi-Polar disorder.   She stated, “I went on buying sprees ․ like I would buy a blouse in every color ․ I was really impulsive ․ And I get revved up ․ Without meds, I was way up for about three days and flying high and then I crashed and I was really depressed.”   Regarding other medical issues, Ms. D. reported that she has back disc problems which requires pain medication and she has Barrett's esophagus which means that the lining of her esophagus is eroding.   She has had reflux for many years which causes the erosion.   Ms. D. also suffers from emphysema due to smoking a pack and a half of cigarettes a day.   She stated, “It's stress.”   Ms. D. claimed that she does not smoke around the boys in that she goes outside to smoke.   The examiner wondered how she could safely leave the boys to go outside to smoke cigarettes.   Lastly, Ms. D. has arthritis.

Ms. D. began individual therapy for the first time in her life about one and a half years ago with Phillip Brown who is in private practice in Canterbury.   She has been diagnosed with depression in addition to the Bi-polar disorder and medicated with Lexipro (which was changed to Celexa), Topamaz for her Bi-polar, and Neurontin.   She takes a sleeping medication and Klonopin for anxiety.   Ms. D. reported that for the past four years that she has had significant sleep problems in that she is up all night long.   She was taking Percocet for a long time for her back pain and then it was changed to Oxycontin.   Ms. D. is not currently on pain medication, but she has an appointment with a new doctor.   She explained that she has degenerative disc disease in her back due to a fracture in her spine that never healed causing arthritis as well.   She also needs surgery on both knees causing pain in her knee caps.

(Pg 14) Recommendations:  There are two key issues relevant to Ms. D. and her boys.   The first question is whether or not any single parent could safely watch and effectively parent these two Autistic children.   Autistic children cannot just be parented in that they need to be closely worked with using sophisticated behavioral management techniques in order to maximize their development and functioning.   These are incredibly important years which will ideally build a foundation for continued growth in the future.   The second concern is whether or not Ms. D. is capable of parenting both boys simultaneously given their special needs in a consistent, safe, and effective manner including maintaining hygiene, managing meal times, keeping the house in a state of relative organization and cleanliness, and working closely with each boy to maximize their functioning and to reinforce appropriate behavior.

Ms. D. clearly loves both her children dearly and she has done a wonderful job teaching them to be loving and affectionate and to have eye contact.   She has adequate knowledge about parenting.   Both boys were strongly bonded to their mother and they acted happy and loving in her presence.   These are no small feats given their Autism.   As mentioned previously, however, it is not clear if Ms. D. can set consistent, firm limits and impose structure in their lives in order to help maximize their functioning.   In addition, it is obviously impossible for her to work intensely one on one with either child (due to having to watch and keep the other child safe) which is crucial for the continued growth and development of autistic children.

It is recommended that both boys be placed together in a residential setting for autistic children at this time while Ms. D. is given the opportunity to become an adequate parent for special needs children.   A residential school setting is suggested so that the boys do not become confused with a new parent figure(s).

The Father:

An issue that is of frequent concern to the court is whether DCF devotes sufficient attention to fathers as a placement resource.   Couched in more legal terms, has DCF made reasonable efforts to reunify the children with their father?   As in many of these cases, the father was not considered the custodial parent.   Here he was the joint legal custodian within the contemplation of the parties and in the dissolution of marriage proceedings.   During the first year of DCF involvement, at their request in October 2008, Mr. D. entered and successfully completed Rushford Center, an inpatient fourteen-day program for his alcohol issues.   Later, on October 15, 2009, he successfully passed a urine screen.  (Petitioner's Exhibit C p.4.) Community Prevention and Addiction Services determined that Bruce was not in need of treatment.   The social studies have noted this.   The respondent mother has told DCF and the psychologist that Bruce has not used alcohol since he completed the program in 2008.   There is no evidence to suggest otherwise.

(From the psychologist report) The examiner asked Ms. D. about her marriage.   She stated, “It was great.   We laughed!   No one ever made me laugh like him.   He was a drinker and we fought because we drank ․ Towards the end, it got really bad ․ We had vicious verbal arguments on both of our parts ․ very heated ․ That's why I filed for divorce ․ swore my kids wouldn't see what I did growing up.”   Bruce became physically abusive towards her on one occasion when he “jacked me up by the throat.”   Ms. D. reported that Bruce went into detox and rehab in October of 2008 and that he has been sober ever since so that he can be a better father.

Yet the social studies for termination of his parental rights indicate that Mr. D. had not complied with the specific steps and his parental rights should be terminated.   Respondent's Exhibit 6 contains excerpts from the DCF “Running Narrative” document.   On page 79 of 92 dated May 26, 2010, the social work supervisor notes “[F]ather has not complied or completed any treatment.”

Specific steps were entered pursuant to Sec. 17a-112(j)(3)(B) on May 6, 2009, (Foley, J.) and were quite precise for each parent (Exhibits A, for Christine, and B for Bruce).   Most of the other requirements are typical and generic.   Each parent was ordered to comply with approximately twenty requirements.   One of the more carefully crafted steps required each parent to attend autism specific parental education.   The specific steps for Bruce were as follows:

The respondent is ordered to:

1. Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child's court appointed attorney and/or guardian al litem.   He complied.

2. Keep child(ren)'s whereabouts and your own whereabouts known to DCF, your attorney and the attorney for the child(ren).   He complied.

3. Participate in counseling and make progress toward the identified treatment goals:

[x] Parenting [ ] Individual [ ] Family

Goals:  Father to learn and demonstrate effective parenting skills in parenting children with Autism.   Father to address his substance abuse issues.

Bruce did address and comply with his substance abuse issues.   The only noncompliance related to parenting autistic children.

4. Accept and cooperate with in-home support services referred by DCF. Not applicable to the father.

5. Submit to substance abuse assessment and follow recommendations regarding treatment, including in-patient treatment if necessary, aftercare and relapse prevention.   He complied with this requirement.

6. Submit to random drug testing;  time and method of the testing shall be at the discretion of DCF. He complied.

7. Cooperate with recommended service providers for parenting/individual/family counseling, in home support services and/or substance abuse assessment/treatment:

Father to attend substance abuse assessment/treatment.   Father to attend Parenting Classes and Substance Abuse Evaluation.   If services are recommended, Father will abide by these services.   Father will demonstrate effective parenting.   This is essentially the same as # 3 above.

8. Cooperate with court ordered evaluations or testing.   For reasons unknown to the court, he wasn't asked to participate.

9. Obtain and/or cooperate with a restraining/protective order and/or appropriate safety plan as approved by DCF to avoid further domestic violence incidents.   Not applicable.

10. Sign releases within 30 days authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals, and for use in future proceedings before this Court.   There is no indication he failed to comply.

11. Secure and/or maintain adequate housing and legal income.   He retained his apartment and his employment at all times relevant.   If DCF was actively considering him for placement he should have been instructed and, of necessary assisted, in securing alternate quarters.   There was no evidence to suggest this was the case.

12. Not engage in substance abuse.   There is no indication that he failed to comply.

13. Have no involvement/further involvement with the criminal justice system.   Cooperate with the Office of Adult Probation or parole officer and comply with conditions of probation or parole.   Not relevant, no arrests.

14. Consistently and timely meet and address the child(ren)'s physical, educational, medical, or emotional needs, including but not limited to, keeping the child(ren)'s appointments with his/her/their medical, psychological, psychiatric, or educational providers.   Not particularly relevant to him as non-custodial parent.

15. Make all necessary child-care arrangements insuring that the child(ren) is/are adequately supervised and cared for by appropriate caretaker(s).  Not particularly relevant to him as non-custodial parent.

16. Immediately advise DCF of any changes in the composition of the household to ensure that the change does not compromise the health and safety of the child(ren).   Not particularly relevant to him as non-custodial parent.

17. Maintain the child within the State of Connecticut during the duration of this case, except for temporary travel out of state with the authorization of DCF or the Court in advance.   Not particularly relevant to him as non-custodial parent.

18. Cooperate with the child(ren)'s therapy.   Not particularly relevant to him as non-custodial parent.

19. Visit the child(ren) as often as DCF permits.   He complied.

20. Within thirty (30) days of the issuance of these steps, and in a timely manner thereafter, notify DCF in writing of the name, address, family relationship and birthday of any person(s) whom the respondent would like the department to investigate and consider as a placement resource for the child(ren).   He complied.

21. Notify DCF of the names and addresses of the grandparents of the child(ren).   There was compliance.

22. Other:  Cooperate with court ordered Psychological Evaluation.   See # 8 above, DCF did not ask him to be evaluated.

It appears to the court that, notwithstanding the declarations of the social work supervisor, the father fully complied with all expectations with the single exception of obtaining autism specific parenting training.   At a Treatment Planning Hearing in June 2009, Bruce complained that he had not been offered services to assist him.   In response to his request he was sent a letter dated June 25, 2009.  (Petitioner's Exhibit M.)

A similar letter was sent by certified mail on December 16, 2009.   A third virtually identical letter was sent to him on May 26, 2010.   These letters, three of them, state the following:

Dear Mr. D.:

The Department of Children and Families is obligated to provide services to both you and your children.   You should be aware that final Specific Steps were ordered by the court on 5/6/09.   It is an expectation of the court and the Department that services be offered to you.   The services would include substance abuse evaluation and screening, individual therapy and parenting education.4  I am enclosing the following names and phone numbers for individual and family/couples counseling, and parenting classes for you to contact:

Plainfield Resource Group-564-xxxx

Natchaug Hospital-456-xxxx or 1-800-426-xxxx

United Services-Plainfield 564-xxxx or Dayville 774-xxxx

Plainfield Counseling 564-xxxx

Humphrey Center 486-xxxx

Northeast Counseling and Consult Services 928-xxxx

Generations-450-xxxx

Wheeler Clinic-793-xxxx

Northeast Clinical 564-xxxx

Thompson Ecumenical Empowerment Group-923-xxxx

The Recovery Center 963-xxxx

Access Community Action Agency-(860) 774-xxxx

Planned Parenthood of Connecticut (860) 774-xxxx

Generations Family Health Center (860) 774-xxxx

Madonna Place-(860) 886-xxxx

NAMI-CT-(800) 215-3021 or local calling (860) 882-xxxx

SARAH-KTDSTEPS-(203)318-3692 or (877)543-xxxx

If these agencies are not able to accommodate your recommendations by the Department and Specific Steps, then you could ask them where certain classes are being offered.   As always, if you should have any questions or concerns, regarding this do not hesitate to call me at (860) xxx-xxxx or my supervisor, (Name deleted) at (860) xxx-xxxx and we can set up a convenient time for a home visit to discuss this further.

Sincerely,

(/s/ Caseworker signature) (Phone numbers altered)

These three nearly identical letters, which DCF apparently believes satisfies their statutory duty to make reasonable efforts are tragically inadequate and represent an unacceptably low level of assistance.   Seventeen names and telephone numbers are listed.   Is the recipient to guess what each of these agencies does?   Is the recipient to guess where these providers are located?   Do any of these listed services, at all, offer autism specific parent skills training?   Which, if any, of these services is accessible, appropriate and available to these parents?  (The mother received similar letters.)   Does Madonna Place offer parenting education for parents with autistic children?   Does Planned Parenthood of Connecticut?   What about Sarah-Kidsteps?   The Recovery Center?   Northeast Clinical is known to the court to specialize in treatment of sexual offenders.   Do they also have a program for teaching parents with autistic children?   Are these parents, already overwhelmed by the court system, the child protection system and the ordinary pressures of life, expected to call all seventeen listed providers to ask where they are located, what kind of services are available, do they have a program that will satisfy DCF, etc?   Bruce wanted specific help in order to comply with the court orders and DCF directives.   He was pretty much a low maintenance client.   He needed direction.   DCF provided him with an unhelpful, generic, form letter that may not even contain an appropriate agency, “[I]f these agencies are not able to accommodate your recommendations by the Department and Specific Steps, then you could ask them where certain classes are being offered.”   Isn't that DCF's responsibility?

This court finds that this type of response does not satisfy the statutory duty of DCF to make reasonable efforts to reunify parents following placement, neither does it represent the standards of social work which the clients of DCF should reasonably expect.   The court further finds that, notwithstanding the statements of the social worker and her supervisor, the father complied with all his specific steps with the exception of one and, on that one, he failed to get an acceptable level of assistance and direction from DCF.

Permanency Planning

Since the court has found that DCF has failed to make reasonable efforts to rehabilitate it is unnecessary to review the grounds alleged in the petition.   But since the agency is likely to persist in it's efforts to terminate the parental rights, the court will address an issue likely to resurface, that is the sense of obligation by DCF to terminate and place the children for adoption.   The court is aware of the powerful penumbras of the Adoption and Safe Families Act of 1997, Public Law 105-89 (ASFA);  111 Stat. 2115, and the regulations as noted in 45 Code of Federal Regulations §§ 1355, 1356 and 1357, as well as commentary on the regulations as reported in the Federal Register Vol. 65, No. 16, January 25, 2000.   It is oft stated that ASFA was adopted to ensure safety;  permanency;  and child and family well-being.  “The impetus for the ASFA was a general dissatisfaction with the performance of State child welfare systems in achieving these goals for children and families.   The ASFA seeks to strengthen the child welfare system's response to a child's need for safety and permanency at every point along the continuum of care.”   65 Fed.Reg.4020 (2000).   It is, or should be the clear to all that the focus of child protection agencies should be on 1) safety, 2) achieving permanency for children in care, and 3) child and family well-being.   Connecticut statutory law and practice require the child's health and safety to be paramount considerations in all permanency plans.  C.G.S.A. § 46b-129(k)(2).  Practice Book § 35a-14(d).

In passing the ‘Strengthening Abuse and Neglect Courts Act of 2000’ Pub.L. 106-314, Oct. 17, 2000, 114 Stat. 1266, Congress made the following findings:  (inter alia )

“(1) Under both Federal and State law, the courts play a crucial and essential role in the Nation's child welfare system and in ensuring safety, stability, and permanence for abused and neglected children under the supervision of that system.”

(2) The Adoption and Safe Families Act of 1997 (Public Law 105-89;  111 Stat. 2115) establishes explicitly for the first time in Federal law that a child's health and safety must be the paramount consideration when any decision is made regarding a child in the Nation's child welfare system.

(3) The Adoption and Safe Families Act of 1997 promotes stability and permanence for abused and neglected children by requiring timely decision making in proceedings to determine whether children can safely return to their families or whether they should be moved into safe and stable adoptive homes or other permanent family arrangements outside the foster care system.

(4) To avoid unnecessary and lengthy stays in the foster care system, the Adoption and Safe Families Act of 1997 specifically requires, among other things, that States move to terminate the parental rights of the parents of those children who have been in foster care for 15 of the last 22 months.”

In order to implement the permanent placement of children ASFA shortens the time frames for conducting permanency hearings, creates a new requirement for States to make reasonable efforts to finalize a permanent placement, and establishes time frames for filing petitions to terminate parental rights for certain children in foster care.   65 Fed.Reg. 4021.   Again, Connecticut law is in accord.  “Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child.   42 U.S.C. § 675(5)(C) (2000 Ed.).”  In Re Darien S., 82 Conn.App. 169, 175-76 (2004).   See also, C.G.S.A. § 46b-129(k)(l).  There is no flexibility permitted in the statutory framework on the Federal or State level.   The hearing must be conducted within twelve months.

At the permanency hearing the courts' options are established in an order of favored preference:

a) revocation of commitment and reunification with parent with or without protective supervision,

b) adoption and termination of parental rights,⁵

c) transfer of guardianship,

d) long term foster care with licensed relative foster parent, or

e) Another Planned Permanent Living Arrangement (APPLA), only upon a showing of compelling reason.  45 CFR § 1355.20(a);  45 CFR § 1356.21(h)(3).

In the present case, it may be that neither parent will ever be in a position to provide full-time care for these two boys.   No relative resource has been identified.   They have been in and out of home placement for more than 463 days (fifteen months).   DCF has made considerable effort to find a therapeutic foster placement for the boys without any success whatsoever.   The children are now in a group home that meets their needs for safety, education, stimulation, structure and care.   The parents are dutiful in attending weekly visitation as are the grandparents.   The boys know their parents and are affectionate toward them and eagerly await the visits.   There is no identified pre-adoptive family.   The psychologist testified that it is in these children's best interest to stay legally connected to their mother and father.   They are in a group home;  they may never make it home.  “I am very cautious about even finding a foster home that will be able to handle them.   We are talking about a void.”   The psychologist further noted that it was possible over time for the boys and the parents to achieve a state of functioning that would permit full day, holiday or even week-end visits.   The children's lawyer also argues that the children would be devastated if they couldn't see their parents and grandparents.   She reports that the children would become legal orphans, whereas now, they have bonded biological parents to visit.   She indicated that termination is not in the best interest of the children at this time.

It should be further noted that this is not a denial of a termination of parental rights because there is no identified adoptive home.   The psychologist suggests that there may never be an adoptive home due to the extreme care required by these two children.   Caring for even one of them would require extraordinary parental competence.   These two cannot be cared for without comprehensive outside supports by highly motivated, devoted and competent parents.   It is one thing to terminate parental rights where there is no identified adoptive home but that there is a strong likelihood that an adoptive home will be found.   Here DCF has been unable to find even temporary foster care for these boys due to the level of difficulty in meeting their needs.

In summary, the court is aware that after reunification is ruled out where it is not possible as in this case, adoption is the most favored outcome.   Here there are no available relatives nor appropriate persons to serve as guardians.   Even long-term foster care seems unavailable.   And no identified pre-adoptive parents have been found.   Life is imperfect.   All cases do not fit neatly into the first four alternatives.   So the Federal law provides for such situations.   Section 478 of ASFA provides a rule of construction to assist in the application of the law:  “[N]othing in this part shall be construed as precluding State courts from exercising their discretion to protect the health and safety of children in individual cases.”   Indeed, permanency planning is predicated upon the individual needs, circumstances and best interests of each child.   This means that one size does not fit all children.   In this case, at least for the time being, until circumstances change, Another Planned Permanent Living Arrangement (APPLA) may be a reasonable approach.   Compelling reasons can be articulated:

1) The children are twins and separation of them would appear undesirable;

2) The children have a severe form of autism which requires highly motivated, almost heroic parenting and devotional care, twenty-four hours a day;

3) In fifteen months of search, DCF has been unable to find even therapeutic foster parents to care for these children.   The children remained in a temporary safe home for over a year.   The children are now in a small group home for six children.

4) The parents of the children, while not likely ever to be a placement resource, are devoted to the children and visit the children regularly.   The children enjoy the visits.

Ending these visits would remove one of few absolute joys for these children.   The parental visits are about the only real stability in the children's lives, their other caretakers are employees who move on.   Their parental visits are a constant.

5) An independent psychologist finds that it is in the children's best interest at this time to remain legally connected to their parents.

For the foregoing reasons, the permanency plan calling for termination of parental rights and adoption, at this time is not approved.   It may be, after further efforts to deliver services to the mother, and a proper course of instruction for both parents on parenting autistic children is identified, accessible, available and appropriate, the agency may wish to reconsider a request to the court for a determination that the parents are unable or unwilling to benefit from services.

It may be that a pre-adoptive home may be found.   Circumstances regarding visitation may change.   In the mean time DCF is required to make reasonable efforts to reunify the children or move to find further efforts are unnecessary.

In regard to this same issue, it appears that the mother has, from the very beginning, been reluctant to engage in services.   The court cannot in the present case make a finding regarding her inability or unwillingness given the legal services she has been provided.   The advise of her court-appointed lawyer has obstructed her potential progress.   There was testimony that the lawyer encouraged her lack of cooperation with DCF, contrary to the specific steps ordered by the court.   He prevented unannounced visits to the house and even prevented DCF from entering the house at a visit scheduled for that very purpose.   He advised Christine not to attend individual counseling and not to submit to alcohol/drug testing.   This advise was contrary to acceptable practice.   If the agency cannot verify compliance with court ordered specific steps, verifying the conditions within the household have been rectified, and verifying her sobriety, there is no likelihood that a court would consider reunification of the children with her.   The psychologist noted that if a person is trying to establish themself as a worthy parent, “you would go out of your way to prove yourself.”

The Office of the Chief Child Protection Attorney shall be sent a copy of this decision to take such action as may be appropriate.

The petition is dismissed.   The permanency plan is not approved.   DCF did not make reasonable efforts as noted herein.   A revised plan is to be submitted in accordance with the law.

Judgment may enter accordingly,

Foley, Sr. J. # 253

FOOTNOTES

FN2. The University of Massachusetts Medical Center located near Worcester is considerably closer to the residents of northeastern Connecticut than is Yale Medical Center in New Haven..  FN2. The University of Massachusetts Medical Center located near Worcester is considerably closer to the residents of northeastern Connecticut than is Yale Medical Center in New Haven.

FN3. Mr. Hernberg testified at a contested OTC/neglect trial on May 6, 2009.   None of the lawyers pursued the issue of the failure of DCF to implement the earlier recommendations of Camp Horizons for four hours of daily in-home support..  FN3. Mr. Hernberg testified at a contested OTC/neglect trial on May 6, 2009.   None of the lawyers pursued the issue of the failure of DCF to implement the earlier recommendations of Camp Horizons for four hours of daily in-home support.

FN4. He had completed substance abuse treatment and he was NOT ordered to engage individual counseling.   He had only to complete parenting education for parents with autistic children..  FN4. He had completed substance abuse treatment and he was NOT ordered to engage individual counseling.   He had only to complete parenting education for parents with autistic children.

FN5. § 46b-129(k)(2) list these in a different order.   They are listed here in the order required by the Adoption and Safe Families Act, 42 U.S.C. §§ 670-79..  FN5. § 46b-129(k)(2) list these in a different order.   They are listed here in the order required by the Adoption and Safe Families Act, 42 U.S.C. §§ 670-79.

Foley, Francis J., S.J.