IN RE: Anthony T. (2011)

MEMORANDUM OF DECISION Re Termination of Parental Rights

On September 15, 2009, 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 Cynthia W. and Anthony T. Sr. to their minor child, Anthony T. Jr. The petition also seeks to terminate the parental rights of Cynthia W. and Kenith Angel R.² to their minor child Alyviah R.³ The mother and fathers have appeared and have been represented by counsel.   No 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.

Anthony was born on March 23, 2004.   He is currently seven years of age.   His sister Alyviah was born on July 20, 2006.   She is approaching five years of age.   Both children were removed from the respondent mother on or about May 13, 2008.   They have been in foster care for nearly three years.

The current whereabouts of the father, Anthony T. Sr., are unknown.   He has not seen his son in more than the past year.   He walked out of a court hearing in Waterford at 11:38 A.M. on December 7, 2009, and has not been in communication with his lawyer, the child protection agency or the court since that time.   Neither has he visited the child.   He has had court appointed counsel since the proceedings began.   He has only taken occasional interest in the proceedings.   Notwithstanding diligent efforts by his attorney to contact him, he was unable to secure his attendance or his cooperation.   His attorney was allowed to withdraw by the court on the first day of trial, March 25, 2011.   The mother has appeared with counsel and has zealously defended the petition.   She testified on her own behalf.   The father of Alyviah has appeared with counsel and resists the efforts of DCF to terminate his rights.   He does not seek reunification himself.   He has maintained since the fall of 2008, that he supports the return of the children to Cynthia.   He is presently incarcerated and was transported to court for each day of the trial.

The representations in the social studies and evaluations were largely uncontested except as to the mother's present suitability to parent and to be reunified with her children.   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.

With respect to Anthony T. Sr., the petition alleges both abandonment and no on-going relationship with his son.   As will be explained the court agrees that those two allegations are supported by the evidence.

The petition alleges that as to the mother of the two children and as to Kenith Angel R., that the children were 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 children, they could assume a responsible position in the life of the children.   C.G.S. § 17a–112(j)(3)(B)(I).   The file reflects an adjudication of neglect was made on August 5, 2008 (Driscoll, J.).

This case has been vigorously litigated.   In the fall of 2009, both fathers offered one or more of their parents as placement resources.   They each moved for a transfer of guardianship to their respective family members.   The local court heard testimony beginning on December 7, 2009, and concluding after six partial days of trial, on February 22, 2010.   The court denied the petition by oral decision on June 28, 2010.  (Petitioner's Exhibit U.)

The court heard the testimony of ten witnesses including the current DCF social worker, various DCF service providers including the parent education and visitation supervisor, the clinical director of The Connection a gender specific substance abuse facility attended by the mother, the clinical director of Nutmeg Family services, Dr. Michael Pines a licensed clinical psychologist specializing in child and family psychology and specialist in attachment disorders, the foster mother, the paternal grandmother, a paternal aunt and the respondent mother.   Twenty-six documents were entered into evidence including social studies, psychological evaluations, arrest reports, criminal histories of each parent, department of corrections histories, assessments, summary reports from service providers and copies of court ordered Specific Steps.

FACTS:

Anthony T. Sr.

The evidence from the testimony and documents indicates that the male biological parent of Anthony T. Jr. has never developed a relationship with the child.   The social studies (Exhibits A and T) indicate that the biological father of Anthony has not been involved with the child since prior to 2006.   He has not been actively engaged in the court proceedings that have been ongoing since May 2008.   Anthony Sr.'s mother reports that he has history of schizophrenia and chronic substance abuse.   He has a felony criminal history that is consistent with one impaired by substances (Petitioner's Exhibit M).  His lack of involvement with DCF has prevented the offer of services and concurrent opportunity to evaluate any possible rehabilitation.

In the case of Michael H v. Mark K., 898 P.2d. 891, 896 (Cal.1995), the California Supreme Court held that unless the natural father can prove that he has promptly come forward and demonstrated his full commitment to his parental responsibilities “․ the federal Constitution protects only the parental relationship that the unwed father has actively developed.” citing Lehr v. Robertson 463 U.S. 248, 261 (1983).   The respondent in the present case did not robustly assert his rights to a paternal relationship.   The father clearly is aware of the pendency of the case, the fact that his son is in foster care and that he has had the opportunity to develop a relationship with his son through supervised visitation.   He has not elected to be a part of his son's life.

In Lehr the court succinctly stated;

․ the existence or nonexistence of a substantial relationship between (the unmarried) parent and child is a relevant criterion in evaluating both the rights of the parent and the best interests of the child.

Id., at 266–67.

The father has not provided food and shelter for the child, he has not provided the daily emotional support and guidance the child needs, nor has he provided the child with the interest, concern or responsibility necessary for the child's welfare.   The court finds that the male biological parent of Anthony Jr. has abandoned his child in the sense that he failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child.   Similarly he has failed to maintain an ongoing relationship with the child.

Since this respondent has been unavailable for the delivery of services and has often been whereabouts unknown, it would serve no useful purpose to address DCF efforts to reunify the child and this father as that was not possible.   Neither would it serve any purpose to itemize the statutory considerations normally required by Section 17a–112(k).  There was no way services could have been offered, provided or measured.   There was no relationship to assess, improve or repair.   His parental role essentially ended at conception.   The petitioner has satisfied the court that Anthony T. Sr. has abandoned his son and has no on-going relationship with the child.

Kenith Angel R, also known as Kenneth, father of Alyviah

Kenith will be twenty-seven years old on April 18, 2011.   He is one of five siblings whose parents ended their relationship during his childhood.   He does not have contact with his father.   The agency believes his mother has had problems with alcohol.   Kenith dropped out of high school in the tenth grade.   It is likely he has subsequently obtained his general equivalency degree.

Kenith has worked as a prep cook, at Dunkin Donuts and Foxwoods Casino.   He has worked landscaping and was last known to be working “under the table” for his brother doing auto repairs prior to his current incarceration.

Kenith is about two years older than Cynthia.   It is likely they have had an off-again on-again relationship since before Anthony was born.   By extrapolation of dates, Cynthia got pregnant at age seventeen with Anthony.   She reports that she got pregnant by Anthony Sr. during an “off period in her relationship with Kenith.   So it is likely that Cynthia and Kenith have had a relationship since Cynthia was sixteen or seventeen years old.   Both of them claim they have a better relationship, they get along better, when they are not residing together.

An almost steady component of this case is that Cynthia claims she and Kenith are no longer in a relationship.   An almost steady component of the case is that others report Kenith's attendance in Cynthia's apartment.   It was during one period of no relationship that Cynthia became pregnant with her third child Amilyah (d.o.b. July 3, 2009) who was somehow conceived during their non-relationship.   When confronted by the attorney general in cross examination about this curious phenomenon, no relationship yet pregnancy, Cynthia responded “[T]hat doesn't mean anything.”

Kenith has had three periods of incarceration since 2005.  (Petitioner's Exhibit R.) While Kenith has never been a custodial parent of his daughter Alyviah, he has known that he could be a parental resource after the children were removed from Cynthia's care on May 12, 2008.   In fact he was in court and received Specific Steps “to safely regain the custody of the child” on May 13, 2008 (see file) and again on July 7, 2009 (Petitioner's Exhibit 7).   Both documents require, inter alia, that Kenith was not to engage in substance abuse and not to have further involvement with the criminal justice system.

DCF offered Kenith available, accessible and appropriate services including Southeastern Connecticut Alcohol and Drug Dependence (SCADD) substance abuse evaluation and treatment.   Kenith showed up for the hair test with no hair.   He has been referred to Sound Community Services for co-occurring mental health and substance abuse services (formerly dual diagnosis treatment).   He began the service but failed to complete it due to rearrest.   He was referred to the Madonna Place Fatherhood Initiative and to Reconnecting Families.   He was referred for visitation and parenting instruction to Kaleidoscope Family Services.   The service providers noted that Kenith has been defensive and mistrusting in his work with the visitation supervisor.

It is unfortunate that Kenith has not been more involved and dedicated to his rehabilitation as a parent since he does act appropriately with the children at visitation.   Of course, spending an hour or two with a child once a week does not begin to explain how a person would react to the presence of children twenty-four hours a day.

As will be reported, the children have special needs that require extra-ordinary parenting.   Dr. Michael Pines was asked what kind of a person is required to raise children with the special needs of these children.   He said in essence, ․”the children would need a reliable, consistent, caretaker who has an understanding of the needs of the children, consistent firmness with a sense of humor, strong sense of themselves and not be necessarily invested in whether the child likes your parenting strategies, A high degree of self confidence, longitudinal perspective that this is a lifelong process, that children will continue to test the parents long after they think it should stop.   That children have a history, have ghosts, have memories, you are parenting all their experiences as well.”

Kenith has never demonstrated those skills.   He has always engaged only in satisfying his own needs.   He not only sold drugs, but he also used drugs.   Both he and Cynthia tested positive for phenecyclidine (PCP) after the children were removed.

But Kenith's personal failure to avoid drugs and avoid rearrest has been his biggest obstacle to rehabilitation.   His arrest record shows that he has been arrested and convicted, while this case has been pending, of possession with intent to sell drugs on August 18, 2008.   He was released on bond and got arrested on October 2, 2009.   He was convicted of breach of peace and released after time served.   He told the court ordered psychologist in February 2009, that he was on probation for possession of cocaine but that he was just carrying it for someone else and got “dragged into the charge.”   Not true.

Kenith told Dr. Tobin in February 2009, that he had just been arrested for a driving under the influence charge and he had to plead guilty as a condition of his probation.   That seemed illogical to Dr. Tobin.   The doctor asked him about a report that he dealt drugs.  “He simply replied that he has never been convicted of dealing drugs and that DCF was just trying to say something against him.   He said that the DCF worker lied about lots of things but wouldn't say about anything specific.”  (Exhibit E p. 5.) The court is satisfied that not only was Kenith a drug dealer, he is dishonest in his reports to DCF and to Dr. Tobin.

During the month of November 2008 (three months prior to his conversation with Dr. Tobin) the Groton Police Department were using a confidential informant to purchase drugs from known sellers of crack cocaine within the town of Groton.   One such person known to be actively involved in the sale of crack cocaine was a dealer known as “AK.” AK was the nickname of Kenith Angel R. d.o.b. 4/18/1984 (See Petitioner's Exhibit O.) The Groton Narcotics Task Force participated in arranging three controlled purchases (buys) of crack cocaine from Kenith on November 11, November 12, and December 20, 2008.   The police did not actually arrest Kenith until October of 2010, since they were continuing their undercover operations.

On November 16, 2010, Kenith pled guilty to a single count of Sale of Narcotics and received a sentence of ten years in prison, execution of the sentence suspended after two years with three years of probation.   On January 27, 2011, he pled guilty to the October 18, 2008, offense of possession of narcotics and received a three-year concurrent sentence.   Kenith is currently incarcerated.   Once he is released he will still face possible incarceration for the unexecuted eight years of his sentence.

The court finds as to Kenith Angle R., respondent father, is that the child, Alyviah 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).

Cynthia, mother of Anthony and Alyviah

Cynthia is soon to be twenty-five years old.   She was born in Waterbury and raised in Hartford by her grandmother.   She does not know precisely when or why she left her own mother's care but believes that the mother passed away when Cynthia was six and that her mother was a substance abuser.   She lived in Hartford from aged three months until about age fourteen when her grandmother thought that life in New London would be better for her.   Cynthia moved in with her father and his wife in New London.   She reports her father “could have been better” due to his alcohol abuse.   At age seventeen her step-mother kicked her out of the house “for no reason” according to Cynthia.   Cynthia dropped out of school in the tenth grade.   She has not obtained a general equivalency degree, nor has she served in the military.

She told Dr. David Tobin during a psychological evaluation (Petitioner's exhibit E) that she and her step-mother did get into a physical confrontation after her step-mother abruptly assaulted her.   Cynthia left the home, found out she was pregnant and moved in with the mother of Anthony T. Sr. She lived there for a short time before becoming eligible for a subsidized apartment in Groton.   The portion of her rent which she pays is $98 per month.   The balance is paid by the department of Housing and Urban Development.

Kenith told the psychologist that Cynthia has a lot of problems when she drinks alcohol;  “she turns into a whole other person.”   He said she was negative and prone to starting fights to the point he has to restrain her.   While Kenith clearly lies about his own misconduct, his analysis of Cynthia is consistent with a Groton Police report dated May 12, 2008.  (See Petitioner's Exhibit N, with photo of Cynthia.)

The Groton police were summoned to the neighborhood where Cynthia resided upon a complaint of females fighting.   A short time after arriving the police went into the apartment of Cynthia and found her to be intoxicated.   Empty wine bottles were observed.   Cynthia was extremely agitated and crying.   She denied needing medical attention.   The police located a large black handled kitchen knife which they took into possession.   Witnesses had given statements that Cynthia was fighting another girl, tearing her hair out and subsequently went into her house and grabbed a knife and set off after the other girl.   Neighbors intervened and removed the knife from Cynthia.   Both Anthony and Alyviah were present in the residence and at least one of them had observed Cynthia outside the apartment in the fight with the other girl.   Cynthia was arrested and she was held due to her intoxication and for want of bail.   DCF was notified and took the children into custody where they have remained in DCF care since May 12, 2008.

As indicated earlier in Kenith's narrative, Dr. David Tobin, a clinical psychologist was asked to do certain testing and evaluations of Kenith, Cynthia and the children.   This report was submitted to the court on March 11, 2009.   Portions of the report are presented to understand the rehabilitative prospects of Cynthia.   A portion of the report indicated that Cynthia has a full scale Intelligence Quotient of 77.

Her test profile in the MMPI–2 suggests that Cynthia does not like to admit to problems or weaknesses, and that she lacks personal insight.   Cynthia expressed excessive concern for her physical health.   She is self-centered, dissatisfied and often demanding of attention.   She may use somatic complaints to manipulate others.

Despite her denial and her defensive approach to the test, Cynthia achieved a very high score on the depression scale of the MMPI;  in contrast her depression score on the MCMI–III was very low.   Clinical observation did reveal much in the way of depressed mood.

Cynthia's social relationships are likely to be immature and superficial.   She is likely to be very resistant to psychological interpretations and treatment.   She looks for simplistic, concrete solutions to her problems that do not require self-examination.

Cynthia can be characterized as angry and belligerent, resentful of rules and obligations, and hostile towards authority figures.   She is likely to be impulsive, unreliable and irresponsible.   She has little regard for social standards.

Cynthia achieved a very high score on Scale 8, which suggests the presence of serious psychopathology, such as schizophrenia, or other psychotic thought processes.   The prospect of a psychotic diagnosis was not corroborated by the MCMI–III, which suggested a more characteralogic profile.   However, her responses to the Rorschach also noted severe problems with reality testing.   These considerations will be discussed below.

Cynthia's responses on the MMCI suggested that she is likely to present with a veneer of friendliness overlaying a deep contempt of conventional morals.   She is described as characteristically unreliable, impulsive, restless, and moody.   She is likely to engage in seductive and self-dramatizing behavior.   Her relationships are likely to be fleeting and shallow and she is prone to failing to meeting routine responsibilities.   Cynthia has a tendency to act impetuously with insufficient deliberation and poor judgment.

Like the MMPI–2, the MCMI–III also suggests that Cynthia is unlikely to admit responsibility for personal or family difficulties.   She is prone to rationalization and externalization of her problems.   The test suggests she has prognosis for staying out of trouble.

The clinical picture does not improve with projective testing with the Rorschach.   Cynthia has notably fewer resources for coping with the ordinary demands of everyday life than most people.   Her strategy for managing stress is to limit herself as much as possible to undemanding activities undertaken in familiar surroundings.   For example, when asked what she does with her time during her unemployment she stated that she “cleans her house.”   When such people are confronted with even moderate levels of stress, they are at risk for episodes of subjectively felt distress, limited frustration tolerance, and poor impulse control.   Cynthia is susceptible to depressed mood which may also interfere with her ability to function.   Her stress level appears to be relatively high at the present time and interfering with her pleasure in life.   However, Cynthia is not inclined to express her feelings openly, and she is much less willing to process emotional stimulation than most people.   Further, the emergence of strong feeling is likely to cause her to break off involvement with others, and she tends to be socially and emotionally withdrawn.

Cynthia is not paying sufficient attention to herself.   She compares herself unfavorably to other people.   Cynthia appears to have limited ability to manage interpersonal relationships with other people, and she gives evidence of limited capacity to form close attachments to other people.   Her love relationships are likely to be at arm's length.   Cynthia is likely to demonstrate maladaptive interpersonal behavior.

The quality of Cynthia's efforts to focus her attention with precision and to synthesize aspects of her experience falls far below that of most people.   This may be due, in part, to Cynthia's Borderline level of intellectual functioning, but it also reflects her attempts to restrict her attention to all but the simplest and most manageable of cues in her life.

Complicating her problems managing affect and poor social skills, Cynthia has a history of substance abuse, including at least one episode of PCP use sometime last fall.   Other problem substances include alcohol, cannabis, and possibly cocaine.

Diagnostic considerations are as follows.   Cynthia is probably best described in terms of having a personality disorder with schizoid, histrionic, and borderline features.   These personality traits will be exacerbated when she is engaged in substance use, such that her normally poor judgment and poor emotion regulation skills will be even more compromised, to the point that she is at risk for very unregulated and inappropriate behavior.   People are likely to be tolerated only so long as they meet her immediate needs, and discarded rather easily.   Cynthia appears to have little or no insight into her problems, takes little responsibility for herself and is a poor candidate for psychotherapy.

DCF has provided the full range of available services to Cynthia.   In the first instance the agency engaged the services of Reconnecting Families, an agency known to the court to provide a host of services designed to enable parent and child to reunify.   Cynthia began with this program in August 1, 2008, and was unsuccessful in completing the program due to positive urine and hair tests which revealed the presence of phenecyclidine (PCP), the same drug used by Kenith.

Cynthia was referred to Kids Advocates, a company that provides integrated parenting to teach parental education and supervised visitation.   The supervised visits occurred in Cynthia's home.   These services started in November 2008 and continued until August 2009.   The therapist noted that Cynthia needed help to recognize the children's cues, to recognize their feelings and to nurture them.   The therapist testified that Cynthia was never consistent, her moods vacillated during visits, the children couldn't understand her conduct and she wouldn't explain her position to the children.   The therapist said that Cynthia didn't make much improvement over time.   She said that Cynthia was very resistant to instruction saying “Its my house, don't tell me what to do.”   Cynthia complained she didn't like the Kids Advocate clinician and DCF accommodated her demands and got another provider, Nutmeg Family Services.

The clinical director of Nutmeg had more success at staying engaged with Cynthia and Kenith, providing parental instruction for the parents and visitation supervision at home and at the jail during Kenith's on and off incarceration.   She was involved with the parents from September 2009 until the present.   This, very skilled clinician, indicated that she had concerns about parental capacity.   She said that over time, the children became more and more oppositional and unmanageable.   They worked on time outs, redirection, and setting limits.   She testified that over nearly two years there has been no improvement.

The clinical director said these children need a structured environment, nurturing and loving caretakers able to work with service providers.   It is difficult for Cynthia to set limits and follow through on her parenting.   Cynthia has cognitive limitations.   She further said about Kenith, the children need someone who is not incarcerated.

These children do need exceptional care.   They do not need an incarcerated parent.   They do not need a limited woman who is unable to set limits, inconsistent in her discipline, limited in her parenting skills and unable to follow through with her parenting.   Anthony, especially, requires above average parenting skills.

Dr. Michael Pines became involved with the children in November of 2010.   Anthony had been referred to him by the Attachment Institute of New England, with a diagnosis of reactive attachment disorder, post traumatic stress disorder resulting from complex trauma or developmental trauma in which he had been exposed to traumatic life situations;  not the bomb-blast type World War II type trauma.   Anthony also had a generalized anxiety disorder.   Anthony was hyper-aroused, hyper-vigilant, unfocused in his behavior, explosive in temperament, fearful of rejection, highly distrustful of adults, impulsive in conduct, physically destructive and verbally abusive.

The first sessions of therapy usually involve around the patient gaining trust in the clinician.   After a number of sessions with Dr. Pines, Anthony was noted to have been exploding all week.   He had been acting out at school in a very aggressive sexual manner.   He had grabbed a girl in school in her vaginal area.   At therapy Anthony was angry at his birth parents.   He blurted out to Dr. Pines that “I saw them having sex.   It was disgusting.”   He said he had been touched repeatedly in his private parts.   Dr. Pines said Anthony was very fidgety and could not calm himself.   Anthony said it occurred repeatedly.   Anthony was mad.   He was frightened.   He said he wanted to change his name when he got adopted.   Dr. Pines testified there was no history of fabrication by Anthony and his impression was that there was validity to the disclosures.   He said there was no suggestion of counseling or being coached.

Dr. Pines testified that Alyviah also presented as meeting the criteria for attachment disorder.   He said her symptoms differed from Anthony's in that Alyviah was inhibited, she withdrew when stressed, she set up emotional barriers between herself and her foster family, she wouldn't permit herself to be happy, she was passively defiant whereas her brother was explosive.   He said that Alyviah diverts her gaze, becomes sullen, tunes out others, becomes harder to engage and, at four-and-a-half years old, kept herself emotionally aloof.

Dr. Pines indicated during cross-examination that, while the removal from their home and multiple placements contributed to reactive attachment disorder, a single move would not cause the disorder.   The predicate of the disorder is the lack of a consistent reliable caretaker during the first twenty-four months of life.   This is the time they were with Cynthia.   Anthony was four and Alyviah was two at the time of removal.   Dr. Pines further indicated that a disclosure like this made a couple of years after the events described is not uncommon.   He said that victims of this type of treatment are often plagued by feelings of shame, fear and embarrassment.   And they are traumatized.

Dr. Pines said he had read the report of Dr. Tobin and he concluded that a person with the clinical profile of Cynthia would have a difficult time meeting the needs of her children on a consistent and reliable basis.   It was at this point in his testimony that he outlined the characteristics of an appropriate caretaker:  “the children would need a reliable, consistent, caretaker who has an understanding of the needs of the children, consistent firmness with a sense of humor, strong sense of themselves and not be necessarily invested in whether the child likes your parenting strategies;  a high degree of self confidence, longitudinal perspective that this is a lifelong process, that children will continue to test the parents long after they think it should stop.   That children have a history, have ghosts, have memories;  you are parenting all their experiences as well.”

The court had the opportunity to read the social studies, hear the testimony of all the witnesses and observe the biological mother and the foster mother in court.   Both of them testified.   Based upon all the evidence, the court concludes that the foster mother does present those characteristics described by Dr. Pines.   Cynthia does not.

Parental Rehabilitation–Adjudication

The ground alleged against the mother is failure to rehabilitate C.G.S. § 17a–112(j)(3)(B)(i).   This ground alleges in the petition that on August 5, 2008, the children were 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, either of them could assume a responsible position in the life of the child.   The factual determination for this court is whether the mother has achieved rehabilitation as contemplated under C.G.S. § 17a–112(j)(3)(B), that is, rehabilitation sufficient to render her able to care for the children.

“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 [she] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [she] can assume a responsible position in her child's life.”  In re Eden F., 250 Conn. 674 (1999) at 706.

The court cannot address every item of information that relates to Cynthia, Kenith and the children that was addressed directly and indirectly during a trial.   There is evidence in the record that both parents were slow or unsuccessful in engaging in services for the first year after removal of the children.   Both were still testing positive for the presence of PCP in their hair toxicology and urine screens.   The parents were not progressing in their skills for effectively controlling and directing their children.   The children were not getting consistent and authoritative structure.

Cynthia got pregnant after the older two children were removed.   She gave birth to a third child Amyliah, on July 3, 2009, fifteen months after DCF became involved and the children were removed.   There was evidence before the court that Cynthia tested positive for phenecyclidine in her system in each of the three trimesters of her pregnancy.   She had five tests that were positive for illegal substances in the preceding twelve months.   Amyliah was removed from her mother at birth and is now also the subject of a termination petition.⁴  She fortunately is placed with her brother and sister.

On September 15, 2009, DCF filed this 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 these children is May 12, 2008.   By the expiration of nine months from the date of removal, DCF must file with the court a permanency plan for the children.  [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. §§ 620–679 (1998).   A major purpose of ASFA was to clarify issues of permanency planning not specifically addressed in earlier federal legislation.⁵  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).   These children, like others in a similar situation, deserve the benefit of a permanent home in a timely fashion.   Three years is too long.

With respect to the fact that the respondents are the biological parents of the children, 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, 542–544, 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.

Given this understanding of the state and federal law, knowing the children were removed in May 2008, and the petition was filed in September 2009, the adjudication date for determining the validity of the allegations is more than one year after removal, presumably a sufficient time for Cynthia and Kenith to either have rehabilitated or be demonstrably on the road to a successful rehabilitation.   Clearly they were not.   Indeed, subsequent developments established they were not.   Kenith has had multiple arrests and incarceration.   Cynthia has been unable to make progress in her parenting skills, has been untruthful with DCF, which makes it difficult to assess and provide treatments, and young Anthony has disclosed more sinister events that will require greater need for therapy for the biological parents, if indeed they robustly engaged such services, and more therapy for the children.   Cynthia was not prepared to raise the children at the time of the petition and is not in a position to have the children nearly three years after removal.

Given the direction of the law regarding permanency decisions, the desire of the children to have permanency and the recommendations of the clinicians and psychologist, Anthony and Alyviah need permanency now.   There is only one place that offers them an opportunity for immediate permanency.   That is with the foster family.

As of the adjudicatory date, the court finds as to Cynthia W., respondent mother, is that the children, Anthony and Alyviah were found in a prior proceeding to have been neglected or uncared for and the mother 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 children, she could assume a responsible position in the life of these children.  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 child.  In re Eden F., supra at 689.

The court makes the following seven written findings.   As indicated it would serve no useful purpose to address the missing and uncooperative father, Anthony T. Sr.:

(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the children by an agency to facilitate the reunion of the children with respondents, the court finds that DCF has made reasonable efforts over three years for the mother.   The court finds that the mother is unable to benefit from the offered services.   Services were also provided to Kenith.   He was reluctant to engage except for visitation.   His conduct has betrayed any claim of rehabilitation and benefit from services.

(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.   DCF has attempted to install services for reunification but DCF cannot compel a person to benefit from the services.   After more than two years of fairly intensive supervised visits coordinated with parental instruction, Cynthia remains unable to set limits and unable to provide consistent and reliable parental care.   She is burdened by cognitive and mental health limitations.   New disclosures of sexual abuse of her children while in her care add a new recent level of complication to her therapeutic needs.   These children cannot drift longer in foster care awaiting some resolution of these developments.

(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 assist the parents to obtain a reunification with the children.   Cynthia did not benefit from these services in a way that would allow her to supervise, nurture, discipline and protect these children.   After the adjudicatory date she tepidly engaged services.   Her needs are so great and her progress so modest, that she has not established a satisfactory position to enable her to parent.   At this time a whole new level of therapy is likely to be necessary.

(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 children do have an emotional bond with the biological parents.   The children have displayed real resistence to further visitation.   The disclosure of sexually inappropriate conduct within the home of origin further complicates the issues.   Whatever bond exists with the biological parent is not a substitute for parental competence.   The child have adjusted very well in the foster home, given their emotional baggage, and the foster mother is providing the day-to-day physical, emotional, moral, therapeutic and educational support the children need.   The foster mother is committed to the care of the three children and would like to adopt them.

(5) As to the age of the children, Anthony is seven years old.   He was born on March 23, 2004.   Alyviah is four.   She was born on July 20, 2006.   The children's attorney and guardian ad litem in his written position statement, recommends permanency which can only be achieved in this case through termination of the parent's rights and subsequent adoption at the earliest opportunity.⁶

(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 this issue.   Both biological parents were consistent in the visitation (when not incarcerated).   They had the benefit of very intensive therapeutic services to aid them in developing appropriate parental skills.   Giving the mother additional time would not likely enable her to adjust her circumstances, conduct or conditions to make it in the best interest of the children to be reunited within a time-frame suitable for them.  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).   It is axiomatic that even when the parents love their children and maintain contact with the children through visitation, “[t]he sad fact is that there is a difference between parental love and parental competence.”  In re Christina M., 90 Conn.App. 565, 575 (2005).

(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 children 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 Cynthia W. and Anthony T., Sr. is in the best interest of Anthony T., Jr. Further the termination of the parental rights of Cynthia and Kenith Angel R., to the minor child Alyviah is in her best interests.   Permanency, consistency and stability are crucial for children.   Anthony is seven years old and deserves to know he has a permanent home.   The same is true for four-year-old Alyviah.   The children are now in a foster home where they are very well cared for by extraordinary foster parents who are fully committed to them.

In finding that termination of the respondents' parental rights would be in the children's best interest, the court has examined multiple relevant factors including the children's interests in sustained growth, development, well-being, stability and continuity of their 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 Cynthia, Anthony T. Sr. and Kenith Angel R, a/k/a, Kenneth R., are hereby terminated as to the minor children, Anthony T. Jr. and Alyviah R. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for these children.

With regard to any permanency plans for the children that have not yet been addressed, the court hereby approves the plans of termination of parental rights and adoption and finds that such plans are in the best interest of the children.   The court also finds that DCF has made reasonable efforts to effectuate these permanency plans.   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 Waterford, 978 Hartford Turnpike, Waterford, CT 06385 of the date when said adoption is finalized.

Judgment may enter accordingly.   Dated at Willimantic the 1st day of April 2011.

Foley, Sr.J. Decision # 372

FOOTNOTES

FN2. DCF names him as Kenneth.   His criminal records all refer to him as Kenith Angel R..  FN2. DCF names him as Kenneth.   His criminal records all refer to him as Kenith Angel R.

FN3. There is another minor child by these parents subject to a termination petition.   It is unclear why that case was not consolidated for trial with the two older children..  FN3. There is another minor child by these parents subject to a termination petition.   It is unclear why that case was not consolidated for trial with the two older children.

FN4. This court does not know why these cases were not consolidated for disposition..  FN4. This court does not know why these cases were not consolidated for disposition.

FN5. 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)..  FN5. 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).

FN6. 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)..  FN6. 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).

Foley, Francis J., S.J.