IN RE: Jaimie Lynn M.1 (2011)

MEMORANDUM OF DECISION Re Termination of Parental Rights

On November 23, 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 Jessica H. and Robert M. to their minor child, Jaimie Lynn. The mother and father have appeared and 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.   Jaimie Lynn was born on February 13, 2009.

On the first day of trial the father consented to the termination of his parental rights in open court.   This court found that the father voluntarily and knowingly consented to the termination of his rights, having received the advice and assistance of competent legal counsel and having understood the consequences of his actions.   His consent was accepted by the court.   The petition has been amended to allege as the sole ground for termination of the father his consent to the termination.   No findings need be made pursuant to Conn. Gen.Stat. § 17a–112(k) as to the consenting father.

The file reflects that the child was removed on September 29, 2009.   A permanency plan should have been filed by June 29, 2010.   It was not.   Under state and federal law, the court was required to approve or disapprove of the permanency plan within one year from the date of removal of the child, that is by September 29, 2010.²  The Study in Support of Motion to Approve Permanency Plan (Petitioner's Exhibit C) was not filed in the court until October 4, 2010, three months and five days late, thus prohibiting compliance with the law.   Timely objections were filed within ten days.   On December 14, 2010, the parties agreed in court to consolidate the contested permanency hearing with the termination of parental rights trial scheduled for February 14, 2011.

FACTS

The petition alleges that as to the mother, the child was 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 child, she could assume a responsible position in the life of the child.   C.G.S. § 17a–112(j)(3)(B)(I).   The file reflects a finding of neglect was not made until September 27, 2010.³

The court heard the testimony of five witnesses including two DCF social workers, an evaluating psychologist, a case manager for the mother and the father of Jessica.   Documents were entered into evidence including social studies, social worker affidavits, psychologists reports, signed specific steps and a criminal history.

Since the mother did not testify, the representations in the social studies and evaluations were virtually uncontested.   The court relies heavily on the uncontroverted documentary evidence in making its' findings.   With respect to all findings regarding the termination of parental rights, these findings are made by clear and convincing evidence.

Testimony commenced on February 14, 2011, and concluded on March 7, 2011.

I. Jessica H., the mother.

There are two principal sources of information on the mother's social history;  the Social Study (Exhibit D) and the Psychological Assessment Report.  (Exhibit E.) The latter document contains Jessica's reports to the psychologist.   Jessica was born to unmarried parents in a dysfunctional family.   She reports domestic violence between her mother and the various men with whom she was involved.   Child protection agencies were involved in her family life.   She reports her mother as having a history of mental illness and that she is on disability for anxiety and depression.   Jessica's mother was involved in multiple relationships with domestically violent men, one of whom gave her a black-eye.   Jessica reports she does not have a large support system, but that her mother is supportive.   She told the psychologist that her relationship with her mother is “iffy.”   She said some days it's alright and other days we fight.

Jessica denies any current use of marijuana although she admits she did use it and took a drug class for DCF. She smokes a pack of cigarettes a day at present “because of all the stress and stuff I am under.”   She was hospitalized for mental health reasons at age sixteen.   She reports she was out of control and would not listen to her mother, she had suicidal ideation and felt her mother was “choosing her boyfriend over me.”   She acknowledges a history of anger, anxiety and depression.   She reports having being diagnosed as bipolar.  “I think I have been that way my whole life” she told the psychologist.   At the time of the interview, July and August 2010, she reported that she was homeless, sleeping at her mother's house and at friend's houses.   She cannot stay with her mother as that would violate the terms of the mother's Section 8 lease.

Jessica has not worked in the recent past (at the time of the interview) and her longest employment was at Wendy's where she worked for two years when she was in her teens.   She is currently twenty-one years of age.

While working at Wendy's in 2008, Jessica began a relationship with Robert M., who was two years her senior.   In March 2008 she moved with Robert to South Carolina where she remained until they separated in May or June 2008.   When she returned to Connecticut she learned that she was pregnant.   When she was five months pregnant with Jaimie, Robert moved back to Connecticut and they resumed their relationship.   Shortly after the birth of Jaimie, the parents separated due to the domestic violence and infidelity by Robert.   Curiously, Robert could not recall the reason they broke up.

Following one episode of violence between Robert and Jessica, they were both arrested.   While making a court appearance on May 30, 2009, Jessica met another man, Jason M. Within a week she and Jason were dating.   Within two months Jessica was pregnant again with the child of another abusive male.   The second pregnancy produced Jessica's second child, Jayden M. born on March 3, 2010.   Jessica reports that this second man is serially unfaithful and physically abusive to her.   Nonetheless, Jessica reports she still loves him and wants to make things work.   Neither child is presently in Jessica's care.

The report of Dr. Cheyne is instructive of Jessica's thought process in forming interpersonal relationships. (from Exhibit E.)

Ms. H.'s profile suggests that she is often melancholy and blue, fearful, socially shy, and self-pitying.   Expressing feelings of self-reproach and inappropriate guilt, she has learned to lean on others for security, and she assumes the role of a submissive, cheerless, and self-sacrificing partner in close relationships.   Exceedingly insecure and vulnerable if separated from those who provide support, she may willingly place herself in inferior or demeaning positions, permitting others to be inconsiderate, if not exploitive.   She probably feels considerable resentment toward those who fail to appreciate her intense needs for affection and nurturance.   Although emotionally irritable and overly angry at times, because her security is threatened when she expresses her resentment, she hesitates to discharge any negative feelings and most typically does so in a passive-aggressive manner.   Ever fearful of rebuff, she would rather withdraw from painful social relationships or try to convince herself that being isolated and sad is a worthy state.

It is likely that Ms. H.'s depression, loneliness, and isolation are getting worse.   Her underlying tension and emotional discontent appear to be present in disturbing mixtures of anxiety, sadness, and guilt.   Insecurity and fear of abandonment may account for her mournful, sorrowful, and dispirited attitudes.   Aside from her periodic outbursts and expressions of resentment, she is likely to be conciliatory, placating, and even ingratiating.   By acting dejected and weak, by expressing self-derogation, by being self-depriving, communication a need for assurance and direction, and displaying a willingness to submit and comply, she hopes to evoke nurturance and protection.   By submerging her individuality, voicing thoughts of death or suicide, focusing on her worst features and lowly status, subordinating her personal desires, and submitting at times to abuse and intimidation, she hopes to avoid total abandonment.

Ms. H.'s preoccupation with and complaints of inadequacy, fatigability, and illness probably reflect her underlying mood of depression.   Simple responsibilities may demand more energy than she can muster.   Life may be referred to by her as empty with constant feelings of weariness and apathy.   By withdrawing, being dependent and self-abnegating, or restricting her social involvement to those few situations in which she is not exploited or rejected, she precludes the possibility of new, potentially favorable experiences redirecting her life.

Most notable are Ms. H's manifestation of purposeful inefficiency, her gratification in undermining the pleasures and expectations of others, and an overt display of intentionally contrary and oppositional behavior.   Although nearly everyone behaves resentfully at times, what distinguishes her is the ease with which she can be provoked into acting in a resentful manner and the regularity with which she manifests procrastination, inefficiency, and obstinate behavior.

Dr. Cheyne found Jessica to have the presence of major depression and generalized anxiety disorder.   In addition is a depressive personality disorder with avoidant personality traits, negativistic personality traits and borderline personality features.  (Exhibit E, p. 6.) Jessica's self evaluation was “․ nothing, I feel like a piece of crap.”   That sentiment prevailed in the observation of Jessica and her two children.  “It was clear during the interaction that (Jessica's) mental health issues were interfering with her ability to be engaged with her children.   She was fairly cranky and interacted with the children in a very matter of fact manner.   She was not particularly affectionate or engaging.”  (P. 18.)   A social worker who observed Jessica with Jaimie testified she had a flat affect, she showed a lack of emotion and a lack of nurturing.

II. Removal of Jaimie

The record reflects that DCF became involved with Jessica in May 2009, upon reports of Jessica using marijuana while caring for Jaimie and inadequate supervision.   DCF found that Jessica was under the influence of marijuana.   The case was opened for treatment and DCF began managing services for Jessica.   Jessica was beginning her involvement with Jason M. She moved in with him in June 2009.   A urine screen that same month was positive for marijuana.   The child's father Robert, reported Jessica to DCF, all the while admitting that he was struggling with abuse of prescriptive medications and marijuana himself.

In July Jessica participated in a substance abuse evaluation at the direction of DCF. She had a clean urine screen but was recommended for group therapy.   She applied for sole custody of Jaimie with the court in Putnam.   She told DCF that Robert was not providing any support and that he was addicted to cocaine.   In August she reported that she was going to be evicted from her apartment.

On August 27, 2009, while Jessica was living with her new boyfriend, Jaimie sustained an injury known as “Nursemaid elbow,” the mechanics of which were not adequately explained by Jessica.   The physician's assistant who treated Jaimie at the hospital noted Jessica's flat affect.   Jessica was told to follow up with the child's primary care physician.   She did not.

Neighbors report Jessica was inadequately supervising the child, leaving her unattended.   They reported hearing Jessica and her boyfriend Jason fighting.   They reported hearing Jaimie crying for twenty minutes at a time.   The report stated that mother would put her hand over the child's mouth when she was crying.

On September 3, 2009 the social worker was able to interview Jason regarding Jaimie's injury.   His story differed from Jessica's.   He stated a four-year-old girl in Jaimie's room had stepped on Jaimie's arm.   He denied any domestic violence between Jessica and himself.   He did say that mother did not respect him.   At that time he told DCF that Jessica was pregnant with his child.

On September 11, 2009, Dr. Nina Livingston of the Connecticut Children's Medical Center evaluated the injury and the so-called explanations.   She reported that it was unlikely that a four-year-old could possess enough strength to inflict such an injury.   The injury required force and torque beyond that of a four-year-old.

On that same day Jessica brought Jaimie to the primary care physician in Putnam.   She told the social worker that everyday she was experiencing domestic violence from Jason.   She said he had “choked her up.”   She said she had not reported it because she was scared and believed it would stop.   Jason denied the abuse and said that it was Jessica who was the aggressor.

DCF tried to make arrangements for the two to separate for Jaimie's protection.   They imposed a safety plan.   The plan called for the involvement of the maternal grandmother and Jessica to stay away from Jason.   Jessica wanted to move back in with Jason.   She was aware that she was close to losing custody of Jaimie.   She refused the department's offer of a battered woman's shelter.   On September 29, the maternal grandmother was fearful for Jaimie's safety since Jessica and Jason were fighting again.   She told DCF that the child was in her crib crying during the yelling between Jessica and Jason.   The police were summoned.   DCF sought and obtained an order of temporary custody.   The child was removed on September 29, 2009.   Jessica's second child was removed from the care of Jason and Jessica on March 30, 2010, due to on-going domestic violence in the home.

Jaimie was placed in a foster home upon removal.   At the time of placement Jaimie had developmental delays.   She was referred to Birth to Three services and was found eligible for treatment.   She remained with one foster family for a year before an Interstate Compact for the Placement of Children study was approved to permit placing the child with the paternal great aunt and uncle in Maryland.   This occurred on October 10, 2010.   The relatives are willing to adopt Jaimie and are providing appropriate care.   The social worker testified that Jaimie is now well situated and bonded to the family which includes two children ages eight and ten who love Jaimie as part of the family.

III. Services

Jessica

DCF began offering services prior to the child's removal.   Jessica did not robustly and enthusiastically embrace the services.   The social worker for Jaimie testified that at five administrative reviews Jessica was told of her need to engage in services, especially the need for meaningful counseling and parenting education.   She was told she needed to be able to support herself, maintain employment and have adequate shelter.   She delayed in engaging in counseling.   She rejected a parent aide program.   She did participate in a substance abuse evaluation and treatment.   It appears she did stop using marijuana, a significant achievement.   She did a parenting course but apparently did not achieve noticeable benefit from the program.⁴  She has been continuously directed to counseling services through United Services.   She was offered a program through Reconnecting Families and housing assistance through the Thames River Family Program.   She was offered a shelter but refused to participate.   She has been provided visitation and transportation services including air transportation and hotel in Maryland to visit the child in the home of the paternal great aunt and her husband.

But the quantity of services offered by DCF is not dispositive.   Jessica's overarching issue relates to her personal mental health.   All other programs are secondary.   Unless she first deals with her feelings of inadequacy, her anger, mood swings, low frustration tolerance and feelings of isolation, she cannot make significant progress on other fronts.   It is very likely that her failure to obtain employment, despite the diligent efforts described by her case manager, are related to her flat affect and other disabling mental health issues.

The physician's assistant in the hospital noted Jessica's flat affect.   A therapist testified in court regarding her flat affect.   And this court noted her appearance in court to have a significantly flat affect as she sat at the counsel table.   There was no emotion showing on her face.   The only change observed by the court was from flat to an observable sadness.   Her own present case manager testified that Jessica's flat affect was an inappropriate expression which reflected her inability to demonstrate her internal feelings.   She needs to work on her own anger to find out where that anger is coming from, said her case manager.

Dr. Cheyne indicated that Jessica's prognosis for being a resource for her daughter within a time frame consistent with the child's needs and development was guarded to poor.   Jessica is still lacking in parenting skills.   She is unable to support herself.   Her father signed a four-month lease for her which expires in April, but Jessica has been unable to provide any means of independent support for herself.   She is unable to establish good interpersonal relationships.   She has not accepted any personal responsibility for the loss of her children.   The level of mental health difficulties she has requires long-term consistent treatment.   This child has been out of her care for two years already.   The child needs permanency now and Jessica is not ready now.   Jessica has not progressed sufficiently to be optimistic about her personal and parental rehabilitation.

IV. Statutory Findings

During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.  In re Quanitra M., 60 Conn.App. 96, 103 (2000).   In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes 17a–112(k).  The seven factors “serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered.”  In re Quanitra M., supra, at 104.  “There is no requirement that each factor be proven by clear and convincing evidence.”   In re Janazia S., 112 Conn.App. 69, 98, 961 A.2d 1036 (2009).   The court considers each of them in determining whether to terminate parental rights.

1. TIMELINESS, NATURE AND EXTENT OF SERVICES— § 17a–112(k)(1)

Multiple timely and appropriate services were provided for Jessica.   Those services included, but are not limited to:  treatment and permanency plans;  case management services;  and administrative case reviews;  transportation services for visitation supervised by DCF personnel, or by therapeutic visitation programs;  and most urgently, repeated referrals so that Jessica could participate in community-based mental health counseling and/or evaluations.  (See discussion infra.)

2. REUNIFICATION EFFORTS PURSUANT TO FEDERAL LAW— § 17a–112(k)(2)

DCF made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended, through the provision of timely reunification services.   Reunification was not a feasible plan unless and until Jessica could conquer her life-long mental health issues.   She is presently engaged in therapy but has not made sufficient progress to stay these proceedings.  (See discussion infra.)   The reader will recall that a principal reason for this child's removal from the home was an unexplained injury and ongoing domestic violence, aggression by both the boyfriends and by Jessica.   Given the psychologists' assessment of Jessica, it is clear that she has not effectively dealt with the personality deficiencies which permitted Jaimie Lynn to be injured and which contributed to her own aggression.

3. COMPLIANCE WITH COURT ORDERS— § 17a–112(k)(3)

Specific Steps were ordered in a timely fashion.   All of the specific steps are subservient to the goal of mental health treatment.   This alone is paramount in the hierarchy of Jessica's obligations.   It is unnecessary to address her housing, her lawful income, her relational problems with others, her issues of domestic abuse, and her parenting skills.   The court finds that Jessica is in denial of the extent of her long-standing mental health issues, she has no appreciation of the impact of her sadness, depression and anxiety on her children.   She has waited too long to actively engage in therapy.   It is not too late for her to make improvements for her personal daily functioning, but as Dr. Cheyne said, Jaimie should not wait longer for a permanent home.

4. THE CHILDREN'S FEELINGS AND EMOTIONAL TIES— § 17a–112(k)(4)

Jaimie did have positive feelings about Jessica before the child was moved to Maryland.   That is not to say it was a normal parent child relationship.   Whatever it was, the strain of less frequent visits and the distance of travel has reduced that bond.

5. AGE OF THE CHILD— § 17a–112(k)(5)

Jaimie Lynn was born on February 13, 2009, she is presently two years and one month old.

6. PARENT'S EFFORT TO ADJUST CIRCUMSTANCES— § 17a–112(k)(6)

Jessica has not made sufficient effort to address her mental health issues.   This has been previously discussed as has the position of the male biological figure, Robert.

7. EXTENT TO WHICH RESPONDENT WAS PREVENTED FROM MAINTAINING A RELATIONSHIP WITH THE CHILDREN— § 17a–112(k)(7)

No unreasonable conduct by the child protection agency, foster parents or third parties prevented Jessica from maintaining, at least a visiting relationship with Jaimie Lynn until the removal to Maryland.   The logistics of distance and time have placed a barrier between Jessica and her child, but on balance, it was the position of the department and the court, that relative placement in Maryland trumped the visitation rights of Jessica given her lack of progress in addressing her significant issues.   It is especially noted that the move occurred more than a year after the child had been placed in foster care.

V. Orders

“The public policy of this state is:  To protect children whose health and welfare may be adversely affected through injury and neglect;  to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care ․” General Statutes § 17a–101(a).  “Time is of the essence in child custody cases ․ This furthers the express public policy of this state to provide all of its children a safe, stable nurturing environment.”  (Citation omitted;  internal quotation marks omitted.)  In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 439–40, 446 A.2d 808 (1982).

After due consideration of the child's sense of time, her need for a secure and permanent environment and the totality of circumstances;  and having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for termination of parental rights;  and having concluded that the termination of the parental rights at issue will be in the child's best interests, the court issues the following.

The parental rights of Jessica and Robert, by his consent, are hereby terminated as to the minor child Jaimie Lynn M. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the child for the purpose of securing an adoptive family or other permanent placement for her.   That a status report shall be submitted within 30 days of this judgment, and that such further reports shall be timely presented to the court, as required by law.   The primary consideration for placement and adoption of Jaimie Lynn shall be offered to the current relative foster parents.

The permanency plan calling for termination of parental rights and adoption that has been consolidated with this hearing is approved, the objections are over-ruled.   The court finds that DCF made reasonable efforts to effectuate the plan.

The Clerk of the Court with jurisdiction over any subsequent adoption of this child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters, 81 Columbia Avenue, Willimantic CT 06226 of the date when said adoption is finalized.   If the adoption is finalized within the State of Maryland, it is requested that a courtesy copy of the orders be sent to this court.

Judgment may enter accordingly.

It is so ordered this 11th day of March 2011.

Foley, Sr. J.

FOOTNOTES

FN2. Motion for Review of Permanency Plan must be filed by “Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child.”   DCF Practice Book § 35a–14 General Statutes § 46b–129(k)(1) 42 U.S.C. § 675(5)(C) (2000 Ed.).”  In Re Darien S., 82 Conn.App. 169, 175–76 (2004)..  FN2. Motion for Review of Permanency Plan must be filed by “Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child.”   DCF Practice Book § 35a–14 General Statutes § 46b–129(k)(1) 42 U.S.C. § 675(5)(C) (2000 Ed.).”  In Re Darien S., 82 Conn.App. 169, 175–76 (2004).

FN3. The neglect adjudication, which ASFA suggests to be completed within 60 days, was not heard for almost a year after removal.  42 U.S.C § 675(5)(f)..  FN3. The neglect adjudication, which ASFA suggests to be completed within 60 days, was not heard for almost a year after removal.  42 U.S.C § 675(5)(f).

FN4. The court has no independent knowledge about the quality of DCF recommended programs.   Similarly, it is not known whether completion of a program merely certifies attendance or some level of competence.   Here there is some indication of no improvement in the parental skill of the mother following completion of one program..  FN4. The court has no independent knowledge about the quality of DCF recommended programs.   Similarly, it is not known whether completion of a program merely certifies attendance or some level of competence.   Here there is some indication of no improvement in the parental skill of the mother following completion of one program.

Foley, Francis J., S.J.