IN RE: Daisy P. (2011)

MEMORANDUM OF DECISION RE TERMINATION OF PARENTAL RIGHTS

Introduction

This is a contested action brought by the Commissioner of the Department of Children and Families (“DCF”) to terminate the parental rights of Donna E. and Luis P. to their child Daisy (D.O.B.9/16/09).   The mother has appeared and is represented by counsel.   The child is represented by counsel.   Father has been defaulted for failure to appear as set forth below.   Neither parent claims Indian Trial affiliation.   The court is aware of no other proceedings pending in any other court regarding the custody of this child.   This court has jurisdiction.   This case was tried to the court on 3/14/2011 and 3/16/2011.   Unless otherwise specified, all facts are found by clear and convincing evidence.

On September 18, 2009, DCF filed a Petition of' Alleged Neglect and a Motion for an Order of Temporary Custody regarding Daisy.   On November 24, 2009, Daisy was adjudicated neglected and was committed to the care and custody of the Department of Children and Families until further order of the court for Juvenile Matters by order of Hon. Michael Maronich.

The proceedings relative to the termination of parental rights are governed by General Statutes § 17a–112 et seq.   In a proceeding for termination of parental rights, the petitioner must first prove in the adjudicatory phase a ground for termination alleged in the petition, as of the date of filing the petition or the last amendment, by clear and convincing evidence.  In re Joshua Z., 26 Conn.App. 58, 63 (1991);  Practice Book § 32a–3(b), 35a–7.   Only one ground need be established for the granting of' a TPR petition.  In re Juvenile Appeal (84–BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984);  In re Shane P., 58 Conn.App. 234, 242–43 (2000).   If a ground for termination is proven, the court must next consider the disposition stage.   Therein, the court must consider whether the facts, as of the last day of trial, establish by clear and convincing evidence termination is in the child's best interest.

The statutory ground alleged against the respondent father is Ground A Abandonment and as to respondent mother, Ground E, i.e., that the mother of the child, under the age of 7 (seven) years old has failed, is unable or unwilling 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 this child [C.G.S. § 17a–112(j)(3)(B)(i)).  Practice Book 33–3(a) limits the time period reviewable by the court in the adjudicatory phase to the “events preceding the filing of the petition or the latest amendment.”   Notwithstanding the foregoing, “[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Emphasis in original.)  In re Stanley D., 61 Conn.App. 224, 230 (2000).

I. Factual Findings

The department relies on the June 3, 2010 Social Study in Support for Termination of Parental Rights of mother and father, and in particular ground E as to mother.   As requested, the court has taken judicial notice of mother's consent to termination of parental rights in 2005 as to two sons Peter, Jr., born in 2002 and Eduardo, born in 2004.   Mother had a history of involvement in a physically and emotionally abusive relationship with Peter E. Sr. the father of both children.   He had a history of drug and alcohol abuse and violence toward mother.

Removal and termination of parental rights of their sons occurred following one incident when she struck back and bit her husband.   It is alleged that the children were present when this and other violent incidents occurred but not that they were physically struck.

Mother does not have any alcohol or substance dependency issues.   She functions at a borderline intellectual level.   She received special education services and graduated from high school.   She has a history of emotional issues.   During 2004–05 she engaged in counseling with New Milford Behavioral Health Services.   She did not successfully complete this course of counseling in part possibly because, as suggested by Dr. Rosado, the services were not adopted to her needs.   She was also under extreme stress at that time following termination of parental rights to her sons.   She has been actively engaged in therapy bimonthly since DCF removed Daisy and feels that she has benefited.   Mother has a fifteen-year-old daughter April by an earlier relationship with Fred P. who was much older than she.   Mother had previously lived with Fred P.'s family, but left because they called her lazy although she worked two jobs to support him and their daughter.   When mother separated from Fred P., April lived with her for some time.   Around 2002, April moved in with her father after alleging that Peter E. Sr. had inappropriately touched her.   April later withdrew these allegations and resumed overnight visitation with her mother and Peter E., Sr.

Mother also has a history of transiency and being taken advantage of financially.   At the time mother was pregnant with Daisy, she and Daisy's father, Luis P. rented a room in a house owned by a couple named Carmen and Jose. It appears that Luis P. and Carmen developed an extramarital relationship which caused mother extreme stress and anxiety and resulted in Carmen bringing sexual assault and burglary charges against Luis. On August 23, 2009 Luis, who was not in this country legally, left for Ecuador telling mother that he left for medical treatment and to see his family.   Because Luis is facing prosecution on the above charges and would be subject to enforcement of immigration laws if he returned to this country, he is not expected to return.

Mother refused to believe that Luis was guilty of sexual assault and for a time hoped he would return.   Mother has worked at Goodwill Industries in Danbury since 2006 and has been able to provide for herself after his departure.   In fact, mother provided the only source of stable, reliable and legal income.   Following Daisy's birth and immediate removal from her mother's care in the hospital, mother began to see a mental health counselor named Claire Metturi every other week at Danbury Hospital.

The department's basis for removal of mother's sons Peter and Andrew and subsequent termination of mother's parental rights to them in 2005 was mother and father's inability to overcome domestic violence, as well as father's continuing substance abuse.   The department also claims mother was unable to perform minimum child care tasks.   However, the record does not indicate that the department offered mother any services for Daisy which would address this latter deficit.   This history is the reason that the department removed Daisy from her mother's care on September 18, 2009, immediately following her birth.   The court sustained the OTC on September 28, 2009 and ordered specific steps on December 2, 2009.   The department considered relative placement for Daisy.   However, mother's parents are unable to provide care because they have health issues and require assistance for their daily needs.   Mother's sister has been unwilling to care for Daisy.   As a result, Daisy was placed in a foster home where she has remained to date.

In addition to the above facts derived from the department's Social Study the court heard testimony from DCF Social workers, Noralee Darragh and Danielle Filer, RCF worker Jennifer Ralph, foster mother Carol W., ABD Counselor Mark Marsh, Goodwill Industries Manager Jose Retruardo, attorney Josephine Miller and Dr. Robert Neems.   The court's findings by clear and convincing evidence based on their testimony appear below.

The department offered supervised visitation through Reconnecting Families (RCF) from January 14, 2009 through March 24, 2009.   During this time, a worker supervised eight visits.   The worker reported that mother “is very attentive and nurturing,” shows an “abundance of love” for Daisy, and plays age appropriately with her daughter.   According to the Reconnecting Families worker “Daisy is very content with her mother during visits.”   The worker noted that she assisted mother with formula preparation, bottle feeding and diapering.   Despite observing that mother was receptive to suggestions, the worker concluded that mother needed prompting and was incapable of taking care of Daisy without assistance.   The final Reconnecting Families update, dated March 31, 2010, reports that mother completed parenting classes at the end of the month and states, “TW will continue to work on coaching [mother] with clear expectations for Daisy.”   The April 12, 2010, Reconnecting Families Discharge Summary recommends continuing weekly supervised visits and weekly mental health counseling sessions, continue encouraging adequate parenting styles and skills and continue to assess biological mother's ability to care for child.   Notwithstanding the above recommendations, RCF then stated that the child should not return to biological mother due to safety concerns and lack of parenting skills as well as biological mother's limited cognitive ability.   (Exhibit 1B.) There is also no factual basis either in RCF's updates or from the testimony of its worker Jennifer Ralph for the alleged safety concerns.   Rather than adopt the recommendations of RCF, the department transferred the case from Danbury to Norwalk and did not provide any further training to mother.   Mother only received eight supervised visitation sessions over the three months in which RCF was involved during which time Daisy was three to six months old.   Despite reporting that mother needed additional support, RCF and the department failed to offer this support and used this finding as a reason not to return Daisy to her mother.   More frequent visits would have given mother a chance to develop skills and would have been important for developing mother and child bonding.

Carol W. the foster mother who has cared for Daisy since her removal in September 2009, testified about Daisy's developmental progress while in her care.   It is clear that she has provided a loving, nurturing and stable environment for Daisy and that Daisy, now eighteen months old, has formed a child to parent attachment to her foster mother.   The foster mother has graciously reached out to facilitate mother's visitation on a number of occasions when the department had a conflict.   She confirmed that mother is at times awkward with Daisy although generally appropriate and clearly loving.   Although she has not noted any behavioral issues related to visitation, she testified that Daisy has recently appeared “somber” when she has returned from visiting mother.

Despite mother's cognitive deficiencies, she has been employed full-time at Goodwill Industries in Danbury since 2006.   Her employer Jose Retruardo testified that she arrives promptly, cleans the store, hangs up clothes and assists customers.   She is reliable and helpful -and gets along with customers and other employees.   In his experience as her manager over the last two years, he has not seen her become angry or overwhelmed on the job.

Mark Marsh, employment specialist with Ability Beyond Disabilities (A & D) has worked with mother for about one year.   He provides on the job support to mother in the form of periodic job site visits.   Although mother's job is secure, she told Mr. Marsh that she wanted to work in healthcare.   After determining that she would have to become a Certified Nurse's Assistant (“CNA”) in order to achieve this goal, he helped her identify a certification program that would meet her needs, obtain financing, enroll and establish a schedule.   He also provided transportation to the course.   Mr. Marsh emphasized that while he helped mother with this plan, she did the work herself, attending class from 5–10 p.m. five days a week for four weeks while continuing to work full-time at Goodwill with only a slight schedule adjustment.   Mother has not become frustrated or overwhelmed with the demands of the CNA course or the above schedule.   She passed the written test with a score of 87 and is in the process of' completing the clinical training at the Masonic Center in Bethel.   She was excited about passing the test and looking forward to working as a CNA. Once she is certified, ABD will help her find a job and provide on the job support as it has in the past.   It is also noted that mother was not identified as handicapped in her application for the CNA course and there is no evidence that she required any accommodation to pursue CNA certification.   Despite mother's cognitive limitations, she has set a goal which she is close to achieving to establish a career that will provide increased income, job stability and benefits.   Mother will also have improved self esteem and confidence.   According to Mr. Marsh, mother is “smart, has shown maturity and responsibility to learn.   As a CNA, mother will be responsible for the health, safety and care of patients spending more time with them than any other professional.”

Mother demonstrated that she could benefit from housing support services provided by ABD. In July 2010, mother asked for help because she did not feel safe where she was renting a room.   ABD facilitated her qualification for a Section 8 subsidized apartment

Attorney Josephine Miller testified that she was appointed mother's financial conservator in July 2007 because mother was receiving social security disability payments.   A representative payee was ordered at that time because of concern about mother's then husband Peter's involvement in the payments.   Ms. Miller observed the husband's anger and the stress of this relationship on mother.   The payments stopped in 2008 because mother's income level exceeded the eligibility threshold.   Two years later when Ms. Miller became involved again in the summer of 2010, she saw a dramatic change in mother.   By this time mother had taken steps to end her relationship with her husband Peter, obtained her own apartment, lost 40 pounds which she had gained during the time of extreme depression and demonstrated a better sense of self-esteem.   She no longer appeared depressed or anxious as she had before.   Ms. Miller pays mother's rent and manages her bank account but mother handles the rest of her finances herself.   She also shops, cooks and cleans for herself and her older daughter April, (d.o.b.4/18/95), who lives with her now.

Judicial Notice—Prior Removal and Termination Peter, Jr. and Eduardo

The department requested the court to take judicial notice of the prior removal of her sons Peter, Jr. and Eduardo and mother's consent to termination of her parental rights, and to consider the three prior substantiations of neglect.   Nowhere in the information provided by the department is there any indication that mother was incapable of caring for her older children.   In fact, removal of all three appears to be related to concerns about her ability to keep the children safe in the presence of her abusive husband Peter E., Sr. Mother had custody of April following her divorce from April's father until April alleged that her stepfather Peter E., Sr. sexually assaulted her.   Mother believes that April who was approximately five years old at the time made this allegation because she hoped her mother would reunite with her father.   April withdrew the allegation shortly thereafter in 2002.   As noted, she now lives with mother.   The other two allegations are based on domestic violence by Peter E. toward mother when their two sons were in the home.   At the time mother agreed to termination in 2005, she had not ended her relationship with Peter E. was emotionally overwhelmed and did not have financial means to care for her sons independently.   Since then mother has divorced Peter E., has been continually employed, addressed psychological issues and lives independently.   For these reasons, the three prior substantiations do not prejudice mother in this case.

Robert H. Neems, Ph.D.

Dr. Robert W. Neems testified regarding the psychological evaluation he conducted on mother on December 14, 2010.   As part of his evaluation, Dr. Neems reviewed the following needs:

Petition for TPR, date received by court:  6–14–2010;

Social Study in Support of TPR Petition, dated 6–3–2010, signed by DCF Social Worker Danielle Filer.

Summary of Facts to Substantiate Petition for TPR, dated 6–11–2010, signed by DCF Social Worker Noalee Darragh.

Clinical Evaluation of Donna E., date of testing 1–08–2004, performed by Rodolfo Rosado, Ph.D.

Clinical Evaluation of Donna E., date of testing 10–15–2004, performed by Rodolfo Rosado, PhD.

Clinical Evaluation of Donna E., date of testing 8–18–2005, performed by Rodolfo Rosado, Ph.D.

Dr. Rosado completed psychological evaluations of mother on January 8, 2004 and on October 15, 2004.   During the evaluations mother stated that her daughter April made false accusations of being sexually abused by Peter E. Mother believed April made the false disclosure in an attempt to break up her relationship with Peter E. Mother did not believe the allegations of sexual abuse which April withdrew.   Nonetheless, mother was hurt by the false allegations because Dr. Rosado opined that if Mrs. E.'s daughter was sexually molested and mother was unable to acknowledge the abuse, the situation creates concern about her ability to perceive and appropriately react to potential risk that could endanger her children.   Dr. Rosado recommended that Mrs. E. receive psychiatric treatment, individual psychotherapy with a professional who has expertise working with individuals who are language and hearing impaired.   Dr. Rosado also recommended that the department refer mother for the department speech and language therapy to improve her overall receptive and expressive language capabilities, and obtain information regarding her previous treatments and make additional referrals to parenting and anger management.   On August 18, 2005, Dr. Rosado conducted a third psychological evaluation of mother in which he concluded that she needed long-term psychiatric supports including an in-home therapist and that lapse in her treatment could cause a decomposition in her functioning and potential serve risk to children in her care.

The department relies on Dr. Rodolfo Rosado's report of his January 8, 2004 psychological evaluation of mother as repeated by Dr. Neems.   At the time, Dr. Rosado found mother's functioning to be severely compromised due to depression.   Mother attributed her depression to a post partum condition following the birth of her second son.   Although Dr. Neems reports that Dr. Rosado provided detailed history of mother's destructive marital relationships, neither psychologist attributes mother's depression to their emotional effect on her.   Mother has a history of involvement in physically and emotionally abusive relationships with partners who suffer from alcoholism.   Mother's own father abused alcohol and there were significant domestic violence incidents between her parents.   Although mother has diagnosed cognitive limitations testing at borderline intellectual functioning, she also feels her mother's protectiveness undermined her ability and self-esteem.

It is in this context that Dr. Rosado conducted three psychological evaluations and in which his recommendations must be understood.   The circumstances of mother's own childhood, exacerbated by chronic, emotional and physical abuse by her former husband, removal of her daughter following unsubstantiated allegations of sexual abuse by one;  and finally termination of parental rights to two children, also related to former spouse's abuse would have serious psychological consequences for a person who is not intellectually challenged.   There is no doubt that mother's intelligence testing is borderline.   Dr. Rosado also refers to mother's language processing deficits and a possible hearing disorder and recommended services to address these concerns.   However, the department did not refer mother for evaluation or services related to this finding although a hearing disorder could clearly impact actual and perceived comprehension, particularly in an individual struggling to function with cognitive deficits.

The reference to auditory “hallucinatory” experiences appears to relate to the influence of Peter E's relatives who were ministers and which occurred during a time when mother felt trapped in the abusive relationship with Peter E. and was also experiencing depression.   As reported by mother, the messages she perceived were reassuring that her situation would improve.   Any such experiences are too remote to mother's present state to be relevant to the subject motion.   Since 2009, Mother has consistently engaged in counseling from which she feels she has benefited.   The department did not provide any information from the treating therapist that would cause the court to be concerned about mother's ability to function in real life situations.   As stated above, the objective evidence is to the contrary.   Whatever the substance of these experiences, they appear to have been situationally related to her depression and feeling of being trapped in an abusive relationship six years ago.   They do not provide a basis for termination of mother's rights to Daisy at this time.

Mother graduated from New Milford High School in 1995 at the age of nineteen.   She received special education services from grade three until graduation.   She was married to Fred P., the father of her daughter April for six years until 2001, She then married Peter E., Sr. the father of her two sons Peter Jr., and Eduardo.   Both sons were removed from their parents' care due to concerns about the father's substance abuse and anger management issues which resulted in domestic violence.   April went to live with her biological father following allegations of sexual abuse by Peter E., Sr. Mother agreed to Termination of Parental Rights for her sons in 2005 because of ongoing domestic violence as well as, transiency and financial issues.   Mother separated from Peter, Sr. and divorced him on March 3, 2010.   In the interim she had met Luis P. at her work place, Goodwill Industries and became pregnant with Daisy.   Luis P., who is from Ecuador and not in this country legally was arrested on August 23, 2009, charged with burglary 1 and sexual assault 1 and 3. These charges remain outstanding.   Luis P. went to Ecuador before Daisy's birth and is not expected to return.   He has never acknowledged paternity for Daisy and has not signed her birth certificate.

Compliance with Specific Steps

1. Secure and/or maintain adequate housing and legal income.

Mother has an employment history at JC Penney and Salvation Army Thrift Store in addition to her employment for the last four years at Goodwill Industries.   With support from Ability Beyond Disability, she is about to become licensed as a Certified Nurse's Assistant (“CNA”) and embark on a career that will give her job security a better income, benefits and, most important self-esteem which comes from reaching a goal she set for herself.

The Social Study in Support of Termination of Parental Rights filed on July 13, 2010 indicates that mother was not compliant with the specific step requiring her to secure adequate housing.  (Ex. 2.) According to the testimony of Mr. Marsh of ABD, this is not accurate.   At the time the department filed the report mother had sought assistance in obtaining subsidized housing and was working to secure a Section 8 apartment.   She was successful in this effort.   As far as maintaining legal income, despite her intellectual disability, mother has been a valued employee at Goodwill for over four years, in addition to prior retail experience.

In compliance with the court ordered specific steps mother began individual therapy at Danbury Hospital and began to see an additional therapist The March 31, 2010 update reports that mother was scheduled to complete parenting classes at the end of the month.   The department did not wait until mother completed the parenting classes or attempt to integrate the parenting class curriculum into mother's weekly visitation with Daisy.   Instead, just weeks after confirming from the Danbury Reginal Child Advocacy program that mother successfully completed the Parent Net program, the department filed a petition for termination of parental rights.

The April 12, 2010 RCF Discharge Summary also stated the reason for discharge;  “ ․ case was transferred to Norwalk Area office and termination of parental rights is pending per Department of Children and Families.”   It is evident from this that petitioner had predetermined its goal of termination at least three months before filing its petition based on inaccurate and/or incomplete information.

II. ADJUDICATORY FINDINGS

A. Legal Standard

Counsel for respondent mother argued and the Supreme Court has stated that the effect of termination of parental rights on a child that it is like a death sentence.   This is true for both parent and child.  “The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his [or her] parent ․ [As such, it] is a most serious and sensitive judicial action.”  (Citation omitted;  internal quotation marks omitted.)   In re Jonathan M., 255 Conn. 208, 231, 764, A.2d 739 (2001);  In re Bruce R., 234 Conn. 194, 200 (1995).   In fact, “[t]ermination of parental rights has been called the civil equivalent of the death penalty.”  In re Emerald C., 108 Conn. 839, 862, 949 A.2d 1266, cert. denied, 289 Conn. 923, 958 A.2d 150 (2008) (McLachlan, J., dissenting).

“[A] hearing on a petition to terminate parental rights consists of two phases:  the adjudicatory phase and the dispositional phase.   During the adjudicatory phase, the trial court must determine whether one or more of the ․ grounds for termination of parental rights set forth in [General Statutes] § 17a–112[ (j)(3) ] exists by clear and convincing evidence.”   (Internal quotation marks omitted.)  In re Melody L., 290 Conn. 131, 163, 962 A.2d 81 (2009).   According to Practice Book § 35a–7(a), in this phase, “the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.”   See In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 100 (2008).   In addition to the foregoing, “[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Emphasis in original.)  In re Stanley D., 61 Conn.App. 224, 230 (2000).

Only one ground need be established for the granting of TPR petition.  In re Juvenile Appeal (84–BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984);  In re Shane P., 58 Conn.App. 234, 242–43 (2000).   If a ground for termination is proven, the court must next consider the disposition stage.   Therein, the court must consider whether the facts, as of the last day of trial, establish by clear and convincing evidence termination is in the child's best interest.

If a determination is made that one or more of the statutory grounds exist, the court then proceeds to the dispositional phase.   In this phase, “the trial court must determine whether termination is in the best interests of the child ․ The best interest determination also must be supported by clear and convincing evidence.”  (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 163.   In making this determination, the trial court can consider any testimony that is relevant and material to the issue of the disposition, including testimony as to events occurring through the close of the evidentiary hearing.   Practice Book § 35a–9;  see also In re Sheena I., 63 Conn.App. 713, 721, 778 A.2d 997 (2001) (court may consider events occurring after adjudicatory date).

B. Reasonable Efforts for Reunification

In order to terminate the parental rights of either parent, the department must initially show by clear and convincing evidence that it has made reasonable efforts to locate the parent and to reunify the child with the parent, unless the court finds, in this proceeding, that the parent is unable or unwilling to benefit from reunification efforts.   See General Statutes § 17a–112(j)(1).   The court need not make such a finding, however, “if the court has determined at a hearing pursuant to [General Statutes] section 17a–111b, or determines at trial on the petition, that such efforts are not required ․” General Statutes § 17a–112(j)(1);  see also In re Stephen M., 109 Conn.App. 644, 666, 953 A.2d 668 (2008).

In analyzing reasonable efforts, “[t]he word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof.   Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn ․ [R]easonable efforts means doing everything reasonable, not everything possible.”  (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 144.   The court must look to events prior to the date the petition was filed to determine whether reasonable efforts at reunification were made.  In re Shaiesha O., 93 Conn.App. 42, 48–49, 887 A.2d 415 (2005).   In this case the department provided eight visitation sessions supervised by Reconnecting Families and 16 hours of parenting classes, individual and group counseling.   The department inexplicably terminated Reconnecting Families services at the end of March although mother had just recently begun parenting classes.   There was some suggestion through department witnesses that this was done for the department's administrative reasons.   It is clear that mother completed parenting classes but did not have an opportunity to integrate the lessons from the parenting curriculum into active care for Daisy under the supervision of RCF. In view of these facts, the department's decision to file the petition to terminate parental rights on the record in this case as of July 13, 2010, is not supported by reasonable efforts to reunify.

C. Failure to Rehabilitate Ground E as to Mother

The department has asserted the ground of failure to rehabilitate as to mother alleging that she is the parent of a child who has been found by the Superior Court to have been neglected or uncared for in a prior proceeding, and that she has failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, she could assume a responsible position in the life of the child.   This ground tracks the language contained in General Statutes § 17a–112(j)(3)(B).

“[P]ersonal rehabilitation ․ refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [and] 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 ․ It 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 reasonable encourage a belief that at some future date she can assume a responsible position in her child's life.”  (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 149.   In addition, “[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time,” (Emphasis in original;  internal quotation marks omitted.)  In re Anthony H., supra, 104 Conn.App. 757–58.

Ordinarily, the court considers the claim of failure to rehabilitate only after finding that the department has made reasonable efforts to reunify the parents with their child.   This consists of review of services such as counseling, facilitating visitation, etc.   The department offered these services and mother participated but the department cut them short as indicated above.   Mother also participated in individual counseling, demonstrated the ability to maintain steady employment, continue her education and secure appropriate housing independent from department resources.   In this case the court's finding that mother had shown substantial rehabilitation and her continued progress is relevant to the decision on the merits of the petition.

D. Rehabilitation as of the Adjudicatory Date by Mother

The department is pursuing termination of parental rights because it believes that due to mother's cognitive limitations she “has been unable to stabilize her life, learn appropriate parenting skills and retain information provided through the recommended sources.”   The Social Study for Termination of Parental Rights, dated June 3, 2010 states as the reason for the petition, “At follow through with their court ordered specific steps and address the concerns that lead to the removal of their child from their care.”

Specific steps were issued by the court for mother and father on December 2, 2009.   Specific steps are what a respondent parent must do to be re-united with his or her child.   They provide a framework and real direction for a parent to address those issues that stand in the way of that parent assuming a responsible position in the life of his or her child.

Section 17a–112(c)(3)(B) requires the court to determine whether the “degree of personal rehabilitation ․ encourage[s] the belief that within a reasonable time, ․ such parent could assume a responsible position in the life of the child ․” “Personal rehabilitation” refers to the reasonable forseeability of the restoration of a parent to his or her former constructive and useful role as a parent, not merely the ability to manage his or her own life.   See In re Shyliesh H., 56 Conn.App. 167, 173, 743, A.2d 165 (1999).   In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.   See In re Amber B., 56 Conn.App. 776, 785, 746 A.2d 222 (2000);  see also In re Sarah M., 19 Conn.App. 371, 377, 562 A.2d 566 (1989).

Rehabilitation “does not require the parent to be able to assume full responsibility for a child without the use of available support programs.”   In re Luis C., supra, 210 Conn. 167;  see also In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).   An inquiry regarding personal rehabilitation requires a historical perspective of the respondent's child-caring and parenting abilities.  In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999).   What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.  In re Michael L., 56 Conn.App. 688, 694, 745 A.2d 847 (2000).

“[P]ersonal rehabilitation ․ refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [and] 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 ․ It 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.”  (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 149.   In addition, “[i]n the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Emphasis in original;  internal quotation marks omitted.)  In re Anthony H., supra, 104 Conn.App. 757–58.

The summary conclusions of the Department in its June 3, 2010 Social Study for the Termination of Parental Rights are also not supported by facts which existed as of the date of filing the petition.   Although it is true that mother is cognitively limited and has a history of an abusive relationship, emotional issues, transiency and financial instability, it is also true that as of the summer of 2010 mother had ended the former abusive relationship, obtained housing and continued steady employment.   The court finds the testimony by Mr. Marsh, Mr. Retruardo and Attorney Miller to be clear and evidence in support of the respondent mother's claim that she has rehabilitated.

The history of domestic violence, anger, abuse, arrest and alcoholism of mother's partner all relate to Peter E., Sr. This relationship caused mother anxiety, deterioration of her mental health and physical injury.   It resulted in arrests when she reacted to Peter E.'s alcoholism and abuse.   It is also causally related to her transience, lack of financial resources and her decision to consent to termination of parental rights to her sons Peter, Jr. and Eduardo.

Mother has not had positive relationships with men.   The anecdotal history contained in Dr. Neem's report would be more troubling if mother had not demonstrated insight into how they negatively affected her mental health and in the case of Peter E., her parental rights.

Mother also demonstrated the courage to divorce Peter E. in 2010.   While she may have remained married to him for years after the termination of parental rights to their sons, the department completely ignores the fact that as of the filing of the termination petition as to Daisy, she had divorced Peter and that Luis is not reasonably considered as a factor in her life or Daisy's.   As for Fred P., April's father his age, health and family interference, rather than his behavior or mother's shortcomings negatively impacted mother's relationship with him.

There was no history of domestic violence or substance abuse in mother's relationship to Fred P. the father of her oldest child April.   Mother and April's father lived with his family.   During this time mother worked two jobs to support him and his family.   According to mother she left that household with her daughter April, because they kept pressing her for money and criticized her calling her lazy.

It is not clear when mother married Peter E., Sr. However, at some point April who was approximately four to six years old alleged that Peter E. touched her inappropriately in the shower.   April was removed to her biological father although she later withdrew the allegations.   She maintained contact with mother and as of the trial in this case is living with mother.   Mother's relationship with her former husband Peter E., Sr. is the basis of the department's allegations of domestic violence, abuse, arrests, anxiety and diminution of self-esteem.   Mother has been the stable financial provider in all three relationships.   Despite her intellectual limits and language processing deficits, mother has maintained a history of employment requiring her to function among the public in retail settings including customer relations at her present job for Goodwill Industries.   The department's allegations of the mother's failure to achieve a degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, she could assume a responsible position in the life of the child is not supported by the facts.

As of the summer of 2010, mother had divorced Peter E., Sr., the main source of her personal problems and the department's concerns.   The department removed their son Peter E., born June 29, 2002 following a domestic violence incident in November 2003.   It then removed Eduardo at the time of his birth September 9, 2004 without any further factual findings.   Parental rights were terminated December 1, 2005.   At some point in 2006 mother became employed by Goodwill where she has remained until the trial.   She met Luis P. through a co-worker and bore Daisy as a result of this relationship for some period of time until Luis' abrupt departure for Ecuador, they rented a room from Carmen and Jose. Following Carmen's allegations of burglary and sexual assault against Luis, he left for Ecuador.   He has not returned and has not provided any information by which he can be contacted.   The department and Dr. Neems criticize mother for not wanting to believe Carmen's allegations and for not being forthcoming as to his whereabouts.   However, without further information, these facts only confirm that mother, who was carrying Luis' child and still emotionally dependent upon him in 2009 was not willing to believe Carmen's allegations of Luis' infidelity.   There is no evidence that mother maintains any relationship with Luis. It is also clear that by the time the department filed the petition to terminate mother's parental rights, she had already taken steps to end her marriage to Peter.   By the time Attorney Miller became involved in the summer of 2010, she noted a marked change in mother.   Having divorced Peter and taken steps to obtain her own apartment, mother's self-esteem was notably improved.   She also began to pursue certification to become a certified nurse assistant.   This program required mother to meet educational curricular and clinical training standards, which she has accomplished while working full-time at Goodwill.

Mother has shown that despite her cognitive deficits and absence of family a relational support she is capable of advocating for herself.   She has also shown that she is able to benefit from counseling and community support systems to improve her mental status, her employment and financial circumstances.   She has done this without relying on family or a male partner.   In fact, both her mother and the men in mother's life have contributed to the symptoms of low self-esteem, stress and anxiety which she has had to overcome.   Mother remains cognitively limited and needs to continue with counseling.   She also needs to engage in services that will assure that she understands and is able to respond to Daisy's physical, emotional and educational needs as she develops.

Dr Neems observed that it was difficult for mother to formulate her thoughts and repeat follow up questions were necessary to assure that she understood him.   His impression was that her cognitive limitations affected her ability to comprehend and respond to life's challenges and experiences.   While mother has diagnosed cognitive deficits, the record indicates that at least some aspect of her comprehension and communication challenges referred to as language processing deficits may be related to hearing disability.   Several times during the department's involvement, recommendations appear for services to address or accommodate this issue, but these recommendations were not followed.   Instead, the department repeatedly refers to mother's need to repetition and her apparent lack of ability to process verbal cues to conclude that she cannot safely and approximately care for Daisy.

Mother reported that her relationship with her mother was affected by her mother's negative, critical and protective attitude toward her.   Mother cited as an example her mother discouraging her from becoming a nurse.   This insight by mother clearly was a factor in mother's low self-esteem and emotional issues which carried over into adulthood.   This lack of confidence from her mother contrasts with mother's pursuit of certification as a CNA.

Similarly, the department appears to focus on mother's limitations, ignoring her strengths and achievements overcoming these limits.   While mother may minimize her cognitive deficits, she has shown that she is able to seek and benefit from help, such as math tutoring in high school, housing, career planning and facilitating her relations with co-workers.   She demonstrated insight about the anger and anxiety she experienced as a result of her ex-husband's abusive and controlling relationship.

Dr. Neems also devotes a section of his report to mother's so called pseudo-hallucinations.   This information appears to have been derived from Dr. Rosado's 2004 evaluations of experiences she had related to the stress and anxiety caused by her relationship with Peter E. There is no indication that they continue.   These pseudo-hallucinations, like much of mother's reported stress, anxiety, depression and low self-esteem appear to be situational.   Mother had been prescribed anti-anxiety medication but she stopped taking it because it made her feel “out of it” and has not experienced recurrence of the previous anxiety symptoms.   She meets with a psychotherapist every other week and feels that she benefits from the therapy.

Dr. Neems' diagnosis of Impulse Disorder NOS is not based on any recent events or incidents.   It is also sharply contradicted by her employer, her Ability Beyond Disability counselor and her financial conservator.   He recommends that mother receive ongoing parenting input if Daisy is returned to her care and mother and child may well benefit from supportive services.   Nonetheless, both mother and child have a bond and the capacity to develop a relationship including that of a healthy normal parent/child.

Dr. Neems summarized his observation of mother with Daisy indicated that she was attentive and caring, but that verbal stimulation with the fourteen-month-old was limited.   This is an important element of child development.   Unfortunately, nothing in the department's record indicates that it provided coaching for mother either individually or by way of behavior modeling, for instance in a class or play group with other mothers and toddlers.   Instead, mother who is limited was isolated with her preverbal toddler.   Reconnecting Families reports of the eight sessions it supervised when Daisy was four to six months old criticized how mother held the bottle and diapered Daisy.   RCF did not describe any specific safety concerns.   Mother has shown she can follow up benefit and meet counseling and professional education goals.   She has successfully passed the CNA written test and is completing the clinical prerequisite to licensing.   There is no reason to conclude that she is not capable of developing the skills necessary to care for Daisy if she receives appropriate resources.   This is particularly true if Daisy is enrolled in a daycare program where she will have ample peer and adult verbal stimulation and mother will have the opportunity to model parenting by others.

Child's Foster Placement and Development of Parent Child Relationship

Daisy's foster mother Cathy W. has cared for Daisy since her removal in 2009.   She is an experienced and highly committed foster mother who has provided Daisy as well as many other children with nurturing care.   She has facilitated visitation between Daisy and mother on several occasions when the department could not.   These visits have occurred in the park and the mall.   Daisy is a happy, healthy eighteen-month-old toddler who is thriving in her foster home and meeting developmental milestones.   Ms. W. reports that until recently Daisy transitioned from visitation to home without any concerns.   She noted that recently Daisy, now eighteen months old, appeared “somber” when she returned from visiting her mother.   She did not describe any behavioral issues.

The observations of the foster mother are concerning.   It is not surprising that Daisy has recently returned from visitations in a “somber” mood.   Too much time has gone by without providing mother with resources to compensate for her deficits.   Rather than provide services and encourage mother, the department preemptively decided to seek termination of mother's parental rights ceasing supportive visitation after eight sessions when Daisy was only six months old.

Dr. Neems' response to question 3 relating to mother's understanding of the child's needs and capacity to meet those needs is based on her past abusive relationship with Peter E. ignores the fact that mother ended that relationship and in therapy and her current life choices has shown that she has changed her circumstances to enable her to care for her child.   She will need support and resources but that does not prevent her from being able to parent Daisy.   These objective achievements by mother, i.e., that mother has demonstrated her ability to obtain housing, maintain employment, pursue professional license as a certified nurse assistant, and manage the stress of working contradict the department's assertions and the conclusions of Dr. Neems.

Where the grounds for termination are failure to rehabilitate “[E]ven if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability ․ such improvements, although commendable, are not dispositive of the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her children.”   In re Alejandro L., 91 Conn.App. 248, 260, 881 A.2d 450 (2005).  “In manager [her] own life, but rather [on] whether [she] has gained the ability to care for the particular needs of the child[ren] at issue.”  (Emphasis added;  internal quotation marks omitted.)  Id.

Therefore, the focus of the analysis is whether mother has rehabilitated as of the adjudicatory date.   The court must decide whether the petitioner has proven by clear and convincing evidence that the respondent parents have failed to achieve such a degree of rehabilitation, considering Daisy's age and needs, that each could assume a responsible position in her life.   The evidence presented at trial supported mother's claim that she has rehabilitated from the conditions that led to Daisy's removal and demonstrated the ability to care for her needs.   She may not have the financial or other resources of the foster family, but this is not the legal test.  In re Stanley D., 61 Conn.App. 224, 232 (2000) provides the following analysis of the issue of rehabilitation under the statute.

The respondent argues that the “simple gauge” to determine whether a parent has achieved rehabilitation is “[whether] the parent, on the adjudicatory date, [is] any closer to being able to provide satisfactorily for the neglected child than [he] was on the date the child's custody was removed ․” (Emphasis added.)  In re Passionique T., 44 Conn.Sup. 551, 564, 695 A.2d 1107 (1996);  see also In re Hector L., 53 Conn.App. 359, 367, 730 A.2d 106 (1999), was “whether the respondent was better able to resume the responsibilities of parenting at the time of filing the termination petition than he had been at the time of children's commitment” [emphasis added)).

Mother has clearly met this test.   This is not a case of a parent trying to “catch up” by attempting to rehabilitate following the filing of the petition to terminate parental rights.   Although the most significant acts occurred around the time the petition was filed, mother showed compliance with specific steps and services and substantial progress toward financial independence and emotional well being well before the filing date.

The court agrees with Dr. Neems that mother's anticipated support for Daisy's care from her boyfriend Jose when he returns from Guatemala may not be realistic.   However, in the last year or so mother has shown an ability to set goals and meet her needs.   When she lacks resources herself, she has demonstrated that she is able to access help effectively.

Dr. Neems noted that prior to Daisy's arrival for the interview, mother asked to meet in a different room where there were more toys to use with Daisy.   Dr. Neems' suggestions of how mother may have responded more interactively reflect the nature of interaction which would have been part of parent coaching had it continued.   Dr. Neems observed that mother was attentive to Daisy's needs.   When Daisy began to fuss near the end of the visit, mother observed that she may be tired and didn't know what she wanted.   She changed Daisy's diaper prior to putting on her coat to leave.   Dr. Neems concluded:

In summary, [mother] was attentive to Daisy.   She tried to engage Daisy in activities.   She paid attention to Daisy's safety.   She made use of snacks and juice to meet Daisy's needs.   She tried to regulate the extent of a mess which Daisy made.   She told Daisy no when Daisy threw a snack on the floor.  [Mother] smiled a lot at Daisy.   What was lacking was the stream of verbal comments and stimulation which most adults provide when interacting with children.  [Mother] made some comments but she provided an unusually limited amount of verbal stimulation ․ Daisy was comfortable with [mother).   She played with [mother) at times but mostly focused her attention on exploring the various toys in the room.

Several of Dr. Neem's conclusions were either not based on accurate information or were contradicted by the direct testimony of individuals at the trial.   For instance, while mother may have minimized her intellectual limitations, she has demonstrated that she can learn the certified nurse aid curriculum and successfully pass the test.   She is currently completing the clinical for the CNA license.

Dr. Neems discredits mother's ability to live on her own because she has a financial conservator without knowing the background or extent of services.   According to Attorney Miller, the court appointed conservator, she was appointed to prevent Daisy's father from access to mother's disability payments and she only pays her rent and balances her account.

Dr. Neems is critical of mother's choice of relationship partners.   This alone does not provide grounds for termination of her parental rights to Daisy.   Mother has divorced Peter E. Luis P. left this country before Daisy's birth and is not likely to return.   Mother's plans for Daisy do not involve Luis P. Whether her boyfriend Jose returns and assumes a supportive role in her life is not relevant to the issues before the court.

Finally, Dr. Neems' conclusion that mother has longstanding unaddressed anger issues is contradicted by the testimony of her employer who stated that she relates well to co-workers and customers and Mr. Marks who described how calmly mother handled the stress of balancing work and school obligations.   Mother ceased antidepressant medication three years ago and has not shown signs of depression since then.   The positive steps she has taken since then along with her continuing engagement in counseling establish that she is appropriately able to deal with stress in her life.

As of the interview date Daisy had been in foster care for the entire fourteen months of her life and she continues in the same loving, nurturing home.   The department persists in questioning mother's capacity to make good parenting decisions to justify Daisy's continued removal and termination of mother's rights.   There are no facts to support this assertion.   The department's removal of Daisy from her mother at birth was predictive based on its claim that mother would not be able to care for Daisy.   The department then failed to provide any more than minimal parent coaching which it unilaterally terminated when Daisy was six months old advising the service provider that it had decided to pursue termination.

Without support and service from the department mother has taken steps to become independent, ended her marriage to an abusive husband, remained gainfully employed enabling her to provide for herself, obtained housing, and demonstrated that she can manage her daily life, maintain employment and pursue CNA certification.

She needs parent coaching and help as Daisy reaches new developmental stages.   With support from child care and early childhood professionals, she should be capable of addressing the deficits which are partly the result of her life experience and her intellectual limitations.   It is deeply concerning that Daisy, now eighteen months old may be beginning to distance herself from mother as noted by her foster mother's observation that she appeared “somber” after a recent visit.   It is critical that the department develop and execute a plan to help mother meet Daisy's needs and to enable Daisy to bond with her mother.

Having concluded that the mother has benefited from reunification services by complying with the specific steps and demonstrating rehabilitation, “Section 17a–112(j) requires the court to make a finding by clear and convincing evidence in the adjudicatory phase concerning the reasonable efforts by the department of children and families ․ to reunify the child with the parent as a perquisite to terminating parental rights ․” In re Shaiesha O., 93 Conn.App. 42, 47 (2006).   Although the department provided some reunification services, it prematurely terminated Reconnecting Families, failed to accommodate parenting and counseling to mother's needs and never attempted to assess her progress with her employer, ABD worker or financial conservator.   It is not sufficient simply to offer services.   The department's actions and decision to file for termination of parental rights, must also be reasonable in light of the respondent parent's compliance with the specific steps and demonstrated rehabilitation.   Furthermore, any petition must be supported by fair and accurate factual submissions.   The court finds that the evidence in this case establishes that the department has failed to satisfy either requirement and accordingly, petitioner has failed to meet its statutory burden.

E. Termination of Parental Rights as to Luis P.

The department has alleged Ground A Abandonment and Ground D No Ongoing Parent Child Relationship as to Daisy's father Luis P.

Mr. P. left this country for Ecuador on August 23, 2009.   Daisy was born on September 16, 2009.   Mr. P. has never visited her inquired about her well being, provided financial support or acknowledged her in any way.   The court makes the following findings on the basis of clear and convincing evidence established by the record in this case.

(1) The department was unable to provide any services to the respondent father solely as a result of his unilateral decision to leave this country three weeks before Daisy's birth and his failure to return or communicate with the department since that date.

(2) As a result of Luis P.'s relocation to an unknown address in Ecuador, the Department of Children and Families was not able to make reasonable efforts to reunite Luis P. with Daisy.

(3) Luis P. remains at an undisclosed address in Ecuador since August 23, 2009 and has never appeared.   Therefore, no orders were possible in this case.

(4) As a result of the absence of Luis P. from this country from August 23, 2009 to date, Daisy P. has no bond with him.   She has been in the same foster home since birth and has developed a bond with her foster mother.   She also has a bond with her biological mother with whom she visits on a weekly basis.

(5) Daisy P. was born on September 16, 2009.

(6) Having failed to maintain any contact with or communicate about Daisy P., Luis P. has failed to make any effort to adjust his circumstances, conduct or conditions to make it in the best interests of Daisy P. for her to be placed with him.

(7) As shown by the above facts, Luis P. has not been prevented from maintaining a meaningful relationship with Daisy P. by the unreasonable conduct of the child's mother, by any other person or by his economic circumstances.

The court hereby orders the parental rights of Luis P. to the minor child Daisy P. terminated on Ground A Abandonment and Ground D No Ongoing Parent Child Relationship.

III. RULINGS

Based on the foregoing findings, this court determines, by clear and convincing evidence, that:

1. The petitioner has failed to meet its statutory burden to establish by clear and convincing evidence that the respondent mother would not benefit from rehabilitation and that it made reasonable efforts to reunify the mother with her minor child prior to filing the subject petition.   The Petition for Termination of Parental Rights filed by the Commissioner of the Department of Children and Families (DCF) to terminate the parental rights of the respondent mother Donna E. with respect to the minor child Daisy P. is denied.

2. DCF's motion to approve the permanency plan for Daisy of termination of parental rights/adoption is denied.

3. The parental rights of Luis P. to the minor child Daisy P. are hereby terminated on the grounds set forth above.

BY THE COURT

SOMMER, J.

Sommer, Mary E., J.