IN RE: Ahnnyaih W. (dob 4/9/10) 1 (2011)

Memorandum of Decision on Petition to Terminate Parental Rights

On May 31, 2011 the Department of Children and Families (DCF) filed the pending petition to terminate the parental rights (TPR) of Kenndra S. and Marion P. to their minor daughter, Ahnnyaih, who was born on April 9, 2010.   Thereafter, the court caused notices to be issued to the respondent parents for them to appear on June 28, 2011.   The respondent father, Marion P., appeared on that date, was advised of his rights, entered a denial to the allegations of the petition, and informed the court that he would seek representation from the Cherokee Tribal Nation.   The respondent mother did not appear on that date, and no proof was offered of service on her.   The court, Wollenberg, J.T.R., then granted DCF's oral motion to give notice to her by publication, in accordance with General Statutes § 45a–716(c).²  On August 11, 2011, this court confirmed notice by publication in accordance with that order after being presented with an affidavit that notice of the proceedings had been published in the Hartford Courant on July 21, 2011, informing the respondent mother that the petition would be heard on August 11, 2011, at 2:45 p.m., at which time respondent mother did not appear.   On September 15, 2011, DCF submitted a military affidavit that she was not in the military services of this country, and the court entered a default against her for failing to appear and enter a plea.   See Practice Book §§ 34a–1 and 10–18.³

The petition was assigned for trial before this judge on November 3, 2011, at which time the DCF social worker and attorney and the attorney for the minor child, were present;  but neither the respondent father nor respondent mother appeared.   As Practice Book § 35a–8 requires that “[a]ll parties except the child or youth shall be present at trial unless excused for good cause shown,” ⁴ counsel for DCF moved for a default against the respondent father for his failure to appear for trial, which the court granted pursuant to that same rule.   Thereafter, again in accord with P.B. § 35a–8, DCF presented testimony from DCF social worker Stephanie Carvalho and offered the following exhibits into evidence:  the TPR social study, amended steps issued to both parents, and correspondence with the Cherokee Tribal Nation.   At the department's request, the court has taken judicial notice of the order of temporary custody (OTC) entered on Mary 29, 2010, and its confirmation on June 11, 2010;  the adjudication of neglect and commitment entered on October 18, 2010;  the permanency plan for termination of parental rights and adoption approved by the court on March 29, 2011, and the finding on that date that the department had made reasonable efforts to achieve that plan;  the findings of service and notice in this proceeding;  the judicial proceedings of June 28, 2011;  and the default of the mother entered on September 15, 2011.   The court has also taken judicial notice of all court orders in the court file and all prior proceedings on the earlier neglect petition and the current TPR petition as reflected in the memoranda of those earlier proceedings in the court file.

The respondent father has told DCF that “he is of Cherokee Heritage.”   Under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1902 et seq., when a minor child is either (i) the member of a native American tribe covered under that statute or (ii) eligible for membership and the biological child of a tribal member, DCF must provide notice to the nation of any pending TPR proceeding.   See 25 U.S.C. §§ 1903 ⁵ and 1912.⁶  On June 24, 2011, DCF thus sent letters by registered mail to the Cherokee Tribal Nation and by regular mail to the ICWA Director in the Division of Social Services of the Bureau of Indian Affairs located in the U.S. Department of the Interior in accordance with those statutes.   On October 20, 2011, the Cherokee Nation wrote to DCF that it had examined its tribal records and that Ahnnyaih “cannot be traced in our tribal records” and “will not be considered an ‘Indian child’ in relationship to the Cherokee Nation as defined under ICWA.” This court thus concludes that the rights and procedures required under ICWA no longer apply to this proceeding.

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.

I

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 alleges two grounds for terminating each respondent's parental rights:  abandonment and failure to rehabilitate under General Statutes §§ 17–112(j)(3)(A) and (B).⁷  To prevail here as to either parent, DCF must prove at least one of these statutory grounds for termination by clear and convincing evidence.   See In re Juvenile Appeal (84–BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984);  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 evidence (i) prior to the adjudicatory date on the allegations of failure to rehabilitate and abandonment and (ii) through the close of evidence on the issue of whether the degree of rehabilitation of either parent is sufficient to foresee that either one may assume a useful role in Ahnnyaih's life within a reasonable time.

B

EFFECT OF DEFAULTS

Practice Book § 32a–2(a) provides that child protection proceedings, including petitions for termination of parental rights, are civil matters.⁸  See also In re Samantha C., 268 Conn. 614, 634, 842 A.2d 1124 (2004);  In re Shonna K., 77 Conn.App. 246, 253, 822 A.2d 1009 (2003).   As in other civil matters, “[t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint”;  DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982);  and thereby conclusively establishes that the petitioner has prevailed on each of the elements at issue in the adjudicatory phase of this proceeding.   Commissioner of Social Services v. Smith, 265 Conn. 723, 732–33, 830 A.2d 228 (2003) (respondent in child support proceeding who fails to respond to pleadings “is deemed to have judicially admitted the underlying facts of the support petition”);  see also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000).   Under Practice Book § 35a–8, when a party is defaulted for failing to appear in a TPR proceeding, the court may then take evidence and render judgment.   In view of the gravity of the TPR issues at hand, the court has considered the petitioner's evidence that addresses the specific adjudicatory grounds alleged.

C

REASONABLE EFFORTS

Terminations of parental rights under § 17a–112(j) on non-consensual grounds, as has been pleaded for the respondents here, require 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.9

The court finds by clear and convincing evidence as follows:

1. Reasonable efforts to locate

It was proven by clear and convincing evidence that DCF made reasonable efforts to locate the respondent mother and father.   Both appeared in the earlier neglect proceeding, and the father appeared in the TPR proceeding.   Since Ahnnyaih was taken into custody at the age of two months in June 2010, Ms. S. has had six different addresses and not lived long at any one location.   She did not keep DCF apprised of where she lived, and neither DCF nor members of her family knew how to find her;  her mother, who is also Ahnnyaih's relative foster care provider and DCF's identified adoptive parent, told DCF that Ms. S. telephones her periodically but only by calling from a blocked number.   The DCF social worker saw Ms. S. on the street in June of this year and Ms. S. told her that she was currently homeless, did not have a permanent residence, and was staying with friends.

2. Reasonable efforts to reunify

a. Respondent mother

The original reasons why DCF took Ahnnyaih into custody were the mother's poor parenting skills, her failure to keep medical appointments for Ahnnyaih, her transient lifestyle, and concern about her leaving her daughter with inappropriate caretakers.   An order of temporary custody (OTC) was entered in June 2010 after Ahnnyaih's pediatrician notified DCF that Ms. S. had missed four medical appointments for Ahnnyaih in her first month of life.   The pediatrician also reported a “concern with mother's own mental health status.”   Exhibit 1 (Social Study in Support of TPR Petition, dated June 28, 2011), at 13.   DCF was familiar with Ms. S., who had herself been the subject of neglect and TPR proceedings as a child, and knew that she had a history of significant mental health issues.   DCF contacted Ms. S.'s adoptive mother, who told the department that Ms. S. had been staying with her but would leave the house for days at a time and that she was worried about “who mother was exposing and leaving her infant child with.”  Id. When DCF contacted Ms. S., the DCF investigator concluded that “her behaviors were out of control and she had no identified living arrangements for herself and her child”;  id.;   and refused to return to the home of her adoptive mother.

To address these issues, DCF referred Ms. S. to mental health treatment services, but she refused to attend.   She told DCF that she saw no need or clinical benefit in doing so.   She was referred for a substance abuse evaluation, which she also refused to attend.   She was referred to parenting classes to help her learn how to take proper care of Ahnnyaih, and although she attended some classes, she did not complete the three-month program successfully because of poor attendance.   She also missed many of the scheduled appointments for supervised visitation with Ahnnyaih that might have helped her learn to become a better parent.   The court thus finds by clear and convincing evidence not only that DCF made reasonable efforts at reunifying Ahnnyaih with her mother but also that Ms. S. was unwilling to benefit from those efforts.

b. Respondent father

When Ahnnyaih was taken into care, Mr. P. had shared custody of another child, Nahzeak, and they lived with Mr. P's mother, his stepfather, two of his brothers, his sister, his niece and his nephew.   DCF had child protection concerns about their living conditions, as Nahzeak and his cousins had been sleeping in a bedroom with broken windows and exposed broken glass.   Mr. P. was on probation and his probation officer reported that he had had positive drug screens and had not followed through consistently with a scheduled substance abuse evaluation.   For him to become a caretaker for Ahnnyaih, it was necessary for him to address his substance abuse, develop a relationship with his daughter, and improve his parenting skills.   The specific steps entered at the ten-day OTC hearing on June 11, 2010, thus appropriately ordered him to participate in parenting counseling to learn how to bond with his newborn daughter and be a safe and nurturing parent for her, to undergo a substance abuse evaluation and follow treatment recommendations, and to visit regularly with his daughter.   DCF made reasonable efforts at reunification by then referring him for substance abuse evaluation and treatment and to parenting classes and by offering regular visitations with Ahnnyaih.   Although Mr. P. attended a substance evaluation at ADRC, where he tested positive for marijuana, he did not follow through on the recommendation to participate in intensive outpatient treatment.   He also tested positive for marijuana usage on several other occasions.   He did not attend the parenting classes at the Klingberg Family Center to which DCF referred him.   Although he did visit with Ahnnyaih, he regularly missed at least one of the weekly two-hour visits.

D

GROUNDS FOR TERMINATION1. Abandonment– § 17a–112(j)(3)(A)

The petitioner has asserted, as a statutory ground for terminating the respondents' parental rights, that as of the adjudicatory date, each one had abandoned Ahnnyaih.  “In adjudicating a petition to terminate parental rights on the ground of abandonment, the court's focus is on the parent's conduct.”   In re Jaime S., 120 Conn.App. 712, 994 A.2d 233 (2010).

A lack of interest in the child is not the sole criterion in determining abandonment ․ General Statutes [Rev. to 1995] § 17a–112(b)(1) [now § 17a–112(j)(3)(A) ] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ․ Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child ․ Abandonment occurs where 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 Kezia M., 33 Conn.App. 12, 17–18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).   The statute requires DCF to show by clear and convincing evidence that a parent has failed to maintain a reasonable degree of interest in the welfare of his or her child.  “Maintain implies a continuing, reasonable degree of concern,” “not ․ a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child.”  Id., 18.   “The commonly understood general obligations of parenthood entail these minimum attributes:  (1) express love and affection for the child;  (2) express personal concern over the health, education and general well-being of the child;  (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 ․” (Citation omitted;  internal quotation marks omitted.)  Id.

a. Respondent mother

The evidence shows that, between the time that Ahnnyaih went into DCF custody on June 2, 2010, and the adjudicatory date of May 31, 2011, the respondent mother Kenndra S. missed more than 20 scheduled supervised visitations with her daughter, which represented more than half of the scheduled visits.   She was so “inconsistent and unreliable with her routinely scheduled visits”;  id.;   that DCF began, requiring her to give advance notice of her intention to attend each visit because it had brought Ahnnyaih to so many visits that her mother missed.   Ms. S. took no other steps to maintain contact with or express her concern for Ahnnyaih, such as sending her gifts, cards, or letters or checking in with DCF to inquire about her well-being.   For much of the time since the OTC, Ms. S. has been homeless or transient and she did not keep DCF apprised of her whereabouts;  and when a DCF social worker saw her in the community in June 2011, Ms. S. told the worker that “she is homeless and does not have a permanent residence but is staying with friends” and that “her last several housing situations did not work out and she had to leave.”   The evidence shows that Ms. S. lost public assistance as a means of financial support when DCF took custody of the child and that she has had no source of income other than a short-term job or from selling her food stamps.   She told the social worker that “there are periods of time that extends [sic] to several days where she doesn't eat because she has no food.”  Id., 8–9.

These have obviously been difficult times for Ms. S., and her untreated mental illness has probably exacerbated her problems.   In the midst of those woes, she has not displayed any concern for her daughter.   Missing numerous visits with one's child might not, by itself, constitute abandonment of that child within the meaning of the statute.   But Ms. S. has shown virtually no concern for her daughter, and certainly has fallen short of the standard set by § 17a–112(j)(3)(A) of maintaining a reasonable degree of interest, concern or responsibility as to the welfare of her child.   This ground has been proven by clear and convincing evidence.

b. Respondent father

DCF's evidence to show abandonment on the father's part was sparse.   He missed ten of his scheduled weekly visits, sometimes without giving DCF any advance notice, but he also attended the remaining weekly two-hour visits.   He offered a plausible explanation for missing the visits, moreover, by telling the department social worker that he was attending a private trade school to obtain a certificate in auto mechanics in order to get off of state financial assistance and has also been working part-time when he got jobs, although he offered no explanation for not notifying DCF in advance that he was going to miss a visit and seeking to reschedule the visit.   He did not contact the DCF social workers to inquire about the child.   He did not send cards, gifts, or letters to Ahnnyaih or provide her with any financial support—although how he could have done so once she went into DCF care and custody without DCF obtaining a child support order the evidence does not explain.   It does not seem reasonable to expect someone to send an unsolicited check to the state treasurer.   On this evidence, despite Mr. P.'s lack of consistency, the court cannot find that abandonment has been proven by clear and convincing evidence.

2. Failure to Rehabilitate

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 a 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 [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] 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).

“[l]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 department 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 also determine whether the petitioner has proven, by clear and convincing evidence, (i) that Ahnnyaih has been adjudicated in a prior proceeding to be neglected or uncared for and (ii) that each parent has failed to achieve the required degree of personal rehabilitation.

The court finds that DCF has proven this ground by clear and convincing evidence as to each respondent parent both as of the adjudicatory date and at the time of trial.   Ahnnyaih was found to be neglected on October 12, 2010, after both respondent parents entered pleas of nolo contendere to the department's allegation in a neglect petition that Ahnnyaih had been neglected by being denied proper care and attention.   The child was committed to DCF. Since the original OTC, Kenndra S., the mother, has refused to address the reasons that her daughter was neglected, taken into custody, and then committed to DCF. Ms. S. has a lengthy history of mental illness that has included multiple hospitalizations and, before she was an adult, out-of-home placements.   She has a “history of unsafe behaviors which include:  wrapping a cord around her neck [and] setting a lamp shade on fire ․” Id., 2. Despite early indications of possible medical issues for Ahnnyaih because of a heart murmur and a concern about seizures, Ms. S. exposed her newborn daughter to unsafe behaviors, did not take Ahnnyaih to medical appointments, and often left her in the care of others.   She acknowledged to DCF that she has been diagnosed with bipolar disorder, attention deficit hyperactive disorder, oppositional defiant disorder, depression, and reactive attachment disorder.   Yet Ms. S. told DCF she saw no need for treatment and refused to attend mental health services to which DCF referred her.   Her untreated mental health condition has undoubtedly contributed to her inability to find or maintain a job or housing and left her frequently transient and homeless.   Her unwillingness to undergo substance abuse evaluation suggests a problem there as well.   Ahnnyaih is still a very young child who needs constant attention, nurturing and guidance and a stable and competent caretaker.   Ms. S.'s lack of contact with DCF or her child since June of this year and refusal to participate in the services to which DCF referred her show that she is not willing or able to assume a responsible role in her daughter's life either on the adjudicatory date, at the time of trial, or in the reasonably foreseeable future.

The father, Marion P., has an ongoing substance abuse problem that he has not been willing to address.   He has not taken adequate care of his son Nahzeak, and the probate court has ordered that he share guardianship of this child with the child's paternal and maternal grandmothers.   He refused to attend the parenting classes to which DCF referred him and which could have helped him to learn how to provide proper care for both of his children.   He has been inconsistent in his contact with Ahnnyaih.   Ahnnyaih is a child who has had numerous medical problems, and although none of them have been severe she still needs to be monitored continuously for possible seizures in view of her early history of “mouth movement and potential twitchings.”  Id., 10.   In the last year, she has had five visits to the hospital emergency room because of vomiting, fevers, and ear infections.   At her age, she needs the steady hand of a competent caretaker to meet her needs and nurture and guide her into the future.   DCF has proven by clear and convincing evidence that Mr. P. had not achieved a level of rehabilitation that he was ready to assume a responsible and constructive role in Ahnnyaih's life, either on the adjudicatory date or in the reasonably foreseeable future as of the time of trial, in view of the child's age and needs.

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 November 3, 2011, the date upon which the evidence was taken in this matter.

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).¹⁰  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 the respondents' parental rights, and the court has considered these findings in determining whether it is the best interest of Ahnnyaih to terminate the parental rights of her biological parents.  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 noted above, DCF offered timely and appropriate services to both parents to enable them to regain custody.

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, DCF made reasonable efforts to reunite Ahnnyaih with her parents 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 neglect adjudication, the court entered orders of specific steps for each parent in order to regain custody of Ahnnyaih.   The orders were as follows:

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.

Each parent missed three of the administrative case reviews for Ahnnyaih.   Mr. P. cooperated with home visits, but Ms. S.'s transience and failure to keep DCF apprised of her whereabouts prevented DCF from conducting home visits with her.

Keep whereabouts known to DCF and your attorney

Ms. S. did not keep her whereabouts known to DCF, while Mr. P. did.

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

As noted above, neither parent kept all appointments made by DCF to see their child.   Ms. S. missed over half of her weekly scheduled visits with Ahnnyaih.   Mr. P. missed approximately ten scheduled visits with Ahnnyaih but he demonstrated appropriate parent-child interactions when visiting with her.

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

The amended specific steps entered at the time of the neglect adjudication and commitment ordered Ms. S. to participate in parenting and individual counseling with the goals of addressing her mental needs, providing proper medication, learning how to keep her child safe and learning safe and nurturing parenting.   She was referred by DCF to Capitol Region Mental Health for mental health assessment, evaluation and treatment, but she told DCF that she saw no need for such services.   She was referred to Klingberg Family Center for parenting classes and although she attended some of the sessions she was inconsistent in doing so and as a result did not complete the program successfully.

The amended specific steps ordered Mr. P. to attend parenting counseling in order to learn how to bond with Ahnnyaih, provide proper care for her, and provide safe and nurturing parenting.   He was referred by DCF to attend parenting classes at the Klingberg Family Center but he refused to attend.

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

Ms. S. has been transient or homeless for much of the time since the OTC and neglect adjudication and did not always tell DCF where she was living.   Hence, in-home services were not feasible.   Mr. P. was provided in-home services in connection with a child protection case involving his other child, Nahzeak, who lives with him, “for father ․ to work on specific and general parenting supports,” but he “has not been consistent with this in home program.”  Id., 10.

Do not use illegal drugs or abuse alcohol;  submit to random drug testing;  submit to substance abuse evaluation and follow treatment recommendations.

Ms. S. was referred by DCF three times for substance abuse evaluation and random drug screens but failed to attend each appointment.   She thus prevented DCF from learning whether she was using illegal substances or abusing alcohol.

Mr. P. submitted to random urine screens on August 31, November 27, and December 4, 2010, and on February 7, 2011.   All tests were positive for marijuana.   After the August 2010 positive test, DCF referred him for a hair test scheduled on September 8, 2010, but he did not show up.   It was rescheduled for the next month but on the scheduled date he refused to provide the hair sections needed to complete the test.   The test was rescheduled for October 30, 2010, and he then provided a sample, the results of which showed use of marijuana.   He initially agreed to participate in a substance abuse treatment program at ADRC, but then would not agree to a more intensive outpatient program that was recommended after the positive urine samples.   He was later referred by his probation officer for another substance abuse evaluation in February 2011 at Wheeler Clinic but did not show up.

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

Ms. S. would not cooperate with any of the services providers to which DCF referred her.   Mr. P. did not fully cooperate with the substance abuse or in-home providers recommended by DCF or at all with the parenting program to which DCF referred him.

Secure and maintain adequate housing and legal income

Ms. S. did not obtain adequate housing or employment, except for a short period when she had a job.   Mr. P. lawfully receives state financial assistance for himself and his son Nahzeak, and he has been attending a private trade school to obtain a certificate as an auto mechanic and worked on the side.   He has had adequate housing for himself, but not for his children.

Identify changes in household composition.

Ms. S. has not complied with this directive, as she has frequently changed homes, lived with different people, and not kept DCF apprised of any of her whereabouts.   Compliance has not been an issue with regard to Mr. P.

No further involvement in the criminal justice system

There is no evidence of any new arrests for either parent.   Mr. P. has not complied with the terms of his probation and has thus run the risk of being charged with violating probation, but as of the date of trial the court had no evidence of any actual such charges.

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)

Ahnnyaih has not lived with her mother since she was three months old and has seen her only infrequently since then.   Ms. S. visited with her daughter intermittently until June of this year.   Mr. P. began seeing his child after the OTC, and has visited with her in supervised sessions an average of three times a month for two hours at a time since then.   He interacts appropriately with the child during the visitations, but in view of Ahnnyaih's young age, and the infrequency of their contacts, it is unlikely that he has built a strong parent-child relationship with her.   Instead, the most important adult in Ahnnyaih's life is her maternal grandmother, Natalie S., with whom she resided for much of her early life while still in her mother's care and who has been the DCF foster parent since late October of last year.  (Before that Ahnnyaih had been in non-relative foster care.)   Ahnnyaih has thrived in her grandmother's care, seeks out her grandmother for nurture and maintenance, and is closely bonded to her.

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

Born on April 9, 2010, Ahnnyaih is 19 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 mother Kenndra S. has made no efforts to adjust her circumstances, conduct or conditions to make it in Ahnnyaih's best interest to be reunited with her.   She visited with her only infrequently until June and has not seen her since then.   She does call the maternal grandmother on occasion but refuses to say where she is.

The father Marion P. has made some, but insufficient efforts to adjust his circumstances in order to gain custody of Ahnnyaih.   He has not addressed his drug abuse problem, not taken the parenting classes that could help him become a better parent, and not cooperated fully with the in-home services that could also have helped him toward that goal.   He has visited Ahnnyaih relatively regularly, but has not tried to reschedule the sessions he missed.

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)

Kenndra S.'s economic circumstances have undoubtedly played a part in preventing her from maintaining a meaningful relationship with her daughter, but by refusing any services from DCF she has prevented DCF from doing anything to help her overcome her financial and other problems.

Economic circumstances have not affected Mr. P.'s ability to develop or maintain a relationship with his daughter.   While he may have missed visitations because of attending his trade school or working, he could have rescheduled the visits for times when he was not so occupied.

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 Ahnnyiah's best interest, the court has considered various factors, including her interest “in sustained growth, development, well-being, and in the continuity and stability of her environment”;  Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985);  her age and needs, the length and nature of her stay in foster care;  the lack of contact with or relationship with her birth parents;  the potential benefit or detriment of Ahnnyaih retaining a connection with her biological parents;  her genetic bond to each birth parent;  In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999);  and the seven statutory factors and the court's findings thereon.   The court has also balanced Ahnnyiah's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with her 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).

At this time in her young life, Ahnnyaih appears to be healthy but she is exhibiting certain developmental delays, for which she receives physical and speech therapy from the birth-to-three program.   Earlier in her life she was monitored regularly by a cardiologist and neurologist but both of those specialists have since discharged her.   Recent surgery placing tubes in her ears is hoped to alleviate the recurrent ear infections that led to numerous hospital emergency room visits and to prevent any hearing loss.   She has not presented any emotional or behavioral problems while in foster care.   Her grandmother is responsive to her needs and Ahnnyaih is thriving in her care.   Although DCF has identified the grandmother as an adoptive resource, whether the maternal grandmother will adopt her is not before the court and need not be addressed in this proceeding.¹¹

It is absolutely crystal clear and has been proven by clear and convincing evidence that it is in Ahnnyaih's best interest to terminate the parental rights of both Kenndra S. and Marion P. Neither one is ready now to take care of Ahnnyaih and show no sign of being ready, willing or able to do so in the immediate or foreseeable future.   At her young age, Ahnnyaih needs a caretaker or parent who is able to provide a stable and safe home, consistent care and nurture, and steady guidance.   It would not be in her best interest to languish in foster care while she waited to see whether either of her parents ever becomes able to provide adequate care for her.   Under these circumstances, 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 Ahnnyaih's best interest to terminate the parental rights of both respondent parents and permit this child to gain permanence in a stable, secure, and nurturing home.

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 child's best interest to terminate the parental rights of each respondent parent, it is therefore HEREBY ORDERED:

The parental rights of Kenndra S. and Marion P. to Ahnnyaih S. are terminated.

This court last approved a permanency plan on March 29, 2011.   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 Ahnnyaih, the permanency plan, and the status of the child with the clerk of the Superior Court for Juvenile Matters at Hartford on or before December 15, 2011 at 9:00 a.m. A motion for review of permanency plan must be filed on or before December 27, 2011, and a hearing on such plan shall be held on January 31, 2012, at noon.

The department is 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 this youth 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 § 45a–716(c) provides, in pertinent part, as follows:  “If the address of any person entitled to personal service or service at the person's usual place of abode is unknown, or if personal service or service at the person's usual place of abode cannot be reasonably effected within the state, or if any person enumerated in subsection (b) of this section is out of the state, a judge or the clerk of the court shall order notice to be given by registered or certified mail, return receipt requested, or by publication at least ten days before the date of the hearing.   Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or, if no such address is known, in the place where the petition has been filed.”.  FN2. General Statutes § 45a–716(c) provides, in pertinent part, as follows:  “If the address of any person entitled to personal service or service at the person's usual place of abode is unknown, or if personal service or service at the person's usual place of abode cannot be reasonably effected within the state, or if any person enumerated in subsection (b) of this section is out of the state, a judge or the clerk of the court shall order notice to be given by registered or certified mail, return receipt requested, or by publication at least ten days before the date of the hearing.   Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or, if no such address is known, in the place where the petition has been filed.”

FN3. Practice Book § Sec. 34a–1 provides in pertinent part as follows:  “(b) The provisions of Sections 8–2, 9–5, 9–22, 10–12(a) and (c), 10–13, 10–14, 10–17, 10–18, 10–29, 10–62, 11–4, 11–5, 11–6, 11–7, 11–8, 11–10, 11–11, 11–12, 11–13, 12–1, 12–2, 12–3, 13–1 through 13–11 inclusive, 13–14, 13–16, 13–21 through 13–32 inclusive, subject to Sections 34a–20, 17–4 and 17–21 of the rules of practice shall apply to juvenile matters as defined by General Statutes § 46b–121.”  Practice Book § 10–18 provides as follows:  “Parties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be.”.  FN3. Practice Book § Sec. 34a–1 provides in pertinent part as follows:  “(b) The provisions of Sections 8–2, 9–5, 9–22, 10–12(a) and (c), 10–13, 10–14, 10–17, 10–18, 10–29, 10–62, 11–4, 11–5, 11–6, 11–7, 11–8, 11–10, 11–11, 11–12, 11–13, 12–1, 12–2, 12–3, 13–1 through 13–11 inclusive, 13–14, 13–16, 13–21 through 13–32 inclusive, subject to Sections 34a–20, 17–4 and 17–21 of the rules of practice shall apply to juvenile matters as defined by General Statutes § 46b–121.”  Practice Book § 10–18 provides as follows:  “Parties failing to plead according to the rules and orders of the judicial authority may be nonsuited or defaulted, as the case may be.”

FN4. 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. 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.”

FN5. 25 U.S.C § 1903 provides in pertinent part as follows:  “For the purposes of this Act [25 USC §§ 1901 et seq.], except as may be specifically provided otherwise, the term ․ (4) ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe ․”.  FN5. 25 U.S.C § 1903 provides in pertinent part as follows:  “For the purposes of this Act [25 USC §§ 1901 et seq.], except as may be specifically provided otherwise, the term ․ (4) ‘Indian child’ means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe ․”

FN6. 25 U.S.C. § 1912(a) provides in pertinent part as follows:  “(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention ․ No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary:  Provided, that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.”.  FN6. 25 U.S.C. § 1912(a) provides in pertinent part as follows:  “(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention ․ No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary:  Provided, that the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.”

FN7. General Statutes Section 17a–112 provides in pertinent part as follows:“(j) The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ․ (3)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child;  (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;  ․”.  FN7. General Statutes Section 17a–112 provides in pertinent part as follows:“(j) The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ․ (3)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child;  (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;  ․”

FN8. Practice Book Section Sec. 32a–2 provides in pertinent part as follows:  “All hearings are essentially civil proceedings except where otherwise provided by statute ․”.  FN8. Practice Book Section Sec. 32a–2 provides in pertinent part as follows:  “All hearings are essentially civil proceedings except where otherwise provided by statute ․”

FN9. 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, ․”.  FN9. 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, ․”

FN10. 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.”.  FN10. 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. There have been certain issues in the grandmother's home that need monitoring and closer attention before adoption by the grandmother would be an appropriate permanency plan.   More specifically, the DCF social study indicates that the maternal grandmother had a hoarding problem that could be problematic for rearing a young child.   The grandmother's home is now empty while being renovated to repair damages from last winter and Ahnnyaih and the grandmother are currently living elsewhere;  but when they return to the grandmother's home DCF will need to monitor the situation to see if the hoarding resumes.   Domestic violence occurred in the home earlier this year between a sister of the maternal grandmother and one of her grandmother's other grown children.   Although both of those individuals have now left the home, DCF will need to monitor whether those individuals return to living with the grandmother..  FN11. There have been certain issues in the grandmother's home that need monitoring and closer attention before adoption by the grandmother would be an appropriate permanency plan.   More specifically, the DCF social study indicates that the maternal grandmother had a hoarding problem that could be problematic for rearing a young child.   The grandmother's home is now empty while being renovated to repair damages from last winter and Ahnnyaih and the grandmother are currently living elsewhere;  but when they return to the grandmother's home DCF will need to monitor the situation to see if the hoarding resumes.   Domestic violence occurred in the home earlier this year between a sister of the maternal grandmother and one of her grandmother's other grown children.   Although both of those individuals have now left the home, DCF will need to monitor whether those individuals return to living with the grandmother.

Frazzini, Stephen F., J.