IN RE: David G.1 (2011)

MEMORANDUM OF DECISION RE TERMINATION OF PARENTAL RIGHTS

STATEMENT OF THE CASE

In this child protection proceeding the Commissioner of the Department of Children and Families (DCF) has petitioned the court to terminate the parental rights of Dawn G. (mother) and David G. (father) to David G. (child), asserting as to both mother and father the grounds of failure to rehabilitate and prior termination of parental rights to another child.   The petition also alleged an additional ground as to father—lack of an ongoing parent-child relationship.   The petition was filed on May 7, 2010;  service of the petition has been confirmed.

On January 6, 2011, father consented to the termination of his parental rights and trial on the petition as to mother proceeded on that date.   Mother was present and was represented by counsel.   Also present at trial were counsel for the child, a DCF representative and counsel for DCF. DCF presented the testimony of two DCF social workers, and mother testified on her own behalf.   DCF introduced two exhibits.   Counsel for the child fully participated in the trial, but did not call any witnesses or introduce any documentary evidence.

On February 15, 2011, DCF filed a motion to open the evidence.   The motion was granted at a hearing held on March 4, 2011, and additional testimony was taken on that day from the DCF social worker on behalf of DCF and from mother on her own behalf.   On April 4, 2011, mother filed a motion to open the evidence.   On the date of the hearing scheduled to address mother's motion, April 19, 2011, mother did not appear.   Mother's counsel represented that mother was aware of the date and time and the court recessed in order to provide additional time for counsel to attempt to contact mother and/or to accommodate mother's potential late arrival.   Mother did not appear, and upon reconvening, the court denied mother's motion to open.   No additional motions have been filed.

This court has jurisdiction in this matter.   The court is not aware of matters pending in any other court affecting the custody of the child.   There are no claims of Indian tribal affiliation.

FACTUAL EVIDENCE AND SUMMARY OF PROCEEDINGS

Father

Father is twenty-five years old.   He has a significant criminal history record and is a registered sex offender.   In addition to David G., the child who is the subject of this matter, father has two other children—a three-year-old daughter to whom his parental rights have been terminated (Dawn G. is the mother of that child);  and a seven-year-old son from another relationship.   Father is currently incarcerated, and it is expected that he will be released in August 2011.   Father has been incarcerated for the duration of David G.'s young life, and although DCF has arranged for and provided visitation of the child with father, there is no bond between father and his son.

On January 6, 2011, the court determined David G. to be the biological and legal father of the child, David G. On that same date, father, who was represented by counsel, signed and filed a consent to the termination of his parental rights and was thoroughly canvassed regarding his rights and the consent.   The court accepted the consent, and DCF amended its petition to substitute consent as the ground for its petition to terminate father's parental rights.

Mother

Mother is twenty-eight years old.   She was taken in by her paternal grandparents when she was six or seven years of age because of her parents' substance abuse.   Mother admits that drugs have been a problem throughout her life and mother has reported that she started using marijuana when she was twelve years old.   Mother also relates that she began using cocaine at the age of fourteen and that she has “tried almost everything” in the way of drugs.

Since 2006, mother has been involved with the criminal justice system.   On March 24, 2009, for events that occurred in 2006 and 2007, mother was convicted of possession of drugs (a misdemeanor), credit card theft (a misdemeanor), and third-degree larceny (a felony), and she was sentenced to concurrent terms maxing out at two years, suspended, and three years of probation.   On October 5, 2010, for events that occurred in May 2010, mother was convicted for failure to appear (felony) and a violation of probation for which she was sentenced to serve one year in jail.   On October 28, 2010, for events that occurred in June 2010, mother was convicted of the misdemeanors of fifth-degree larceny and third-degree forgery, and sentenced to a six-month jail term.

Mother's first child was born in 2003.   As a result of mother's substance abuse, guardianship of that child was awarded to the maternal grandparents in 2007.   Mother's second child is a daughter born to her and the father in this case in January 2008.   Mother's continued substance abuse and its consequences led to the termination of mother's parental rights as to that child in December 2009.

DCF had been involved with mother and her other children because of mother's history of substance abuse, mental health issues and homelessness.   At the time of David G.'s birth on December 29, 2008 neither mother nor the child tested positive for opiates.   However, less than two months later, in February 2009, mother's test results were positive.   In April 2009, hair test results were positive for cocaine.   DCF filed a neglect petition on April 17, 2009, premised on the test results as well as mother's admission that she had ingested drugs during her pregnancy with David G., and after the birth of the child.   Mother had been living with the paternal grandparents, but, as of April 2009, there was a possibility that this residential arrangement might end because of allegations by the grandparents of mother's theft of money and prescription drugs from the grandparents.   Nevertheless, through the spring and into the summer of 2009, mother continued to live at this home with the infant child, and DCF assisted mother by providing Intensive Family Preservation (IFP) in-home services and also referrals for substance abuse treatment.   Despite this assistance, mother continued to use drugs, and mother admitted that sometimes she did this “excessively.”   On July 15, 2009, mother was discharged from the Morris Foundation relapse prevention group because of mother's non-compliance with the program, including her refusal to submit to a urine screen.   On July 22, 2009, mother was given another opportunity to participate, but she again refused to complete a urine screen.

On July 23, 2009, mother entered a plea of nolo contendere and father “stood silent” as to the neglect petition allegations.   David G. was adjudicated neglected on that day and the infant was permitted to remain in residence with his mother at the paternal grandparents' home under the protective supervision of DCF. That residential arrangement was short-lived.   On the morning of July 27, 2009, DCF invoked its statutory authority to take the child under a 96–hour hold because, not only had mother failed to take a promised urine screen on July 23, but also mother admitted to the IFP worker that she had smoked marijuana, had ingested a bag of heroin, and had been “pill popping.”   An ex parte order of temporary custody was issued by the superior court on July 29, 2009.   That order was vacated on August 7, 2009, when the protective supervision was modified to a commitment of the child to DCF until further order of the court.   DCF agreed to place the child temporarily with a paternal great aunt, and mother agreed to enter an inpatient facility.   If mother remained “sober and clean” for thirty consecutive days, and compliant with the facility's rules as well, DCF agreed to place the infant with mother in the inpatient facility.

Mother then entered the Amethyst House inpatient treatment facility in New Haven, Connecticut.   Amethyst House permits residence of patients' children so long as the patient adheres to programs and is capable of supervised parenting.   However, as of mid-September 2009, when the infant David G. was scheduled to be placed with mother, Amethyst House personnel reported that mother appeared to be constantly “sedated” and nodding off.   Consequently, the facility did not believe that the child could safely be placed with mother.   Throughout her four-month stay at this facility, mother complained of medical issues and visited the hospital emergency room twenty-four times, frequently seeking narcotic medication.   Due to her continued sedation and reported medical difficulties, mother's participation in substance abuse programs at Amethyst House was minimal.   On November 10, 2009, mother was discharged from Amethyst House as an unsuccessful participant in its program.

Although DCF recommended another inpatient program, mother opted for an out-patient program that included methadone, group meetings and individual counseling.   Mother's participation in this regime did not lead to progress in overcoming her chronic substance abuse issues.   She continued to test positive on drug screens, grew less and less consistent in attending group sessions, and by April 2010, she had missed twenty-one days of methadone.   Mother became “whereabouts unknown” to DCF in April 2010, and was not located again until June 2010, when the Department of Corrections notified DCF of mother's incarceration.   Upon her release on July 12 or 13, 2010, mother neglected to contact DCF, and her whereabouts again became unknown until another incarceration on September 13, 2010.   Mother's explanation for her “whereabouts unknown” situations was her knowledge that there was a warrant out for her arrest and she feared that an arrest would negatively affect her visitation.   DCF, however, was not aware of any visitation by the mother with the child during those periods of time.

As of the time of trial, mother remained incarcerated, with a maximum release date of August 2011.   Mother testified, however, that she expected early release as of February 21, 2011, under a program called transitional supervision.   Mother had secured housing, a job, and a sponsor.   Mother's credible testimony at trial was that, since her incarceration in September 2010, she had become drug-free, and that she intended to remain drug-free.   Mother recognized that she had made mistakes, but she believed she had turned the corner, and she was now using coping techniques she had begun to learn in order to avoid drug dependence.

During the argument on DCF's motion to open the evidence on March 4, 2011, the court was apprised that mother had not been released from incarceration as she had expected.   In light of that revelation, the court granted the motion to open and heard additional evidence.   Mother testified that the individual whom she understood had agreed to be her sponsor declined to act in that capacity.   However, mother understood that subsequently she had received approval to be placed in a half-way house, and mother anticipated that her release and such a transition would be taking place within a week.   The court found that evidence to be credible.

The Child

David G. was born on December 29, 2008;  he is almost two and one-half years old.   During David's early infancy, while he lived with his mother at his paternal grandparents' home, mother continued with her substance abuse.   David was adjudicated neglected on July 23, 2009, and returned to reside with his mother under DCF protective supervision.   Four days later, David was taken from his mother by DCF and two days after that the court issued an order of temporary custody.   David was committed to DCF's care and custody on August 7, 2009.   David G. has not lived with his mother since July 27, 2009.   David's first placement was in a relative foster home, and he was then moved to another relative foster home in which his sister lived.   Shortly thereafter David was moved again, this time to a non-relative foster home, where he did well.   David remained in that home until June 2010, when he was placed with his paternal great aunt and uncle and their three children whose ages are eight, eleven and thirteen.   David remains in that home and he is happy, alert and active.   He demonstrates affection and a strong level of comfort in this household.   He is developmentally on target and his medical treatment is up to date, including treatment by a specialist for surgical insertion of tubes for ear infections.   His current relative caretakers would like to adopt David G.

David's visitation with his mother has not been consistent.   Mother would miss scheduled visitation, but mother explained that this was attributable to transportation problems, her illness, or David's illness.   During the “whereabouts unknown” periods, there does not appear to have been any visitation.   Mother's behavior and interactions with the child during visitations that have taken place is reported to be inconsistent.   At times she has been very interactive with him and playing with him in ways that are appropriate for his age.   At other times mother has exhibited frustration because of what the observer has described as inappropriate expectations by mother for the young child.   Mother has also appeared quite sedated during some of her visits, experiencing difficulty in keeping her eyes open, actually falling asleep, speaking very slowly, swaying and otherwise appearing lethargic.   Mother attributes these symptoms to the methadone she was taking for her drug addiction.

ADJUDICATORY FINDINGS AND DISPOSITION as to PETITITONS TO TERMINATE PARENTAL RIGHTS

Termination of parental rights is the complete severance of the legal relationship, with all of its rights and responsibilities, between a child and his or her parent, rendering the child free for adoption.  General Statutes § 17a–93(e).   Because of the natural rights of parents in their children, recognized in the law on a constitutional level, interference with the parent-child relationship cannot be legitimately invoked or acted upon under the law “absent a powerful countervailing interest, protection.”  In re Barbara J., 215 Conn. 31, 44 (1990), citing to Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972).

In General Statutes § 17a–112a, the Connecticut General Assembly has codified the limited circumstances in which there may be consideration by the superior court of a petition by the Connecticut Department of Children and Families to terminate a parent's rights to a child, and the statute also sets forth strict guidelines for decision-making as to the serious and sensitive matter of terminating parental rights.   The statute requires DCF to prove by the very highest civil standard, clear and convincing evidence, that, first of all, DCF has made reasonable efforts to locate the parent, where necessary, and to reunify the parent with the child.   Secondly, DCF must establish, by that same high standard, at least one of the bases of termination set forth in the statute.   Finally, DCF must prove, again by clear and convincing evidence, that termination of a parent's rights is in the best interests of the child.

Reasonable Efforts

In this case, DCF has provided mother with:

in-home services from Intensive Family Preservation assist with parenting and personal issues;

substance abuse evaluation and treatment through various outpatient programs at the Morris Foundation;

an inpatient substance abuse program at the Morris Foundation;

protective supervision;

an inpatient parent/child program at the Amethyst House;

a methadone program at South Central Rehabilitation Center;

individual counseling and group therapy;

parenting classes at Family Services of Greater Waterbury. visitation with her son.

The efforts made by DCF to reunify mother with her son were comprehensive and timely arranged so as to achieve that goal.   The clear and convincing evidence reveals that DCF made more than reasonable efforts to reunify mother with her son.

Termination Bases

The termination-of-parental-rights statute has been construed to require that consideration of termination be separated into two phases.   In the initial adjudicatory phase the court must assess whether one or more grounds for termination exist, and, if that is decided in the affirmative, the court engages in the dispositional phase in which it determines whether termination is in the best interests of the child.  In re Lukas K., 120 Conn.App. 465, 486, confirmed on other grounds, 300 Conn. 463 (2011).

As to any statutory basis it has invoked for termination, DCF must establish, by clear and convincing evidence, that the grounds for same existed at the time of the filing of the termination petition.   Practice Book § 35a–7(a);  In re Daniel C., 63 Conn.App. 339, 357 (2001).   DCF has set forth two statutory bases in its May 7, 2010, petition to terminate mother's parental rights

[T]he child has been found by the Superior Court ․ to have been neglected or uncared for in a prior proceeding ․ (and the parent) 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, such parent could assume a responsible position in the life of the child ․

General Statutes § 17a–112(j)(3)(B)(i);  and

[T]he parent of a child under the age of seven years who is neglected or uncared for has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families;

General Statutes § 17a–112(j)(3)(E).

Parental rehabilitation refers to restoration or development of a parent's ability to serve a constructive, responsible and useful role in the child's life as dictated by the needs of the child.  In re Eden F., 250 Conn. 674, 706 (1999).   As the factual findings set forth in detail above reveal, as of May 7, 2010, despite many attempts on the part of DCF to procure rehabilitative assistance for mother, mother failed to overcome her substance abuse problems.   As discussed throughout this decision, mother's substance abuse issues were so significant that they rendered her unable to care for her young child.   Mother's specific steps, acknowledged and agreed to by her, and ordered on August 7, 2009, required, inter alia, her full participation in substance abuse and parenting programs, her refraining from engaging in substance abuse, her procuring adequate housing and legal income, and her visitation with the child as often as possible.   Mother's attempts to adhere to the steps were sporadic and inconsistent, and revealed a significant lack of commitment.

While the court generally is limited to consideration of events preceding the date of the filing of the termination petition or the latest amendment thereof in deciding whether a statutory basis for termination exists, the court may rely upon post-petition events in evaluating whether a parent's degree of rehabilitation supports a finding that restoration is foreseeable within a reasonable time.  In re Latifa K., 67 Conn.App. 742, 748 (2002);  In re Daniel C., 63 Conn.App. 339, 357 (2001);  In re Stanley D., 61 Conn.App. 224, 230 (2000);  Practice Book § 35a–7.   Mother has invoked this latter premise in asking the court to deny DCF's petition on the basis that mother has been drug-free since she began her latest incarceration, September 2010, though the time of trial.   Mother has come a very long way, and she deserves recognition for her accomplishments.   However, the guiding principle for the court is not whether progress has been made, but whether there has been sufficient and reasonably timely rehabilitation, or the possibility thereof, to facilitate appropriate parenting that suits the particular needs of the child, considering that child's age and needs.  In re Sarah O., 128 Conn.App. 323, 338–39 (2011);  In re Alison M., 127 Conn.App. 197, 206–07 (2011);  In re Emerald C., 108 Conn.App. 839, 853 (cert. denied, 289 Conn. 923 (2008).   The four-month-plus drug-free period is certainly promising, however, David G. is almost two and one-half years old and he has been committed to the care and custody of DCF since he was seven months old.   Considering David's G.'s tender age and developmental stage at the time of the petition (May 2010—he was sixteen months old) with his ongoing needs for continuity and stability, mother's recent, short-term success in overcoming her lifelong substance abuse problem is not sufficient to affect the decision as to termination.

Mother has always had admirable goals and the history of this case reflects that DCF, at times, was as hopeful as mother that there would be a turn-around sooner rather than later.   While the present progress by mother is laudable and continued progress is encouraged, the court cannot and does not find that this accomplishment was made within a reasonable period of time to meet the needs of this young child.   Mother's plea to this court to give her another chance did not fall on deaf ears, however, mother's reform was simply too late.   Furthermore, the promise of continued avoidance of drugs after four months of refraining while incarcerated, as well as the anticipated release from prison and maintenance of a home all remain fond hopes at this time, insufficient to make a finding of a present or anticipated ability in the reasonably foreseeable future to provide consistent day-to-day care, support and permanency.

David G. was adjudicated neglected in a superior court proceeding which took place on July 23, 2009.   Mother's parental rights to her daughter were terminated by the superior court in December 2009.

The clear and convincing evidence reveals that, as of May 7, 2010, mother had not rehabilitated and further establishes that she would not, and did not, do so within a reasonable period of time thereafter, considering the age and needs of her son.   DCF has met its burden of establishing the grounds of its petition under both General Statutes §§ 17a–112(j)(3)B)(i) and 17a–112(j)(3)(E).

Best Interests of the Child

The best interests of a child encompass a complex mixture of considerations including the child's sustained growth and development, as well as his well-being and the continuity and stability of his environment.  In re Jaime S., 120 Conn.App. 712, 733–34 (2010), appeal dismissed, 300 Conn. 294 (2011);  In re Anthony H., 104 Conn.App. 744, 763–64 (2007), cert. denied, 285 Conn. 920 (2008).

The child has no bond, indeed no relationship, with his father.

It is clear to this court that mother loves her son, however, neither that, nor the bond that she claims exists between them, is sufficient to preclude termination if the court determines that termination is in the child's best interests.  In re Rafael S., 125 Conn.App. 605, 612–13 (2010).   The child's visitation with his mother has not been consistent, and because of mother's difficulties, those visits did not always provide for a positive interaction between mother and son.

David G. has not lived with his mother for the majority of his almost two and one-half-year life.   In the first year after he was removed from his mother, the child was moved a couple of times between relatives' homes and then spent a good part of a year in non-relative foster care.   Since June 9, 2010, the child has been residing with his paternal great aunt and uncle and their three children, ages eight to thirteen.   He is a part of their family, and he is reaping all of the benefits not only of the good physical care he receives, but also the familial affection, belonging, and permanency that a child his age needs.   He is thriving in this environment.   He deserves the permanent, consistent and stable environment that is essential for a child.   The assurance of continuation thereof that adoption provides further underscores the court's best-interests findings.   All of these relevant factors direct the court in its conclusion on this important issue.  In re Sarah O., 128 Conn.App. 323, 340 (2011)

The clear and convincing evidence reveals that it is in the best interests of David G. that his mother's and his father's parental rights be terminated.

In accordance with the directives of General Statutes § 17a–112(k), the following factual findings are specifically set forth:

1. The services offered, provided and made available by DCF to mother and the child were timely, appropriate and comprehensive.

2. DCF has made reasonable efforts to reunite the mother and child pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

3. David G. has strong positive feelings and emotional ties to his foster parents and to their children.   While mother loves the child, the extent and quality of her visitation with the child have been limited and not conducive to the child's formation of a strong bond to her.

4. While DCF has provided a multitude of services and opportunities for mother pursuant to the court-ordered specific steps, mother has failed to take advantage thereof and has not complied with the specific steps.

5. David G. was born on December 29, 2008;  he is presently 27 months of age, almost two and one-half years old.

6. Until the fall of last year, despite mother's expressed good intentions, mother did not made sufficient efforts to adjust her circumstances or conduct so as to render it in David G.'s best interests for the child to be in her care in the foreseeable future.   Furthermore, reunification was not assisted by mother's inconsistent and sometimes inappropriate visitation with the child.   Mother's recent drug-free behavior commenced during her latest incarceration, which began in September 2010.

7. There have not been any unreasonable acts, conduct by anyone, and/or economic circumstances of either of the parents which have prevented the maintenance of a meaningful relationship mother with the child.

Having accepted father's consent to termination of his parental rights and having found by clear and convincing evidence that termination of his rights are in the child's best interests, the court grants DCF's petition to terminate the parental rights of father, David G., to the child, David G.

Having found by clear and convincing evidence that:  grounds exist to terminate the parental rights of mother;  that DCF has made reasonable reunification efforts;  and that termination of mother's rights is in the child's best interests, the court grants DCF's petition to terminate Dawn. G.'s parental rights to David G.

The Commissioner of the Department of Children and Families is appointed the statutory parent of the child.   The Commissioner of the Department of Children and Families shall file, within thirty days hereof, a report as to the status of this child and shall also timely file any additional reports as are required by law.

The clerk of the Probate Court which has jurisdiction over any subsequent adoption of this child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Waterbury of the date that such adoption is finalized.

Judgment is entered accordingly.

BY THE COURT,

Constance L. Epstein, J.

Epstein, Constance L., J.