IN RE: Nicholas D.1 (2011)

MEMORANDUM OF DECISION RE PETITION TO TERMINATE PARENTAL RIGHTS

This matter comes to the court by way of a petition pursuant to General Statutes § 17a–112, et seq., filed on December 29, 2010, by the commissioner of the department of children and families (DCF) seeking to terminate the parental rights (TPR) of Rachel S. (mother) and Cory D. (father) to their son, Nicholas, born January 9, 2010.   The petition alleges that the child has been found in a prior proceeding to have been neglected or uncared for and the mother and father have failed to achieve the degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, they could assume a responsible position in the life of the child, per § 17a–112(j)(3)(B)(i).

The case was tried to the court on August 8, 2011.   The court heard testimony from Kelly Teixeira (DCF social worker).   One item was admitted as a full exhibit in the trial.   On January 25, 2011, notice of the petition was found to have been properly made and mother and father were defaulted for failure to appear on this date.   On February 1, 2011, the default on father was set aside.

On February 18, 2011, mother filed a motion to open default which was denied on April 12, 2011.   Neither mother nor father appeared for the trial;  however father's attorney appeared for trial.   There is no proceeding in any other court regarding the custody of Nicholas.   The Indian Child Welfare Act does not apply to this family.   This court has jurisdiction.

On February 26, 2010, DCF filed a petition alleging that Nicholas was being neglected in that he was being denied proper care and attention, physically, educationally, emotionally or morally or he was being permitted to live under conditions, circumstances or associations injurious to his well being.   On March 3, 2010, DCF requested an order of temporary custody (OTC) which was granted.   On March 12, 2010, the parties agreed to sustain the OTC and mother and father entered pro forma denials on the neglect petition.   On May 11, 2010, mother entered a plea of nolo contendere, father stood silent, and Nicholas was committed to DCF. On November 10, 2010, the department filed a motion to review the permanency plan of termination of parental rights and adoption.   On December 29, 2010, DCF filed the petition for termination of parental rights.   Service of the petition was confirmed on January 25, 2011, and both mother and father were defaulted for their failure to appear.   On February 1, 2011, father's default was set aside and the court approved the permanency plan of TPR and adoption and reunification for mother and father were found to be no longer required.   On April 12, 2011, mother's motion to open default, filed February 18, 2011, was denied.   On April 26, 2011, mother's attorney was allowed to withdraw with prejudice.   On May 12, 2011, both mother and father failed to appear for a trial management conference and the matter was set down for a default trial on the TPR petition, held on August 8, 2011, which is the subject of this memorandum of decision.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition ․ In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence.   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.)  In re Shaun B., 97 Conn.App. 203, 206, 903 A.2d 246 (2006).

“In order to terminate a parent's parental rights under § 17a–112, the petitioner is required to prove, by clear and convincing evidence, that:  (1) the department has made reasonable efforts to reunify the family;  General Statutes § 17a–112(j)(1);  (2) termination is in the best interest of the child;  General Statutes § 17a–112(j)(2);  and (3) there exists any one of the seven grounds for termination delineated in § 17a–112(j)(3).”

“The sole ground alleged in this petition was that the [respondent] had failed to achieve rehabilitation pursuant to § 17a–112(j)(3)(B)(ii), which allows for termination if a child has been found to be neglected, and the [parent has] “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ․ Personal rehabilitation ․ refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [and] 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 does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in [his] child's life.   Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems.   It 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;  emphasis in original;  internal quotation marks omitted.)  In re Samantha C., 268 Conn. 614, 628–29, 847 A.2d 883 (2004).   “In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Emphasis in original.)  In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000).

Having considered all the evidence, the court makes the following findings by clear and convincing evidence.

Nicholas D. was born on January 9, 2010.   Mother was twenty-seven years old when Nicholas was born.   Nicholas is mother's third child.   Her parental rights to her oldest child (whose father is unrelated to Nicholas) were terminated in probate court in 2004, and he was adopted by his paternal uncle, and subsequently placed with his paternal grandparents.   Mother has no ongoing contact with the child.   Mother's second child is the biological child of the father of Nicholas.   This child, a daughter, became involved with the department in 2006, and ultimately had her guardianship rights transferred to a maternal relative in October 2007 as the result of a neglect petition filed in juvenile court by the department.

Nicholas was removed from his parents' care on March 3, 2010.   He was committed to DCF, after being adjudicated neglected, on May 11, 2011.   Nicholas has remained in the care of the department since his removal from his parents.

The issues surrounding the removal of all three of mother's children were her substance abuse and unmet mental health needs.   These concerns are of long history.   Mother claims she was sexually abused by her maternal grandfather for approximately two years, starting when mother was age eight.   She said her mother did not protect her, and punished mother for reporting the abuse.   Further, mother claims that her mother did not support her in obtaining counseling and that this is the root of mother's emotional difficulties.   Mother told the department that she began to self-medicate with marijuana at age sixteen, and began using cocaine at age twenty.   She has not been able to control her drug addiction since.   She used drugs throughout her pregnancies with Nicholas and his older sister.

DCF tried to assist mother with her issues while the older sister's case was pending, all to no avail.   Following the removal of Nicholas on March 3, 2010, the department complied with the court ordered specific steps (set that day, and later affirmed on May 11, 2010), by referring mother to substance abuse treatment and individual counseling.   Mother was engaged in individual therapy and medication management with United Community and Family Services (UCFS) programs when Nicholas was removed.   She was discharged by them on March 22, 2010, and was admitted to an intensive inpatient program at the Stonington Institute on March 23, 2010.   She was discharged at the completion of her program on April 21, 2010, and resumed treatment with UCFS. She was discharged noncompliant by UCFS on July 12, 2010.

Since July 2010, mother has rejected any therapy, and claimed her work is sufficient therapy and she has no further need for services.

Mother had been referred as well for parenting programs.   She completed a short program of parenting classes at Catholic Charities in June 2010.   She was receiving simultaneous parenting sessions with an individual provider beginning in April 2010, but mother terminated this program in June 2010, saying she could no longer participate due to her employment.

Since June 2010, mother has engaged in no referred services, claiming that her job prevents her participation, and that she has no further need for services.   Despite repeated requests, mother has refused to provide any proof of employment to the department.

DCF made reasonable efforts to refer mother to, and to engage her in, services, but mother has rebuffed those efforts.   She is unwilling to benefit from reunification efforts.   The most telling evidence of mother's failure to rehabilitate is that she has not visited with Nicholas since December 2010, when she effectively conceded that she could not reunify.

DCF has proven by clear and convincing evidence that the mother has failed to rehabilitate, and there was no evidence that would encourage the belief that she could do so within a foreseeable future.

With respect to father, sadly, his story is similar.   Nicholas was father's third child, born when father was thirty-nine years old.   None of father's children are in his care.   Father's oldest child was born to a woman unrelated to Nicholas.   Ultimately, this daughter's guardianship rights were transferred to a maternal cousin and another by the probate court in 2007.   It is this couple with whom Nicholas has lived since, April 2010.   Father's second child was the older sister of Nicholas, the child of mother referred to herein above.   DCF filed a petition on behalf of this child and her guardianship rights were transferred to a maternal relative, with whom she still resides.

Father's issues are of long duration as well.   They too involve substance abuse and unmet mental health concerns.

Father stated that he began drinking alcohol at age eleven, and later turned to marijuana and cocaine use by age seventeen.   He identified alcohol and cocaine as his current substances, though, paradoxically, he claimed no cocaine use for the three years prior to the filing of this termination petition.

Father has been diagnosed with bi-polar disorder, excessive compulsive disorder, and anxiety.   He has a lengthy history of mental health treatment, both inpatient and outpatient.   At the time of Nicholas' removal, father's specific steps for reunification included continuing cooperation with individual counseling and parenting programs.   Father was engaged in mental health services through Connecticut Behavioral Health and Dr. Rabin and Dr. Awwa. Father has been compliant with the services.   Unfortunately, father reported feeling overwhelmed and unable to parent.

Father cooperated with several random urine screens for proscribed substance use, all of which were negative.   Father would not submit, as required, to a hair toxicology screen.   There was no evidence of drug use by father since the removal of Nicholas.

Father has a prior history of criminal activity, including domestic violence.   There was no evidence of any such difficulties since Nicholas was removed.

Father does not have independent housing, but he has a stable residence.   He lives with paternal grandfather, who has provided long-term housing for father, but is unable to be a resource for Nicholas.

Father visited regularly with Nicholas until August 2010, and was appropriate during the visits.   A bond with Nicholas was clear.   Father advised the department in August 2010, that he could not parent or be reunified, and that he was ceasing visits with Nicholas.   He did not visit until November 2010, when he asked to resume visitation.   In December 2010, father stated that Nicholas was in a stable home which should be permanent, and that he could never reunify with Nicholas.

Father ended his contact with Nicholas in December 2010.

In summary, DCF made reasonable efforts to reunify father with Nicholas, but father, by his own admission, was unable to benefit from those efforts.   Father failed to rehabilitate, and based upon his concession of this failure in December 2010, there is no encouraging belief that he could do so within a reasonable time.

Nicholas has been living with his paternal half-sister and her guardians since April 2010.   He is thriving in this placement, and there he has the stability and nurture that he needs.   His foster family wishes to adopt, and both mother and father approve of this plan.

Dispositionally, the court must consider the child's best interests, taking into account the seven factors set forth in General Statutes § 17a–112(k).  In doing so the court considers and makes the seven statutory findings as follows.

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.

Mother and father were offered timely services by DCF, including substance abuse treatment, mental health counseling, parenting programs, and visitation.   Both parents voluntarily ceased their efforts in December 2010.

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.

Reasonable efforts were made by the department, as delineated above.

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.

Specific steps were issued by the court on March 3, 2010, and affirmed on May 11, 2010.   They included the parents' involvement with, and successful completion of the services mentioned in finding one herein above.   Both parents ended their participation completely in December 2010.

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 for at least one year and with whom the child has developed significant emotional ties.

Nicholas knew both his parents, and had a bond with both, but they stopped all visits with him in December 2010.   He is fully bonded with his foster family, and looks to them to meet all of his needs.

5. The age of the child.

Nicholas is almost two years old, born January 9, 2010.

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

Mother made limited efforts to comply with services, ceasing all but visitation in June 2010.   She then ended her visits with Nicholas in December 2010.   Father was compliant with services, but his circumstances were not improving.   He conceded the same, and stopped visiting Nicholas in December 2010.

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.

Neither parent was prevented from maintaining a meaningful relationship by any act other than their own volition, and not by their economic circumstances.

The parents mutually endorsed the current foster parents of Nicholas, and the child's attorney concurs that the placement should be permanent.   The court finds that this would be in the best interest of Nicholas, by clear and convincing evidence.

Wherefore, after consideration of the child's need for a secure, permanent placement, and the totality of the circumstances, and having considered all statutory criteria;  and having found by clear and convincing evidence that reasonable efforts to reunify with the parents were made, and that mother was unwilling, and father unable, to benefit from such efforts;  and that grounds exist to terminate their parental rights, specifically their failure to rehabilitate;  and that it is in the child's best interest to terminate parental rights;  the court orders:

That the parental rights of the respondent mother, Rachel S., and the respondent father, Cory D., are hereby terminated as to their child, Nicholas D.;

That the commissioner of the department of children and families is appointed the statutory parent for the purpose of securing an adoptive home for the child, with first consideration to be given to his current foster parents;

That a permanency plan shall be submitted to the court within thirty days, and such further reports shall be filed with the court as required by law;

That an in-court review be scheduled in six months for the department to report on the adoption process;

That, pursuant to an agreement between the Chief Court Administrator of the Superior Court and the Chief Probate Court Administrator, the Clerk of the Probate Court with jurisdiction over any subsequent adoption of the children shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Waterford of the date when said adoptions are finalized, as shall DCF.

BY THE COURT

John C. Driscoll, J.

Driscoll, John C., J.