IN RE: Ayden Z.1 (2011)

MEMORANIUM OF DECISION Re Termination of Parental Rights

On June 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 Tia P. and Elton Z. to their minor child, Ayden Z. 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.

Ayden is the only child born to this couple.   Ayden was born on December 21, 2008.   The child was removed from the parents' care four months after birth on April 17, 2009 (Driscoll, J.).   The child has been in the present foster home for the past two years.

The current whereabouts of the mother, Tia, are unknown.   She has not seen the child in the past year, her last visit being March 2, 2010.   She has had court appointed counsel since the proceedings began.   She has only taken occasional interest in the proceedings.   She has appeared in court only once regarding the termination petition;  her last appearance being August 31, 2010.   Notwithstanding diligent efforts by her attorney to contact her, he was unable to secure her attendance or her cooperation.   Her attorney was permitted to withdraw from the case on February 16, 2011.   Tia failed to appear for her contested termination trial.   This court defaulted her for failure to appear for trial on March 17, 2011.

The father of the child has appeared with counsel and resists the efforts of DCF to terminate his rights.   He testified on his own behalf.

FACTS:

The petition alleges that as to both parents that 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 an adjudication of neglect was made on May 29, 2009 (Driscoll, J.)

The court heard the testimony of five witnesses including a DCF social worker, an evaluating substance abuse counselor, a Family Based Recovery program supervisor, a case manager for the Reconnecting Families program and the respondent father.   Documents were entered into evidence including social studies, psycho-social history, assessments and summary reports from service providers.

Since the mother did not testify, the representations in the social studies and evaluations were virtually uncontested as they relate to her.   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.

I. Tia P., the mother

In addition to the ground of failure to rehabilitate which is established by the documentary evidence, the petition also alleges abandonment of the child.   With respect to abandonment our cases inform the trial court that ․” [A]bandonment focuses on the parent's conduct ․ A lack of interest in the child is not the sole criterion in determining abandonment ․ General Statutes [§ 17a–112(c)(3)(A) ] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ․ Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child ․ Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare ․” In re Adoption of Webb, Id. 657, In re Juvenile Appeal (No. 9489), 183 Conn. 11, 15 (1981).  “Section [17a–112(c)(3)(A) ] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child.   A parent must maintain a reasonable degree of interest in the welfare of his or her child.   Maintain implies a continuing, reasonable degree of concern.”  In re Shane P., id. 255.   While the statute does not specifically use the word “association,” a fair reading of the words “maintain a reasonable degree of concern” embraces the concept.

“High standards of precision in the parental termination arena are neither achievable nor desired, as the acceptability of specific conduct and the determination of whether to terminate parental rights is a highly fact-specific process.   See In re Shane P., id. 254, State v. Anonymous, 179 Conn. 155, 165, (1979).  “Standards of mathematical precision are neither possible nor desirable in this field;  much must be left to the trial judge's experience and judgment.”  Petition of the New England Home for Little Wanderers, 367 Mass. 631, 646, 328 N.E.2d 854 (1975)

The court finds that Tia has failed to show the requisite level of interest, concern or responsibility for the child, having failed to make any efforts to visit the child, inquire as to the concern for the child's welfare or express any degree of involvement with the child.   She has within the contemplation of the law abandoned the child.

As indicated earlier, the social study documents the offers of services and programs to attempt rehabilitation and reunification between mother and child.   Those services have been either refused or unsuccessfully engaged.   She 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, she could assume a responsible position in the life of the child within a reasonable period of time, considering the age and the needs of the child.  C.G.S. § 17a–112(j)(3)(B)(I).

II. Elton Z., the father

Elton comes from a chronically dysfunctional family of origin which often suggests that he did not have good parental role models or acquire good parenting skills.   Both his parents were substance abusers.   His father died of a drug overdose.   His father beat and abused Elton.   His mother had a long-term documented substance abuse history.   DCF was involved with Elton's family and he was removed from his home for several years.   His mother was a convicted felon, last having a drug conviction and jail sentence on June 25, 2008.   He has lived with his mother, with his father, with an aunt, an uncle and a grandmother.   He has not maintained a separate household exclusively on his own.   He presently lives in a family compound with his mother and his grandmother.   Elton knows that given his mother's child protection history, substance abuse record and criminal record, DCF will not approve a placement of Ayden in that home.   Elton still remains there.

Elton is twenty-four years of age.   He is the fifth of seven children.   He is a graduate of a high school technical program in heating, ventilation and air conditioning.   He obtained his degree in 2005.   To date he has not successfully obtained work commensurate with his education.   That may in part be due to his felony record and his lack of a driving license.   He is currently unemployed and has worked part-time during the winter doing a few jobs involving removal of snow from roofs.   His longest employment was for six months at a bagel shop until he was fired.   He is not eligible for unemployment compensation.

His driving privileges are under suspension.   He needs to raise $800 according to his testimony to pay for Department of Motor Vehicles classes, likely for an alcohol- or drug-related motor vehicle charge (the alcohol education program).   He says he took care of his $300 of fines in Norwich.   He told the intake worker at the Southeastern Council for Alcoholism and Drug Dependence (SCADD), that he was first arrested at age 16.   He has had two driving under the influence charges, a possession of marijuana charge and a failure to appear for which he was incarcerated for six months.

Elton told the SCADD intake worker (Exhibit E) that he was in a five-year relationship with Ayden's mother.   He reports that the mother, Tia, was “strung out on heroine” (sic) and “the baby was born addicted wile (sic) he was in jail.”   He reports that he moved back in with the mother after his release and Tia then told him she “didn't want to be a mom.”   He knows if he is ever to be reunified with this child he needs his own housing, a job and to get his license back.   As of this date, Elton has done none of those things.

III. Federal and State Law with Respect to children in foster care

On June 23, 2010, DCF filed a petition to terminate the parental rights.   That is the adjudicatory date.   Another critical date for the court's consideration is the date the child or children were actually removed from the parent's care, since that date triggers federal and state obligations upon the child protection agency and the court.   The removal date for this child is April 17, 2009.   By the expiration of nine months from the date of removal, DCF must file with the court a permanency plan for the child.  [Motion for Review of Permanency Plan must be filed by DCF § 35a–14, § 46b–129(k)(1);  54 C.F.R. § 1355.20(a).]   Upon receipt of the motion for review of permanency plan the clerk of the court shall set a hearing not later than ninety days thereafter (i.e. within one year from the placement of the child in custody of the commissioner). § 35a–14(a).

Upon filing the permanency plan, counsel for the respondents have thirty days to file a written objection stating the reasons for the objection § 35a–14(b).  The time frame for deciding the issue of permanent placement of a child within one year is not only a federal requirement, it represents the consensus thinking of child development authorities and is the law of this state.  “The best interests of children is guided by their need for permanency.”  In re Jonathan M., 255 Conn. 208, 232, 764 A.2d 739 (2001).  “Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child.  42 U.S.C. § 675(5)(C) (2000 Ed.).”  In Re Darien S., 82 Conn.App. 169, 175–76 (2004).

This cardinal principle of child protection was firmly established within child protection agencies by the passage of the Adoption and Safe Families Act of 1997 (ASFA), Pub.L. No 105–89, 111 Stat. 2115 and codified in 42 U.S.C. §§ 620–79 (1998).   A major purpose of ASFA was to clarify issues of permanency planning not specifically addressed in earlier federal legislation.²  ASFA focused on two aspects relating to permanency;  1) reasonable efforts to achieve reunification and 2) permanency planning.   Both changes were directed at expeditious planning to either reunify the child with the family of origin or to adopt an alternative plan for permanent placement within one year.   Pursuant to earlier state and federal laws, children had been permitted to “drift” in foster care for long periods of time while waiting for the possible rehabilitation of their parents.   ASFA was enacted to prevent lengthy periods of impermanent conditions.   There had to be incentives to move expeditiously and deliberately on the part of the state and the parents.

In the first instance, ASFA limited the circumstances under which the state must pursue reasonable efforts to reunify families.  42 U.S.C. § 671(a)(15).   The regulations are designed to place burdens on the child protection agency and the respondents to act within the one-year construct.   The child protection agency must offer available, appropriate and accessible services in a timely manner to the respondents.   The respondents must engage and benefit by those services.   The agency must then decide within the one-year period whether to continue with rehabilitative efforts to return the child to the family of origin or whether some other permanent plan should be adopted.   Id. § 675(5).   Further, the Commissioner is directed to file for termination of parental rights not later than 60 days after the permanency plan of adoption has been approved. (§ 46b–129(k)(4).)   This timetable is not optional.   It is the law of the land and reflects a sense of Congress and the will of the people as expressed by our legislature that permanency decisions should be made within one year from the date of removal of the child from the home if possible.   Presumably, this is a reasonable period to wait for parental rehabilitation when weighed against the child's need for a permanent home.

Our case law similarly recognizes that time is critically important for children.   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).   This child, like others in a similar situation, deserves the benefit of a permanent home in a timely fashion.

With respect to the fact that the respondents are the biological parents of the child, this court is mindful of the law that states that parental rights of a person based on the mere fact of reproduction give rise to constitutionally protected rights, See, e. g., Roe v. Wade, 410 U.S. 113, 152–53 (1973);  Wisconsin v. Yoder, 406 U.S. 205, 231–33 (1972);  Stanley v. Illinois, 405 U.S. 645, 651 (1972);  Ginsberg v. New York, 390 U.S. 629, 639 (1968):  Griswold v. Connecticut, 381 U.S. 479 (1965);  id., at 495–96 (Goldberg J., concurring);  id.  (White, J., concurring);  Poe v. Ullman, 367 U.S. 497, 542–44, 549–53 (1961) (Harlan, J., dissenting);  cf.  Loving v. Virginia, 388 U.S. 1, 12 (1967);  May v. Anderson, 345 U.S. 528, 533 (1953);  Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).   “Usually, this biological connection acts as a “powerful motivating force for most parents to provide their children with continuous affectionate and responsible care.   But we recognize that a child's attachments and healthy development do not rest on biology alone.   They ultimately depend on the adult caretaker's reciprocal affection in day-to-day care and attention to the child's needs” Goldstein, Freud, and Solnit, Before the Best Interests of the Child, The Free Press (1979) p.133–34. In cases where the biological parents have failed to discharge their responsibilities, for whatever reason, and the child has bonded to caring and nurturing foster parents, the court must begin to view the foster family as a legally recognized, autonomous unit.   A real, de facto, family.   Failing to recognize these psychological bonds would cause unwarranted destruction to very secure attachments producing both psychological distress and developmental harm to the child.   Removal of a child would also likely cause great emotional hardship to the foster parents.

This child was removed from care on April 17, 2009.   On April 13, 2010, within one year, the court conducted the required permanency plan hearing.  (Driscoll, J.) The court determined that DCF need not continue to make reasonable efforts for the mother, but ordered continued efforts for the father.   The respondent understood that he was required to be financially self-sufficient;  he needed employment, shelter, transportation and a plan for the care of the child.

The normal referral for shelter to someone in Elton's position was to Supportive Housing.   But Elton could not establish his sobriety for six months, a condition necessary for the referral.   Father was unemployed and not eligible for unemployment benefits.   Elton was unable to drive due to his license having been suspended.   Father was, and is, living in the home of his mother with the mother's boyfriend.   DCF has told Elton that since his mother has a long history with the department, they cannot approve a placement in that home.

Individual Counseling:  In January 2010, DCF told Elton to contact United Community Family Services (UCFS) for individual counseling.   He did not set up an appointment.   On March 8, DCF set up an appointment for counseling for Elton.   As of June 10, 2010, Elton had not set up an appointment for counseling, this after the court had given additional time to get into counseling.

Substance abuse:  Elton had positive drug screens by hair testing on January 27, 2010 and May 5, 2010.   DCF made referrals for Elton to attend treatment as the Southeastern Connecticut Alcohol and Drug Dependency program (SCADD).   Elton never returned the program's calls to set up an appointment.

Fatherhood Initiative (FI):  This program is a support group for men to assist in parenting skills, employment support and budgeting.   It also can assist with housing.   Elton was directed to this program and attended one session on May 5, 2010.   He was to attend on May 18, 2010, but Elton was a No show/No call.   The case manager reported on June 9, 2010, that Elton never responded to her calls to set up appointments.   He was terminated from the program.

On June 23, 2010, the child had been in DCF care for fourteen months.   The Judge had given Elton additional time to engage services but he had not done so.   DCF made the decision to file for termination of parental rights since Ayden had been more than a year of out of home care and the parents were no closer to rehabilitation than they had been at the time of removal.   Neither parent had engaged rehabilitative services, neither parent had progressed to the point where they could resume a full-time parental role, then or within a reasonably foreseeable future date.   Neither parent had a realistic plan for reunification with Ayden.   The child was bonding with a foster family.   The child's need for eye-contact, touch, affection, nourishment, daily care, support and security was being met each day by parental surrogates.   The adult caretaker's reciprocal affection in day-to-day care and attention to the child's needs was being met by the foster family.   Again see, Goldstein, Freud, and Solnit, Before the Best Interests of the Child, id. at. 133–34.   Balancing the lack of progress of the parents and the child's need for a permanent home, the department reasonably concluded that termination of parental rights was in order.

This court finds that as of the date of the petition, June 23, 2010, neither parent had made substantial progress toward rehabilitation, neither parent had a realistic plan for reunification, and neither parent was then engaged in the necessary services to bring about rehabilitation within a time frame consistent with the child's developmental needs.   Accordingly, the court finds that the child was found in a prior proceeding to have been neglected or uncared for on May 29, 2009, 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, they could assume a responsible position in the life of the child.  C.G.S. § 17a–112(j)(3)(B)(I).

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 the parents.   Those services included, but are not limited to:  treatment and permanency plans;  case management services;  and administrative case reviews;  visitation supervised by DCF personnel, or by therapeutic visitation programs;  and most urgently, repeated referrals so that Elton could participate in community-based individual counseling and substance abuse evaluation and treatment.

This case raises the issue of timeliness of services.   As the court has indicated, the social studies Exhibits A, B and Respondents 1, all describe the services offered, especially in the first 12 months following removal.   And it is clear that mother did not engage in services and disappeared.   Father was available and attended visitation, but he did not engage in the substance abuse and individual counseling services during the first fourteen months following placement of the child.   During this same period of time the child was bonding in a family that was providing a loving environment for the child.

Elton did not begin individual counseling until November 29, 2010, one year and seven months after the child was removed.   That same month he made an appointment with the Fatherhood Initiative.   Again, nineteen months after the child was removed.

While Elton has a history of treatment for substance abuse, he has continued his periodic use of alcohol and marijuana.   Even though substance abuse treatment has been recommended for Elton for the past two years, it was not until November 2010, that he engaged such services.   After a multitude of referrals Elton first went to SCADD on November 2, 2010.   Elton tested positive for alcohol.   He went in again on November 24, 2010, for a hair test.   Elton had shaved his head and his armpits and so could not be tested.   He told the worker he cut his hair so he could look nice for the judge.   The results of his evaluation in November 2010, showed Elton to be marijuana dependent, alcohol abusive, with legal, occupational, economic and environmental difficulties (Petitioner's Exhibit E).   His global assessment of functioning was 57.

Elton believes he should be reunified with this child since he has completed his Fatherhood Initiative program on March 14, 2011, and his SCADD Early Treatment Outpatient Program on March 15, 2011.   Completion of the programs does not establish competence.   Elton is still not gainfully employed, he does not have his driver's license, he does not have suitable quarters for an infant, nor a viable plan of care.   But even if he were competent, his competence, if it could be demonstrated, has arrived well beyond a time frame suitable for Ayden.   See four (4) below.

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.   DCF offered accessible, appropriate and available services in a timely manner.   Regrettably, Elton did not engage any services for the first seventeen months the child was in care and did not complete any services until the child had been in foster care for nearly two years.   Too little, too late.

3. COMPLIANCE WITH COURT ORDERS— § 17a–112(k)(3) Specific Steps were ordered in a timely fashion.   Elton and Tia did not comply with the services in a timely manner.

4. THE CHILDREN'S FEELINGS AND EMOTIONAL TIES— § 17a–112(k)(4) Ayden is twenty-seven months old.   He has resided in his present foster home since his removal nearly two years ago.   He is securely bonded in his present home with the extended family.   He considers himself part of this family.   He is meeting his developmental milestones.   His medical and dental needs are being met.

5. AGE OF THE CHILD— § 17a–112(k)(5) Ayden is two years old.   The child was born on December 21, 2008.

6. PARENT'S EFFORT TO ADJUST CIRCUMSTANCES— § 17a–112(k)(6) Tia has made no efforts, Elton has made limited but inadequate efforts but none in a timely manner.

7. EXTENT TO WHICH RESPONDENT WAS PREVENTED FROM MAINTAINTING A RELATIONSHIP WITH THE CHILDREN— § 17a–112(k)(7) No unreasonable conduct by the child protection agency, foster parents or third parties prevented a relationship with the child nor prevented a possible reunification.

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 expressed 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, the 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 Tia P. and Elton Z. are hereby terminated as to the minor child Ayden Z. 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.   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 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, 978 Hartford Turnpike, Waterford, CT 06385 of the date when said adoption is finalized.

Judgment may enter accordingly.

It is so ordered this 24th day of March, 2011.

Foley, S.J. # 370

FOOTNOTES

FN2. Notably the Adoption Assistance and Child Welfare Act of 1980 Pub.L. No 96–272, 94 Stat. 500, also codified in various sections of 42 U.S.Code (1998)..  FN2. Notably the Adoption Assistance and Child Welfare Act of 1980 Pub.L. No 96–272, 94 Stat. 500, also codified in various sections of 42 U.S.Code (1998).

Foley, Francis J., S.J.