IN RE: Asianna A.1 (2010)

MEMORANDUM OF DECISION

On March 18, 2010, the petitioner, the commissioner of the Department of Children and Families, (“DCF”), filed a petition pursuant to C.G.S. § 17a-112 et seq. to terminate the parental rights of Theresa S., and Travis A. as to the minor child Asianna A. d.o.b. 12/7/08.   The parents have appeared and are represented by counsel.   Neither biological parent claims Indian Tribal affiliation.   The court is aware of no other proceedings pending in any other court regarding the custody of this child.   This court has jurisdiction.

The court received Exhibits A-T as full exhibits of the petitioner and Exhibits 1-23 as full exhibits of the respondent mother.   The court heard from seven witnesses including the respondent mother, the foster mother, social workers and the court appointed psychologist and a psychologist who recently evaluated the respondent mother.   After considering the testimony of the witnesses and examining the documents in evidence, the court makes the following findings by clear and convincing evidence.

THE FEMALE BIOLOGICAL PARENT

The child's mother, Theresa, is 33 years of age.   She was raised in a dysfunctional family of an abusive, violent father and a mother who likely suffered from mental health and alcohol-related problems.   She states that she was a special education student in school because of behavioral problems.   She says she was known in school as Theresa the Terrible.   She has a long history with the child protection authorities and an extremely poor record as a parent and as a law-abiding citizen.

Theresa had her first child in 1997 at age twenty.   She was engaged in a relationship with L.D., a violent and abusive man.   The relationship ended when L.D. went to prison in 1998.   She next became involved with R.S. by whom she had a second child in August 1999.   She thereafter married R.S. in December 1999.   Theresa, while still married to R.S. gave birth to a third child on December 14, 2002.   She later disclosed that her husband R.S. was not the father but one B.M. was the child's biological father.

During that same year, 2002, DCF became involved with Theresa due to domestic violence, drugs and criminal activity.   An order of temporary custody of her, then two children, was issued in August 2002.  (Petitioner's Exhibit J.) A neglect adjudication was entered in December 2002, and thereafter the children were returned to Theresa's care.   Neglect petitions were filed in October 2003 and again in April 2004, regarding her, then three children.   A second neglect adjudication was made on August 8, 2004.   In February 2006, the commissioner filed a petition to terminate Theresa's parental rights to the three children and to terminate the parental rights of the three biological male progenitors.   That petition was granted on November 13, 2006 (Boland, J.).

Theresa has had eleven admissions to York Correctional Center for women in 2004, 2005, 2006, 2007, and most recently 2009 going into 2010.   She has been convicted of the typical criminal activities associated with substance abuse and mental health issues including breach of peace, larceny, failures to appear in court, probation violations and prostitution.   She has been diagnosed with post traumatic stress disorder, bi-polar disorder and borderline personality disorder.

In keeping with her habit of selecting dysfunctional, angry and violent men to sire her children, Theresa picked Travis A. as her most recent boyfriend and as the father of her fourth child.   Theresa gave birth to their child Asianna on December 7, 2008.   She self-describes this relationship as turbulent and volatile.   Both she and he have been arrested for assaultive behavior toward each other.   Since their relationship began in 2008, there have been protective orders and DCF safety plans that have issued to keep them away from each other.   None has been successful.   Incarceration of one or both of them has been the only successful intervention.   Asianna was removed from Theresa on January 22, 2009, due to the violence between Travis and Theresa and their respective violation of protective orders and safety plans.

Following the removal of the child, DCF has offered each parent a range of services as more specifically set forth in the social study.  (Petitioner's Exhibit A.) Those services included assistance in obtaining shelter and subsidized housing, substance abuse evaluation and treatment, intensive reunification services through United Services, anger management counseling, individual therapy and medication management.   Neither parent has argued that reasonable efforts were not made between January 22, 2009, the date of removal, and March 18, 2010, the date the petition was filed.   Indeed, to argue thusly would fly in the face of the evidence.   Theresa's position is that since her most recent release from prison, she has engaged in services and therefore, her rights should not be terminated.

DCF had put in place some rather aggressive services to assist Theresa toward reunification in the Spring of 2009.   Those services were abruptly terminated in the summer of 2009 when Theresa resumed her use of cocaine.   She was re-incarcerated on July 30, 2009, and remained in jail until September 15, 2009.   On that date, Theresa was then immediately admitted to a prison release program known as Fresh Start, which, if successfully completed, would have moved her considerably closer to reunification with Asianna.   The following is an excerpt from the October 26, 2009, Fresh Start Discharge Summary (Petitioner's Exhibit Q).

Counseling Services:

Ms. S. was enrolled in an Intensive Outpatient Program at CRT Behavioral Health, where she attended groups three times per week to address her mental health and substance abuse issues.   Ms. S. also met with a Substance Abuse Clinician weekly at CRT Behavioral health.   Ms. S. met weekly with a Substance Abuse Clinician as well as her Case Manager at Fresh Start.   During Ms. S.'s course of treatment, she was required to attend the following groups that are facilitated at Fresh Start:  Seeking Safety, Moving On, Domestic Violence, Life Skills, Helping Women Recover and Nutrition.

Comments:

During her course of treatment, Ms. S. displayed aggressive behavior whenever she was confronted about her behavior.   This writer had a very lengthy conversation with Ms. S. regarding this type of behavior on 09/28/09, and stated that this display of aggression and threatening behavior would not be tolerated in a program environment.   On 10/21/09, this writer was informed by the Program Manager that Ms. S. was allegedly engaging in sexual activities with a male client while attending Intensive Outpatient services at CRT Behavioral Health.   When a Clinician at CRT Behavioral Health asked Ms. S. whether she was having a relationship with a male client, Ms. S. denied the allegations, but in doing so became aggressive and behaved in a threatening manner.   Ms. S. does not appear to be able to refrain from openly displaying her hostile behavior.   Whenever she is confronted with a behavioral issue, she begins to show physical and behavioral signs of anger and aggression such as pacing, clenched fists and has, on at least one occasion, walked out of the staff office slamming the door.   While this program is certainly aware that many of our clients have anger issues and are without the skills to manage that anger, Ms. S. displays behavior that cannot be tolerated in an environment where the safety of others becomes an issue.   Because Ms. S. appears to be unwilling to change her aggressive and threatening behavior, on Thursday, October 22, 2009, this program faxed a Progress Report to the Danielson Court asking to be relieved of Ms. S.'s supervision and Ms. S. was placed on the docket for 10/23/09.   On Friday morning, as this writer, another staff member and Ms. S. were leaving the facility to transport her to court, Ms. S. began running down the street and absconded from Fresh Start.   The Danielson Court was immediately notified that Ms. S. had absconded and would not be appearing in court.

On October 23, 2010, upon Theresa's failure to appear in court from the Fresh Start program, the criminal court at GA-11 issued re-arrest warrants for Violation of Probation, larceny 6, breach of peace and failure to appear.

Three days later Theresa and Travis appeared in the Superior Court for Juvenile Matters in Willimantic on October 26, 2009, where they each entered a plea of nolo contendere for allowing the child to live under circumstances, conditions or associations injurious to the child's well being.   The child was adjudicated neglected (Graziani, J.).

As a consequence of her absconding from the program, her attendance at Fresh Start being a condition of her release from incarceration, and the outstanding warrants, Theresa was subsequently re-arrested and on November 30, 2009, she was sentenced and returned to prison.   She was released on May 19, 2009.   Her child had been in foster care for sixteen months.   She had not successfully complied with her specific steps which included avoiding further involvement with the criminal justice system and complying with treatment recommendations.

The grounds alleged in the petition as to respondent, mother are that she is the mother of the child, under the age of seven years who is neglected or uncared for, and she has failed or is unable to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of the Department of Children and Families.  C.G.S. § 17a-112(j)(3)(E).

As of the date of the petition to terminate her rights, March 18, 2010, Theresa was incarcerated.   She was the mother of a child, Asianna, under seven years of age.   The child had been adjudicated neglected on October 26, 2009.   Her parental rights had been terminated as to three other children (Petitioner's Exhibit J).  As of the date of the petition Theresa had failed to maintain her sobriety outside of the structured prison environment.   She had failed to successfully complete the United Services Permanency Placement Services Program of intensive reunification.   She was discharged from the program upon her re-incarceration.

But of most significance at the time of filing the petition, and also as of the date of the trial, Theresa has failed to get intensive mental health individual counseling to address her issues of borderline personality disorder, bi-polar disorder, depression and posttraumatic stress disorder, not to mention her relational issues with men.   The problems of anger management identified by the Fresh Start program had similarly, not been addressed.   These pervasive problems will not mystically and magically disappear by completing a parenting course or a course preparing incarcerated individuals for employment upon release from prison (STRIDE), or attending five sessions with Families in Crises dealing with grief and loss issues.   They require long term individual therapy over time.

Theresa was evaluated by the court appointed psychologist, Mary H. Cheyne, (Report dated March 28, 2010, Petitioners Exhibit B) and also, at the direction of her own attorney, by Bruce Friedman, Ph.D. of Bloomfield, CT. Dr. Friedman evaluated Theresa two days before the trial (on October 25, 2010, more or less).   Curiously, while trying to be helpful to Theresa, Dr. Friedman concluded that if he had written a report, which he did not, his conclusions and recommendations would have been very similar to those of Dr. Cheyne (Petitioner's Exhibit B).  Among other conclusions, both psychologists indicated that a removal from the present caretaker would likely be psychologically devastating to a child that had been in the same placement for nearly two years.

Theresa believes the court should consider reunifying the child with her since she maintains she has been sober since July 2009, i.e. she has not used cocaine since that date and has successfully completed some educational programs.   Neither psychologist placed much stock in the sobriety argument since Theresa was incarcerated (“in a structured environment”) for eight or nine of those months.   Theresa has told Dr. Cheyne that she first used crack cocaine at aged 20.  “Not much at first, then it increased to using all day long.   I had a couple of times where I had a few clean years.”   Theresa claims she had a lot of care, including two inpatient programs and many outpatient programs (Exhibit B, p. 3).   Given her self-report, of “a few clean years” and then relapse, even being clean for a year is not a reliable indicator of her continued sobriety.   Dr. Cheyne noted “․ that she takes no responsibility for her behavior and seems to have no insight that yelling and screaming are not good anger management strategies.”

The court concludes that given her failure to address her major mental health issues, her failure to accept responsibility for her actions, her considerable history of personal and parental failure, she has failed or is unable to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time considering the age and needs of the child, such parent could assume a responsible position in the life of the child.   Neither psychologist suggested that Theresa's prognosis was good for assuming a responsible position in the life of Asianna.   The court is satisfied that the conditions of C.G.S. § 17a-112(j)(3)(E) have been established by clear and convincing evidence.

The court notes that since her release from jail five months ago, Theresa has made progress in her own rehabilitation.   She has obtained a car, an apartment, employment at Dunkin Donuts and since July 21, 2010, has engaged in counseling at New Perceptions.   The court does not diminish her efforts.   It is only that her mental health issues are so pervasive and long-standing.   They will require years of therapy.   Her sobriety is fragile.   A significant stressful event has historically been sufficient to lead her back to drugs.   She has not even addressed her issues with abusive men.   Another unsuccessful relationship could easily be a trigger, as it has in the past.   She has not addressed the anger and aggression she demonstrated at the Fresh Start program.   Her history as a parent is dreadful and her history as a citizen of the community is equally unimpressive.

The single most important obligation of this court is to keep the child safe.   Asianna has been out of Theresa's care for nearly two years.   Asianna is bonded in her present environment.   Removal would be psychologically “ ․ traumatic and lead to emotional difficulty akin to post traumatic stress disorder” according to Dr. Cheyne.   Under the most optimistic and hopeful scenario, Theresa would have to demonstrate at least a year of sobriety.   Even that would not satisfy this court given her history unless all of the other issues have been successfully addressed.   But even a year from now is an eternity for the child.   Asianna would have three years of placement with people she views as her parents.   Theresa concedes that Asianna is not particularly close or attached to her at this time.   There certainly is no parent-child bond with Theresa.   That bond does exist with the foster parents.   Given that grounds exist to terminate the parental rights, the focus shifts now to the best interests of the child.

THE MALE BIOLOGICAL PARENT

Travis A. is thirty-three years old.   He never knew his father and was raised principally by his grandmother.   He reports to graduating from high school in 2000 (at age 23?).   He has had employment for a demolition contractor, as a painter, as a dishwasher and as a pre-cook and at United Parcel Services for an unspecified time.   He has had long periods of unemployment.

But since 2000, Travis has been most frequently involved in criminal activity resulting in incarceration.   Exhibit E shows nine periods of incarceration in the past 10 years.

Date of Incarceration Date of Release

1. June 2, 2000 December 20, 2001

2. July 8, 2002 May 30, 2003

3. December 18, 2003 February 5, 2004

4. July 14, 2004 November 19, 2004

5. May 3, 2005 October 28, 2005

6. May 8, 2006 October 22, 2007

7. June 24, 2008 December 22, 2008

8. May 1, 2009 June 24, 2009 (released on bond)

9. March 5, 2010 (new arrest) to present-awaiting trial

Travis has presently pending charges of robbery in the first degree, two counts (B felony), criminal possession of a firearm, two counts (D felony), larceny 5 and larceny 6. He has pending criminal charges from 2009 including larceny 6, breach of peace and assault 3. (Petitioner's Exhibit F.) His disciplinary record while incarcerated includes tickets for fighting, flagrant disobedience, threatening and direct disobedience of an order.

The ground alleged in the petition as to respondent father is that the child was found in a prior proceeding to have been neglected or uncared for and the father has 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 child, he could assume a responsible position in the life of the child.  C.G.S. § 17a-112(j)(3)(B)(i).

The factual determination for this court is whether the father has achieved rehabilitation as contemplated under C.G.S. § 17a-112(j)(3)(B), that is, rehabilitation sufficient to render him able to care for Asianna.  “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 he has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date he can assume a responsible position in his child's life.”  In re Eden F., 250 Conn. 674 (1999) at 706.

Pages 15-18 of the social study (Petitioner's Exhibit A) describe the services offered to Travis and his general non-compliance.   The only service that Travis seems to accept is visitation when the child is brought to his correctional center.   It should be noted that when he was not incarcerated his attendance at visitation was inconsistent and unreliable.   He scheduled a birthday visit with Asianna and then failed to attend.   He missed four consecutive visits arranged through a program known as Kaleidoscope Family Services and was discharged from the program.   In point, he has not demonstrated even the slightest interest in personal rehabilitation.   He has not successfully engaged in any offered program.   He has continued to conduct his personal affairs in such a way as to result in his incarceration and corresponding unavailability for services or effective parenting.   There is nothing in his past or present that suggests future availability as a parental resource.   He was abusive to the child's mother, he was abusing illicit drugs, engaging in criminal behavior, and never served as an effective parent.

Given this history the court finds that the child was found in a prior proceeding to have been neglected or uncared for and the father has 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 child, he could assume a responsible position in the life of the child.   C.G.S. § 17a-112(j)(3)(B)(i).

DISPOSITION

As to the dispositional phase of this hearing on the petition for termination of parental rights, the court has considered the evidence and testimony related to circumstances and events up to and including the date upon which the evidence in this matter was completed.   During the dispositional phase, the trial court must determine whether termination is in the best interests of the children.  In re Eden F., 250 Conn. 674, 689 (1999).

The court makes the following seven written findings:

(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the child by an agency to facilitate the reunion of the children with respondents, the court finds that DCF has made reasonable efforts over 8 years for the mother and has made reasonable efforts since the child's birth for the father.   The court finds that the father is not willing or able to benefit from the offered services.   The court is aware that since the mother's release from prison in May, she has made efforts to complete programs in an effort toward rehabilitation.   These efforts are commendable but lacking.   Even with shelter, employment and transportation, she has serious mental health and emotional problems that will require extensive therapy.   Short term certificate programs may help a person who otherwise has reasonable mental health but lacks certain skills.   Theresa is a dual diagnosis individual.   She has, as of July 2010, engaged in a program which, if she remains in the counseling and if she remains sober, may assist her in her personal rehabilitation.  “[T]he critical issue [in assessing rehabilitation] is ․ whether the parent has ․ gained the ability to care for the particular needs of the child at issue.”  (Internal quotation marks omitted.)  In re Shyliesh H., 56 Conn.App. 167, 743 A.2d 165 (1999).”   The court finds that she has not that ability as of this time.

The child cannot wait to see if Theresa is able to remain sober and will apply herself and benefit from therapy.   The child has been in and out of home placement for nearly two years.   State and federal law require courts to act in accordance with guidelines to prevent foster care drift and secure permanent homes for children who cannot be reunited with their parents in a timely fashion.   Our Supreme Court has long recognized the deleterious effect of prolonged temporary care of abused and neglected children.  In re Juvenile Appeal (84-CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983).   The Appellate Court has also noted, “[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence ․ “ In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 930 (1992), aff'd, 223 Conn. 557, 613 A.2d 780 (1994).

“Virtually all experts, from many different professional disciplines, agree that children need and benefit from continuous, stable home environments.”   (Internal quotation marks omitted.)  In re Juvenile Appeal (83-CD), 189 Conn. 276, 285 (1983), In re Jeisean M., 270 Conn. 382, 400-01 (2004), In re Davonta V., 285 Conn. 483, 494 (2008).   Connecticut's statutory requirement, that placement decisions be made in a timely manner is based on the federal requirements of the 1980 Adoption Assistance and Child Welfare Act (AACWA) and the 1997 Adoption and Safe Families Act (ASFA), 49 U.S.C. §§ 620 et seq.   Congress passed ASFA in 1997 to help prevent “foster care drift” by providing greater judicial oversight of the entire placement process, mandating the delivery of services to families, identifying children in need of adoption within twelve months, and terminating parental rights of parents within eighteen months of out of home placement.   Indeed, under Connecticut's statutory scheme enacted to comply with ASFA, the commissioner is required to file a motion to review a permanency plan within nine months of removal of a child.  Gen. Stats. 46b-129(k).  If the permanency plan calls for adoption, the commissioner is required to file a petition for termination of parental rights not later than sixty days after such approval if a petition has not previously been filed.”   In re Jorden T., Child Protection Session at Willimantic, DN T11-CP07-012689-A (December 4, 2008, Foley, J.).

(2) As to whether DCF 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 that DCF offered appropriate and available services.

(3) As to the extent to which all parties have fulfilled their obligations under the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, the court finds that specific steps were entered in this case to inform the parents of their obligations to obtain a reunification with Asianna.  (Petitioner's Exhibits H and I.) Both parents violated the specific steps by rearrest and incompletion of necessary services.

(4) As to the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties, the court finds that the child does not have a parental emotional bond with the biological parents.   The child has adjusted very well in the foster home and the foster parents are providing the day-to-day physical, emotional, moral and educational support the child needs.   The foster parents are committed to Asianna and would like to adopt her.

(5) As to the age of the child, Asianna will be two next month.   The child's attorney recommends permanency which can only be achieved in this case through termination of the parent's rights.

(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 parent has maintained contact with the child as 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 court has previously addressed these issues.   Giving the parents additional time would not likely enable them to adjust their circumstances, conduct or conditions to make it in the best interest of the child to be reunited within a time-frame suitable for Asianna.  In re Luis C., 210 Conn 157, 167, 554 A.2d 722 (1989);  In re Juvenile Appeal, 183 Conn 11, 15, 438 A.2d 801 (1981).

(7) As to the extent to which a parent has been prevented from maintaining a meaningful relationship with the children 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 parents or third parties.

With respect to the best interests of the child contemplated by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of Theresa S. and Travis A. to the child is in the best interest of Asianna.   Permanency, consistency and stability are crucial for children.   The child is now in a foster home where she is very well cared for by foster parents who are fully committed to her.

In finding that termination of the respondents' parental rights would be in the child's best interest, the court has examined multiple relevant factors including the child's interests in sustained growth, development, well-being, stability and continuity of her environment;  the length of stay in foster care;  the nature of the relationship with foster parents and biological parents;  the degree of contact maintained with their biological parents;  and their genetic bond to respondents.  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).

ORDER

It is accordingly, ORDERED that the parental rights of Theresa S. and Travis A. are hereby terminated as to the minor child Asianna.

The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for this child.

With regard to the permanency plan for the child, the court hereby approves the plan of termination of parental rights and adoption and finds that such plan is in the best interest of the child.   The court also finds that DCF has made reasonable efforts to effectuate the permanency plan.   A case report shall be submitted within thirty days of this judgment, and such further reports shall be timely presented to the court as required by law.

The Clerk of the Probate Court with jurisdiction over any subsequent adoption of the child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Willimantic, 81 Columbia Avenue, Willimantic CT 06226 of the date when said adoption is finalized.

Judgment may enter accordingly.

Foley, Sr. J.

Foley, Francis J., S.J.