IN RE: Anthony M. (dob 9/12/2000) 1 (2011)

Caption Date:  December 23, 2011

Memorandum of Decision on Petition to Terminate Parental Rights

This matter is before the court on a petition filed under General Statutes § 17a–112 by the commissioner of the department of children and families (DCF) on May 23, 2011, seeking to terminate the parental rights (TPR) of Alejandra C. and Angel M. to their minor child Anthony M., who was born on September 12, 2000.   Thereafter, in accordance with General Statutes § 46b–129(a),² the court caused summons to the respondents to appear on June 21, 2011.   Both respondents appeared on that date, were advised, entered denials to the allegations of the petition, and had counsel appointed.

Trial commenced before this judge on December 19, 2011, at which time the DCF counsel and social worker, father's attorney, mother's attorney, and counsel for the minor child were present.   The court was informed that Mr. M. had recently been incarcerated in Massachusetts, but was expected soon to return to Connecticut correctional facilities.   The court severed the trials of the two respondent parents, and scheduled trial of the petition as to Mr. M. for February 2012.   DCF did not seek a default against the mother, and presented testimony from the following individuals on the petition to terminate her parental rights:

Rosemary Wieworka, DCF social work supervisor, who was in charge of the investigations unit when Anthony first came into DCF custody and called the DCF hotline to initiate a child protection investigation;

Lakita Ransome, DCF social worker in the investigations unit, who was initially assigned to investigate the hotline complaint;

Evelyn Hannah, DCF social work supervisor, who supervised the DCF social worker assigned to the case after the investigation was completed;  and

Cleo White, Sr., the current DCF social worker assigned to the case.

In addition, DCF offered four exhibits into evidence:  The “CPS Report Narrative,” dated May 10, 2010, which is the written record made by DCF of the hotline complaint made that day by DCF social work supervisor Wieworka;  a social study in support of the motion to review permanency plan of termination of parental rights and adoption, filed on February 8, 2011, and approved by the court, Bentivenga, J., on March 22, 2011;  the TPR social study dated June 13, 2011;  and an addendum to the TPR social study dated December 16, 2011.   Prior to commencement of trial the court granted the department's motion to take judicial notice of the neglect adjudication concerning Anthony on August 3, 2010, and the court also notified the parties of its intention, pursuant to sections 2.1 ³ and 2.2 4 of the Connecticut Code of Evidence Book, to take judicial notice of all court orders and prior proceedings in this matter.   The court is not aware of proceedings pending in any other court regarding the custody of this child, and this court has jurisdiction.   Neither of the parents claims tribal affiliation.   The matter is now ready for decision.

I

FACTUAL FINDINGS

The court has carefully considered the petition, all of the facts judicially noticed and the evidence presented, including the social study and other exhibits, and the testimony presented,⁵ according to the standards required by law.⁶  Upon such consideration, the court finds that the following facts were proven by clear and convincing evidence at trial, as well as additional facts included in later sections of this decision.

On May 10, 2010, Anthony was brought to the DCF Hartford office by his aunt Madeline and adult brother, Angel, who told DCF social work supervisor Wieworka that both of Anthony's parents had been arrested and they were concerned whether they could get him into school or on medical care.   They said that Anthony had been living with his father since his mother had been arrested and incarcerated on narcotics charges three weeks earlier, and that his father, who was on probation, had also been arrested the previous weekend, had been to court that day, and was not going to be released from incarceration.   They also told Wieworka that when Anthony had lived with his mother she had been abusing heroin and cocaine and Anthony had not been attending school that year.   Anthony appeared malnourished to Wieworka and he told her he would go hungry while living with his mother.   He confirmed that he had not been attending school that year and said he could not remember the last time he had been to school.  (DCF had received a report earlier that Anthony was not attending school, but DCF had been unable to locate his mother or him.)   Anthony told her that he had asthma and needed an inhaler and was allergic to peanuts but did not have an epipen to use in case of an allergic reaction.   He also told the social worker that he had lived with his mother at different “nasty” places, seen adults smoking white powder that Wieworka concluded was crack cocaine, and had viewed “adults touching each other in the private parts.”   Ex. A, at 1.

Wieworka assigned the investigation that day to social worker Ransome, who took Anthony to a walk-in medical clinic for an inhaler and epipen.   In the car on the way there, he told her that while he was with his mother they moved around a lot, that he saw a lot of drug use by his mother and her friends, that he did not have a lot to eat, and that he did not want to see his mother.   Based on the evidence offered at trial, the court finds credible and proven as true all of the statements made by Anthony and his relatives to the social workers that day.   Ransome spoke the next day with Ms. C., who confirmed that she had been in jail for the last three weeks.   She said that she had arranged for Anthony to live with his father in Puerto Rico and that he was supposed to be attending school there.   Ransome also reviewed the family's DCF history and learned that Ms. C. had been substantiated three times in the past by DCF. During the course of this case, DCF has learned that while Anthony lived with his mother, he did not attend school regularly, and when taken into care at age nine he could not read, count past thirteen, spell or write his own name, or even tie his own shoe laces.   Despite Anthony being very thin and having eczema, asthma and a serious peanut allergy, his mother had not taken him for a medical examination since he was three years old.

Anthony was taken into DCF custody that day on a 96–hour hold pursuant to General Statutes § 17a–101g.⁷  Four days later, an order of temporary custody was entered under General Statutes § 46b–120 ⁸ by the court, Wollenberg, J.T.R,, who sustained the OTC on May 21, 2010.⁹  At trial, the investigating social worker Ransome testified that the presenting issues for Ms. C. at the time of the OTC were her history of homelessness, potential drug abuse and parenting problems.   Evelyn Hannah, the DCF social work supervisor in charge of the case after the investigation, described those issues as Ms. C.'s substance abuse, her history of homelessness and a transient lifestyle, a long-term history of neglecting her children, and her parenting problems.   Preliminary specific steps were entered at the time of the OTC, affirmed when the OTC was sustained by agreement a week later, and adopted as final specific steps on August 3, 2010, when Anthony was adjudicated to have been neglected by living under conditions injurious to his well-being and committed to DCF. The steps ordered Ms. C., inter alia,

to take part in parenting and individual counseling with the goals of implementing effective parenting skills and providing her child with a safe, stable and nurturing environment;

to submit to a substance abuse evaluation and follow treatment recommendations;

to cooperate with the following service providers, who were recommended for treatment:  Wheeler Clinic or Institute of Living for mental health treatment, Common Sense Parenting at the Village for Families and children for parenting counseling;  and ADRC for substance abuse treatment;  and

to sign releases so that DCF could communicate with these service providers to monitor her attendance, cooperation and progress toward treatment goals.

After Ms. C. was released from incarceration on May 27, her whereabouts were unknown, other than for the fact that she appeared in court on August 3, 2010, for the neglect adjudication and commitment, and she did not contact DCF until November 16, 2010, after DCF had left a letter for her at her mother's home in Newington.   She told her DCF social worker that day that she was attending psychiatric counseling at the Charter Oak Health Center, had attended the CRT Fresh Start inpatient substance abuse treatment but left the facility shortly after intake because she did not believe the program was suitable for her, and had completed a 60–day inpatient program at ADRC, but she was unwilling to sign releases of information for DCF to confirm her statements.   The social worker offered to refer her to the Common Sense Parenting Class at the Village, but Ms. C. was also unwilling to sign a release of information that the department needed in order to make a referral to that program.   Ms. C. admitted to her DCF social worker that she has a 20–year history of abusing heroin and cocaine, but claimed she had been attending Narcotics Anonymous weekly and that she had been drug-free for almost a year but she admitted that she had relapsed in March 2010 after using a tax refund to buy drugs.   She also admitted to DCF that she was taking one medication for depression and another medication commonly associated with treatment of bipolar disorder.

In April 2011 Ms. C. contacted her social worker and claimed she had been drug-free for six months, had that month completed a substance abuse evaluation at Catholic Charities ordered by the criminal court, and had been recommended to attend intensive outpatient treatment.   She signed a release of information authorizing DCF to communicate with Catholic Charities, which then told DCF that Ms. C. had not yet begun the recommended program or completed a toxicology screen during the evaluation process.   When contacted again in December 2011, the Catholic Charities substance abuse evaluator stated that Ms. C. never did attend any of the intensive outpatient sessions.

DCF social worker supervisor Hannah claimed at trial that Ms. C. had been “uncontactable” for much of this proceeding, and that the social worker had sent her letters and made phone calls that were not returned.   The evidence shows that in November 2010 and May 2011 Ms. C. told DCF that she was then living with her parents in Newington.   In October 2011 Ms. C.'s mother, Alexandrina D., told social worker White over the telephone that Ms. C. was still living in Newington with her parents but was at work at the time of the call.   Mrs. D. “agreed to provide this Social Worker's contact information to mother and have her call this Social Worker as soon as possible.”   Ex. D, at 2. When Ms. C. then did not contact the social worker, White called her on her cell phone and left a voice message asking why she had not done so and asking for a return call to schedule a home visit.   When Ms. C. did not call back, White visited the Newington home but no one answered the door.   White then left a letter asking Ms. C. to contact DCF as possible, but she did not do so until November 8, 2011, when she called and left a voice mail message “saying that she received this Social Worker's previous calls and correspondence ․ [and] no longer resides with her mother.”   Ms. C. did not provide any new address, however, and since then White has made numerous phone calls to the phone number Ms. C. gave to him, but she has not responded or provided any information about her whereabouts.

II

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

REASONABLE EFFORTS

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

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

There is clear and convincing evidence that DCF has made reasonable efforts to reunify the child with the parent, unless the court finds that the parent is unable or unwilling to benefit from reunification efforts.10

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 Ms. C. DCF caused her to be served in hand with the original OTC and neglect petition.   She appeared at the preliminary OTC hearing on May 24, 2010, at the neglect adjudication and commitment on August 3, 2010, and at the hearing on the motion for review of permanency plan on March 22, 2011.   She was served with the TPR petition at her usual place of abode and appeared on the plea date of June 21, 2011.

2. Reasonable efforts to reunify

Ms. C.'s attorney argued vigorously at trial that DCF did not make reasonable efforts to reunify Anthony with her.   Counsel argued that DCF offered no evidence of any efforts to help Ms. C. address her history of homelessness and transience, did not make its own referrals for parenting counseling, individual therapy, or substance abuse treatment, and did not attempt to address Anthony's strongly-stated desire not to see her again.   For the reasons stated below, however, the evidence showed clearly and convincingly that DCF did make reasonable efforts to reunify Ms. C. with her son.

The evidence shows that the main reasons Anthony was removed from his mother's care were her incarceration, her drug abuse, her poor parenting and neglect of Anthony, and her history of homelessness and transience.   Various provisions of the general statutes and practice book require a court, when entering an OTC,¹¹ sustaining an OTC,¹² or committing a child to DCF custody,¹³ to enter orders of specific steps for a respondent to take to regain custody of his or her child.   The specific steps entered on each of those occasions ordered Ms. C. to improve her parenting skills by participating in parenting and individual mental health counseling;  address her substance abuse by submitting to random drug testing, a substance abuse evaluation and following the recommended treatment;  and address her homelessness by obtaining legal income and adequate housing.   Ms. C. claimed at various times to DCF that she was participating in the required mental health treatment, but she refused to sign a release that would allow DCF to confirm that claim.   After she got back in contact with DCF in November 2010, she also claimed to be addressing her substance abuse problem by having completed a 60–day inpatient drug treatment program at ADRC, the very program recommended for such treatment in the specific steps, but she again refused to sign a release allowing DCF to confirm that statement.   On her own she obtained legal income and adequate housing, in conformity with orders contained in the specific steps, and was working at both Burger King and Kentucky Fried Chicken and lived with her parents from at least November 2010 through at least October 2011.   She left a voice mail message for DCF social worker White in November 2011 saying that she had moved from her parents' home, but she did not provide her new address or respond after that to voice messages left at the telephone number she had provided to DCF.

The test of whether DCF has made the reasonable efforts required by § 17a–112 is contained in the very words of the statute:

The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof.   Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn.   Reasonable efforts means doing everything reasonable, not everything possible.   Reasonableness is an objective standard and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case.

(Internal quotations omitted;  internal alterations omitted.)  In re Daniel C., 63 Conn.App. 339, 362–63, 776 A.2d 487 (2001).   DCF's conduct met this standard.   Releases for DCF to communicate with a service provider are necessary in order for DCF to ascertain whether a respondent is attending and participating in services and making progress toward treatment goals.   The DCF request for Ms. C. to sign releases authorizing DCF to communicate with the agencies where she claimed she was receiving mental health treatment and where had been inpatient for 60 days and for the agency to which DCF wanted to refer her for parenting counseling was not only reasonable, but had been ordered by the court in the specific steps.   In view of her unwillingness to sign releases authorizing DCF to communicate with the department's intended provider for parenting counseling, or to confirm that she was in active mental health treatment and had completed inpatient drug treatment, it was reasonable of DCF not to make any such referrals.   Without such releases DCF would have had no way of knowing, other than self-interested self-report from Ms. C., whether she had gone to the treatment program, begun participating in treatment, or made progress toward the treatment goals necessary for reunification.

When Ms. C. later told DCF that she had completed the substance abuse evaluation ordered in the specific steps at Catholic Family Charities and been recommended to participate in an intensive outpatient program, she did sign a release, and that program confirmed that she had participated in the evaluation and had received that treatment recommendation.   It was then reasonable for DCF not to make a duplicative referral for another substance abuse evaluation merely in order to have one done based on a DCF referral.   It was also reasonable for DCF not to refer her to another treatment program than the one recommended by the evaluation at Catholic Family Charities.   The fact that she had participated in the Catholic Family Charities evaluation upon referral of the criminal court, rather than from DCF, is of no consequence on the issue of the reasonableness of DCF efforts.   What was important was for Ms. C. to participate in these services and to allow DCF to communicate with the service provider to ascertain her cooperation and progress toward treatment goals, not the identity of the entity referring her for such a service.

The remaining argument from the respondent's attorney as to why counsel claimed DCF had not made reasonable efforts was that the department should have taken steps to address Anthony's desire not to see his mother.   Anthony experienced severe neglect while in his mother's care:  not having enough food to eat, not being sent to school, often being homeless and forced to sleep on various couches in other people's homes;  witnessing his mother and her associates use drugs and engage in sexual activity, and living in places that the child regarded as “nasty.”   His last memory of his mother is of her unconsciously foaming at the mouth on the street due to a drug overdose.   While with his mother he was deprived of the opportunity of having school friends, and in DCF custody he initially appeared to be withdrawn and uncomfortable around people.   He has told his therapist that living with his mother “was really horrible.”   Ex. C., at 13.   Because of his “life experiences;” Ex. C, at 6;  and occasional (but understandable) outbursts of anger, DCF referred Anthony for a clinical assessment and various services.   He has been in biweekly outpatient therapy at the Village for Families and Children, and in February of this year his therapist reported that visitation with his mother was not then appropriate “as it will prove to be too much for Anthony to handle.”  Id., 7. In June his therapist was still recommending against visitation because “the child's anxiety level increases and he becomes upset when the topic of visiting with his mother arises.”   Ex. C, at 16.   Since his removal from parental care, he has lived in foster care settings that he liked and where he felt comfortable, with foster parents who sent him to school and met his needs, and instead of the shy, withdrawn child that he initially appeared he has shown himself to be a friendly, outgoing and happy child when in a setting where he feels comfortable and his needs are being met.   It is understandable that Anthony wants to look forward rather than backward in his life.   On this and the other evidence established, it has been shown that DCF acted reasonably in helping Anthony address his feelings of having been abandoned and deprived by his mother.

Ms. C., on the other hand, did not, on her part, continue to show much interest or desire to be a part of Anthony's life.   For the first six months after the OTC, she did not request visitation with him.   In December 2010 she did request visitation and three times asked DCF to tell Anthony that she loved him, but after that she failed to maintain contact with the department so that she could be kept apprised of Anthony's medical, educational, and other needs and concerns.   If Ms. C. had made sufficient efforts to address the problems that had led to Anthony's removal and maintained an ongoing interest, concern and responsibility about his welfare, it is theoretically possible, however unlikely, that, at some future date, Anthony would have sufficiently addressed his feelings of anger, privation, and abandonment to the point that he might want to see his mother again or that his therapist might believe it would be beneficial to consider visitation, but she did not do so.   DCF made reasonable efforts at reunification.   What the future might have held, on other facts and circumstances, it would be pointless to speculate.

B

STATUTORY GROUNDS FOR TERMINATION

As grounds for terminating the mother's respondents' parental rights, the TPR petition alleges, pursuant to General Statutes § 17–112(j)(3),¹⁴ abandonment, failure to rehabilitate, and no ongoing parent-child relationship.   To prevail on a petition to terminate parental rights, 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, abandonment and no ongoing parent-child relationship, and (ii) through the close of evidence on the issue of whether the degree of Ms. C.'s rehabilitation is sufficient to foresee that she may assume a useful role in her son's life within a reasonable time and whether it would be detrimental to Anthony's best interest to allow further time to reestablish a parent-child relationship between them.

1. Failure to rehabilitate— § 17a–112(j)(3)(B)

Anthony was adjudicated neglected and committed to DCF on August 3, 2010, after the respondent father entered a written plea of nolo contendere and the respondent mother, who had not been Anthony's physical custodian at the time of removal, was allowed to stand silent ¹⁵ to a count of neglect by conditions injurious to Anthony's well-being under General Statutes § 46b–120(8).¹⁶  General Statutes § 17a–112(j)(3)(B) authorizes terminating parental rights to a child previously found to have been neglected 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).

“[I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the 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 [parent] ․ 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), aff'd 301 Conn. 245, 21 A.3d 723 (2011).  “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 evidence establishes clearly and convincingly that Ms. C. had not sufficiently rehabilitated herself, as of the TPR adjudicatory date, so she could assume a responsible position, in view of Anthony's age and his needs, in his life either on that date or in the reasonably foreseeable future.   Although Anthony had not been in Ms. C.'s physical care at the time of his removal, he had lived with her for most of his life and was out of her care only because she had been arrested and incarcerated three weeks earlier on narcotics charges.   Her drug use was thus a direct cause for and one of the principal reasons (the other being his father's arrest and incarceration three weeks later) that Anthony was in DCF custody.   After the removal, DCF learned about the other horrific circumstances to which he had been exposed, and the absence of medical care, education or a decent home.   Ms. C. also had a history of mental health issues and treatment that may have contributed to the choices she made that led to Anthony's neglect and certainly warranted an assessment on DCF's part.

After avoiding contact with DCF during the six months after Anthony's removal, other than appearing in court on the OTC while still incarcerated and for the neglect plea and adjudication, Ms. C. contacted DCF in November 2010 in response to inquiries made by the DCF social worker.   Ms. C. claimed then to have been in treatment for her mental health and drug abuse problems, but her refusal to provide releases allowing DCF to communicate with her alleged service providers renders her claims unworthy of belief and the court does not find these statements of hers to have been credible.   Her refusal to sign a release for DCF to communicate with the provider of parenting counsel to which it wanted to refer Ms. C. prevented the referral from occurring.   Thus, as of that date, in November 2010 there was no evidence of any rehabilitation on her part.

At the time of DCF's contact with Ms. C. in late 2010 she had pending criminal charges of resisting arrest, possession of narcotics, use of drug paraphernalia, and failure to appear, and her next court date was on February 9, 2011.   Sometime after that court hearing, she told the DCF social worker that she had completed a substance abuse evaluation at Catholic Charities that had been ordered by the criminal court, and that intensive outpatient treatment had been recommended.   She signed a release authorizing DCF to speak with Catholic Charities, which confirmed that she had undergone a substance abuse evaluation, but that agency also told DCF in June 2011 that Ms. C. had not yet started the intensive outpatient program, did not complete a toxicology screen during the evaluation process, and her “noncompliance has prevented Catholic Charities from conducting a tox screen as of June 9, 2011.”   Ex. C. at 3. Although the substance abuse evaluation was a necessary first step toward addressing her drug problem, and had been ordered in the specific steps, as of the adjudicatory date and at the time of trial, she still had not begun the intensive outpatient counseling that had been recommended or provided the toxicology sample that the recommended treatment program needed.   Thus, prior to and as of the adjudicatory date of May 23, 2011, when the TPR petition was filed, she had not yet sufficiently addressed her drug use problem to give any indication as to when or whether she would ever be able to resume care of Anthony.   As of the date of trial, that failure to address her substance abuse remained true.   The addendum to the TPR social study filed at trial reported (and the court finds the report credible and the contents of that report to be proven and true) that, as of December 15, 2011, she still had not completed the intensive outpatient drug treatment program and was “seriously in jeopardy of further sanctions by criminal court.”   Ex. D. at 2. Such a failure to complete that program, despite the risk of criminal court sanctions, is strong circumstantial evidence that she remains an active drug user, for no one else would expose themselves to such sanctions by failing to complete an outpatient drug treatment ordered by the criminal court.

Anthony is now 11 years old and has suffered in significant ways from the privation he experienced while living with Ms. C. Having been in caring and loving foster homes, in biweekly therapy, and receiving other services, such as a regular mentor, he has rebounded in many ways from that neglect, but not yet all the way.   Although he loves school and does not cause any problems there, he was far behind grade level when taken into custody, has been diagnosed with special education needs, and still is not performing at grade level.   He continues to need a parent or guardian who will ensure that his emotional and education issues are being addressed, who will provide him a safe and stable home, and provide sober, competent care.   With her own substance abuse issues still unaddressed, Ms. C. had not sufficiently rehabilitated herself, as of the adjudicatory date and the time of trial, as would encourage the belief that within a reasonable time, considering the age and needs of her child, she could assume a reasonable position in Anthony's life.   This ground has been proven by clear and convincing evidence.

2. Abandonment— § 17a–112(j)(3)(A)

A second ground in the TPR petition for terminating Ms. C.'s parental rights to Anthony alleges, pursuant to General Statutes § 17a–112(j)(3)(A), that as of the adjudicatory date she had abandoned Anthony.   The statute defines abandonment as failing to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.  “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).   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. As the court noted in In re Kezia M., 33 Conn.App. 12, 17–18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993),

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 ․

For six months after Anthony was taken into DCF custody, Ms. C. made no requests or efforts to see him, and her whereabouts were unknown to the department between the date of Anthony's commitment in late May until the middle of November.   When DCF did locate Ms. C. in November 2010, she made one request for visitation, and, after being told by the social worker that Anthony did not want to see her, asked three times for the DCF social worker to relay a message to Anthony that she missed and loved him.   Between that date and the adjudicatory date, she did not show any interest in visiting with Anthony.   After that November (or December) ¹⁷ 2011 contact, she did not maintain contact with DCF to determine how Anthony was doing, and or to inquire about his well-being or interests.   When the DCF social worker told her in April 2011 that the department was planning to file a TPR petition and asked her for the names of any relatives with whom Anthony might be placed, she did name her own mother.   The TPR social study notes that she also failed to provide financial support but this court does not place much weight on that fact, since DCF did not explain how she could have done so after Anthony went into DCF care and custody without DCF obtaining a child support order.   It does not seem reasonable to expect someone to send an unsolicited check to the state treasurer.

The evidence on the abandonment issue is thus not one-sided, but, despite being a “heavy burden” and “a very demanding standard”;  Miller v. Commissioner of Correction, 242 Conn. 745, 795–96, 700 A.2d 1108 (1997);  the standard of clear and convincing evidence does not require proof to an absolute or mathematical certainty.   It is met by evidence that “induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.”  (Internal quotation marks omitted.)  Lopinto v. Haines, 185 Conn. 527, 534, 441 A.2d 151 (1981).   It operates “as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory.”   Id., 539.

The only manifestations of love or concern on Ms. C.'s part for Anthony after he was removed were her one request to see him, her thrice-expressed message for him in late 2010 that she loved and missed him, and her identifying her mother in April 2011 as a possible placement resource for Anthony.   Her failure to ask for visits after being told about Anthony's wishes is not a very strong factor toward proving abandonment, and the messages that she then sent to him were a reasonable response and showed interest in him.   But these expressions of interest and affection in November or December 2010 stand in stark contrast to her conduct for the remainder of the 12 months between Anthony's placement in DCF custody in May 2010 and filing of the TPR petition in May 2011.   During the rest of that period, she showed no interest whatsoever, other than identifying her mother as a possible resource.   She sent no other messages, and took no action to address Anthony's desire not to see her, such as sending him a card or gift on his birthday or any other time.   This ground has been proven by clear and convincing evidence.

The evidence here shows a mother who had virtually abandoned her child, in the sense of not maintaining a reasonable degree of interest, concern or responsibility as to his welfare, long before Anthony went into DCF custody.   She did not take him to the doctor, send him to school, provided the most minimal level of home instruction such as how to tie his shoe laces, count, or read and write his name, provide him with enough food, or give him a home.   Anthony's memories of the time with his mother are of her “smoking white substances while having sexual relationships with various unknown men in homes that were unfamiliar to him” while he was “force to sleep on various couches throughout Hartford.”   Ex. C. at 11–12.   When interviewed by the DCF social worker investigator in May 2010, she thought that he had been living with his father and going to school in Puerto Rico the last six months even though he had been in her care until three weeks previously, and when she spoke to a DCF social worker in May 2011 she did not even know his correct age.   Her abandonment of Anthony after he went into DCF custody was merely the final act in her abdication of parental responsibility, concern, and affection for this young child for most of his short life.

3. No ongoing parent child–relationship— § 17a–112(j)(3)(D)

The third ground set forth in the petitions for terminating Ms. C.'s parental rights alleges, pursuant to General Statutes § 17a–112(j)(3)(D), that there is no ongoing parent child-relationship between Anthony and her and that allowing further time for such a relationship to develop would be detrimental to Anthony.   Under this section, the court must “undertake a two-pronged analysis.   First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop.”  In Re John G., 53 Conn.App. 12, 22, 740 A.2d 496 (1999).  “In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance ․ The ultimate question is whether the child has no present memories or feelings for the natural parent.”  (Citations omitted.)  In re John G., supra at 23.   This standard contemplates a relationship that has some positive attributes.   In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991).

“To satisfy the second prong [of the analysis], the trial court [is] required to determine whether it would be in the child's best interest to allow additional time for the establishment of a parent-child relationship ․ The ‘best interest’ standard, therefore, does not become relevant until after it has been determined that no ongoing parent-child relationship exists.”   (Citation omitted.)  In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).   The factors to be considered in deciding whether it would be in the best interest of a child to permit further time for a relationship with his parent to develop include “(1) the length of stay with the foster parents, (2) the nature of the child's relationship with the foster parents, (3) the degree of contact maintained with the natural parent and (4) the nature of the child's relationship to his or her natural parent.”  (Id.)

The evidence here is crystal clear, unequivocal, and overwhelming:  as of the adjudicatory date there was no ongoing parent-child relationship between Ms. C. and Anthony.   Anthony's last memory of his mother was of her unconscious, in the street, and foaming at the mouth from a drug overdose;  and he recalled his time of living with her as “really horrible” (Ex. C at 13) in what he described were “nasty” places.   It is no wonder that he was afraid of her and, from the first moments in DCF care, did not want to see her.

The evidence also shows that it would be detrimental to Anthony's best interest, both as of the adjudicatory date and the time of trial, to allow more time for such a relationship to develop.   The first and foremost reason is that Ms. C. appears no more ready, willing and able to address the deficiencies in her parenting practices that led to the dire neglect and privation Anthony experienced while in her care now than she did at the time Anthony was removed from her custody;  nor has she shown any recent interest in maintaining a relationship with her son.   Her lack of direct contact through visitation can be explained as the consequence of Anthony's desire not to see her, and thus is not a direct factor weighing against her on this statutory grounds, but her failure to maintain indirect contact counts heavily in favor of the department, as does the lack of any positive relationship whatsoever between Anthony and his mother.   Although Anthony has been in his current foster placement for only a short while, he has already bonded with the pre-adoptive family with whom DCF placed him in August 2011.   He knew them before that because the mother and father are directors of the after-school program he has attended since removal and the summer camp he went to in 2010 and 2011.   He feels safe in their home, is happy there, and enjoys living in a family setting.   Under these circumstances and the others proven at trial, it would be detrimental to his best interest to allow further time for a parent-child relationship to develop between Anthony and his mother.   This ground for terminating her parental rights, and both prongs thereof, have been proven by clear and convincing evidence.

III

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 December 16, 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).¹⁸  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 that it is Cameron's best interest to terminate the parental rights of his 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).   The department of children and families offered parenting counseling to the mother but she declined to sign the necessary referral.   The superior court for criminal matters referred her for a substance abuse evaluation, drug screening, and the recommended outpatient treatment.   These services were all consistent with the order of specific steps and appropriate to facilitate reunion and offered on a timely basis.

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).   DCF made reasonable efforts to reunite the family as required under the Federal Adoption Assistance and Child Welfare Act of 1980, but the mother has refused to provide releases necessary for certain services or to cooperate with other services.

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”— § 17a112(k)(3).   Those 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.

The mother was not available for home visits and scheduled appointments until she provided her address in November 2010, and after that she often failed to keep in contact with DCF or respond to DCF inquiries.

Keep whereabouts known to DCF and your attorney.

The mother's whereabouts were unknown to DCF after her release from the department of corrections on May 27, 2010, until the department social worker located her mother on November 16, 2010.   When she notified DCF in November 2011 that she had moved from her parents' Newington home, she did not keep DCF apprised of her new address or whereabouts.

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

Ms. C. did not visit with Anthony, as his therapist supported Anthony's desire not to see her as in his best interest.

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

Ms. C. did not sign a release necessary for her to participate in the Common Sense Parenting Class through the Village for Families and Children ordered in the specific steps and to which DCF planned to refer her, and she provided no information to DCF that she had otherwise engaged in such services.   She did report that she attends psychiatric counseling at the Charter Oak Health Center;  but her unwillingness to sign a release of information in order for DCF to verify this information renders her claim implausible and not credible.

Submit to substance abuse evaluation and follow treatment recommendations.

After refusing in November 2010 to participate in a substance abuse evaluation to sign a release that would allow DCF to verify her claim that she had attended a 60–day inpatient drug treatment program at ADRC, Ms. C. did sign a release in April 2011 that allowed DCF to confirm that she attended a substance abuse evaluation that month at Catholic Charities Institute for Hispanic Families, but DCF learned that month and in December 2011 that she had not followed the recommendation of intensive outpatient treatment.

Submit to random drug testing.

Ms. C. was unwilling to do so in November 2010.   The evidence is unclear whether her failure to provide a toxicology screen as part of the substance abuse evaluation at Catholic Charities in April was her own decision or the result of agency error, but she did not follow through on the recommended outpatient treatment program and weekly drug tests.

Do not use illegal drugs or abuse alcohol.

By virtue of Ms. C.'s unwillingness in November 2010 to undergo a substance abuse evaluation, the failure of the April 2011 evaluation to take a toxicology sample, and her failure to follow the treatment recommendation for the outpatient program and regular drug tests, there was no specific direct evidence that she was still using illegal drugs, but the better evidence shows circumstantially, as described above, that she has continued to do so.

Cooperate with recommended service providers recommended for parenting/individual/family counseling, in-home support services, and/or substance abuse treatment and sign releases allowing DCF to communicate with the providers.

Ms. C. was not willing to cooperate with recommended service providers in November 2010, but in April 2011 complied partially by submitting to a drug evaluation and signing a release, but not in full, because she did not follow through on the recommended treatment.

Cooperate with court-ordered evaluations.

Not applicable.

Secure and maintain adequate housing and legal income.

Based on reports from Ms. C. and her mother, her claim to be living with her parents in a suitable residence in Newington and working at two legal part-time jobs as of November 2010 through November 2011 is credible.   It is unknown whether she continues to be employed or the nature of her current housing.

Identify changes in household composition.

Ms. C. did not tell DCF who lived with her, if anyone, between May and November 2010 and since November 2011.   She appears to have complied with this requirement for the period she lived with her parents.

No further involvement in the criminal justice system.

By not completing the drug treatment recommended in the substance abuse evaluation ordered by the criminal court, Ms. C. is in jeopardy of further criminal court sanctions for the charges already discussed.   There was no information about whether she had new arrests.

Cooperate with child's therapy.

She was not asked to do this.

Supply names and addresses of grandparents and of persons the parent would like DCF to consider as a placement resource.

Ms. C. identified her mother as a potential placement resource.

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).   Anthony has only negative feelings toward and memories of his mother.   He lived with his second foster family for more than a year, from June 2010 until August 2011, and has a close bond with and ties to the single-parent foster mother.   It was her idea that Anthony be placed in a two-parent family for adoption, and she plans to continue being a part of his life.   Anthony has adjusted well to the new placement.

5. “The age of the child”— § 17a–112(k)(5).   Anthony is 11 years and 3 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).   Ms. C. made almost no effort to adjust her “circumstances, conduct, or conditions” to make it in Anthony's best interest to be returned to her.   She did nothing, other than the three requests in late 2010, to maintain indirect contact with him and was out of contact with DCF for frequent periods.

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).   No unreasonable act or conduct of anyone, other than by Ms. C. herself before and after removal, has prevented Ms. C. from maintaining contact or a meaningful relationship with Anthony.

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 mother's parental rights would be in Anthony's best interest, the court has considered various factors, including his interest “in sustained growth, development, well-being, and in the continuity and stability of [his] environment”;  Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985);  his age and needs;  the length and nature of his stay in foster care;  the lack of contact with or relationship with his birth parents;  his genetic bond to his birth mother;  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 Anthony's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with his biological mother.   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).

The neglect and deprivation that Anthony endured in his mother's care have continued to affect him in several significant ways.   He has occasional outbursts of anger, and feels abandoned by her and his father.   He is still behind in school.   Nonetheless, under the care and guidance of loving and nurturing foster parents and aided by services provided from the department, he has thrived.   His paternal grandmother states that before DCF involvement he was sheltered from the world and appeared to be shy and withdrawn, and her observations are consistent with the assessment of the social workers from DCF who first got to know him on an ongoing basis, social worker Rooney and his supervisor Hannah, who stated in the permanent plan social study in February 2011 that “Anthony was initially sheltered and withdrawn and seemed uncomfortable around people.”   Ex. B. at 6. They reported in the TPR social study in June 2011 that “Anthony no longer appears shy, sheltered and fearful about everyday life.   Anthony is always viewed smiling and happy about everyday life and is especially happy to be in school ․” School authorities have told DCF that his interactions with other children his age are positive and that he “is very helpful in school and goes out of his way to help others on a regular basis.”  Id. His paternal grandmother said that “she has never witnessed Anthony to be so happy and outgoing.”  Id., 7. These reports are all found credible and proven to be true.

Anthony has done well in all three foster homes where he was placed after removal, obviously a child who has relished his rescue from the life he had led with his mother.   He is now happy and thriving in a foster home with foster parents who want to adopt him.   On the evidence offered in this proceeding, it would be unjust to him and detrimental to his best interest not to allow him to have the future he now sees for himself there.¹⁹  It is in his best interest to look forward toward a better future rather than to keep looking backward at his dismal past.   Clear and convincing evidence establishes that it is his best interest to terminate the parental rights of his mother, who has not exhibited any willingness or ability to rehabilitate herself to become able to care for Anthony or to maintain contact or a relationship with him.

IV

ORDER 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 the respondent parent, it is therefore HEREBY ORDERED:

The parental rights of Alejandra C. to the minor child Anthony C. are hereby terminated.

BY THE COURT

STEPHEN F. FRAZZINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

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

FN3. Section 2–1 of the Connecticut Code of Evidence, captioned.   “Judicial Notice of Adjudicative Facts,” provides as follows:(a) Scope of section.   This section governs only judicial notice of adjudicative facts.(b) Taking of judicial notice.   A court may, but is not required to, take notice of matters of fact, in accordance with subsection (c).(c) Kinds of facts.   A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration.(d) Time of taking judicial notice.   Judicial notice may be taken at any stage of the proceeding..  FN3. Section 2–1 of the Connecticut Code of Evidence, captioned.   “Judicial Notice of Adjudicative Facts,” provides as follows:(a) Scope of section.   This section governs only judicial notice of adjudicative facts.(b) Taking of judicial notice.   A court may, but is not required to, take notice of matters of fact, in accordance with subsection (c).(c) Kinds of facts.   A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) within the knowledge of people generally in the ordinary course of human experience, or (2) generally accepted as true and capable of ready and unquestionable demonstration.(d) Time of taking judicial notice.   Judicial notice may be taken at any stage of the proceeding.

FN4. Section 2–2 of the Connecticut Code of Evidence, captioned “Notice and Opportunity To Be Heard,” provides as follows:(a) Request of party.   A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties.   Before the court determines whether to take the requested judicial notice, any party shall have an opportunity to be heard.(b) Court's initiative.   The court may take judicial notice without a request of a party to do so.   Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned..  FN4. Section 2–2 of the Connecticut Code of Evidence, captioned “Notice and Opportunity To Be Heard,” provides as follows:(a) Request of party.   A party requesting the court to take judicial notice of a fact shall give timely notice of the request to all other parties.   Before the court determines whether to take the requested judicial notice, any party shall have an opportunity to be heard.(b) Court's initiative.   The court may take judicial notice without a request of a party to do so.   Parties are entitled to receive notice and have an opportunity to be heard for matters susceptible of explanation or contradiction, but not for matters of established fact, the accuracy of which cannot be questioned.

FN5. In closing argument DCF requested that the court draw an adverse inference against the respondent mother for her failure to testify, but has not presented any evidence that she was given prior notice that an adverse inference might be made from such a failure;  nor is there any basis for the court to take judicial notice that she had been so advised.   Thus, in accord with In re Samantha C., 268 Conn. 614, 8A7 A.2d 883 (2004), the court declines to adopt DCF's suggestion and has not drawn any such adverse inference..  FN5. In closing argument DCF requested that the court draw an adverse inference against the respondent mother for her failure to testify, but has not presented any evidence that she was given prior notice that an adverse inference might be made from such a failure;  nor is there any basis for the court to take judicial notice that she had been so advised.   Thus, in accord with In re Samantha C., 268 Conn. 614, 8A7 A.2d 883 (2004), the court declines to adopt DCF's suggestion and has not drawn any such adverse inference.

FN6. It is axiomatic that “ ‘[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.’  Kimberly–Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).”  Jacques All Trades Corporation v. Brown, 42 Conn.App. 124, 129, 679 A.2d 27 (1996);  see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999)..  FN6. It is axiomatic that “ ‘[i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.’  Kimberly–Clark Corp. v. Dubno, 204 Conn. 137, 153, 527 A.2d 679 (1987).”  Jacques All Trades Corporation v. Brown, 42 Conn.App. 124, 129, 679 A.2d 27 (1996);  see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999).

FN7. General Statutes Section 17a–101g provides in relevant part as follows:  “(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian.   The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.”.  FN7. General Statutes Section 17a–101g provides in relevant part as follows:  “(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian.   The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.”

FN8. General Statutes Section 46b–120 provides, in pertinent part, as follows:”(b) If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency pending disposition of the petition, or (B) issue an order ex parte vesting the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency.”.  FN8. General Statutes Section 46b–120 provides, in pertinent part, as follows:”(b) If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency pending disposition of the petition, or (B) issue an order ex parte vesting the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency.”

FN9. The OTC was sustained by agreement on the mother's part and without prejudice to the father..  FN9. The OTC was sustained by agreement on the mother's part and without prejudice to the father.

FN10. 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(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, ․”

FN11. General Statutes Section 46b–129(b) provides as follows:  “If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency pending disposition of the petition, or (B) issue an order ex parte vesting the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency ․ Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth.”  Practice Book Section 33a–6(d) provides as follows:  “(d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth.”.  FN11. General Statutes Section 46b–129(b) provides as follows:  “If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency pending disposition of the petition, or (B) issue an order ex parte vesting the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency ․ Upon issuance of an ex parte order, the court shall provide to the commissioner and the parent or guardian specific steps necessary for each to take to address the ex parte order for the parent or guardian to retain or regain custody of the child or youth.”  Practice Book Section 33a–6(d) provides as follows:  “(d) Upon issuance of an ex parte order or order to appear, the judicial authority shall provide to the commissioner of the department of children and families and the respondents specific steps necessary for each to take for the respondents to retain or regain custody of the child or youth.”

FN12. General Statutes Section 46b–129(c) provides as follows:  “The preliminary hearing on the order of temporary custody or order to appear ․ shall be held in order for the court to ․ order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth;  ․” Practice Book Section 33a–7(a) provides as follows:  “At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall:  ․ (8) ․ order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth.”.  FN12. General Statutes Section 46b–129(c) provides as follows:  “The preliminary hearing on the order of temporary custody or order to appear ․ shall be held in order for the court to ․ order specific steps the commissioner and the parent or guardian shall take for the parent or guardian to regain or to retain custody of the child or youth;  ․” Practice Book Section 33a–7(a) provides as follows:  “At the preliminary hearing on the order of temporary custody or order to appear, or at the first hearing on a petition for neglect, uncared for, dependency, or termination of parental rights, the judicial authority shall:  ․ (8) ․ order specific steps the commissioner and the respondents shall take for the respondents to regain or to retain custody of the child or youth.”

FN13. General Statutes Section 46b–129(j) provides as follows:  “Upon finding and adjudging that any child or youth is uncared-for, neglected or abused, the court may commit such child or youth to the Commissioner of Children and Families ․ The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent.”.  FN13. General Statutes Section 46b–129(j) provides as follows:  “Upon finding and adjudging that any child or youth is uncared-for, neglected or abused, the court may commit such child or youth to the Commissioner of Children and Families ․ The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent.”

FN14. 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;  ․ (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child ․.  FN14. 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;  ․ (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child ․

FN15. Practice Book Section Sec. 35a–1, captioned “Adjudication upon Acceptance of Admission or Written Plea of Nolo Contendere,” provides as follows:(a) Notwithstanding any prior statements acknowledging responsibility, the judicial authority shall inquire whether the allegations of the petition are presently admitted or denied.   This inquiry shall be made of the parent(s) or guardian in neglect, uncared for or dependent matters;  and of the parents in termination matters.(b) An admission to allegations or a written plea of nolo contendere signed by the respondent may be accepted by the judicial authority.   Before accepting an admission or plea of nolo contendere, the judicial authority shall determine whether the right to counsel has been waived, and that the parties understand the content and consequences of their admission or plea.   If the allegations are admitted or the plea accepted, the judicial authority shall make its adjudicatory finding as to the validity of the facts alleged in the petition and may proceed to a dispositional hearing.   Where appropriate, the judicial authority may permit a noncustodial parent or guardian to stand silent as to the entry of an adjudication.”(Emphasis added.).  FN15. Practice Book Section Sec. 35a–1, captioned “Adjudication upon Acceptance of Admission or Written Plea of Nolo Contendere,” provides as follows:(a) Notwithstanding any prior statements acknowledging responsibility, the judicial authority shall inquire whether the allegations of the petition are presently admitted or denied.   This inquiry shall be made of the parent(s) or guardian in neglect, uncared for or dependent matters;  and of the parents in termination matters.(b) An admission to allegations or a written plea of nolo contendere signed by the respondent may be accepted by the judicial authority.   Before accepting an admission or plea of nolo contendere, the judicial authority shall determine whether the right to counsel has been waived, and that the parties understand the content and consequences of their admission or plea.   If the allegations are admitted or the plea accepted, the judicial authority shall make its adjudicatory finding as to the validity of the facts alleged in the petition and may proceed to a dispositional hearing.   Where appropriate, the judicial authority may permit a noncustodial parent or guardian to stand silent as to the entry of an adjudication.”(Emphasis added.)

FN16. General Statutes Section 46b–120 provides in pertinent part as follows:  “(8) A child or youth may be found “neglected” who ․ (B) is being denied proper care and attention, physically, educationally, emotionally or morally, ․”.  FN16. General Statutes Section 46b–120 provides in pertinent part as follows:  “(8) A child or youth may be found “neglected” who ․ (B) is being denied proper care and attention, physically, educationally, emotionally or morally, ․”

FN17. The social study stated that the date when Ms. C. called the DCF social worker in response to his letter was on December 16, 2010, but at trial DCF corrected this information by reporting that the contact had occurred on November 16, 2010.   Based on that error, it cannot be determined whether the other December 2010 dates referred to in the TPR social study were also incorrect, and the court assumes that references in the TPR social study to contacts between mother and the department in December 2010 mean either November or December 2010..  FN17. The social study stated that the date when Ms. C. called the DCF social worker in response to his letter was on December 16, 2010, but at trial DCF corrected this information by reporting that the contact had occurred on November 16, 2010.   Based on that error, it cannot be determined whether the other December 2010 dates referred to in the TPR social study were also incorrect, and the court assumes that references in the TPR social study to contacts between mother and the department in December 2010 mean either November or December 2010.

FN18. 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.”.  FN18. 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.”

FN19. The court has not heard the evidence on the department's petition to terminate the father's parental right, and any findings here do not have any estoppel effect as to him..  FN19. The court has not heard the evidence on the department's petition to terminate the father's parental right, and any findings here do not have any estoppel effect as to him.

Frazzini, Stephen F., J.