IN RE: Xavier F.1 (2011)

MEMORANDUM OF DECISION

These are actions brought by the Department of Children and Families (“DCF”) seeking to terminate the parental rights of the biological mother and the biological father of Xavier F. (hereinafter referred to as “Xavier F.” or “child”).   The biological mother of the child is Nykeda F. (hereinafter referred to as “Nykeda F.” or “Mother”) and the biological father is Jason H. (hereinafter referred to as “Jason H.” or “Father”).   The court finds that there is no action pending in any other court affecting Xavier F.'s custody and that this court has jurisdiction in this matter.

On 1/11/10, DCF invoked a 96–hour hold and on 1/15/10 filed a Motion for Order of Temporary Custody and a Petition of Neglect on behalf of said child with the Superior Court for Juvenile Matters at Hartford.

On 1/22/10, the Order of Temporary Custody was sustained, and on 4/29/10, the child was adjudicated neglected and committed to the care and custody of the Commissioner of the Department of Children and Families as a neglected child.   A CSC was set for 3/24/10.   Thereafter a trial date of 6/13/11 was set.

On 6/13/11, the date set for trial, the court canvassed Father and found that he knowingly and voluntarily consented to the termination with the assistance of competent counsel.   The court found such termination as to Father was in the best interest of the child by clear and convincing evidence;  a default had previously been entered for Mother for failure to appear.

At the time of the trial on 6/13/11, DCF submitted seventeen exhibits (A–Q).  Petitioner's witnesses were present.   After the State commenced trial, an agreement was reached wherein Father consented to the Petition of Termination of Parental Rights and the Court ordered the default of the Mother.

The ground of this petition for the Termination of Parental Rights as to Mother is Failure to Rehabilitate, C.G.S. § 17a–112(j)(3)(B)(1).   The grounds as to Father were dropped and the ground of consent was substituted at the time of trial.

The court carefully considered all the evidence presented at trial.   The court applied the burden of proof applicable to the termination of parental rights petitions.   Only evidence relevant to the adjudication date was considered as a part of adjudication proceedings on the termination petitions.

I

FACTUAL FINDINGSA. Background/Present Situation/Reasons for Petition

On 1/7/10, DCF received a referral from Middlesex Hospital stating that Mother had given birth to a baby boy, Xavier F. on 1/6/10.   The hospital staff reported that Mother had tested positive for marijuana and that during her pregnancy, she had multiple hospitalizations for alcohol intoxication.

On 1/8/10, Middlesex Hospital staff informed DCF that while Mother was in the maternity ward with her newborn, Xavier F., she had consumed alcohol.   She had passed out holding her child, who had fallen and suffered a suture fracture and a subdural hematoma in the brain.   Mother admitted to consuming alcohol and taking a “benzo” while caring for Xavier F. in her hospital room.

B. Nykeda F., Mother

Nykeda F. was born on 12/8/88 to Brenda F. and Charles M., Jr. She has two siblings, Jason and Jasmine F.

On 4/16/03, Nykeda F. and her siblings were committed to the care and custody of the Department of Children and Families and were placed with maternal grandmother, Carrie F. Nykeda F. quickly became a behavioral problem for her grandmother because she would not abide by house rules or her curfew.   She often ran away from home and did not comply with an ankle monitoring system.

Nykeda F. was placed in a DCF foster home after being removed from her maternal grandmother's care but disrupted from that placement and ran away.   She was then placed at Kids in Crisis in Cos Cob, CT. and thereafter transitioned from Kids in Crisis to Valley Head Residential Facility in Lennox, Massachusetts.   In July 2004, she transitioned to Valley Head Group Home.

In 2005 Nykeda F. was discharged from Valley Head Group Home and the Department placed her with maternal aunt, Sheri F., as a relative placement.   She disrupted from this placement twice due to her runaway behaviors.   DCF placed her in a non-relative foster home that appeared to be committed to Nykeda F. and wanted to assist her in addressing her issues in counseling.   Although referrals were made, Nykeda F. showed very little interest in attending therapy on a regular basis.   She began to slack in academic achievement at school and by December 2006 she began to exhibit runaway and defiant behavior in her foster home.   She eventually displayed behavior consistent with alcohol dependency.   She was referred to Rushford Substance Abuse Program for treatment but was non-compliant with the treatment recommendations.

On 9/20/07, Nykeda F. was discharged from DCF's Adolescent Program due to non-compliance.

Mother became involved with DCF again after the birth of her son, Xavier F. She has unresolved substance abuse and mental health issues.   She attributes her issues to her troubled childhood that consisted of an absent father and a mother who were involved with the criminal justice system and have a history of neglecting Nykeda F. and her siblings.   Nykeda F. confirms, as do DCF records, that she was raised by her maternal grandmother.

Nykeda F. is not employed and does not have a high school diploma.   She has never been married and has no military service.   She has a criminal record dating back to 2008.   She was arrested on 7/14/08 for Prostitution and Failure to Appear and given an 11–month sentence.   On 4/30/09, she was arrested for Breach of Peace and was detained at York Correctional facility until 10/14/09 when she was paroled and placed at CRT Substance Abuse Program.   She was rearrested on 1/22/10 for Violation of Probation and was detained at York Correctional Facility.

C. Father, Jason H.

Jason H. was incarcerated at the time he gave the following information to DCF. He confirmed that he knew of Nykeda F. and that they regularly smoked marijuana and drank alcohol together.   He acknowledged a sexual relationship with Nykeda F. but although he claimed that he did not know she was pregnant and had delivered a child, he surmised that he could be the Father.

Jason H. has a criminal history dating back to 1990.   He has been arrested 11 times for charges consisting of Larceny 6 and 4, Burglary 3, Failure to Appear, Violation of Probation, Public Indecency, Criminal Trespass, Disorderly Conduct and Possession of Marijuana.   Prior to February 2010, Jason H. was released from Bergin Correctional facility on probation.

Jason H. acknowledges that he has a substance abuse problem.   He likes to drink alcohol and smoke marijuana, and was in treatment to address his substance abuse issues in 1999 when he attended Dutcher Hall (90–day program) and Merritt Hall (40–day program) in Middletown.   It is unclear if he completed any of the programs.

Jason H. participated in paternity testing on 2/8/10 with regard to Xavier F. and the results confirmed his paternity.   He has named paternal grandmother as a relative resource.

D. Xavier F., Child

Xavier F. was born on 1/6/10 in Middletown, CT to Nykeda F. She named two possible fathers, Jason H. and David C. Both alleged fathers submitted to paternity testing and the results confirmed Jason H.'s paternity of Xavier F.

On 1/11/10, DCF invoked a 96–hour hold on behalf of Xavier F., citing physical neglect by his mother, Nykeda F. She acknowledged drinking a large quantity of vodka and taking prescription medication while holding Xavier F. in the maternity unit of Middlesex Hospital.   She admitted to passing out and dropping Xavier F. on the floor.   He suffered a suture line fracture and a subdural hematoma in the brain due to the fall.   Xavier H. was placed in a licensed DCF foster home.

Xavier F. has done well in his foster care placement.   He has been medically cleared of any lasting effects from his fall while in Mother's care.   He has a good appetite and appears to be meeting all of his developmental milestones appropriately.

E. Present Situation

As of 9/21/10, Nykeda F. left the ADRC Substance Abuse Intermediate Residential Program and was whereabouts unknown.   On 10/18/10, she was incarcerated at York Correctional Facility due to Assault 1 charges.   It was reported that she had stabbed a 55–year–old man four times in the abdomen and chest while under the influence of alcohol.   She was incarcerated from October 2010 until 4/19/11.

On 4/18/11, the DCF social worker received correspondence from Mother.   She provided verification that she had begun attending AA on 1/6/11 at York Correctional facility once a week from 6:45–8:15 pm.   She also provided her schedule for a substance abuse treatment program with which she was involved.   DCF has been unable to verify Mother's completion of a substance abuse treatment program while incarcerated.   She provided verification that she participated in GED classes at York CI Education that began on 2/18/11.

Mother has not visited with her child since February 2011.   DCF scheduled a visit for 3/17/11, but due to the facility's locked down status, the social worker had to reschedule for 3/29/11.   On 3/29/11, DCF was unable to conduct the scheduled visit and it was rescheduled for 4/25/11 but in the interim Mother was released from jail on 4/19/11.   On 4/20/11, DCF received a voice mail from Nykeda F. informing them that she had been released from prison and was residing at Mercy Housing for a 90–day women's program and that she would like to visit with her child.   DCF contacted Nicole Jackson, at Mercy Housing Women's Program in Hartford and was informed that Nykeda F. had resided at Mercy Housing for a very short time and her whereabouts was unknown.

Mother's current whereabouts are unknown to the Department.   She has failed to contact DCF to request visits or ask about the welfare of her child.

Father has been incarcerated since March 2010.   He was recently moved from Gates Correctional facility in Norwich, which was closed, to Bergin Correctional Institution in Mansfield, CT. On 8/19/10, he was sentenced to two years of incarceration and his maximum release date is 3/28/12.   He was denied parole and will need to complete his sentence.   Due to his lengthy incarceration he is not in a position to care for Xavier F. and has informed DCF that he would like paternal grandmother to gain custody of Xavier F.

Father has been encouraged to participate in services during his incarceration at Gates Correctional Facility.   On 11/10/10 he completed a parenting program “Embracing Fatherhood Program” and on 4/29/11 he completed a Tier 3 inpatient substance abuse program.

In October 2010 DCF began providing Father with one-hour monthly visits with Xavier F. He did not visit with Xavier from 3/31/10 through 10/8/10 as he reported that he did not feel it was in the best interest of the child to visit with him at the Hartford Correctional facility.   He wanted to be in a stable correctional institution before he began visitation.   Since his move to Bergin Correctional Institution, Father has been visiting with Xavier F. once a month for one hour.   He is appropriate with the child and is able to meet his needs during the visits.

Xavier F. is an 18–month–old biracial boy.   He has been placed in a DCF Licensed Foster Home since birth (1/11/10) and has been doing well in his placement.   He appears very bonded to his foster parents who have been providing him with all of his emotional and physical needs.   They are willing to adopt him should be become free for adoption.

Xavier F. appears to be developmentally on target and has met his milestones without difficulty.   He is also up-to-date medically.

Paternal grandparents and siblings of Xavier F. visit him weekly for two hours.   Visitation is held at the home of paternal grandparents and is supervised by DCF. The visits have progressed well and there is a clear bond between Xavier F. and his paternal grandmother and two half siblings.   If they are able to adopt him, the foster parents are willing to permit his paternal grandparents to continue their involvement in the child's life.

Mother has identified Xavier F.'s maternal great aunt and Father has identified paternal grandmother as placement resources but DCF is unable to license any of the relatives as there are license barriers.   There are no other viable placement resources as identified by the parents.

II

TERMINATION OF PARENTAL RIGHTS ADJUDICATION

The court must determine whether there is clear and convincing evidence that a pleaded ground exists to terminate parental rights to Xavier F. as of the date of the filing of the petition.

A. Reasonable Efforts Finding

Unless a court has found in an earlier proceeding that efforts to reunify are no longer appropriate, in order to terminate parental rights DCF initially must show by clear and convincing evidence that it “has made reasonable efforts to locate the parent and to reunify the child[ren] with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts.”  C.G.S. § 17a–112(j)(1).  “Reasonable efforts means doing everything reasonable, not everything possible.”  In re Jessica B., 50 Conn.App. 554, 566, 718 A.2d 997 (1998).

Reasonable efforts to reunify Xavier F. with Nykeda F. and Jason H. are no longer appropriate because the parents have been unable to provide a safe environment for their child.   Mother is a chronic substance abuser and has a history of becoming sober and then relapsing.   Her chronic substances abuse is a contributing factor in her inability to parent her child.   Father's voluntary criminal behavior renders him unavailable for his child.

The parents are unwilling or unable to benefit from efforts because Mother has failed to successfully address her substance abuse and mental health issues despite being offered services.   Father remains incarcerated at Bergin Correctional Facility and his maximum release date is 2/28/12.

DCF has been involved with this family since 2010.   The presenting problems with this family are substance abuse, mental health issues and criminal involvement.

The following reasonable and active efforts were made to prevent removal and/or reunify the child with his Mother, Nykeda F.

Case management services;

Substance abuse treatment at ADRC and Coventry House;

Referral for housing assistance at The Connections, Supportive Housing Program;

Transportation;  and

Visitation with child.

The following reasonable and active efforts were made to prevent removal and/or reunify the child with his Father, Jason H.

Case management services;

Substance abuse treatment at The Connections in Middletown;  and

Visitation with child.

B. Grounds for Termination:  Failure to Rehabilitate—General Statutes § 17a–112(j)(3)(B)(1) as to Biological Mother, Nykeda F.

The Commissioner has alleged as a ground for termination that Mother and Father have failed to rehabilitate themselves after their child had been adjudicated as neglected.   This ground for termination, based upon a prior adjudication of neglect and a failure of personal rehabilitation, is clearly articulated in our statutes.  Conn. Gen.Stat. § 17a–112(j)(3)(B)(I) states in part that:

[t]he Superior Court ․ may grant a petition [to terminate parental rights] if it finds by clear and convincing evidence that ․ the child under the age of seven years ․ has been found by the Superior Court ․ to have been neglected ․ and the parent has failed to achieve such 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.

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 find, by clear and convincing evidence, that the level of rehabilitation [they] have achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [they] can assume a responsible position in [their] child's life.”  (Citations omitted;  internal quotation marks omitted).  In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999).  “ ․ [I]n assessing rehabilitation, the critical issue is not whether the [parents have] improved [their] ability to manage [their] own life, but rather whether [they] have gained the ability to care for the particular needs of the child at issue.”   (Internal quotation marks omitted.)  In re Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000).   See also In re Ashley S., 61 Conn.App. 658, 665, 769 A.2d 718, 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001);  In re Alejandro L., 91 Conn.App. 248, 259, 881 A.2d 450 (2005).

Whether the age and needs of the child would support allowance of further time for the parents to rehabilitate must also be considered.  In re Luis C., supra, 210 Conn. 157, 167–68, 5545 A.2d 722 (1989).   The reasonableness of the time period within which rehabilitation is sought to be accomplished is a question of fact for the court.  In re Davon M., 16 Conn.App. 693, 696, 548 A.2d 1350 (1988).   Also, in determining whether further allowance of a reasonable period of time would promote rehabilitation, a court can consider efforts made since the date of the filing of the petition to terminate parental rights.  In re Sarah M., 19 Conn.App. 371, 377, 562 A.2d 566 (1989).

Several aspects of the clear and convincing evidence in this case compel the conclusion that Nykeda F. has yet to achieve a sufficient “level of rehabilitation ․ 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 Sarah Ann K., 57 Conn.App. 441, 448, 749 A.2d 77 (2000).   See In re Alejandro L., 91 Conn.App. 248, 259, 881 A.2d 450 (2005);  In re Ashley S., 61 Conn.App. 658, 665, 769 A.2d 718, cert. denied, 255 Conn. 950, 769 A.2d 61 (2001).   The credible evidence in this case, presented through the TPR social study and exhibits, clearly and convincingly establishes that Nykeda F. has not achieved C.G.S. § 17a–112(j)(3)(B)(1) rehabilitation.   The court credits the DCF reports which show that Nykeda F. has been unable to achieve her rehabilitation.

Ground B1—Failure to Rehabilitate as to Xavier F. by Biological Mother, Nykeda F.

On 4/29/10 Xavier F. was adjudicated neglected in the Superior Court for Juvenile Matters at Hartford.

At the time of the adjudication, the presenting problems were lack of housing and employment, unaddressed mental health and substance abuse issues, and ongoing criminal involvement.

Specific steps ordered by the court on 4/29/10 to facilitate the return of Xavier F. to Nykeda F.'s care have not been complied with.  (See Ex. I.)

Mother will not be able to assume a responsible position in the life of her child within a reasonable time period.   She was in the care of the Department from 2003–2007.   She has a history of defiant and runaway behaviors during her childhood and in December 2006, displayed behaviors consistent with alcohol dependency.   She was referred for substance abuse treatment but was not compliant with treatment recommendations.

Nykeda F. became involved with DCF again after the birth of her son, Xavier F. She has a criminal record dating back to 7/14/08 when she was arrested for Prostitution and Failure to Appear and was given an 11–month sentence.   On 4/30/09 she was arrested for Breach of Peace and was detained at York Correctional facility until November 2009.   On 10/14/09, Mother was placed on parole and transferred to the CRT Substance Abuse Program.   She was rearrested on 1/22/10 for violation of probation and was detained at the York Correctional facility until March 2010.   As of 10/18/10, Nykeda F. was incarcerated at York Correctional facility due to Assault 1 charges and was released on 4/19/11.

Mother has unresolved substance abuse and mental health issues which greatly impact her present and future ability to safely parent her child.   Xavier F. is a 18–month–old child who has been with his current foster parents since his discharge from the hospital on 1/11/10.   He is thriving in this placement and appears bonded to his foster parents who have been providing for all of his physical and emotional needs.   They have expressed a desire to adopt Xavier F. should he become free for adoption.   He is in need of a parent who is competent, stable and able to meet the daily needs of a developing child.

Summary of Adjudicatory Findings

This court has found that the Commissioner has proved the following adjudicatory grounds by clear and convincing evidence:  (1) that the biological Mother, Nykeda F., has not maintained an ongoing parent-child relationship with the Xavier F.

Father consented to the termination of his parental rights in open court.   He filed written consent.   This court found that Father voluntarily and knowingly consented to the termination of his rights, having received the advice and assistance of competent legal counsel and having understood the consequences of his actions.   His consent was accepted by this court.

The court finds that notice has been given in accordance with the Connecticut General Statutes and the Practice Book.

The court took jurisdiction in this matter;  there is no pending action affecting custody of the child in any other court.

The petition has been amended to allege as the sole ground for termination of the Father, his consent to the termination.

The court having read the verified petition and the social studies, made the following findings by clear and convincing evidence.

Adjudication. The Father has consented to the termination of his rights to his child and the consent was accepted by the court.

No findings are necessary to be made pursuant to Conn. Gen.Stat. § 17a–112 with regard to the Father due to his consent.

III

DISPOSITION

Except in the case where termination is based on consent, if grounds have been found to terminate parental rights applying the appropriate standard of proof, the court must then consider whether the facts as of the last day of trial establish, by clear and convincing evidence, after consideration of the factors enumerated in C.G.S. § 17a–112(k), that termination is in the child's best interest.   If the court does find that termination is in the child's best interest, an order will enter terminating parental rights.

A. C.G.S. § 17a–112(k) Criteria

The court has found by clear and convincing evidence that the statutory grounds alleged by DCF for the termination of parental rights have been proven.

Before making a decision whether or not to terminate Nykeda F.'s parental rights, as she did not consent [but rather a default plea was found by the court], the court will consider and make findings on each of the seven criteria set forth in C.G.S. § 17a–112(k).  In re Romance M., 229 Conn. 345, 355, 641 A.2d 378 (1994).

These criteria and this court's findings, which have been established by clear and convincing evidence, are as follows:

1. “The timeliness, nature and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent.”

Mother's concern and interest in her child is non-existent and she has not presented herself as a resource for the child in order for DCF to assist her in securing the appropriate services.   It is unlikely that she could assume a responsible position in the life of the child in the foreseeable future.

2. “Whether DCF has made reasonable efforts to reunite the family pursuant to the Federal Children Welfare Act of 1980, as amended.”

Mother is unwilling or unable to benefit from reunification efforts in that her whereabouts and interest is generally unknown and she has failed to become involved in the life of the child.

3. “The terms of any court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all the parties have fulfilled their obligations of such order.”

Specific steps were ordered by the Court on 4/29/10 and Mother has not complied with those steps.

4. “The feelings and emotional ties of the child with respect to his 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 child has no positive feelings towards his Mother but appears bonded to and has significant emotional ties with his current foster parents with whom he has lived almost exclusively since shortly after his birth.

5. “The age of the child.”

Xavier F. (DOB 1/6/10) is eighteen months old.

6. “The efforts the parent has made to adjust such parent's circumstances, conduct or conditions to make it in the best interest of the child to return to such child's 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 that 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 finds by clear and convincing evidence that the parents have not made realistic and sustained efforts to conform their conduct to minimally acceptable parental standards.

The clear and convincing evidence indicates that they have refused to cooperate with DCF or programs presented.

The court finds, by clear and convincing evidence, that the parents have not made the changes necessary in their lifestyles that would indicate that they would be safe, responsible and nurturing parents for Xavier F. To permit the child to return to the parents' care would compromise the safety of the child.

7. “The extent to which a parent has been prevented from maintaining a meaningful relationship with the child 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.”

This court finds by clear and convincing evidence that no reasonable conduct by DCF, foster parents, the Department of Corrections or third parties prevented Nykeda F. or Jason H. from maintaining a relationship with Xavier F., nor did their economic circumstances prevent such relationship, although the limitations and restrictions inherent in the foster care system remained in effect.

B. Best Interest of the Child

Termination of Parental Rights is in the best interest of Xavier F. as to his parents.   Father consented to the Termination of his Parental Rights on 6/13/11.

Given the age of the child, the child's need to have his individual emotional and educational needs met, his need to have a permanent and stable home, his need to be raised in a nurturing and stable home, Nykeda F. and Jason H. cannot, within a reasonable period of time, assume a responsible position in his life.

Mother has a history of moral issues, criminal issues and substance abuse issues and has not adequately addressed the issues which led to the removal of the child and she has not addressed her other issues to an extent necessary to reunify with her child.

Mother has shown a lack of interest or ability to care for the child to the extent that she has no ongoing relationship with the child.

Since birth, Xavier F. has been placed in a DCF licensed foster home where he has remained.   He is thriving in his current foster home placement and has formed a strong attachment to the family seeking them out to have his needs met.   His foster parents are committed to him and have expressed their willingness and desire to adopt him should this become an option for them.

Xavier F. is an eighteen-month-old child who is in need of a responsible and sober caregiver who can meet his basic needs in a timely manner and provide him with permanency and stability.

The court finds by clear and convincing evidence that it is in Xavier F.'s best interest for Termination of Parental Rights to enter with respect to Nykeda F., his biological Mother and Jason H., his biological Father.

IV

CONCLUSION

The court, having considered all statutory considerations and having found by clear and convincing evidence that grounds exist for termination of parental rights, further finds upon all the facts and circumstances presented, that it is in Xavier F.'s best interest to terminate the parental rights of Nykeda F., the biological Mother and Jason H., the biological Father of the child.   Accordingly, it is ordered that their parental rights to Xavier F. are hereby terminated.

It is further ordered that the Commissioner of the Department of Children and Families be appointed the statutory parent for the child for the purpose of securing an adoptive family and a permanent placement for the child.

The statutory parent is ordered to file with the court the appropriate written reports, required by state and federal law, which show the efforts to effect the permanent placement of this child.

BY THE COURT,

WOLLENBERG, J.

Wollenberg, William L., J.T.R.