IN RE: Mariah K. (2010)

MEMORANDUM OF DECISION

The Department of Children and Families (hereinafter referred to as DCF or The Department) filed a Motion to Terminate the Parental Rights of Ashley B. (hereinafter Mother) and Robert K. (hereinafter Father) to Mariah K. (hereinafter referred to as Child or by her given name) on August 31, 2009.

The Court heard and sustained the original Order of Temporary Custody (OTC) and subsequently vacated the OTC and committed Child to DCF based on the Neglect Petition at the Waterford Juvenile Court on December 5, 2008.   (Driscoll, J.) At the time DCF placed Child with Mother understanding that she would remain in Maternal Grandmother's (MGM's) home.   Mother moved out with Child and DCF placed Child with MGM as a foster child and intended to seek termination of parents' rights with subsequent adoption by MGM.

The Court also granted Motions To Intervene filed by Paternal Grandfather (PGF) and Paternal Grandmother (PGM).  (Driscoll, J.) The Court met again on September 29, 2009 and November 4, 2009.   At the latter hearing both Mother and Father objected to the termination plan, and the Court referred the matter to this Court.   On April 19, 2010, Mother consented to the termination of her rights to allow Child's adoption by MGM. (Olear, J.)

DCF alleges Ground B1 as the sole basis for termination of Father's rights and its burden requires that it prove by clear and convincing evidence that Child has been neglected and Father has failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time considering the age and needs of Child, he could assume a responsible position in the life of Child.  (General Statutes Sec. 17a-112(j)(3)(B).)

EXHIBITS

In support of its termination petition, DCF offered its original Social Study (Exhibit 5) filed on August 31, 2009.   Father's early history included divorced parents, an alcoholic mother who had a series of abusive relationships, a cousin who lived with them because his mother had been murdered and who sexually abused him and his cousin.   Father began using substances at the age of ten (alcohol) and began “experimenting” with marijuana at eleven.   The family was evicted from their apartment and went to live with Paternal Grandfather.  (Exhibit 5, pages 6-7.)   Paternal Grandfather (PGF) was “very loving” but worked long hours, allowing his children substantial unsupervised time.

By the time father was fourteen, he “used paper acid, mushrooms, cocaine and crack.”   As an adult, his drug of choice has been heroin which he has been using for seven years.  (Exhibit 5, pages 6-7.)   Father left high school after the ninth grade and began working as a laborer with concrete when was sixteen.   He worked for the Sprague Mill for two years, but lost the job twice as a result of his substance abuse.   He resigned from his last job at Spears Enterprises due to his arrest and incarceration.  (Exhibit 5.)

Father was arrested for larceny, possession of narcotics, operation of a vehicle under the influence and driving under suspension on October 17, 2008, and sale of narcotics, possession of heroin with intent to sell, possession of heroin with intent to sell within 1500 feet of a school, operating a drug factory, possession of drug paraphernalia and risk of injury to a minor on November 8, 2008.   All of the charges except larceny in the third degree and possession of narcotics were nolled.   For the larceny charge he was sentenced to five years, eighteen months to serve, and three years probation.   He was sentenced to eighteen months in jail concurrent with the larceny sentence without probation, on the possession charge.  (Exhibit 5.)

Exhibit 9 is the investigation report of the events that occurred on the night of Friday, October 17, 2008, which resulted in Father's arrest and incarceration.   Although the State did not prosecute the charges brought on the occasion of his last arrest, the Court concludes that the Department of Public Safety and the State's Attorney had collected sufficient evidence to proceed with prosecution of the initial charges.   The report concludes that “[ ․ Father] confessed to being on heroin and also confessed to selling ․ the packet of heroin for $100.00.  [ ․ Father] also stated that the heroin found in his bedroom belonged to him, but he refused to give a written and signed confession.”

At the time of the arrest, the Police contacted DCF because Father was in police custody at midnight and Mariah did not have anyone immediately available to care for her.   DCF took custody of the Child on a ninety-six-hour hold, promptly filed an Order of Temporary Custody, and contacted family to find an appropriate family placement.   On November 10, 2008, DCF returned Child to Mother's care under a written safety plan that she and Child would live with MGM. (Exhibit 6, page 2.) However, eight days later a State Trooper reported to DCF that Mother had been staying at her boyfriend's home with Child.   Mother was arrested on a series of charges eight days later and DCF placed Child with MGM where she remains.  (Exhibit 5 p. 11.)

For Child's first four years and nine months, Father had been her primary caretaker.   They were closely bonded, and they have apparently sustained that strong bond over the period of his incarceration.   All reports conclude that she is extremely intelligent, articulate, and “wise beyond her years.”   MGM reports that initially Child had difficulty sleeping and feared the police.   MGM also reported that Child “lacked structure and consistency which led to issues with rules” but reported that she “is currently doing ‘wonderful’ and seems to have found the balance of being a child and having fun.”   She is doing well in school and is medically up to date.  (Exhibit 5, p. 9.)

Father did not want Mariah to visit him in jail at first;  however, he requested monthly visitation in March 2009.   All reports indicate that when visitation began Mariah adjusted well to it and enjoyed monthly visits with her father.   They also talked on the telephone.   Father maintained a relationship with Mariah throughout his initial incarceration from which he was released on parole on September 22, 2009.  (Exhibit 6, p. 6.)

Father's plan was to participate in a parenting education program at Madonna Place, a relapse prevention group through SCADD (Southeastern Council on Alcoholism and Drug Dependence, Inc.) and individual counseling.   Part of the SCADD program involved periodic substance abuse testing including hair tests.   Father failed to cooperate with that program by cutting his hair to a length that prevented meaningful hair tests.   He was to complete the SCADD program on January 14, 2010 by submitting to a hair test, but he failed to do so because of his closely cut hair.   He also missed appointments with his parole officer and tested positive for the use of cocaine and heroin.  (Id.)

As a result of those parole violations, his parole officer returned him to jail at Carl Robinson Correctional Facility on a “time out” program for thirty to forty-five days.   That program also used the SCADD program as a treatment modality.   His discharge report from the SCADD portion of his time out work reported that, “client had attended 8 aftercare groups with negative drug screens ․ positive engagement from the start and then stopped attending and never called with any explanation.”   The report was dated Feb. 14, 2010.   He was returned to his previous program of services including SCADD shortly thereafter.   Before the defined parole programs could be restarted, he was returned to jail to complete his originally ordered period of incarceration, from which he would be released two days after the scheduled trial.   During the time that he was incarcerated in 2010 he declined visitation with Child.   (Exhibit 6.)

Exhibit 6 does not report the whole story of the parole officer's decision to return Father to finish the remaining three months of his incarceration.   The report indicates that Father “․ was re-incarcerated on March 5, 2010, for continued use of substances and non-reporting to his parole officer.”   Exhibit 6 did not identify any specific use of illegal substances after he completed his period in “time out.”   To the contrary, the program reported that he was committed to the program and completed it in less time than the full program provided.   The conclusion that he failed to report to the parole officer is acknowledged by Father, but the circumstances surrounding the failure appear as scheduled at the parole office create doubt about the drug use allegation and seemed unduly punitive with respect to the failure to appear.

The Court neither saw nor heard evidence that Father used illegal substances between his release from “time out” and his return to prison in March.   Father asserts that he appeared for a drug test on the evening in question and was not able to render a urine sample.   He reported that he waited for testing for more than an hour and left frustrated because he wanted to prepare for his daughter's birthday party the next day.¹  He wanted to purchase his gifts for the party and he had an appointment that afternoon with his parole officer.   On his way, his car lost a front wheel and he was hospitalized and could not make the appointment.   His parole officer responded that if he did not make the scheduled appointment, she would remand him to finish the balance of his sentence in jail.   He appeared the next morning at the parole office and the parole officer implemented her threatened incarceration.

The Court does not intend to question the parole officer's judgment in requiring the Father's re-incarceration.   His behavior the day before his daughter's birthday was not consistent with his obligations to the parole officer, the requirements of his Court imposed sentence or the parole board.   However, Father did appear voluntarily at the parole officer's office the next morning and was not able to attend his daughter's birthday party for the second year in a row.   The Court might well surmise that his failure to provide a urine sample was an effort to avoid what he knew would yield a positive result and that his failure to report because of an automobile accident and consequent hospitalization was a ruse to buy time for his daughter's birthday party.   However, the Court did not see definitive evidence of a positive drug test or that the automobile failure and hospitalization were a ruse.  (See Exhibits 2 and 4.)

Father's final Specific Steps were Ordered at the Waterford Juvenile Court on December, 5, 2008.  (Driscoll, J.) Although incarcerated, Father was present at the time and signed the steps.   Because Father's incarceration limited his capacity to meet the requirements of rehabilitation, his Specific Steps were limited to tasks and actions that he could achieve.  (Exhibit 5, pages. 24-28.)

A) 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 ad litem.

Father was incarcerated at all times between the date of the Court Order and the date DCF filed the social study identified as Exhibit 5. During that period Father did not participate in the initial treatment planning conference held on January 6, 2009,² but did participate in the Administrative Case Review on June 26, 2009 by telephone.

B) Keep the Child's whereabouts and your own whereabouts known to DCF, your attorney and the attorney for Child.

DCF controlled the whereabouts of Child for the period from the issuance of the Order of the Specific Steps to the date DCF filed Exhibit 5. Father and Child had frequent telephone contact during his incarceration and monthly visits at the correctional institution beginning in March 2009.

C) Participate in counseling and make progress towards the identified goals:  parenting, individual and family.

Father represented, and DCF did not challenge his representation, that he sought participation in any and all parenting, individual and family therapy programs offered.   However the fact is that few services were offered by the institution.

D) Cooperate with Court ordered evaluations and testing.

DCF acknowledges that it did not recommend any testing or evaluations before it filed Exhibit 5.

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

The use of drugs is the primary issue that Father faces in his effort to be reunited with his daughter and the Court heard no evidence that Father was using drugs during his incarceration.   The Court has heard substantial and credible evidence that Father has been abusing alcohol and/or drugs since he was ten years old and is persuaded that he has not maintained his sobriety for any meaningful period of time since he was ten years old.   The services needed to achieve that goal were not available to him while he was in jail and he failed to make any significant progress toward the goal during the periods of his incarceration and parole.

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

Through August 2009, neither DCF nor the Court had reason to believe that effective substance abuse treatment was available to him in his places of incarceration.   On the other hand the Court believes that DCF has proven by clear and convincing evidence that Father's period of incarceration prior to parole did not establish requisite facts necessary to conclude that, even with treatment, he would avoid relapse.

Steps G, H, I, and J are all acknowledged by DCF to be impossible to achieve during his incarceration.   DCF acknowledges the assumption that Father did not use any illegal substances while he was incarcerated.  (Exhibit J, page 27.)

K) 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.

The only charge brought against Father since his conviction on the charges of larceny in the third degree and drug possession is a charge of violation of Parole as a result of which Corrections required him to serve the full balance of his sentence until May 12, 2010.   Father acknowledged and the Court finds that he failed to comply with his conditions of parole.

L) Immediately advise DCF of any changes to the household to ensure that the change does not compromise the health and safety of the children.

Father was incarcerated from November 8, 2008, until May 12, 2010 with the exception of five months of parole from September 2009 and January 2010 and three weeks in February and March 2010.   During both periods his daughter was in DCF custody and cared for by her MGM. Father was only offered limited and supervised visitation with his daughter.   During those periods he did nothing that posed a threat to Child's health and safety.

M. Visit Child as often as DCF permits.

Father declined visitation opportunities with Child for the first four months of his incarceration, fearing the impact of visitation in prison on her.   During the period they regularly talked on the phone.   He decided in March 2009 to try visitation at the prison.   Child accepted the opportunity and adapted well to it.   They visited regularly until his parole and after that Father and Child had regular visitation supervised by MGM until his “time out” session in early 2010.   He declined visitation when he was returned to prison in March to complete his sentence on May 12, 2010.   The Court finds that Father worked to maintain a close relationship with his daughter during his period of incarceration.   In addition, the Court finds that Child still values her relationship with her Father.

TESTIMONY

The Department offered three witnesses to the Court:  Christina L., the DCF worker who had the primary field responsibility for Mariah's case;  Dawn R., Father's parole officer;  and Bridget B., Child's maternal grandmother and her current foster mother.   Another DCF worker, Christine N. worked on Child's case initially, but was not called to testify for The Department.

DCF's testimony focused on the precipitating event, Father's arrest by the State Police for selling heroin on November 8, 2008.   Father resisted the arrest initially, but submitted.   Father was the only person present at the event to testify at Court.   The police held Father for arraignment, after which he was incarcerated because he could not make bond.   He remained in jail until the following summer when he agreed to enter pleas to two lesser offenses.   The State elected not to prosecute the more serious allegations.

The event was traumatic for Child.   She nursed a deep fear of the police for a long time and acted out in school.   She did not see her father for three months because he was uncomfortable with having her visit in prison.   They communicated by telephone in the interim and he seemed to have a stabilizing effect on her.   Father was allowed home on parole on September 22, 2009, and was allowed periodic supervised visitation with Child.   The petition to terminate his rights to Child had been filed in August.

The initial placement of Child with her Mother in MGM's home did not work and DCF placed Child with MGM as a foster parent.   Paternal grandparents offered their willingness to be the custodial parents during Father's incarceration, but the Court heard no evidence that any member of the paternal family was considered.   DCF and MGM offered PGM and PGF liberal visitation opportunities with Child and they have maintained a close relationship with her.   All such visitation has been supervised by MGM. Maternal Grandmother's desire to adopt Child has been strongly supported by DCF. The paternal family believes that they were not considered as a resource for Child.   Furthermore the Court concludes that Child has a strong bond with both families.

DCF acknowledges that Father had been the primary parent for Child for the first four and a half years of her life and that the two are closely bonded.   DCF offered no evidence that Child suffered in Father's care before the November 8, 2008 arrest.   DCF and the State Police allege that Father intentionally used Child as a cover for his illegal drug transactions and that she played that role on the night of that arrest;  however, DCF did not recognize that Father was the sole responsible parent for the Child and could not leave her at home.

The Court acknowledges and agrees that Father's action on the night of November 8, 2008, placed Child at serious risk.   However, the Court heard no evidence that Father was a violent man or that he expected the reception he and his daughter got on the night of his arrest.   The State Police had choreographed the evening and had all the evidence they needed to arrest Father by warrant after he returned home without any risk to Child.

FINDINGS OF FACT

The Court makes the following findings of fault by clear and convincing evidence:

1. Father was the primary caretaker for Child from the age of six months to the age of four and one-half years without intervention of DCF.

2. Both Mother and Father have abused substances from Child's birth to the present day.

3. Mother's substance abuse interfered with her ability to care for child.

4. Father provided for and supported Child during the period that she was in his care.

5. Both Parents have extended families who participate in Child's care and support and are prepared to continue to do so.

6. From December 2008 until the date of trial, MGM took the responsibility for Child's care as her foster mother and offered both her maternal and paternal families extensive contact with Child.

7. Father completed his full sentence obligation on May 12, 2010, and desires to resume his parental role.

8. Mother has consented to the termination of her parental rights.

9. MGM wants to adopt her granddaughter and DCF supports her effort to do so.

10. MGM has also allowed Child to have visits with her paternal half sister, Haylee, with whom she has a strong bond.

11. DCF made its decision to terminate Father's parental rights and support the adoption of Child by MGM before the effective date of his parole and before he could access appropriate services toward rehabilitation.

12. DCF failed to make reasonable efforts to investigate Father's extended family as a resource for Child.

13. Father has maintained consistent contact with and commitment to his Child during his incarceration.

14. DCF proved by clear and convincing evidence that Child has been neglected by Father and that as of the date of trial Father had failed to achieve personal rehabilitation;  however DCF has not proven that failure to mean that he cannot, within a reasonable time considering the age and needs of Child, assume a responsible position in Child's life.   The record reflects that during the four and one-half years that he had sole custody of Child, she was well cared for.   The Court has reason to believe, based on his serious but unsuccessful efforts to achieve sobriety during his time on parole and his demonstrated commitment to his daughter, that he should be afforded a reasonable opportunity to attain sobriety and assume a responsible position in her life.

REQUIRED FINDINGS

The Court makes the following seven written findings as required by Connecticut General Statutes Sec. 17a-112(k).

1. Father was held in jail immediately after the event that allowed DCF to take custody of Child.   The only services that DCF could provide to Father were phone calls and visits while he was incarcerated and DCF allowed and facilitated monthly visits at Father's place of incarceration when Father requested them.   Between early November 2008 and March 2009 Father did not request visits for fear that visiting jail would be a traumatic experience for her.   He was content to rely on telephone communication allowed by the Corrections Department.   In March, after a period of telephone communication and Child's repeated expressed desire to see her Father relented and DCF allowed visits.   The visits went well and continued until Father earned the privilege of parole in early September 2009.   There after DCF allowed monthly visits supervised by MGM of which he took full advantage.   Father returned to jail in mid January 2010 and had not visited with Mariah again at the time of trial.   He did continue telephone contact with her.

During his parole, DCF provided direct case management services;  individual counseling services;  substance abuse evaluation and treatment;  and parenting education and referral to the Department of Corrections.

2. DCF chose to seek termination of Father's parental rights prior to his release in September 2009.   DCF believed that no service other than those set forth in paragraph 1 were warranted.

3. During his brief period of parole, Father was compliant with his specific steps, but suffered a relapse in January 2010.   His parole Officer referred him to a “time out” program with which he cooperated and which he completed successfully earlier than anticipated.   Although shortly thereafter his parole was revoked, the Court is unable to find significant evidence that Father was involved in the use or sale of illegal drugs after he completed the “time out” program.

4. DCF offered visits to Father in prison when he was incarcerated, but Father declined the opportunity because he feared the impact the prison would have on his daughter.   He did visit with her on the telephone regularly and cooperated with DCF's and MGM's requests that he reinforce the rules and behaviors established by MGM. Father and Child shared a warm relationship throughout his incarceration.

5. Mariah was born on March 5, 2004, and is now six and one-half years old.

6. Father was the successful single parent of Child from the age of six months to four and a half years.   He engaged in the use of illegal substances from the age of ten to the age of twenty four, including the years that he was the primary caretaker of Child.   He has completed his sentence and is able to benefit from services that may bring him the peace of sobriety.   Father and daughter are closely bonded.

Father made significant, although not fully successful, efforts to overcome his drug addiction while incarcerated, while on parole, and in the “time out” program.

A. Father initially declined visitation with Mariah due to his concern of the impact such visits might have on her.   He did maintain telephone contact with her and did enjoy visits during his period of parole.   The parent child bond remains strong.   Father has completed his sentence and is now available for services and attempted reunification.

B. Father and his extended family maintain close contact with Child and her MGM who is also her foster parent.   Father's contact with Child and MGM was limited by his incarceration through May 12, 2010.   He has continued to work with DCF.

7. The only barrier to Father's having a meaningful relationship with Child has been his incarceration and his need to cooperate with substance abuse services allowing him to sustain a life of sobriety.   No other person or agency has created or maintained such a barrier.

ORDERS

1. The petition to terminate Father's Parental Rights should be and is hereby DENIED.

2. The Court had previously accepted Mother's Consent to the Termination of her Parental Rights to Mariah.   The Petition to Terminate Father's Parental Rights having been Denied, the Court hereby ORDERS that Mother's prior consent to the Termination of her Parental should be and is hereby VACATED.

Respectfully Submitted,

Hon. Thayer Baldwin Jr.

Judge of the Superior Court

FOOTNOTES

FN1. Father had missed last year's birthday in prison and was anxious to make this year's birthday a special one..  FN1. Father had missed last year's birthday in prison and was anxious to make this year's birthday a special one.

FN2. Neither Father nor DCF informed the Court as to whether Father or his Correctional Institution knew of the time and place of the treatment planning conference..  FN2. Neither Father nor DCF informed the Court as to whether Father or his Correctional Institution knew of the time and place of the treatment planning conference.

Baldwin, Thayer, J.