IN RE: Jeathalyn B.1 (2011)

MEMORANDUM OF DECISION RE MOTIONS TO REVIEW PERMANENCY PLANS;  PETITIONS FOR TERMINATION OF PARENTAL RIGHTS;  and MOTION TO REVOKE COMMITMENT

STATEMENT OF CASE

On April 15, 2009, the Commissioner of the Department of Children and Families (DCF) filed a petition to terminate the parental rights of Luz M. (mother) and Jeather B. (father) as to Jeathalyn B, who is presently ten years of age.   The petition asserts that Jaethalyn has been found in a prior proceeding to have been neglected and that both of the parents have failed to achieve a degree of rehabilitation that would encourage a belief that either of them could assume a responsible position in the child's life within a reasonable time considering the age and needs of the child.

Trial was originally set to commence on September 1, 2010, however, DCF's motion for continuance due to scheduling difficulties was granted, with the consent of all of the parties.   Trial on the termination petition went forward on January 28, May 5, 6, and 9, 2011.   Consolidated for trial with the termination petition were three Motions to Review Permanency Plans and the objections thereto, as well as mother's Motion to Revoke Commitment, filed January 7, 2011.

Service on the mother and father has been confirmed.   This court has jurisdiction in this matter.   There are no other known pending proceedings affecting the custody of the child.   There are no claims of Indian tribal affiliation.²

Present at trial were mother and her counsel, father and his counsel, counsel for the child, a DCF representative and counsel for DCF. DCF presented the testimony of nine witnesses—six of the DCF social workers who have been assigned to this case since 2008, a family support therapist, a counselor from a substance abuse residential facility, and a psychologist.   DCF, mother and father introduced numerous exhibits.

FACTUAL EVIDENCE AND PROCEDURAL HISTORY

Background as to Mother

Mother is thirty-eight years of age.   She has three children, Destiny H., who is presently twenty years of age;  Jeathalyn B., who is ten years of age, and Zoraiha, who was born on July 9, 2010.   Mother suffers from depression.   She has a history of mental health problems and of substance abuse.   The records of the Connecticut Department of Public Safety reveal that mother was convicted of the felonies of assault in the second degree and failure to appear in May 2004, and sentenced to five years, with service of 30 months, and two years of probation.

DCF became involved with mother and her children in 2001 due to allegations of educational neglect, physical neglect and sexual abuse.   DCF became involved with mother and her children once again when, on July 2, 2003, the children were removed from their mother's care under a court order of temporary custody premised on DCF's contentions that:  the family was homeless, the children had been left unsupervised by their mother;  and, Destiny had been sexually assaulted by a neighbor of the man in whose apartment mother had been living.   (Destiny's father, Roberto H., was not a resource because he had long been “whereabouts unknown.”   Jeather B., Jeathalyn's father, was not a resource because he was incarcerated.)   The children remained in the temporary custody of DCF until September 9, 2003, at which time they were adjudicated neglected and committed to the custody of DCF. The commitment was revoked on August 9, 2006, and custody reverted to mother, with protective supervision in effect until February 9, 2007.   The protective supervision was extended to August 9, 2007.

DCF continued to be involved with mother after the children's return to her custody in 2006, providing assistance and programs.   As of April 2008, mother was not doing well with her recovery programs.   She admitted that she did not regularly take medication for her bipolar disorder and that she was using crack cocaine.   In addition, mother was experiencing domestic violence problems.   An incident in January 2008, resulted in the imposition by the criminal court of a protective order against father, protecting mother.   In addition, mother advised DCF that, in April 2008, Jeather B. had a knife and had been violent to her.   DCF offered to place mother in a Safe Haven shelter, but mother refused because she was concerned that she might lose her Section 8 housing.

In 2004, mother was incarcerated at the York prison facility and, according to DCF, during a DCF-arranged visit with the children, the older daughter, Destiny, told mother that Jeather B. (Jeathalyn's father) had inappropriately touched Destiny.   After Destiny and Jeathalyn were returned to mother's care in 2006, mother initially took steps to isolate the children from Jeather B., but eventually she allowed him back into her life and the lives of Destiny and Jeathalyn.   Mother's relationship with father has continued—mother gave birth to Zoraiha, her third child, the couple's second child, on July 9, 2010.   At the time of the trial in the spring of 2011, mother, father and Destiny were living in the same household.

Background as to Father Prior to 2008

Jeather B. is thirty-eight years of age.   On January 28, 2011, the court made the finding that Jeather B. is the biological father of Jeathalyn.   Father has three other children, a daughter who is twenty-one years old, and a son who is twenty years old, and Zoraiha, who was born on July 9, 2010.

Father has an extensive criminal conviction record.   In 1991 father was convicted of the misdemeanor of larceny in the sixth degree and reckless endangerment in the second degree.   The sentences imposed were time served and six months, execution suspended, with two years probation.   In 1992, convictions of two counts of the felony of sexual assault in the second degree and of the misdemeanor of reckless endangerment resulted in the imposition of a total effective sentence of eight that resulted in the imposition of a total effective sentence of sixteen years, execution suspended after six years, and five years of probation.   In January 2000, a sentence of one year, execution fully suspended, with a conditional discharge of eighteen months was imposed for conviction of the misdemeanor of possession of marijuana.   In February 2001, father was convicted of assault in the third degree, violation of a protective order and violation of conditional discharge.   The total effective sentence was two years, execution fully suspended, with two years of probation.   The conditional discharge was terminated.   In May 2002, father was convicted of the felony of assault in the second degree and the sentence was five years, execution suspended after thirty months, with three years of probation.   Father was also convicted of violating his probation and the previously imposed probation was terminated.   A January 2005, conviction of the felony of risk of injury to a child resulted in a sentence of one year to serve.   Convictions in November 2008, for the felony of violation of a protective order, as well as the misdemeanors of assault and strangulation, resulted in a total effective sentence of five years, execution fully suspended, with three years of probation, and community service.   Father is registered as sexual offender for the offense of having had sexual relations with a teenager younger than he when father himself was a teenager.

According to DCF, from 2005 through 2008, father did not visit with Jeathalyn.   However, it appears that, when he was not incarcerated, father did indeed see the child because, despite protective orders prohibiting his presence in mother's home, father occasionally visited or stayed overnight.   In addition, father may have seen the child at his mother's home (the paternal grandmother) where his other children resided and where he may have also lived, when not incarcerated.

Background as to the Child Prior to 2008

Jeathalyn was born in 2001 and DCF became involved with her family in that year.   In June 2003, when she was just two years of age, Jeathalyn was committed to the custody of DCF and she was not reunified with her mother until the summer of 2006, when she was five years of age.   During those three years, Jeathalyn made additional moves.   After her initial removal from her mother's home in July 2003, Jeathalyn was in a safe home for about four days.   She was then placed with her paternal grandmother.   In January 2004, however, upon belief that Jeather B. was living in that same home, DCF arranged for Jeathalyn to live with her maternal aunt.   In mid-July 2005, was moved again, this time to a non-relative foster home, where she remained until she was reunified with her mother in the summer of 2006.

During that three-year span, mother and Jeathalyn shared extensive periods of time in visitation and they developed a strong bond.   In addition, Jeathalyn was provided with intensive counseling.   Jeathalyn's visitation with her father, however, was limited.

Jeathalyn is described as a smart and caring child.   However, not surprisingly, in light of her turbulent existence, Jeathalyn has demonstrated defiant and upsetting behavior, for which DCF has provided counseling.

Factual Findings and Procedural History of this Case

In April 2008, Destiny and Jeathalyn were, respectively, seventeen and seven years of age.   On the evening of April 2, 2008, mother left home and did not return.   According to Destiny, mother frequently went out at night, but she would always return soon after she had departed.   Mother had not returned as of the next morning and Destiny contacted Jeather B. Jeather B. notified the police that mother was missing.

A hotline report was made to DCF, and on April 3, 2008, DCF exercised a 96–hour administrative hold of the children and placed them in foster care.   DCF interviewed father at mother's home the day after mother's disappearance and father related that he had visited with mother the night before.   At the time of mother's disappearance, a criminal court protective order was in place, precluding Jeather B. from being in mother's home or having contact with her.

Mother reappeared at about 5:00 p.m. on April 3, 2008, the day after her disappearance.   She was disoriented and was transported by ambulance to a local hospital.   Upon mother's return home the next day, in an interview with DCF, mother reported that she had been abducted by a “friend of a friend” on the night of April 2, and driven to a place in the woods, from which she attempted to return home.   Mother admitted to having smoked crack cocaine with father in her home and about 5 p.m. on the night of April 2, before her disappearance, and she also admitted that the children were in the apartment at the time, albeit in other rooms.

DCF filed a neglect petition and a motion for an ex parte order of temporary custody (OTC) on April 7, 2008, and the latter was granted on the date of its filing.   The OTC was sustained on April 11, 2008.

The social worker who was assigned to this case in February 2004, Cara Chassey, was still assigned to the case as of April 2008.   Ms. Chassey reported that, as of April 2008, the following services were in place for mother:  a referral to Advanced Behavioral Health for substance abuse;  a referral to the Family and Children program, visitation, transportation to appointments, mental health and substance abuse services and a family support team.

April 2008 to November 2008

Tanetra Spadro was the assigned DCF social worker from April 2008, through November 2008.   She reported that Jeathalyn continued to experience problems, including defiant behavior, enuresis, dancing in sexually suggestive ways, and approaching and talking to strangers.   Services offered to mother during Ms. Spadro's tenure were urine screenings, parenting education classes, hair tests at the Morris Foundation, a domestic violence program, and individual counseling.   Mother tested positive for cocaine in September 2008;  did not take advantage of all of the parenting classes;  did not attend any of the domestic violence sessions;  did not take advantage of the individual counseling, and only sporadically visited with Jeathalyn in this period of time.   Father was offered parenting education classes at Family Ties and did attend.   DCF also arranged for individual counseling for father, but he did not attend.   Father was referred to Catholic Charities and two other facilities for substance abuse treatment, however, he did not take advantage of those referrals.   Instead he went to the Morris Foundation, at which mother was treating, despite the existence of a protective order prohibiting this proximity between the two.   During Ms. Spadro's tenure, visitation was scheduled for both mother and father, but both of them missed visits.   When father did not visit, Jeathalyn had no apparent reaction.   However, when mother missed a visit, Jeathalyn would become defiant.   Jeathalyn also refused to attend some scheduled visitation with mother because there had been so many visits missed by mother.

Jeathalyn was adjudicated neglected on November 13, 2008.

November 2008 to June 2009

DCF's social worker on the case changed again in November 2008, when Polly Phillips was assigned.   During Ms. Phillips' tenure on the case, mother was non-compliant with attendance at the Family Intervention substance abuse center.   At Morris Foundation, mother initially did well, and successfully completed an outpatient program, but mother relapsed in March 2009.   Ms. Phillips referred mother for medication management services at Morris Foundation, but mother did not attend regularly and was discharged as a result.   Mother was then referred to Waterbury Youth Services for individual counseling.   Mother completed the intake session, but did not attend thereafter.   Mother did complete individual counseling as to domestic violence at Safe Haven and she also completed the parenting classes at Waterbury Youth Services.   Ms. Phillips reported that, during her work on the case, father did attend some group sessions for substance abuse at Catholic Charities, but not consistently.   In addition he tested positive there for cocaine.   Father was discharged for lack of attendance.   Father was referred to Morris Foundation at which he continued to test positive for illegal drug use.   Father did not attend the domestic violence courses to which he was referred at Catholic Charities.   He did, however, complete the Family Ties parenting education program at Waterbury Youth Services, a program that father entered on his own.

During Ms. Phillips' seven months as the family's DCF social worker, mother and father missed several scheduled visits with Jaethalyn.   Ms. Phillips reported that Jaethalyn was fine during the visits with her mother and also with her father, and separated from each with ease, although Jeathalyn occasionally told the worker that she wanted to go home with her mother.   As to missed visits, Jeathalyn did not show any distress.   DCF also arranged for Jeathalyn to visit frequently with her sister, Destiny.   The sisters' relationship is described as very loving, positive and supportive, and Jeathalyn aspires to be like her sister when she “grows up.” ³  Jeathalyn lived with her maternal aunt from April 2009, until the end of May 2009 (the same aunt with whom Jeathalyn previously had lived in 2004–2005).   Ms. Phillips described seven-turning-eight-year-old Jeathalyn as a “charming child,” but reported that Jeathalyn could also be difficult—breaking into outbursts and tantrums, using foul language, and wetting herself at home and at school.

The petition for termination of parental rights was filed with the court on April 15, 2009.

On June 29 and 30, 2009, Michael Haymes performed a court-ordered psychological evaluation of mother, father and Jeathalyn.   Dr. Haymes found that each of the parents interacted relatively well with the child.   Dr. Haymes found Jeathalyn to be a “strong-willed child” who wanted to be reunited with her parents.   He also concluded that termination of parental rights would not facilitate the child's adjustment to “being able to be successfully adopted into a family outside of her kinship group.”  (Exhibit 6, p. 36.)   While he did not rule out the possibility of a TPR at some time, as of June 2009, Dr. Haymes recommended a long-term, possibly permanent, placement, with a possible goal of adoption.   He also concluded that neither parent, as of June 2009, had acquired an adequate grasp of the child's needs or their roles in satisfying those needs.   Dr. Haymes also did not believe, as of June 2009, that either parent could rehabilitate within a reasonable time to serve a responsible position in the child's life.   Dr. Haymes did not see either of the parents or the child after the June 2009, evaluations.   At trial in 2011, Dr. Haymes' testimony focused, for the main part, on his findings as of June 2009.

June 2009 to August 2010

In June 2009, Alcida Lopes became the family's DCF social worker.   Jeathalyn, then eight years of age, had just been been moved from her aunt's home into a non-relative foster care home.   This was at the aunt's request due to Jeathalyn's challenging oppositional behavior.   Two months later, the foster care family asked that Jeathalyn be moved from its home because of the child's aggressive and defiant behavior.   The next foster care placement also only lasted for two months for the same reasons.   Jeathalyn was then placed in a “safe home” until she was placed in a therapeutic foster home on November 30, 2009.

During Ms. Lopes' watch, mother was in relapse prevention therapy at Morris Foundation, having tested positive for cocaine in June and July 2009.   An inpatient referral at Casa was arranged by DCF, but mother could not attend because she was afraid she would lose her subsidized housing.   In October 2009, another referral was made to Morris Foundation but mother did not go for an intake session until December.   Mother did well until a positive test in February 2010, and that positive testing reoccurred in March 2010.   Mother admitted to a relapse.   In July 2010, mother tested positive for cocaine once again, at which time DCF took one-month-old Zoraiha into its temporary custody.   Ms. Lopes referred mother to Family Ties and Family Services, but mother did not attend.

As to father, referral to Morris Foundation continued and in July 2009, he tested positive for cocaine.   A subsequent referral to Morris Foundation was made.   October 2009, testing results were negative for drugs.   As a result of probation directives, father attended the Griggs Street program in November and then the Kendall House.   By January 2010, father was doing very well in addressing his substance abuse problems.   Probation then arranged for the inpatient program at the APT Foundation in Bridgeport.   Father not only successfully completed this program by June 2010, but was reported to have done an excellent job and the director of the program reported that father was a “role model” for others in the program.   Thereafter, DCF referred father to outpatient relapse prevention and father successfully completed that program in August 2010.   DCF did not make any additional referrals for substance abuse because it believed that father had fulfilled all of his responsibilities and expectations as to addressing his substance abuse, as dictated by the specific steps.

Ms. Lopes' oversight of the case ended in August 2010, because she could not maintain a working relationship with mother after Ms. Lopes initiated the work on the OTC as to Zoraiha.   Ms. Lopes testified that Jeathalyn has a strong bond with her mother, her father, and her older sister.   Ms. Lopes also testified that Jeathalyn had frequently expressed a desire to live with one or both of her parents.

August 2010 to the Present

The next social worker assigned to the case was Matlandy Rosario, who became the family's DCF social worker in August 2010.   Ms. Rosario reported at trial that Jeathalyn has now been in the same therapeutic foster home for over a year and a half and that Jeathalyn is doing well.   The child still exhibits some oppositional behavior, but not as much as previously.   Jeathalyn is in third grade and, although she sometimes has difficulty following directions, she is performing adequately in school and is making friends.

During Ms. Rosarios's tenure, DCF arranged, and mother was able to commence, an inpatient substance abuse treatment program at Amethyst House in New Haven, a program that permitted mother to live at the facility with her infant daughter Zoraiha.   Mother participated in the program from the end of September 2010, through March 2011.   Mother left the program for financial reasons—she could not attend the program and also continue to maintain her housing.   Throughout mother's stay, the drug testing, more than 75 random urine screens, produced results that were negative for controlled substances.   Mother appropriately and adequately cared for her infant daughter and there was a positive interaction between the two.   According to the Amethyst counselor, mother reached a point of progress in the program at which there was nothing more that could be done for mother at Amethyst House.   Mother was successfully discharged from Amethyst, having completed all of the groups and seminars.   Thereafter, mother was enrolled in an intensive outpatient program for ongoing substance abuse and mental health treatment and mother has been compliant with the program.   Under Ms. Rosario's assignment as the family's social worker, mother has also completed additional parenting classes and individual counseling at Catholic Charities.

Despite the negative urine screens while mother was at Amethyst, DCF ordered a hair test which was accomplished on March 1, 2011, at St. Raphael's Hospital, and it was positive for cocaine and benzoylecgonine.   Those results are not consistent with the urine screens that were taking place at that time;  mother adamantly denied the use of any drugs;  and, mother requested another hair test.   DCF did not do any further investigation as to the laboratory or the test results thereafter, however, it did arrange for another hair segment evaluation test to be taken in June 2011, after the close of evidence in this case.   Amethyst did not expel mother from its program after it received the results of this hair screen testing nor did it cite mother for a violation.   The only citations mother received during her six-month Amethyst stay were for two violations of the facility's rule against using a cell phone.

Ms. Rosario confirmed that, since 2009, there have not been any positive drug test results for father.   She also confirmed that, during her tenure, father willingly and enthusiastically participated in parenting classes and completed an anger management program.

Ms. Rosario also testified that father's visits with Jeathalyn reveal affection, good conversation, appropriate games, and appropriate responses by father to the child's questions.   Jeathalyn looks to her father for guidance and there is a bond between them.   The visits with mother also go very well and Jeathalyn has told Ms. Rosario that she wants to continue to have a relationship with her mother.   Ms. Rosario also testified at trial that the contract supervisor who oversees most of the visitation has reported very positively regarding Jeathalyn's visitation with her mother and her father, and also has reported bonding and good interaction between each of the parents and Jeathalyn.   Nevertheless, according to Ms. Rosario, Jeathalyn has been reluctant at times to visit with her father or mother.   Ms. Rosario admitted that the trip for Jeathalyn to visit her mother at Amethyst in New Haven was long—thirty-five minutes one way, and the visits would take place after school or early in the evening.   Ms. Rosario testified that the visitation supervisor also has reported that the foster mother makes plans that conflict with the scheduled visitation with the biological parents.   For example, on certain nights of the scheduled visitation with one of the parents, Jeathalyn will be informed that the foster family plans to have Jeathalyn's favorite dinner that evening, that a relative is visiting, or that a friend of Jeathalyn's had been invited to visit the foster home at the time of visitation.   The visitation supervisor has also witnessed foster mother making inquiries of Jeathalyn about the child's decision whether or not to attend visitation.

The location of the parental visits has been an issue for Jeathalyn—she has indicated she would prefer places other than DCF for visitation and has suggested the foster home, Destiny's apartment, the mall or the park.   In September 2010, DCF was able to arrange a visit at Destiny's apartment.   This was described as an exceedingly happy visit for the child, who had an opportunity to spend quality time with her mother and father, her infant sister, Destiny, and Destiny's boyfriend.   The family spent time playing with one another, preparing a meal together and dining together.   According to Ms. Matlandy, this was a very successful home visit.   After this visit, Jeathalyn expressed the desire to visit three times a week with her family at Destiny's apartment.

Ms. Matlandy testified that she understood that Mindy Solomon, a director at Family and Children's Aid (FCA), objected to the visit at Dentiny's home.   Ms. Matlandy did not know the results of the additional communications that took place between her supervisors and FCA, however, the evidence does not reflect the scheduling of other visits at Destiny's apartment.   The evidence does reveal that Ms. Solomon had concerns because of complaints from the foster mother and because FCA believed the visit at Destiny's home interfered with the therapy that FCA was engaged in with the child.

FCA has been involved with Jeathalyn since 2006, and continues to provide in-home counseling services.   Sarah Davino, a therapist with FCA testified at trial that her work with Jeathalyn proceeds only with the family with whom Jeathalyn is residing, and not with the biological parents—the agency “follows the child.”   Ms. Davino also confirmed that, although Jeathalyn, as of December 2010, continued to state that she would like to go home to her biological family, Jeathalyn would also like to continue contact with her foster family or live with that family if going home were ruled against by the court.   A December 2010, report from this agency also relates “Jeathalyn is able to state what adoption means with some prompting.”

The evidence reveals that the foster family, although it has worked wonders with and for Jeathalyn and most likely loves Jeathalyn very much, has put the child in conflict vis-a-vis her biological family.   The court assumes no malice on the part of the foster parents, nor any intent to harm the child.   Indeed, the visitation impediments may have been premised on a belief that they were in the child's best interests.

ADJUDICATORY FINDINGS AND DISPOSITION AS TO PETITIONS 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 Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972);  See also In re Shaiesha O., 93 Conn.App. 42, 43 (2006).

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.

Termination Basis

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).   In its petition dated April 15, 2009, DCF invoked General Statutes § 17a–112(j)(3)(B)(i), which provides in pertinent part:

[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 ․

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).   The concept encompasses not only whether a parent has developed the ability to manage her own life, but also whether the parent has developed, in a timely manner, the ability to adequately address the needs of the child.   In re Gianni C., 129 Conn.App. 227, 234 (2011).   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.

The evidence reveals that, as of the date of the termination petition, the possibility of the rehabilitation of either of the parents within a reasonable timeframe was grim.   However, each of the parents has demonstrated remarkable progress since that time, and, unlike many of the cases that come before that this court, the parents' progress is not “too little” or “too late.”   Consequently, the court does not find that DCF has established by clear and convincing evidence that the parental rights of mother or of father should be terminated.

Reasonable Efforts

In addition to all of the services provided to mother, to father, and for the child, as described in detail in the factual findings, DCF arranged for visitation of the child with mother, father and Destiny.   DCF also provided bus passes and other transportation to the parents.

DCF has clearly and convincingly established that it engaged in reasonable efforts to reunify mother and child and father and child.   Indeed, largely due to those efforts, the court finds that the possibility of reunification, or a continuing parental connection, exists.

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 her well-being and the continuity and stability of her 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).

Jeathalyn is only ten years of age, but she has lived with many different caregivers in her short lifetime and has not had a permanent, stable living arrangement that she could rely upon to extend indefinitely into the future.   In many such cases, especially if there is a foster-care family to which the child has become attached and which promises to remain in place for the child, it is in the best interests of the child to terminate the parental rights of the biological parents so that the child can have permanency and stability.   However, Jeathalyn is so strongly attached to her mother, father, and older sister, that severance of parental rights would not be in Jeathalyn's best interests and would, instead, be yet one more devastating blow to this child, an event that would not promote the child's comfort and well-being, or an environment for growth and development.   Jeathalyn is also attached to her foster mother and has made tremendous strides under the guidance and love that her foster family provides.   It is clear that, not only is the child dependent, at a minimum, on the care and companionship of her biological family and her foster family, she is also torn between the two.   The child has refused to take advantage of visits with her mother on various occasions.   There are various potential explanations for this refusal, i.e., for several months, mother was residing with her newborn at an inpatient facility in New Haven that required Jeathalyn to be transported, one-way, for at least thirty-five minutes and there were appealing alternatives to such a trip available at the foster home such as a special dinner or a friend's visit.   Nevertheless, Jeathalyn's desire to live with her mother has been repeatedly expressed by the child throughout her commitment to DCF, and that desire is more than a wishful longing, but is, instead, founded on a long-established and very strong bond.   In a letter written to the court in December 2010, ten-year-old Jeathalyn relates:

Dear Judge

I want to go home with, but i still want to live with Evelyn # 2.

I was wondering if you would let mommy sleep over Evelyn's house.

OR if you would let me sleep over Evelyn's house while i live with mommy.

Cause Evelyn is a wonderful step mother.   Love Jeathalyn M.

P.S. Jeane is a wonderful DCF worker.   I hope I still could have her as a DCF worker.

(Exhibit NN, Emphasis in original.)

There are no clear-cut immediate answers in this case that lead to the best potential method of remediation of the damage that has been caused to this child and to construct a custodial environment in which the child would have the best potential for stability, permanency, growth and love.   While Jeathalyn has become bonded to her foster family, Jeathalyn is very attached to her biological family.   Although she has not lived with them for much of her young life, she is a part of that unit and wants to remain a part of that unit, albeit not exclusively.   Legal severance of the biological parents' rights would constitute a major loss to this child.

The foster family has provided for the child, both in the family setting, as well as in school and social activities, physical and emotional support that have helped the child positively address her self-destructive oppositional behaviors.   Disruption of the progress that Jeathalyn has made would be disastrous.   Equally devastating, however, would be the loss to Jeathalyn of her biological parents, to whom she relates so closely and from whom she feels love and support.

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).   DCF has not established that termination of mother's or father's parental rights is in the best interests of Jeathalyn.

MANDATED FACTUAL FINDINGS

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

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

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

3. As is described in detail in the factual findings, Jeathalyn has strong attachments to her biological family.   The foster family is comprised of mother, father, sister and brother.   Jeathalyn has developed an attachment to this family and has made significant progress with the family's and DCF's assistance in quelling her antisocial behavior.

4. Neither mother or father has abided by the court protective orders.   As to the specific steps, DCF has complied with its obligations under these orders, and as is detailed above, mother and father have not fully complied, but have done so in the last one to two years, and made significant progress.

5. Jeathalyn B. was born on February 8, 2001;  she is ten years old.

6. The parents did not initially engage in consistent efforts to rehabilitate, but, as set forth in detail above, they have made progress.   As to visitation with their daughter, both of these parents have maintained a warm, nurturing relationship and the child is dependent upon that.

7. As to whether there has been conduct by anyone that has prevented the maintenance of a meaningful relationship between mother and the child or father and the child, this court is concerned about events that have occurred.   From the evidence presented to this court, it appears that polarization exists.   FAC has been working toward preparing the child for the possibility of adoption and that may very well be what FAC is supposed to be doing at this point.

However, a negative impression is left by FAC's complaint to DCF about the child's visit to Destiny's home in September 2010, premised, in part, on the complaints by the foster parent, without any consideration of the positive effects of that visit for the child.   In addition, the foster mother's enticements presented to the child in lieu of going to parental visitation leave a negative impression.

Economic circumstances have not stood in the way of such relationships.

MOTIONS TO REVIEW PERMANENCY PLANS

The Superior Court for Juvenile Matters at Waterbury (SCJM at Waterbury) had granted the parties' requests to consolidate three motions to review permanency plans and any objections thereto, with the trial on the petition for termination.   The first plan, filed on February 27, 2009, was for termination of parental rights and adoption.   A written objection was filed by mother on March 10, 2009.   Reasonable efforts on the part of DCF to achieve the plan were found by the SCJM at Waterbury on March 4, 2009.   The second plan, filed on January 26, 2010, specified termination of parental rights and adoption.   Reasonable efforts to achieve that plan were found by the SCJM at Waterbury on January 27, 2010.   The third plan, filed on November 29, 2010, listed parental rights termination and adoption.   Mother's written objection was filed on December 6, 2010.

General Statutes § 46b–129(k) governs the approval of a permanency plan and provides that DCF must prove that the plan is in the best interests of the child, taking into consideration the child's health, safety and need for permanency.   The statute provides several alternative plan goals:

(A) revocation of commitment and reunification of the child or youth with the parent or guardian, with or without protective supervision;  (B) transfer of guardianship;  (c) long-term foster care with a relative licensed as a foster parent;  (D) filing of termination of parental rights and adoption;  or (E) another planned permanent living arrangement ordered by the court, provided the Commissioner of Children and Families has documented a compelling reason why it would not be in the best interest of the child or youth for the permanency plan to include the goals in subparagraphs (A) and (D), inclusive of this subdivision.   Such other planned permanent living arrangement may include, but not be limited to, placement of a child or youth in an independent living program or long-term foster care with an identified foster parent.

For all of reasons stated in the foregoing portion of this memorandum, the court finds that the plans for termination of parental rights and adoption is not in Zeathalyn's best interests and her need for permanency.   Accordingly, the court denies approval of the three DCF plans before it.   As is set forth above, reasonable efforts findings have been made as to the first two of the listed plans.   This court makes the finding that DCF engaged in reasonable efforts to achieve the plan filed on November 29, 2010.

A revised plan is to be filed no later than thirty days from the date of this decision, that is, by October 11, 2011, with this court, and a hearing will be scheduled within sixty days as is set forth under Practice Book § 35a–14(d).

MOTION TO REVOKE COMMITMENT

Mother filed a Motion to Revoke Commitment on January 7, 2011.   This motion was filed about half-way through mother's inpatient treatment at Amethyst, and upon mother's approximate three to four months of negative testing.   Upon a finding, by a fair preponderance of the evidence, that the cause for commitment no longer exists, the court may revoke a commitment so long as it also finds that such action is in the best interests of the child.  General Statutes § 46b–129(m).  In this case, the child was committed to DCF on November 13, 2008, upon mother's entering of a nolo contendere plea to denial of proper care.   Father was defaulted.   The underlying causes for the commitment were the abandonment of the child upon mother's disappearance, both parents' substance abuse, and a history of domestic violence.   As of the time of trial father had established that he was well on his way to gaining control of his life, having been drug free for almost two years, having completed successfully several parenting classes and having demonstrated that he has a good relationship with his daughter.   At the time of trial, mother was well on her way to be substance-abuse-free individual, but only for the last approximately nine months of her life, six months of which were in an inpatient facility.   The parents have, indeed come a long way and have eliminated the cause for commitment.⁴

However, this court cannot find that it is in the child's best interests at this time to return the child to the care and custody of the parents.   Assuming the progress of the parents has remained steady, the revocation is warranted.   The court is not convinced that the sudden change from her present living environment would not be in Jeathalyn's best interests.   The child has been back and forth, and in one placement or another, for too much of her life.   Reunification with her parents, in their home, requires a plan of transition and adjustment similar to the one that FCA was working on as to adoption, with assistance in ways in which to address Jeathalyn's behavior problems.

For these reasons the motion to revoke is denied, without prejudice to its resubmission prior to the statutory six months, with a viable plan of transition.

Judgment is entered accordingly.

BY THE COURT,

Constance L. Epstein, J.

FOOTNOTES

FN2. In reviewing the documentary trial exhibits, the court noted that mother had advised DCF, in March 2009, that she is a recognized member of the Tiano Native American Tribe.   This issue had not been mentioned by anyone at trial.   Upon making the discovery of the tribal affiliation claim, the court sent notice to the parties, advising that the issue had to be resolved;  ordered that position statements be filed by July 7, 2011;  and scheduled a hearing date for July 21, 2011, in the event of the necessity thereof.   On June 23, 2011, DCF advised in writing, with a copy to all parties through counsel, that DCF's investigation of the matter revealed that the Tiano tribe is not a federally recognized Native American tribe, and the same is true as to other tribes with similar, but differently spelled, names.   No other counsel responded.   In a notice to all parties, sent July 8, 2011, the court advised that it assumed that all parties concurred that the child is not an “Indian child” and that, therefore, the Indian Child Welfare Act does not apply.   The hearing was cancelled.   Other than DCF, no party has communicated with the court on this issue..  FN2. In reviewing the documentary trial exhibits, the court noted that mother had advised DCF, in March 2009, that she is a recognized member of the Tiano Native American Tribe.   This issue had not been mentioned by anyone at trial.   Upon making the discovery of the tribal affiliation claim, the court sent notice to the parties, advising that the issue had to be resolved;  ordered that position statements be filed by July 7, 2011;  and scheduled a hearing date for July 21, 2011, in the event of the necessity thereof.   On June 23, 2011, DCF advised in writing, with a copy to all parties through counsel, that DCF's investigation of the matter revealed that the Tiano tribe is not a federally recognized Native American tribe, and the same is true as to other tribes with similar, but differently spelled, names.   No other counsel responded.   In a notice to all parties, sent July 8, 2011, the court advised that it assumed that all parties concurred that the child is not an “Indian child” and that, therefore, the Indian Child Welfare Act does not apply.   The hearing was cancelled.   Other than DCF, no party has communicated with the court on this issue.

FN3. Despite the significant familial and other traumas that she has endured, by all accounts, Destiny, who is now twenty years old, is a well-adjusted, hard-working and caring person.   Jeathalyn looks to her as a role model and appropriately so.   Destiny has been proposed as a guardian for Jeathalyn, however, that is not possible at this time because Destiny is not yet twenty-one years of age..  FN3. Despite the significant familial and other traumas that she has endured, by all accounts, Destiny, who is now twenty years old, is a well-adjusted, hard-working and caring person.   Jeathalyn looks to her as a role model and appropriately so.   Destiny has been proposed as a guardian for Jeathalyn, however, that is not possible at this time because Destiny is not yet twenty-one years of age.

FN4. DCF has pressed father's sexual offender registration and the alleged accusations of Destiny as reasons to preclude father from custodial relationship with Jeathalyn.   The registration is for an act father committed when he was a teenager and the allegation regarding Destiny is a hearsay revelation without substantiation.   This court does not find that either of these contentions stands in the way of father's ability to safely care for Jeathalyn..  FN4. DCF has pressed father's sexual offender registration and the alleged accusations of Destiny as reasons to preclude father from custodial relationship with Jeathalyn.   The registration is for an act father committed when he was a teenager and the allegation regarding Destiny is a hearsay revelation without substantiation.   This court does not find that either of these contentions stands in the way of father's ability to safely care for Jeathalyn.

Epstein, Constance L., J.