IN RE: Matthew D.1 (2011)

MEMORANDUM OF DECISION

This matter comes to the court by way of petitions filed pursuant to C.G.S. § 17a–112 et seq., dated January 11, 2011, filed by the Commissioner of the Department of Children and Families (DCF) seeking to terminate the parental rights (TPR) of Sarah B. (mother) and Aaron B. (father) to their son Ethan, born September 8, 2008, and Anthony A. (father) to their son Jayden, born December 12, 2002.   The petitions also seek to terminate mother's parental rights to her son Matthew, born May 6, 1999.   Father of Matthew is deceased.   All three petitions allege that the children have been found in a prior proceeding to have been neglected or uncared for and mother and Aaron B. (father of Ethan) have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the ages and needs of the children, they could assume a responsible position in the lives of the children.  (C.G.S. § 17a–112(j)(3)(B)(i).   As to Anthony A. (father of Jayden), the petition alleges that Jayden has been abandoned by father in the sense that father failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.  (C.G.S. § 17a–112(j)(3)(A).)

The case was tried to the court on September 28, 2011.   The court heard testimony from Dr. David Mantell, Ph.D, Lauren Cardonne (United Services, Inc.), Maria Sayles (United Services, Inc.) foster father (name and address under seal) and Kerri Brown (DCF social worker).   Twenty-four items were entered as full exhibits in the trial.

Previously, mother waived the advisement and any defects of service on February 8, 2011.   Mother was present with counsel for the entire trial.   Mother is a member of the Cherokee Nation.   Aaron B. was defaulted for failure to appear on May 17, 2011 and Anthony A. was defaulted for failure to appear on April 5, 2011.   Neither father appeared for trial.   There is no other proceeding in any other court regarding the custody of Matthew, Ethan or Jayden.   This court has jurisdiction.

Procedural History

On July 20, 2009, DCF filed petitions alleging that Matthew, Ethan and Jayden were being denied proper care and attention, physically, educationally, emotionally or morally and/or the children were being permitted to live under conditions, circumstances or associations injurious to well being.   At the same time, DCF also filed a request for and received an order of temporary custody (OTC) on all three children.   On July 24, 2009, mother and Aaron B. were advised of their rights, service was confirmed and the OTC was sustained.   The matter was continued for plea on September 22, 2009 for Anthony A., who did not appear and he was defaulted for failure to appear.   On December 17, 2009 and January 5, 2010, mother and Aaron B., respectively, entered pleas of nolo contendere and the children were adjudicated neglected.   Disposition was stayed until the Cherokee Nation could locate a viable foster placement in Oklahoma.   On February 25, 2010, the court found that the tribe did not have a viable placement for the children and the matter was set down for a neglect trial.   On April 15, 2010, the court granted father's motion for an interstate compact in Oklahoma.   On May 12, 2010, the court accepted the parents' consent to commitment through their attorneys and defaulted both mother and Aaron B. for failure to appear.   The children were committed to DCF with the understanding that the Cherokee Nation has an interest in the case.   The court also noted that the Cherokee Nation filed a report and agreed with commitment of the children as noted below.   On May 14, 2010, DCF filed a motion to review permanency plan for reunification with mother which was approved on June 22, 2010.   On January 11, 2011, DCF filed petitions for termination of parental rights which is the subject matter of this memorandum.

Finding of facts:

All facts found herein are established beyond a reasonable doubt unless otherwise noted relating to an individual fact.²  Mother is a member of the Cherokee Nation, headquartered in Tahlequah, Oklahoma.   Matthew is an enrolled member and Jayden and Ethan are eligible to be enrolled.³  Although this nation originally intended to take jurisdiction over this matter the intended placement did not become available.   The nation's position and support for it are expressed in Exhibit 10, part of which is noted as follows:

“It is in my opinion, based upon my knowledge of Indian culture and my personal knowledge of this case, that continued custody of the children by the parents, Sarah B and Aaron B is likely to result in serious emotional or physical damage to the children due to failure by both parents to correct the conditions that led to the children's removal.   The Cherokee Nation respectfully recommends:

That the Court make a finding beyond a reasonable doubt that continued custody would likely result in serious physical or emotional damage to the child and that active efforts were made.

That the Court makes a finding that there is good cause to deviate from ICWA placement preferences due to the fact that there are no appropriate extended family members available for placement, Cherokee Nation does not have an adoptive placement available for placement of all 3 children at this time, and no other Native homes were found.   It is in the best interest of the children to be placed together in their current placement.” 4

The children were adjudicated neglected on December 17, 2009.   Mother and father of Ethan signed specific steps ⁵ on July 24, 2009, and mother was told by the court that these steps were to be substantially accomplished within a reasonable time so that she could reunify with her children.   At the time all parties were living in Connecticut.   Aaron A., father of Ethan was an enlisted member of the armed services of the United States Navy, stationed in Connecticut.  (All references to “father” in this section refer to Aaron A., father of Ethan.   As of the date of trial he was married to mother.   Father of Matthew, Christopher B., died January 2, 2002.   Father of Jayden, Anthony “Tony” A., has played no role in the lives of any of the children.)   At the time of the adjudication of neglect the presenting problems of mother and father were many:  unaddressed mental health issues, substance abuse, parenting skills, domestic violence, resource management, inadequate housing (after leaving the Navy) and criminal involvement.   Mother self-reported her diagnosis as Bi–Polar and Depression.⁶  There was a need to address the above issues from the beginning, on July 20, 2009, when the original order of temporary custody was signed following a “96 hour hold” taken by DCF for all three children.   The local police had advised mother not to allow her six-year-old son to wander the neighborhood unescorted and not to allow him to enter a specific residence where he had engaged in inappropriate activities not 24 hours before she let him wander again.   When the police arrived they arrested both mother and father charging them with Risk of Injury to a Minor.   The child had wandered farther than a mile away, and to the restricted house.   Both parenting skills and mental health were clearly an issue.   Mother also acknowledged substance abuse issues.   She reported that in April 2009, she engaged in smoking marijuana laced with crack cocaine.⁷  She completed a hair toxicology test on April 22, 2009, which revealed positive readings for opiates on all three panels.⁸  She reported the use of prescription painkillers and acknowledged that she used these painkillers for reasons other than their intended use.   She reported that she likes the way her psychotropic medications make her feel.   She obtained numerous prescriptions for pain medication for various medical ailments during the period she was in Connecticut.⁹  Mother and father came to Connecticut in August 2008, when he was assigned by the Navy to the Groton Navy Base. He separated from the Navy in December 2009, with a less than honorable discharge as part of a plea bargain rather than facing criminal charges which implicated him and mother in a crack cocaine drug ring on the Navy base.¹⁰  Later father claimed that it was mother's fault as he brought her to Norwich to purchase crack cocaine which he acknowledged she used “on two or three occasions” while living in Connecticut.

The taking of the children by DCF under the OTC occurred on July 20, 2009.   Prior to this mother and father had signed a safety agreement on June 4, 2009, wherein mother promised not to leave the State of Connecticut alone with the children as there were concerns about her mental health stability.   On June 13, 2009, DCF was advised that she had left Connecticut with the children and without father, headed for Oklahoma, to avoid DCF. En route she suffered a serious panic attack and had to entrust the care of Jayden and Ethan to Matthew, age ten years and one month.   Ultimately they returned to Connecticut.   On January 5, 2010, mother and father left Connecticut permanently to live in Oklahoma without the children who were in the care of DCF. They did this knowing full well after discussions with DCF workers that such would seriously impede efforts to reunify with the children.

Mother's and father's efforts to comport with the orders of the specific steps ¹¹ began July 24, 2009, and ended in Connecticut on January 5, 2010.   Those efforts are examined now.

Keep all appointments set by or with DCF.

Mother complied with this step in that she attended a treatment planning conference at the DCF office in person and two administrative case review meetings by telephone.

Participate in counseling and make progress toward the identified treatment goals:  Parenting, Individual and Family.

Mother and father successfully completed a parenting education course at Catholic Charities in September 2009.   She attended individual counseling with Libby Coker through the Navy Family Advocacy Program who reported that her progress was minimal.   Because of this, in November 2009, Ms. Coker recommended that mother attend Intensive Outpatient (IOP) treatment, which mother never did.   She left Connecticut in January 2010.   While here, she also received medication management from Connecticut Behavioral Health.   She was prescribed Seroquel and Xanax.   She was referred to Connections for substance abuse evaluation and treatment.   The evaluation resulted in a recommendation to participate in group therapy, having presented a negative drug screen two months after the children had been removed.   She was unsuccessfully discharged from group for missing three meetings in a row, but was readmitted.   She did not complete her substance abuse treatment as she left Connecticut for good in January 2010.   Beginning in August 2009, she and father engaged in couples counseling at Shoreline Counseling Center with Jody Wagman to address ongoing domestic violence.   On November 11, 2009, Ms. Wagmen reported that they were just “going through the motions” and were very guarded with her.   They did not disclose too much about their past or current situation and did not discuss problems with her.   This counseling also ended when they moved back to Oklahoma in January 2010.   They were also referred to Child and Family Agency for family counseling as recommended by Dr. Kelly Rogers after a court ordered psychological evaluation on October 9, 2009.   They attended one intake session and advised the counselor that they were moving back to Oklahoma and would not be participating and were not seen there again.   Mother failed to keep two telephonic counseling sessions with Matthew's counselor after she moved back to Oklahoma.   Dr. Rogers had recommended long-term and ongoing couple's therapy, family therapy, parenting education, as well as increased visitation leading to reunification.   Supervised visitation of both mother and father revealed serious issues of inappropriate behavior by mother and father with the children during visitations.   Additionally, knowing that moving to Oklahoma before reunification with the children would present huge if not insurmountable problems to reunification, they did it anyway.   This critical specific step was left incomplete, with little to no progress while here.   Mother argues that she continued to complete this step once relocated in Oklahoma.   As proof, she offered exhibits A, B, C, D, and E, her only exhibits.   Exhibit A is entitled “Psychiatric Evaluation,” consisting of two pages totaling eight paragraphs.   It is written not by a psychiatrist possessing a Medical Doctor's degree, but rather a clinical nurse specialist with a master's degree.   Nothing is known of her qualifications.   Mother refused to sign any releases including for this nurse to be in contact with DCF. The report relies entirely upon the self-report of mother, without any testing, empirical evidence, independent corroboration or even observational assessment beyond noting that mother was “a bit hyperverbal (sic).”   Dr. David Mantell, Ph.D., testifying at this trial both as an expert in forensic psychology and an Indian culture expert, long known to this court, noted that the report is not informed by any collateral documents nor is there any reference to any standardized testing of any kind that would offer convergent validity regarding any statements mother made about herself.¹²  The interview appeared to him to be very superficial, sufficient only to begin to inform an assessment but certainly not to conclude an assessment.   He also notes that the report fails to address in any way one of the key elements of this case, i.e., mother's parenting capacity, how she has responded to criticisms about her parenting capacity and weaknesses in the past.   He also notes that the author of the evaluation does not appear to have the credentials to conduct a psychiatric evaluation.

Mother offers Exhibit # B, a report from one Cheri Powell of Family and Children's Services, Tulsa, OK. Her signature block indicates that she holds a Bachelor of Science degree and is a “family preservation specialist.”   Again, although DCF made repeated requests of mother to sign and return to DCF releases to discuss this treatment and report with Ms. Powell, mother refused and continues to refuse to do so.   The report sets forth a five-point treatment plan, the fifth point of which is, “Sarah [mother] will meet the criteria of her Connecticut treatment plan.”   Nowhere in the report does it set forth what that Connecticut plan includes beyond a requirement that mother will complete a substance abuse assessment, but states in the body of the report that mother has completed that goal.   Dr. Mantell notes, however, that she has not.   As to the substance abuse report, it notes that mother self-reported that she had such an evaluation at Indian Health Clinic in Oklahoma and that clinic did not recommend treatment.   That report was not presented to Ms. Powell who concluded that such would not be necessary as “substance abuse is not a concern in this case.” ¹³  The report is, however, Exhibit # E in this case.   Again, no release was ever given to DCF to discuss this report although repeated requests were made to accomplish this.   It states that mother has successfully completed an outpatient substance abuse treatment program.   It notes nothing of the content of the course, the intensity of it, the depth of study of it, nor its duration.   It offers nothing further.   It is signed by one Heather McClure, CBHCM–A–LADC.  (No translation of the meaning of those letters is offered nor is there any indication of the educational background and degrees, if any, possessed by the author.)   Repeated telephone calls to Ms. McClure were unanswered and voice message requests to return the calls to DCF were not honored by Ms. McClure.   This “substance abuse report” (so titled by Ms. McClure) notes that mother is attending “marriage counseling,” “individual counseling” and sees her psychiatrist for mental health medication management.   Substance abuse is addressed in one sentence, indicating that it is not an issue.

Exhibits C and D are certificates asserting that mother has completed “Active Parenting I Parent Skills Development Program” and “Active Parenting Now, A Six–Week Parent Skills Development Program.”   There is no detailed information as to what aspects of parenting these courses entailed.   The court must assume that they are academic in nature rather than practical since mother's children were back in Connecticut.   Mother's parenting skills were observed on many occasions in Connecticut by the visitation supervisor, Cynthia Woodis–West.   She reported to DCF that mother and father continued to struggle with their abilities to parent appropriately up until they left for Oklahoma in January 2010.   They were not able safely to supervise their children during visits and their behavior continued to be erratic from week to week.¹⁴  This concern carried over into visitation by telephone, when it was learned that mother would instruct the children by phone that they did not have to talk about anything in counseling if they did not want to.   Mother seems not to understand that such misinformation can be very upsetting and hurtful to children trying to make sense of their lives in the absence of their mother.   Ultimately, telephone contact was limited to times when foster parent would initiate the call and the children or either of them would participate only if each wanted to.   Most often the boys would decide not to speak with her.   Matthew almost never spoke to her, and Jayden, when he did speak to her, limited it to, at most, every other week.   This fact reveals the depth of understanding each boy had of the situation.   The following is testimony by Dr. Mantell concerning this.

“The original materials that I was asked to review for them by this Court that led up to my earlier testimony pointed out many child protection issues that surrounded the earlier lives of the children while they were in the care of the mother.   And when I met with the children this year, they did not express—the two older children, Matthew and Jayden—did not express confidence in their mother's ability to take care of them safely.   And they—while they expressed residual attachments and affection for her, they indicated they really didn't trust her to be a good parent to them.   And that their confidence was in their prior foster mother—foster parents—and in their current foster parent, Leroy.

I thought that those were strong statements by children who, at the time they were speaking to me, were able to distinguish between their affections and their judgment of parental capacity.” ¹⁵

Father participated in the specific steps only as noted above and in Connecticut.   There were no services completed by him in Oklahoma.   Father wrote a letter to DCF stating:  “I Aaron B ․ am withdrawing from court and am relinquishing my rights to Ethan B ․ to the State of Connecticut ․ Also I would like to say this, Sarah and I are getting divorced and I am fighting for full custody of Ayen [child born to mother and father in Oklahoma and not a subject of this petition] and do not think that she is capabiable (sic) of taking care of the other 3 due to her past history which would reflect consistent mistakes and her mental compitence (sic) and lack of funds would offer nothing for them ․” ¹⁶

The court finds beyond a reasonable doubt that mother and father failed to complete successfully the steps requiring counseling, at once individual, family, substance abuse, domestic violence and parenting.   It further finds that claims by mother that such was completed in Oklahoma fall far short of any probative value, hindered significantly if they were of any substance at all by the failure of mother to sign releases enabling DCF to fulfill its duty to protect the children.   Additionally, since mother failed to testify, she avoided enlightening the court as to the depth, complexity, rate of success, duration and significance of any effort she asserts through her exhibits.

Combined in the text above are the specific steps of Submit to substance abuse assessment, Submit to random drug testing, Cooperate with recommended service providers for parenting/individual/family counseling, and, significantly and troublingly, Sign Releases within 30 days authorizing DCF to communicate with service providers to monitor attendance, cooperation and progress toward identified goals.   This specific step was intentionally ignored.

Exhibit 4 reflects the extraordinary efforts exerted by DCF to obtain the necessary releases to effectively manage this case to reach the ultimate goal of reunification.   Mother did not Cooperate with children's therapy.   In fact, she counseled them against it, telling them they did not have to discuss anything with their therapists.   She also told them by telephone, against DCF instruction, that they would be “coming home soon” and that she was getting everything ready for them.¹⁷

While both mother and father exercised the step of Visit the children as often as DCF permits, the results of the visits were not fruitful, as noted above, and, extraordinarily, they chose to leave Connecticut permanently while their children were in the custody of DCF in Connecticut.   When they moved to Oklahoma they rendered visitation impossible.   They knew the significant effect this would have on reunification, but they did it anyway.

The court finds beyond a reasonable doubt that DCF made reasonable efforts to locate the parents and to effect reunification with each child separately but that each parent failed to utilize those efforts to reach the goal of reunification.   The court finds beyond a reasonable doubt that each parent is unable or unwilling to benefit from reunification efforts.

The court finds beyond a reasonable doubt that none of the significant specific steps relating to this case were satisfactorily accomplished by either mother or father.   Neither mother nor father (as to Ethan), who was defaulted for failure to appear, has gained the ability to care for the particular needs of the child or children at issue.   Father acknowledged this in Exhibit 11.

Adjudication as to mother and Aaron B.:

The court finds that the children have been found by the Superior Court to have been neglected, uncared-for, or abused in a prior proceeding and finds beyond a reasonable doubt that mother and father have failed to achieve any substantial level of rehabilitation that would reasonably encourage a belief that within a reasonable time considering the ages of all three children as to mother and Ethan as to father, she can assume a responsible position in the children's lives or he can assume a reasonable position in the life of Ethan.

As noted above, Christopher B., father of Matthew, is deceased.

Adjudication as to Anthony A.:

Anthony “Tony” A., father of Jayden, is alleged to have abandoned Jayden in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.  C.G.S § 17a–112(j)(3)(A).   Mother met Anthony A. sometime after the death of Christopher B. and they began dating.   After about six months passed she became pregnant with Jayden.   When mother advised him that she was pregnant he left, never to return.   He wanted nothing to do with Jayden or mother.   He has had no interaction whatsoever from that time forward.   Jayden, who was born December 12, 2002, has never seen his father and would not recognize him were he to see him.   He has received no communication from him, no acknowledgment of major events in his life such as birthdays, and no gifts.  “The commonly understood general obligations of parenthood entail these minimum attributes:  (1) express love and affection;  (2) express personal concern for child's health, education, and general well being;  (3) the duty to supply the necessary food, clothing, and medical care;  (4) the duty to provide an adequate domicile;  and (5) the duty to furnish social and religious guidance.”  In re Angelica W., 49 Conn.App. 541, 551 (1998).   Anthony has done none of this.   Abandonment occurs when a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare.  In re Justice V., 111 Conn.App. 500, 513–14 (2008), cert. denied, 290 Conn. 911 (2009).   The court finds beyond a reasonable doubt that Anthony has abandoned Jayden in the sense that he has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of his child.

Disposition

Best Interests of the Child:

The court finds the following facts and conclusions both legal and factual to be beyond a reasonable doubt.   Because the court has found the existence of a statutory ground for termination of mother's and both fathers' parental rights, it must now examine whether granting the prayer for relief would be in the children's best interest.

In the dispositional phase of a termination of parental rights hearing, “the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.”  In re Romance M., 229 Conn. 345, 356–57, 641 A.2d 378 (1994).   During this dispositional phase, “the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child.   In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in § 17a–112[k].”  In re Tabitha P., 39 Conn.App. 353, 361–62, 664 A.2d 1168 (1995).   We note that those “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.”  (Citation omitted.)  In re Victoria B., 79 Conn.App. 245, 261, 829 A.2d 855 (2003).

“The best interests of the child include the child's interest in sustained growth, development, well-being, and continuity and stability of its environment.”  In Re Shyina B., 58 Conn.App. 159, 167 (2000).   The court finds beyond a reasonable doubt that the continuation of mother's parental rights to each child is not in the best interest of Matthew, of Jayden, or of Ethan, and that termination of mother's parental rights is in the best interest of each child giving full consideration to each child's sustained growth, development, well-being, and continuity and stability of their environment.   In support of that, and as mandated in C.G.S. § 17a–112(k), the court examines the seven factors recited in the statute.

Findings pursuant to C.G.S. § 17a–112(k)

(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.

As noted above, multiple services were offered to mother and Aaron B. by DCF, including a safety agreement on June 4, 2009, Catholic Charities for parenting in September 2009, individual counseling (encouraged by DCF and actually offered by the U.S. Navy), intensive outpatient treatment offered but refused by mother, Connecticut Behavioral Health for prescription assistance and monitoring, group therapy for substance abuse from which she was unsuccessfully discharged, then readmitted only to have her leave permanently for Oklahoma, Child and Family Counseling where only an intake appointment was kept before mother and father left for Oklahoma, and supervised visitation.   The feeble result of this and mother's and father's efforts in Oklahoma have been chronicled above.

(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.

The court has found that DCF has made reasonable efforts, and continued to make them even after mother and father left Connecticut permanently by trying to get releases so as to work with Oklahoma concerning the necessary service providers.

(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.

The specific steps have been extensively discussed above in the finding of facts.

(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.

Dr. Mantell noted most succinctly that “they (Matthew and Jayden) did not express confidence in their mother's ability to take care of them safely.   And they—while they expressed residual attachments and affection for her, they indicated they really didn't trust her to be a good parent to them.   And that their confidence was in their prior foster mother—foster parents—and in their current foster parent, Leroy.” ¹⁸  As noted above, Matthew regularly refuses to speak to his mother by telephone while Jayden will only speak to her about every other week although it could be weekly if he wished it.   Ethan is too young to understand a telephone and its use.   Leroy keeps pictures of mother in the home.   Matthew never asks to see them while Jayden on occasion will.   Ethan does not know who she is.   Matthew does not spontaneously speak of mother, while sometimes Jayden will.   Matthew has never shared present positive memories of mother while, again, Jayden does on occasion.   Jayden also shares present negative memories of mother and blames himself for being in foster care, a trait with which Matthew sometimes concurs.   Matthew refers to Leroy by name when addressing him, but calls him “father” when outside.   He goes to Leroy for advice and assistance while Jayden turns to him for solace.   Matthew is a strong academic student and has ability in art.   He tries to do everything well.   Jayden tries and wants to succeed.   He does not give up when he encounters difficulty.   Matthew is well aware of the possibility of being adopted by Leroy and feels it is probably best for him.   He appreciates the family and structure of the household yet harbors some unresolved ambivalence about the loss of his mother.   At the time of trial he had not seen her in almost two years and had rarely spoken to her during that time.   He has difficulty with emotional openness, with trust of adults, and he struggles with issues of rejection.¹⁹  Jayden retains residual attachments to his mother and Aaron B., but his primary attachment is to his current foster father.  “He emphatically expects to remain in [his] foster home until he is in his late teenage years ․” ²⁰ The children had not seen their mother from the time she left on January 5, 2010, until the night before the beginning of this trial.   Jayden was particularly upset after that visit.²¹  Both boys are in therapy.   Jayden has an Axis I diagnosis of PTSD, ADHD and Sexual Abuse of Child.²²  His therapist notes that Jayden has thrived in his current foster home where he feels safe, secure and where love and comfort are bountiful.²³  She noted that much of Jayden's affection for his mother is materialistically driven.

Dr. Mantell, therapist Lauren Cardone, and Cherokee Nation Indian Child Welfare representative Pamela Edgar all note that continued custody by mother would likely result in serious emotional or physical damage to the children due to failure of the parent to correct the conditions that led to the children's removal and that their best interest is served by being placed together in their current placement.   The court so makes that finding and a finding that adoption of each child is in that child's best interest, those findings made by evidence found to be beyond a reasonable doubt.

(5) The ages of the children.

Matthew was born May 6, 1999.   Jayden was born December 12, 2002.   Ethan was born September 8, 2008.

(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.

Aaron B. has done nothing that would make it in Jayden's best interest to be reunited with him and acknowledged that by saying in Exhibit 11 that he is “relinquishing my rights to Ethan ․ Ethan doesn't know who I am and would be devastating for him because he only knows his brothers and Leroy [foster father].” ²⁴  As noted above, Anthony “Tony” A. has abandoned Jayden.   Mother, as noted above, went through some motions in the direction of reunification, but then took steps virtually to assure that reunification would be out of the question by leaving the children in the care of the State of Connecticut while she moved back to Oklahoma permanently where visitation, nurturing, caring and growing with the children as they progressed in counseling and schooling while mother progressed in counseling and parenting ability would and could never happen.   Interestingly, but not surprisingly, it was the children who chose not to communicate with her from afar on many occasions.   As noted by Dr. Mantell, their ability to distinguish between their affections and their judgment of mother's and Aaron's parental capacity is extraordinary.

(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 or acts of any other person, or by the economic circumstances of the parent.

The only unreasonable act in this scenario is mother and Aaron leaving Connecticut permanently to reside in Oklahoma, knowing the children are out of their care and knowing that a process of reunification is extraordinarily hampered by such a move.

Matthew is twelve years old.   Jayden will be nine in less than two months.   Ethan is three.   While they bear certain emotional scars for which they (except Ethan) are in therapy, they recognize that they are safe and secure in their current foster home and they clearly are happy there.   They have a clear bond with Leroy, their foster father who has expressed a desire to adopt all three of them.   Matthew and Jayden are comfortable with this.   Ethan is too young to comprehend it.

In 25 USC Sec.1902, the U.S. Congress has declared that “it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.”   Matthew is already a member of the Cherokee Nation and both Jayden and Ethan are eligible to be enrolled.   Leroy has a keen interest in preserving their heritage and intends to enroll them and have them participate in their heritage from every aspect possible.   The Cherokee Nation approves the adoption by Leroy, as does Dr. Mantell, a court recognized expert in Indian Child Welfare Act matters.   The court makes a finding beyond a reasonable doubt that continued custody would likely result in serious physical or emotional damage to the children and that active efforts were made.   The court makes a finding beyond a reasonable doubt that there is good cause to deviate from ICWA placement preferences due to the fact that there are no appropriate extended family members available for placement, Cherokee Nation does not have an adoptive placement available for placement of all three children at this time, and no other Native homes were found.   It is in the best interest of the children to be placed together in their current placement.

Approval of Permanency Plan:

The Permanency Plan of Termination of Parental Rights and Adoption is approved.   The court enters a finding that DCF has made reasonable efforts to achieve that permanency plan.

Orders:

The parental rights of Sarah B., mother of Matthew D., Jayden D., and Ethan B., are hereby terminated.

The parental rights of Aaron B., father of Ethan B., are hereby terminated.

The parental rights of Anthony A., father of Jayden D., are hereby terminated.

The Commissioner of the Department of Children and Families is appointed statutory parent of each child in accordance with the provision of C.G.S. § 17a–112(o) and DCF shall report to the court not later than thirty days after this date on a case plan, as defined by the Federal Adoption Assistance and Child Welfare Act of 1980, for each child, which shall include measurable objectives and time schedules.

The Clerk of the Probate Court with jurisdiction over any subsequent adoption of each child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters, 978 Hartford Turnpike, Waterford, CT 06385 of the date when said adoption is finalized.

Judgment is entered accordingly this 18th day of October 2011.

Mack, JTR

FOOTNOTES

FN2. 25 U.S.C. § 1912(f).  Parental rights termination orders;  evidence;  determination of damage to child.   No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child..  FN2. 25 U.S.C. § 1912(f).  Parental rights termination orders;  evidence;  determination of damage to child.   No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.

FN3. Exhibit # 10..  FN3. Exhibit # 10.

FN4. Id..  FN4. Id.

FN5. Exhibit # 1..  FN5. Exhibit # 1.

FN6. Exhibit # 3, page 8..  FN6. Exhibit # 3, page 8.

FN7. Exhibit # 3, page 10..  FN7. Exhibit # 3, page 10.

FN8. Exhibit # 3, page 10..  FN8. Exhibit # 3, page 10.

FN9. Id..  FN9. Id.

FN10. Id., page 17..  FN10. Id., page 17.

FN11. Exhibits # 1 and 2..  FN11. Exhibits # 1 and 2.

FN12. FTR 9–28–11 @11:31:20.   Testimony of Dr. Mantell.  [FTR (For The Record) is the recording facility of the court reporter which digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time.   The Supreme Court and the Appellate Court also have access to this resource.].  FN12. FTR 9–28–11 @11:31:20.   Testimony of Dr. Mantell.  [FTR (For The Record) is the recording facility of the court reporter which digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time.   The Supreme Court and the Appellate Court also have access to this resource.]

FN13. Exhibit # B..  FN13. Exhibit # B.

FN14. Exhibit 3, page 35..  FN14. Exhibit 3, page 35.

FN15. FTR, 9–28–11 @11:50:29.   Testimony of Dr. Mantell..  FN15. FTR, 9–28–11 @11:50:29.   Testimony of Dr. Mantell.

FN16. Exhibit # 11..  FN16. Exhibit # 11.

FN17. Exhibit # 3, page 42..  FN17. Exhibit # 3, page 42.

FN18. FTR, 9–28–11 @11:50:20.   Testimony of Dr. Mantell..  FN18. FTR, 9–28–11 @11:50:20.   Testimony of Dr. Mantell.

FN19. Exhibit # 6, page 7..  FN19. Exhibit # 6, page 7.

FN20. Id., page 11..  FN20. Id., page 11.

FN21. FTR, 9–28–11 @2:09:47, Testimony of foster father..  FN21. FTR, 9–28–11 @2:09:47, Testimony of foster father.

FN22. Exhibit # 6, page 11..  FN22. Exhibit # 6, page 11.

FN23. FTR, 9–28–11 @12:19:51.   Testimony of Lauren Cardone, SCSW, court recognized expert in childhood trauma..  FN23. FTR, 9–28–11 @12:19:51.   Testimony of Lauren Cardone, SCSW, court recognized expert in childhood trauma.

FN24. Exhibit # 11..  FN24. Exhibit # 11.

Mack, Michael A., J.T.R.