IN RE: Caleb H. (2010)

MEMORANDUM OF DECISION RE PETITION TO TERMINATE PARENTAL RIGHTS

By petitions dated March 29, 2010, the Commissioner of the Department of Children and Families (hereafter DCF) moves this court to terminate the parental rights of both parents of Caleb H., a minor child who was born on May 31, 2008.

The mother of Caleb H. is Stacey M. The father of the child is Andre H. Both parties were properly served, and the court finds that it has jurisdiction over this matter.

The termination of parental rights petition originally alleged adjudicatory grounds of failure to rehabilitate, and failure to rehabilitate by the parent of child under seven years of age whose parental rights to a prior child had been terminated, against the mother.   DCF alleged the grounds of abandonment, failure to rehabilitate, and no ongoing parent-child relationship, with respect to the father, Andre H.

The matter was scheduled for a contested TPR trial before the undersigned on September 9, 2010.   Counsel for the petitioner, an attorney for the minor child, the mother, mother's court-appointed counsel, and the father were present in court on that date.   A DCF social worker, and the child's foster mother, also attended as witnesses.

At the outset of the proceeding, Stacey M. and her counsel submitted an affidavit in which the mother consented to the termination of her parental rights.   The court canvassed the mother, and found that Stacy M.'s decision to consent to the termination of her parental rights was knowingly and voluntarily made, after the adequate and effective assistance of competent counsel.   The mother's signed and sworn affidavit of consent was entered into evidence by the petitioner as an exhibit (Petitioner's Exhibit A).   DCF orally amended the petition to allege the ground of consent, and withdrew the other non-consensual adjudicatory grounds against the mother.

The respondent father, Andre H., appeared in court without counsel on September 9, 2010 and orally moved for a continuance so that he could retain a lawyer.   Counsel for DCF and the minor child both objected to the continuance.   Prior to deciding the father's motion, the court reviewed the procedural history of the case, and took judicial notice of certain memoranda and pleadings contained in the court file.   That review revealed the following facts:

Caleb was adjudicated as a neglected child at a hearing on June 2, 2009.   (Memorandum of Hearing dated June 2, 2009.)   The mother entered a no contest plea to a “conditions injurious” count of neglect on that date.   The father stood silent.   Both parties were represented by court-appointed counsel at the neglect hearing.   Caleb was committed to DCF custody on that date, and “specific step” orders for reunification were issued by the court to both parents.

As previously noted, petitions for termination of parental rights were filed on March 29, 2010.   A marshal's return indicates that both Stacey M. and Andre H. were properly served on April 7, 2010.   A plea hearing was held before the court (Dannehy, J.) on April 29, 2010.   Both parents personally appeared in court on that date, and were advised of their rights by the court.   A memorandum in the court's file concerning that hearing indicates that Judge Dannehy confirmed service upon both respondents, and specifically instructed them on that date to reapply for court-appointed counsel.  (Memorandum of Hearing dated April 29, 2010.)  Connecticut Practice Book Section 3-9(e) provides that the counsel appointed to represent a parent in a neglect or uncared for proceeding shall continue to represent that parent for any subsequent petition to terminate parental rights if “․ the parent appears at the first hearing on the termination petition and qualifies for appointed counsel ․” Judge Dannehy advised both parties at the April 29th hearing to reapply for court-appointed counsel in order that their financial eligibility for such could be determined, and in order that their prior counsel could be reappointed if they qualified.   The memo of the April 29th plea hearing also reflects that a case management hearing was scheduled for June 7, 2010.

Andre H. admitted in court on September 9th that he did not reapply for a court-appointed lawyer on April 29, 2010, or at any time during the four months that followed.   He did not offer a satisfactory explanation for his failure to do so.   Andre H. did not attend the case management conference that was held at the court on June 7, 2010.   The father stated that his only effort to secure private counsel was to request a referral several weeks ago from the lawyer who is representing him in a criminal matter.   The court found that since the date of the TPR plea hearing last April, Andre H. did not make any substantive effort to secure representation in this case.   The respondent's request for a continuance to retain counsel was not raised with the court through a motion, letter or telephone call to the court at any time prior to the commencement of trial on the morning of September 9th.   The court found, based on the defendant's attendance at the April 29, 2010 plea hearing, that Andre H. had been aware since then that DCF was seeking to terminate his parental rights, and that he had been advised by the court then that he should reapply for court-appointed counsel to represent him.   Although he did not attend the case management conference in June, Andre H. had prior notice of the September 9, 2010 court hearing, as evidenced by his physical presence in court on the date that the trial was scheduled to begin.   For all of the forgoing reasons, the court found that the respondent's request for a continuance was dilatory.   The court also found that a continuance would unduly inconvenience the other parties, the minor child, and the counsel and witnesses.   The court denied the motion for continuance.

The petitioner introduced five documentary exhibits into evidence during the trial.  (Petitioner's Exhibits A-E.) Aaron Howard, the DCF social worker assigned to the case, and Rasheeta M., the child's foster mother, testified as witnesses for the petitioner.   The court also granted DCF's motion requesting that the trial judge take judicial notice of certain earlier findings in this case.  (See Petitioner's Motion for Judicial Notice dated September 2, 2010.)   Stacey M. and her attorney were present throughout the trial, but did not offer evidence.   The counsel for the child did not offer evidence or testimony, but he cross examined witnesses and participated fully in the proceeding.   The respondent father attended the trial, but he did not offer evidence, and he declined opportunities to cross examine witnesses and to make a final argument.   The court has carefully considered all of the evidence and testimony presented at trial.   The court finds that the facts set forth below were proven by clear and convincing evidence.

FACTUAL FINDINGS:  ADJUDICATION

DCF received an ex parte order for temporary custody of Caleb on March 4, 2009.   The mother's long history of substance abuse, and domestic violence in the home, were factors that contributed to the child's emergency placement outside of the mother's home, and his subsequent adjudication as a neglected child.   Caleb has continuously been in the foster care of Rasheeta M., a maternal relative, for the past 17 months.

Stacey M. voluntarily consented to the termination of her parental rights.   (Petitioner's Exhibit A.) The mother told the court on September 9th that although she has tried, she cannot care for Caleb.   The court finds that DCF proved the statutory ground of consent by clear and convincing evidence.

Around the time that the order of temporary custody was granted in March 2009, the court issued “specific steps” orders to both parents in an effort to assist their reunification with Caleb.   Pursuant to those orders, both parents were required to undertake certain rehabilitative efforts, and were offered specific supportive services by DCF. The services offered to Stacey M. included, inter alia, visitation, substance abuse treatment, domestic violence counseling, housing assistance, bus passes and parenting classes.  (Petitioner's Exhibit C, p. 10.)   Although the mother visited with the child, the evidence at trial proved that she was largely unsuccessful in her efforts to comply with the other “specific steps” orders.   The social study that was introduced into evidence noted:  “Due to mother's transient behavior, exposure to domestic violence in the presence of her child, lack of compliance with recommended services, substance abuse and criminal history, [mother] is unable to provide a safe, stable and nurturing living environment for said child.”  (Petitioner's Exhibit C, p. 10.)   The court found this evidence to be credible.

DCF offered Andre H. the following assistance:  visitation, substance abuse counseling, parenting services and anger management counseling.  (Petitioner's Exhibit B, p. 9;  Testimony of Aaron Howard.)   Mr. Howard, the DCF social worker, testified credibly that he made several telephone calls, and wrote several letters, in attempts to urge the father to cooperate with domestic violence counseling and substance abuse treatment.   Mr. Howard testified credibly that, with the exception of visitation, the respondent did not participate in any of the rehabilitative services that were offered to him by DCF. (See also:  Petitioner's Exhibit C, p. 4.) The court finds as proven by clear and convincing evidence that DCF made reasonable efforts to reunify Caleb with Andre H., and that Andre H. was unwilling to benefit from those reunification efforts.

Mr. Howard also testified credibly that Andre H. had supervised visits with Caleb once or twice a month during the first year that the child was in foster care.   However, the father has not visited with the child, nor requested any visits, since April 20, 2010.

The DCF social worker testified that during a visit with Caleb in March 2009, the father and the mother became verbally and physically aggressive with each other.   This altercation occurred in the presence of the child at a visit that was supervised by DCF. Mr. Howard had to separate the parties and end the visit.   The court credits this evidence.

Andre H. was arrested for illegal possession of a controlled substance on November 1, 2009, and for drunk driving and interfering with police on March 11, 2010.  (Petitioner's Exhibit C, p. 13;  Petitioner's Exhibit E.) The court finds that these allegations, and the incident that occurred during Andre H.'s visit with the child in March 2009, demonstrated the respondent's need for the substance abuse and anger management services that he has continuously refused to accept from the petitioner.

Clear and convincing evidence established that while Caleb has been in foster care, Andre H. has never provided financial support for the child;  acknowledged the child's birthday or other special holidays;  sent the child cards, letters or gifts;  nor demonstrated interest about the child's health, education or welfare.  (Testimony of Aaron Howard;  Testimony of Rasheeta M.;   Petitioner's Exhibit C, p. 8 and 9.) Mr. Howard also testified credibly that the only plan that Andre H. proposed for Caleb's care and custody was his request that the child live with the paternal grandmother.

Rasheeta M. testified that when Andre H. visited the child, Caleb did not appear to recognize him as a parental figure.   The foster mother also stated that the child, who is now verbal, does not ask about his father.   The court accepts this evidence as fact.

Viewed cumulatively, the forgoing evidence proved clearly and convincingly that Andre H. has failed to achieve such degree of personal rehabilitation as would encourage the belief that he could achieve a responsible position in Caleb's life within a reasonable period of time.   The evidence also established that Andre H. abandoned the child, and has no ongoing parent-child relationship with Caleb, as those grounds for adjudication are defined by C.G.S. 17a-112(j).  The court finds that the petitioner has proven each of the adjudicatory grounds alleged against Andre H. in the termination petition by clear and convincing evidence.

FACTUAL FINDINGS:  DISPOSITION

Caleb has continuously resided in the same foster home for more than 17 of the 27 months that he has been alive.   The child needs “a permanent and stable home.”  (Petitioner's Exhibit C, p. 7.) Mr. Howard testified at hearing, and wrote in his social study, that Caleb is a happy, well-adjusted child who is extremely bonded with his foster mother, Rasheeta M. The social worker opined that Caleb regards the foster mother as his parent, and that he looks to her for solace and comfort.   The DCF social study noted:  “Caleb has thrived in this placement and he is medically up to date and developmentally on target.”   (Petitioner's Exhibit C, p. 10.)   The court finds that all of the forgoing facts pertaining to the child's best interests were proven by clear and convincing evidence at trial.   The petitioner, and the child's attorney, both recommend that termination of parental rights, and adoption by Rasheeta M., are in Caleb's best interests.

Because Stacey M. has consented to the termination of her parental rights, the court is not required to make and consider in her case the factual findings that are mandated by C.G.S. 17a-112(k).  Pursuant to C.G.S. 17a-112(k), the court finds that clear and convincing evidence proved the following concerning Andre H:

1. The timeliness, nature and extent of services offered, provided and made available to the parent and child to facilitate reunion.   Commencing in March 2009, and subsequent thereto, DCF offered Andre H. visitation with the child, substance abuse counseling, parenting services, and anger management counseling.   DCF provided foster care, and social work services for the child.   The court finds that the reunification services offered were timely and appropriate.

2. Whether DCF has made reasonable efforts to reunite the family pursuant to the Federal Adoption and Child Welfare Act of 1980, as amended.   Both respondents were offered visitation, and the reunification services mentioned above.   The court finds that the petitioner made reasonable efforts to reunify the family as required by law.

3. The terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order.   The court issued “specific steps” orders on March 13, 2009.   The court ordered that the father must cooperate with substance abuse and anger management counseling, avoid substance abuse and further involvement with the criminal justice system, and visit the child as often as DCF permits.   Andre H. agreed to comply with these orders when he signed the “specific steps” paperwork on March 13, 2009 (Petitioner's Exhibit B).  DCF offered the appropriate services to the father and contacted the father repeatedly in an effort to urge his participation.   Andre H. did not cooperate with the services offered.   He has been arrested on charges of drunk driving, interfering with police and possession of a controlled substance during the pendency of this case.   DCF provided supervised visits between Andre H. and Caleb.   The father visited the child once or twice a month until April 20, 2010.   He has not visited the child, nor requested visitation, since then.   The court finds that DCF fulfilled the responsibilities set forth in the “specific steps” orders, and that Andre H. did not.

4. The feelings and emotional ties of the child with respect to the child's parent, and any person who has exercised physical care, custody or control for at least one year and with whom the child has developed significant emotional ties.   The clear and convincing evidence at trial proved that Caleb does not have any emotional ties to Andre H., and does not regard him as a parental figure.   No parent-child relationship or bond exists between Caleb and Andre H. Clear and convincing evidence at trial established that a strong emotional bond exists between Caleb and his foster mother, Rasheeta M. The child regards Rasheeta M. as his mother.

5. The age of the child.   Caleb is two years and three months old.   His date of birth is May 31, 2008.

6. The efforts the parent has made to adjust such parent's circumstances or conduct or conditions to make it in the best interests of the child to return to such children to the parental home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as a part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child.   The facts recounted above proved by clear and convincing evidence that Andre H. consistently refused the rehabilitative services that were intended to facilitate his reunification with Caleb, and that he hasn't made any substantial efforts to adjust his circumstances, conditions or conduct so that the child could be returned to live with him at any time in the foreseeable future.   As noted previously, Andre H.'s only plan for the child's future care and custody was his request that Caleb live with the paternal grandmother.

7. The extent to which the parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable acts or conduct of the other parent of the child, or the unreasonable acts of any other person, or by the economic circumstances of the parents.   The evidence presented at trial did not indicate the existence of such acts, conduct or circumstances.

The court finds that DCF made reasonable and substantial efforts to reunify Caleb with both of his parents.   Those efforts were unsuccessful.   The child has been in foster care for 17 months, and needs the type of permanency and stability that the evidence proved his foster parent can provide.   Stacey M. has consented to the termination of her parental rights, and supports the child's adoption by Rasheeta M. Andre H. is opposed to termination, and claims that he wants to be reunified with the child.   However, the respondent's actions and inaction during the past 17 months refute any assertion that he would be able to parent the child in the foreseeable future.   Based on the evidence presented, the court finds that it would be adverse to Caleb's best interests to allow Andre H. any further time to pursue reunification.

ORDERS

Having made all of the forgoing findings, and based upon all of the evidence presented at trial, the court finds by clear and convincing evidence that termination of parental rights, and adoption, are in the best interests of Caleb H. The court ORDERS that the parental rights of Stacey M. and Andre H. with respect to said child are hereby terminated.

The court further ORDERS that the Commissioner of the Department of Children and Families is appointed the statutory parent of said Caleb H., and is ordered to pursue the adoption of said child as expeditiously as possible.   The court ORDERS said Commissioner to file a Motion for Review of Permanency Plan for said child with this court by October 12, 2010.   A hearing to review said permanency plan shall be held at this court on November 23, 2010 at 9:30 a.m. The Court ORDERS that said Commissioner shall thereafter file all Motions for Review of Permanency Plan, Permanency Plans and Quarterly Status Reports pertaining to this child on a timely basis as required by law until said child is adopted.   The Court also ORDERS said Commissioner, and the clerk of the Probate Court that processes the adoption of this child, to notify the Clerk of this court immediately when Caleb's adoption is finalized.

SO ORDERED.

BY THE COURT:

Dyer, J.

Dyer, Richard W., J.