IN RE: Teanna S. (dob 08/03/08) 1 (2011)

Memorandum of Decision on Petition to Terminate Parental Rights

On January 4, 2011, the Department of Children and Families (DCF) brought this petition to terminate the parental rights (TPR) of Angelika H. and Mark S. to their minor children, Teanna S., who was born on August 3, 2008, and Zari H., who was born on December 22, 2009.   Upon filing of the petition, the court caused a summons to be issued to the respondent parents, in accordance with General Statutes § 46b–129(a),² requiring them to appear on February 3, 2011, at which time both respondents appeared, were advised of their rights, and appointed counsel.   The petitions were assigned for trial before the undersigned judge on July 25, 2011, at which time the mother did not appear for trial and the respondent father submitted his written consent to termination of his parental rights to these children on a form promulgated by the office of the chief court administrator.   As Practice Book § 35a–8 ³ requires that “[a]ll parties except the child or youth shall be present at trial unless excused for good cause shown,” counsel for DCF moved for a default against the respondent mother for her failure to appear for trial, which the court granted pursuant to that same rule.⁴  Counsel for the respondent mother was then excused from the proceedings.

Thereafter, again in accord with P.B. § 35a–8, DCF presented testimony from DCF social workers Stephanie Carvalho and Lisa Butler, offered certain exhibits into evidence, which included the Summary of Facts to substantiate the TPR petition, the TPR social study and two addenda, and two case status reports.   Counsel for the minor child called the foster mother as a witness.   The court also granted the department's motion to take judicial notice of the neglect petition filed on April 19, 2010, and the accompanying summary of facts, certain prior findings, orders, motions, and proceedings.   The court further took judicial notice of all prior orders in the court file, including any specific steps not referred to in the department's motion, and all memoranda of prior court proceedings in the court file.   Counsel for DCF and the minor child urged granting of the petitions in their closing arguments.

The respondent mother does not claim Indian Tribal affiliation.   The court is not aware of any other proceedings pending in any other court regarding the custody of this child, and this court has jurisdiction.   The court has carefully considered the petition, all of the evidence, including the social study and other exhibits, and the testimony presented, according to the standards required by law.   The matter is now ready for decision, and the facts found herein were established by clear and convincing evidence.

ADJUDICATORY DECISION

Trial of a petition to terminate parental rights has two phases, adjudication and disposition.   In the adjudicatory phase of the proceeding, the court must make separate determinations as to reasonable efforts and the statutory grounds for termination.

A

Statutory Grounds for Termination

The TPR petition originally alleged failure to rehabilitate ⁵ as grounds for terminating both respondents' parental rights, but after the court accepted the respondent father's written consent, the court granted the department's oral motion to add a count of consent pursuant to General Statutes § 17a–112(i) ⁶ and the department is no longer pursuing the failure to rehabilitate ground as to him.

To prevail in a non-consensual termination of parental rights case, DCF must prove a statutory grounds for termination by clear and convincing evidence.   See In re Michael B., 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998).   Under Practice Book § 35a–7(a), in the adjudicatory phase of the proceeding, “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 1100 (2008).   In the adjudicatory phase of this proceeding, the court has considered the evidence related to circumstances and events prior to the adjudicatory date, insofar as the allegations pertaining to the respondent mother's failure to rehabilitate.   The court has also considered the evidence and testimony related to circumstances occurring through the close of evidence in July 2011 on the issues of whether the degree of rehabilitation is sufficient to foresee that she may assume a useful role in the child's life within a reasonable time.

B

Reasonable Efforts

Terminations of parental rights under § 17a–112(j) on non-consensual grounds, as has been pleaded here for the respondent mother, requires the court to find whether

There is clear and convincing evidence that DCF has made reasonable efforts to locate the parent;  and

There is clear and convincing evidence that DCF has made reasonable efforts to reunify the child with the parent, unless the court finds that the parent is unable or unwilling to benefit from reunification efforts.7

With respect to the statutory element of reasonable efforts to locate and reunify required for termination of the parental rights of the respondent mother pursuant to General Statutes § 17a–112(j)(1), the court finds by clear and convincing evidence as follows:

(1) Reasonable efforts to locate

DCF made reasonable efforts to locate the respondent mother and caused her to be served with the neglect and TPR petitions.   She appeared and was appointed counsel in both proceeding.   The DCF social worker had contact with her at least several times in the days immediately before the trial of this matter, including three days before trial.

(2) Reasonable efforts to reunify

DCF made reasonable efforts to reunify Ms. H. with her children by providing services to help her address the reasons the children went into DCF care.   The presenting issues had been domestic violence between the parents, the mother's not providing adequate medical care for the younger child, the mother's mental health issues, her lack of knowledge about proper parenting practices, and her failure to take proper care of her children.   To address these issues, DCF made appropriate and timely referrals for domestic violence counseling, mental health therapy, parenting classes and supervised visitations.

C

Adjudicatory Findings1. Father's Consent— § 17a–112(i)

On July 25, 2011, the date these petitions were assigned for trial, the respondent father submitted his written consent to termination of his parental rights to Teanna and Zari on a form promulgated by the office of the chief court administrator.   This court conducted a thorough canvas and found then, and finds here as well, that the respondent father had knowingly and voluntarily consented to termination of his parental rights, with full awareness of the consequences of doing so and after having been adequately and effectively advised by his attorney, and that his attorney had reviewed the consent with him and had been present for the court's canvas of the respondent.   The court thus finds that the petitioner has sustained its burden of proof against the respondent father with regard to this adjudicatory ground by clear and convincing evidence.   The court finds by clear and convincing evidence that the respondent father has knowingly and voluntarily consented to the termination of his parental rights.

2. Failure to Rehabilitate by Mother— § 17a–112(j)(3)(B)

General Statutes Section 17a–112(j)(3)(B) authorizes terminating parental rights to a child previously found to have been neglected or uncared for if the parent fails 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, the parent could assume a reasonable position in the life of that child.  “Personal rehabilitation as used in [§ 17a–112] refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time ․ [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life.”   (Citations omitted;  internal quotation marks omitted.)  In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).

“[I]n assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue.”  (Internal quotation marks omitted.)  In re Amneris P., 66 Conn.App. 377, 384, 784 A.2d 457 (2001).  “Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate;  it is ordered so as not to punish a child by denying [the child] a safe permanent home with proven competent caretakers because [the] biological [father] ․ continues to be incapable of providing such a home for [the child].”  In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), cert. denied, 248 Conn. 902, 732 A.2d 177 (1999).  In re Joseph W., 121 Conn.App. 605, 997 A.2d 512 (2010).  “What is a reasonable time is a factual determination that must be made on a case-by-case basis,” depending on the age and needs of the particular child.  In re Shannon S., 41 Conn.Sup. 145, 154, 562 A.2d 79, aff'd, 19 Conn.App. 20, 560 A.2d 993 (1989).

In conducting the inquiry as to whether the commissioner has proven a respondent's failure to rehabilitate by clear and convincing evidence, the trial court must consider:

the respondent's rehabilitative status as it relates to the needs of the particular child;  and

whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child.

“The statute requires the court to find by clear and convincing evidence that the parent's level of rehabilitation is less than that which would encourage a belief that he or she can assume a responsible position in the child's life within a reasonable time.”  In re Shyliesh H., 56 Conn.App. 167, 173, 743 A.2d 165 (1999).  “Thus, the trial court's inquiry requires the determination of both the present and past status of the child, and obtaining a historical perspective of the respondent's child caring and parenting.”  Id. The crux of the adjudicatory ground of failure to rehabilitate is whether a parent has sufficiently addressed the problems and deficiencies in parenting that led to state intervention in the family so that the parent can, considering the age and needs of the child, assume a responsible position in the child's life, or will be able to do so in the reasonably foreseeable future.   The court must thus determine whether the petitioner has proven, by clear and convincing evidence, that Ms. H. had failed, as of the relevant adjudicatory date and the close of evidence, to achieve the required degree of personal rehabilitation.

Ms. H. was raised by a family friend, Mrs. St. and her husband, who took Ms. H. into their home when she was three days old because her mother was incarcerated.   As a child she visited her mother only a few times in jail.   She told a DCF social worker that she felt lonely and abandoned by her biological history.   She has not seen her mother a few times since becoming an adult but does not have a relationship or connection to either her mother or father.   When interviewed by a DCF social worker, Ms. H. said that her life with the St. family was normal until age 12.   She said that as she got older, Mr. St. became mean to her, tried to touch her inappropriately, sometimes told her to take her clothes off, and began hitting her when she was 15.   She said she ran away a few times, but told the social worker that Mr. and Mrs. St. always located her.   She said that she started running away from longer periods of time, but would return after Mrs. St. called the police.   She told the DCF social worker that she was very unhappy and felt like an outcast and “like she was not part of any family.”   She said she started staying by herself in her room while at home.   At some point she met Mr. S. and became pregnant with Teanna, who was born when Ms. H. was 17 years old and still living with the St. family.   She told the DCF social worker that they stayed there for a few months because she did not have anywhere else to go, but she had to sleep on a couch in the living room while the baby slept in a bed with Mr. and Ms. St. When she described her early history to the DCF social worker, she frequently broke into tears.

Mr. H. then moved in with Teanna's father, Mark S., who was living in his sister's home.   She stayed there a few weeks until a domestic violence incident occurred in August 2009, while she was pregnant with Zari, in which he hit her while she was holding Teanna.   He was arrested for that incident, and she pursued a protective order and took Teanna to a domestic violence shelter to live.   Family Relations notified DCF of this incident, but as Ms. H. appeared to be taking reasonable steps to protect herself, her child, and her pregnancy, DCF closed the case after substantiating Mr. S. for physical neglect.   A month later DCF received an anonymous referral about Ms. H. but when she did not cooperate DCF did not pursue the matter and closed the case.

Zari was born prematurely and weighing only 3.9 pounds.   A hospital social worker notified DCF that Ms. H. had received only limited prenatal care and that the baby was in the intensive care unit with respiratory issues.   The social worker told DCF that Ms. H. had admitted that DCF had closed a case against her because it could not find her, that she knew DCF had been looking for her, and that she had not responded to contacts made by DCF. Although the social worker also told DCF that Ms. H. “presents as ‘a little girl,’ “ and had no necessities for the baby, DCF took no action.

On April 15, 2010, DCF received a call from a pediatrician at the Connecticut Children's Medical Center that Ms. H. had not shown up for an immunization appointment for Zari and had a history of missing other appointments.   The doctor told DCF that she had finally come in when a hospital social worker had called her, but when the baby was seen he looked to be malnourished, underweight and “as if he was almost dead.”   Ms. H. told doctors that the baby would not take a bottle for the previous two days and that she had been using a syringe to feed him three ounces of formula three times a day.   Zari was resuscitated in the emergency room and diagnosed for failure to thrive.

A DCF social worker went to the hospital and interviewed Ms. H. When asked why she had not called a doctor to report that the child had not been eating much the last two days and appeared unresponsive to her, she said it was because she had the appointment at CCMC scheduled for that day.   When asked why she had initially missed the appointment, she said she had overslept while in the Salvation Army shelter where she was staying with Zari. She told the worker that Teanna was staying with Mrs. St. Doctors told DCF that Zari would be hospitalized, had an uncertain prognosis, and there were possibilities of brain damage.   DCF then decided to invoke administrative holds pursuant to General Statutes § 171–101g ⁸ on Zari and, because Ms. H. had frequently in the past made claims that Mr. and Mrs. St. had not taken proper care of her, on Teanna.

On April 19, 2010, the court, Wollenberg, J.T.R., entered orders of temporary custody (OTC) on both children, which were sustained by agreement of both parents four days later by Judge Keller.   On July 6, 2010, after paternity tests determined that Mr. S. could not be ruled out as father of these two children, the court, Dannehy, J., found that he was the biological father of both.   On that same day, the children were adjudicated as neglected, after a plea of nolo contendere by respondent mother and a default against the father, and specific steps were ordered for each parent to regain custody of the children.

One of the goals of the specific steps ordered by the court was for Ms. H. to participate in parenting and individual counseling to address her history of trauma and to learn parenting skills and how to use good judgment.   These were reasonable and necessary goals to establish in order for Ms. H. to regain custody of her children.   She admitted to the DCF social worker how sad and lonely she felt by her history of abandonment by her parents and unhappy adolescence living with the St. family.   Individual therapy would have given her an opportunity to address those feelings and helped her learn to function more successfully as a parent and an adult, but the therapist that she saw briefly at VOICES reported that she lacked good judgment, insight and consistency and had made no progress, and that her prognosis for success was poor.

DCF also referred her to Klingberg Family Centers for parenting education, but when she missed almost half of the classes there she was discharged for noncompliance.   DCF then referred her to the CREC parenting program, but she did not participate in that service.   DCF also referred her to Voices LLC for individual therapy, and although she attended some of her weekly appointments, she also missed numerous sessions and in December 2010 was discharged because of non-compliance.   DCF referred her to the Klingberg Visitation Center for supervised visitations twice a week.   Because she was inconsistent in attending both weekly visits, the frequency was reduced to once a week in February 2011, but even then she missed numerous visits.

Domestic violence was an issue between the parents, and the specific steps directed Ms. H. to participate in domestic violence counseling.   This is an area where she did cooperate, and in December 2010 she completed a program offered by the Klingberg Family Centers Domestic Violence Education/Support Group.   An incident occurred in July 2011, a month following the birth of her third child, however, which suggests that issues of domestic violence still affect her.   Ms. H. went to the home of the man whom she has told DCF is the father of her newborn third child.   That man's mother told DCF that Ms. H. was intoxicated and distraught over the upcoming TPR trial and got involved in a fight with the father of her third child.   The police were called, and she was handcuffed but not arrested.   When she spoke to a DCF social worker the next day, she agreed to a substance abuse evaluation and to participate in counseling.

The law requires that DCF establish, by the standard of clear and convincing evidence, that the parent has not met the required level of rehabilitation on the adjudicatory date of trial, and that at the time of trial the parent's level of rehabilitation does not encourage the belief that within a reasonable time, considering the age and needs of the children, the parent could assume a reasonable position in their lives.  “[A] respondent's rehabilitation must be foreseeable within a reasonable time, given the needs of the particular child.   What is a reasonable time is a factual determination that must be made on a case-by-case basis.”  (Citations omitted.)  In re Michael L., 56 Conn.App. 688, 694, 745 A.2d 847 (2000).   At four years old and less than two years old, Teanna and Zari are young children.   Although old enough to articulate their immediate needs and wishes, they are still too young to protect themselves, to recognize danger to themselves, and to meet their own needs.   They have been in foster care for more than 15 months.   The court ordered specific steps for Ms. H. to take in order to regain custody of her children.   Pursuant to these steps, Ms. H. was referred to services that could have helped her learn to meet their needs and to address her own problems that had interfered with her ability to be a responsible parent, but she would not cooperate.   These two children need sober, competent caretakers, but Ms. H. has not shown that she has learned to meet her own needs, much less theirs.   Domestic violence still occurs in her life.   She still needs counseling;  she still needs to learn the fundamentals of caring for children;  and she still has difficulty managing her own life.   She may have agreed again recently to participate in counseling, but there is no reason to believe or evidence to suggest that this time she will be willing or able to follow through and complete the services she needs.   She has not yet begun to explore the psychological and emotional effects on her of her years of isolation from her own biological parents, her unhappy adolescence, and her sense of abandonment.   She has never shown any willingness to learn adequate parenting techniques.

Children in foster care do not have to wait forever for their parent to become able to take care of them.   Thus, the failure to rehabilitate ground for termination merely requires proof that the parent will not be able to assume a responsible position in the child's life in an amount of time that is reasonable, based on considering the age and needs of the child.   Our courts have long recognized “the deleterious effects of prolonged temporary care.”   In re Juvenile Appeal (84–CD), 189 Conn. 276, 292, 455 A.2d 1313 (1983).   For young children, that harm can be even more damaging.   See In re Alexander V., 25 Conn.App. 741, 748, 596 A.2d 930 (1992), aff'd, 223 Conn. 557, 613 A.2d 780 (1994), recognizing that “[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence ․” Congress has thus mandated that states begin proceedings to terminate parental rights for any child in foster care for 15 of the last 22 months,⁹ as Teanna and Zari have been.   Our state legislature has codified these requirements in General Statutes § 46b–129, which requires DCF to file a permanency plan within nine months after a child has been taken into foster care, the court to hold a hearing on that permanency plan within 90 days thereafter, and DCF to file a TPR petition not more than 60 days after a permanency plan of adoption has been approved.¹⁰  On the evidence and circumstances established at trial, DCF has proven by clear and convincing evidence that Angelika H. has not sufficiently addressed the problems and deficiencies in her parenting that, considering the age and needs of these two children, (i) she was able to assume a responsible position in their lives, either on the adjudicatory date or at the time of trial, or (ii) she will be able to do so in an amount of time that is reasonable.   DCF has proven this statutory ground by clear and convincing evidence.

II

DISPOSITION

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition ․ If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase.   In the dispositional phase, the trial court determines whether termination is in the best interest of the child.”  (Citation omitted;  internal quotation marks omitted.)  In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998).   Unlike the adjudicatory phase, on disposition the court may consider information through the close of the evidentiary hearing.   In the dispositional phase of this case the court has considered the evidence and testimony related to circumstances and events up to and including June 15, 2011, the date upon which the evidence in this matter was concluded.

A.

Required Statutory Findings

In making the dispositional decision in a non-consensual case, “the court is mandated to consider and make written findings regarding seven factors” specified in General Statutes § 17a–112(k).¹¹  See, e.g., In re Tabitha P., 39 Conn.App. 353, 664 A.2d 1168 (1995).  “[T]hose ‘seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered ․ There is no requirement that each factor be proven by clear and convincing evidence.’   “ In re Davonta V., 98 Conn.App. 46–47 (2009).   As required by the statute, the court has considered the statutory factors and makes the following written findings with regard to the department's petition to terminate Ms. H.'s parental rights, and the court has considered these findings in determining whether it is the best interest of these two children to terminate the parental rights of the respondent mother.  In re Quanitra M., 60 Conn.App. 96, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).

1. The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent— § 17a–112(k)(1)

As discussed above, DCF provided timely and appropriate services to Ms. H. to facilitate her reunion with Teanna and Zari.

2. Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended— § 17a–112(k)(2)

As discussed above, the court finds that DCF made reasonable efforts to reunite these children with their mother, pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

3. The terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order— § 17a–112(k)(3)

At the time of the OTC and neglect adjudications, the court ordered the customary specific steps for Ms. H. to regain custody of Teanna and Zari. In particular, the specific steps ordered her to:

Cooperate with recommended service providers for parenting/individual counseling.

Ms. H. attended VOICES LLC for individual therapy and Klingberg for parenting counseling but missed many sessions at both agencies and was eventually discharged from both for non-compliance.   She was also referred to CREC for parenting counseling but did not attend.

Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child(ren)'s court-appointed attorney and/or guardian ad litem.

Ms. H. missed certain appointments set up by DCF.

Keep whereabouts known to DCF and your attorney

Ms. H. complied with this order.

Visit child(ren) as often as DCF permits and demonstrate appropriate parent/child interaction during visits

When offered twice-weekly visits, Ms. H. often missed one of the visits, and when the visits were reduced to once a week, she still missed some visits.   During the visits that occurred, she demonstrated appropriate behavior.

Participate in parenting and individual counseling and make progress toward the identified treatment goals

Ms. H. completed the domestic violence program to which she was referred, but the recent incident shows that domestic violence is still a problem in her life.   She missed so many of the individual mental health therapy sessions and parenting education classes to which she was referred in connection with the child protection proceedings brought for Teanna and Zari that she was discharged from those programs for non-compliance.   She continues to lack adequate insight or judgment.

Accept and cooperate with in-home support services referred by DCF and make progress toward treatment goals

Not applicable.

Cooperate with service providers recommended by DCF for parenting/individual/family counseling, in-home support services, and/or substance abuse treatment

Ms. H. refused to cooperate with the substance abuse treatment or the individual or parenting counseling offered by DCF.

Sign releases authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals and for use in future proceedings before this court

No evidence was offered on this issue.

Secure and maintain adequate housing and legal income

Ms. H. maintained both adequate housing and legal income until she lost her job earlier this year because of missing work due to her third pregnancy.   She lost her apartment due to eviction and moved back into Mrs. St.'s home.

No use of illegal drugs or abuse of alcohol or medicine

There was no indication of any problem on her part in this regard until the incident just before trial of the TPR petitions when Ms. H. was reported to have been intoxicated.

No involvement with the criminal justice system

There was no indication of any problem on her part until just before trial began, when police were called to the home of the father of Ms. H.'s third child after she was in a fight with him.

4. The feelings and emotional ties of the child with respect to his parents, any guardian of his 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— § 17a–112(k)(4)

Teanna lived with her mother for the first 20 months of her life, and has lived in the current foster home for 15 months.   Zari lived with his mother for less than five months after being born, and was placed in the current foster home after his release from the hospital in April 2009.   Little evidence was offered about the relationship of either child to the respondent mother other than that Ms. H. was appropriate during her visitations.   Teanna and Zari are now closely bonded to the foster parents, to whom they look for comfort and protection.

5. The age of the child— § 17a–112(k)(5)

Born on August 3, 2008, Teanna is four years old.   Born on December 22, 2009, Zari is 20 months old.

6. The efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child— § 17a–112(k)(6)

The respondent mother made little effort to adjust her conduct or circumstances to make it in the best interest of these children to be united with her.   She did not visit with them as often as DCF would have permitted.

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— § 17a–112(k)(7)

Neither parent nor anyone else interfered with or prevented reunification of the other parent with these children.   Economic circumstances of either parent have not prevented reunification or a meaningful relationship with their children.

B

Best Interest of the Child— § 17a–112(j)(2)

The final element of the termination of the parental rights statute, § 17a–112(j), requires that, before granting a petition for such termination, the court must find “by clear and convincing evidence ․ (2) that termination is in the best interest of the child ․” The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare.   In determining whether terminating the respondent parents' parental rights would be in Teanna's and Zari's best interest, the court has considered various factors, including their interest “in sustained growth, development, well-being, and in the continuity and stability of [their] environment”;  Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985);  their age and needs, the length and nature of their stay in foster care;  the lack of contact with or relationship with their birth parents;  the potential benefit or detriment of her retaining a connection with their biological mother and father;  their genetic bond to each birth parent;  In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999);  and, with regard to Ms. H., the seven statutory factors and the court's findings thereon.   The court has also balanced the children's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with their biological parents.   See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).

When Zari left the hospital in April 2009, he had been diagnosed with failure to thrive syndrome, and was anemic and developmentally delayed in many areas.   More than sixteen months later, he is now meeting all developmental milestones.   Both children have thrived in the foster home, where they are loved, well cared-for, and happy.   They look to their foster parents, whom they call mommy and poppi, to meet their needs for physical and psychological security.   Their birth mother is not ready now to become their caretaker, and she has shown no prospects of being able to assume that role in the reasonable future.   Their birth father has consented to the termination of his parental rights and did not visit the children regularly after they went into DCF care.   Under these circumstances and upon consideration of all the evidence offered and the legal standards for terminating parental rights, it has been proven by clear and convincing evidence that it is in the best interests of these two children to terminate the parental rights of Mr. S. and Ms. H. and permit them to gain permanence with a family willing and able to assume the role of being their parents.

III

ORDERS OF TERMINATION

The court having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for the termination of each respondent's parental rights and having determined, upon all of the facts and circumstances presented, that it is in the children's best interest to terminate the parental rights of each respondent parent, it is therefore HEREBY ORDERED:

The parental rights of Angelika H. and Mark S. to Teanna S. and Zari H. are terminated.

Pursuant to General Statutes Section 17a–112(m), the Commissioner of the Department of Children and Families is appointed statutory parent for these two children so that they may be placed for adoption.   In securing the adoption, the court urges the department to give first preference to the present foster parents.

On March 1, 2011, the court, Bentivenga, J., approved a permanency plan of TPR and adoption for these two children.   Pursuant to General Statutes § 17a–112(o) and Practice Book Section 35a–14(g), the statutory parent shall file a written report on the case plan for Teanna and Zari, the permanency plan, and the status of the child with the clerk of the Superior Court for Juvenile Matters at Hartford on or before August 31, 2011 at 9:00 a.m. A written status report on implementation of the plan will be due by November 11, 2011.   A motion for review of permanency plan must be filed on or before November 29, 2011, and a hearing on such plan shall be held on January 10, 2012.

Additional reports and/or motions to review the plan will be filed in accordance with state and federal law at least every three months until such time as an adoption of the children is finalized.

The department is also ordered to notify the clerk of the Superior Court for Juvenile Matters at Hartford in writing when any adoption is finalized.

Pursuant to an agreement between the Chief Court Administrator and the Chief Probate Court Administrator, the clerk of the Probate Court that has jurisdiction over any subsequent adoptions of these children is ordered to notify the clerk of the Superior Court for Juvenile Matters at Hartford in writing of the date when said adoption is finalized.

BY THE COURT

STEPHEN F. FRAZZINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN2. General Statutes Section 46b–129 provides, in pertinent part, as follows. “(a) ․ Upon the filing of such a petition, except as otherwise provided in subsection (k) of section 17a–112, the court shall cause a summons to be issued requiring the parent or parents or the guardian of the child or youth to appear in court at the time and place named, which summons shall be served not less than fourteen days before the date of the hearing in the manner prescribed by section 46b–128 ․”.  FN2. General Statutes Section 46b–129 provides, in pertinent part, as follows. “(a) ․ Upon the filing of such a petition, except as otherwise provided in subsection (k) of section 17a–112, the court shall cause a summons to be issued requiring the parent or parents or the guardian of the child or youth to appear in court at the time and place named, which summons shall be served not less than fourteen days before the date of the hearing in the manner prescribed by section 46b–128 ․”

FN3. Practice Book § 35a–8 provides, in pertinent part, as follows:  “(a) ․ All parties except the child or youth shall be present at trial unless excused for good cause shown.   Failure of any party to appear in person or by their statutorily permitted designee may result in a default or nonsuit for failure to appear for trial, as the case may be, and evidence may be introduced and judgment rendered.”.  FN3. Practice Book § 35a–8 provides, in pertinent part, as follows:  “(a) ․ All parties except the child or youth shall be present at trial unless excused for good cause shown.   Failure of any party to appear in person or by their statutorily permitted designee may result in a default or nonsuit for failure to appear for trial, as the case may be, and evidence may be introduced and judgment rendered.”

FN4. On July 29, 2011, counsel for the respondent mother filed a “motion to reopen default judgment at TPR trial.”   The motion alleged that Ms. H. had believed the trial had been scheduled to begin at 2:00 p.m. on July 25 and that she had “arrived late for the TPR trial at about 11:50 A.M.” That motion was scheduled to be heard on Friday, August 12, 2011, at which time the respondent mother did not appear and her attorney withdrew the motion..  FN4. On July 29, 2011, counsel for the respondent mother filed a “motion to reopen default judgment at TPR trial.”   The motion alleged that Ms. H. had believed the trial had been scheduled to begin at 2:00 p.m. on July 25 and that she had “arrived late for the TPR trial at about 11:50 A.M.” That motion was scheduled to be heard on Friday, August 12, 2011, at which time the respondent mother did not appear and her attorney withdrew the motion.

FN5. General Statutes Section 17a–112(j)(3)(B) provides that “The Superior Court. may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ․ that ․ (3) ․ (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b–129 and 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 ․”.  FN5. General Statutes Section 17a–112(j)(3)(B) provides that “The Superior Court. may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ․ that ․ (3) ․ (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b–129 and 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 ․”

FN6. General Statutes Section 17a–112(i) provides as follows:  “The Superior Court upon hearing and notice, as provided in sections 45a–716 and 45a–717, may grant a petition for termination of parental rights based on consent filed pursuant to this section if it finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent's parental rights with respect to such child.”.  FN6. General Statutes Section 17a–112(i) provides as follows:  “The Superior Court upon hearing and notice, as provided in sections 45a–716 and 45a–717, may grant a petition for termination of parental rights based on consent filed pursuant to this section if it finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent's parental rights with respect to such child.”

FN7. General Statutes Section 17a–112(j) provides, in pertinent part, as follows:  “The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a–111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, ․”.  FN7. General Statutes Section 17a–112(j) provides, in pertinent part, as follows:  “The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a–111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, ․”

FN8. Section 17a–101g provides in relevant part as follows:  “(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian.   The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.”.  FN8. Section 17a–101g provides in relevant part as follows:  “(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian.   The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.”

FN9. 42 U.S.C. § 675 provides, in pertinent part, that:  “(5) ․ (E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, ․ the State shall file a petition to terminate the parental rights of the child's parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless (i) at the option of the State, the child is being cared for by a relative;  (ii) a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child;  or (iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home, if reasonable efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to be made with respect to the child ․” See the excellent and thorough discussion of the interplay of federal and state mandates in In re Zion R., Superior Court Child Protection Session at Willimantic, Docket no.   W10–CP06–015070 (August 11, 2008) (Foley, J.), affirmed, In re Zion R., 116 Conn.App. 723, 977 A.2d 247 (2009)..  FN9. 42 U.S.C. § 675 provides, in pertinent part, that:  “(5) ․ (E) in the case of a child who has been in foster care under the responsibility of the State for 15 of the most recent 22 months, ․ the State shall file a petition to terminate the parental rights of the child's parents (or, if such a petition has been filed by another party, seek to be joined as a party to the petition), and, concurrently, to identify, recruit, process, and approve a qualified family for an adoption, unless (i) at the option of the State, the child is being cared for by a relative;  (ii) a State agency has documented in the case plan (which shall be available for court review) a compelling reason for determining that filing such a petition would not be in the best interests of the child;  or (iii) the State has not provided to the family of the child, consistent with the time period in the State case plan, such services as the State deems necessary for the safe return of the child to the child's home, if reasonable efforts of the type described in section 671(a)(15)(B)(ii) of this title are required to be made with respect to the child ․” See the excellent and thorough discussion of the interplay of federal and state mandates in In re Zion R., Superior Court Child Protection Session at Willimantic, Docket no.   W10–CP06–015070 (August 11, 2008) (Foley, J.), affirmed, In re Zion R., 116 Conn.App. 723, 977 A.2d 247 (2009).

FN10. General Statutes Section 46b–129 provides in pertinent part as follows:  “(k)(1) Nine months after placement of the child or youth in the care and custody of the commissioner pursuant to a voluntary placement agreement, or removal of a child or youth pursuant to section 17a–101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan ․ A permanency hearing on any motion for review of the permanency plan shall be held not later than ninety days after the filing of such motion ․ (4) If the court approves the permanency plan of adoption:  (A) The Commissioner of Children and Families shall file a petition for termination of parental rights not later than sixty days after such approval if such petition has not previously been filed ․”.  FN10. General Statutes Section 46b–129 provides in pertinent part as follows:  “(k)(1) Nine months after placement of the child or youth in the care and custody of the commissioner pursuant to a voluntary placement agreement, or removal of a child or youth pursuant to section 17a–101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan ․ A permanency hearing on any motion for review of the permanency plan shall be held not later than ninety days after the filing of such motion ․ (4) If the court approves the permanency plan of adoption:  (A) The Commissioner of Children and Families shall file a petition for termination of parental rights not later than sixty days after such approval if such petition has not previously been filed ․”

FN11. General Statutes Section 17a–112(k) provides as follows:  “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding:  (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent;  (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended;  (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order;  (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties;  (5) the age of the child;  (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 such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child;  and (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.”.  FN11. General Statutes Section 17a–112(k) provides as follows:  “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding:  (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent;  (2) whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended;  (3) the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order;  (4) the feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties;  (5) the age of the child;  (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 such child home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child;  and (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.”

Frazzini, Stephen F., J.