IN RE: Joshua S.1 (2012)

Memorandum of Decision

The present matter involves a petition to terminate parental rights (TPR) under General Statutes § 17a–112 and a motion for review of permanency plan (MRP) under General Statutes § 46b–129(k).  The MRP, filed by the department of children and families (DCF) on May 26, 2011, seeks court approval of a permanency plan of TPR and adoption.   The original TPR petition, filed on August 15, 2011, sought to terminate the parental rights of Gerline S. and Tracey B., whom Ms. S. had identified as the child's father, to Joshua S., born on August 25, 2006.   Thereafter, in accordance with General Statutes § 46b–129(a),² the court caused a summons to be issued to the respondent mother and, in accordance with General Statutes § 45a–716(c), for notice of the petition to Tracey B., whose address was unknown by publication in the Sun Sentinel in Fort Lauderdale, Florida,³ for them both to appear on September 15, 2011.   On that date, neither person appeared.   This court confirmed notice by publication on Mr. B., reviewed a military affidavit filed by DCF showing that Tracey B. is not in the military services of this country, and entered a default against him for failing to appear and enter a plea, pursuant to Practice Book Section 35a–8(b).⁴  Since the respondent mother had not been served at least fourteen days previously, as required by § 46b–129(a), the court ordered that she be reserved with a plea date of October 25, 2011, at which time she did appear, was advised, and entered a denial to the allegations of the petition.

A timely objection having been filed by the respondent mother to the MRP, hearing on that motion was consolidated with trial on the TPR petition and both were scheduled for January 12, 2012.   On that date DCF's counsel and social worker and the mother's counsel appeared.   The mother's attorney informed the court that the mother was not planning to attend the trial that day because she was ill, but also stated that, although the mother was not consenting to termination of her parental rights, she was not requesting a continuance of the trial because of her absence.   Counsel for DCF moved to amend the TPR petition, which as filed had not alleged that DCF had made reasonable efforts to reunite the parents with the child or that the parents had been unwilling or unable to benefit from such efforts, as is required under General Statutes § 17–112 for termination of parental rights on nonconsensual grounds.   Counsel for the respondent mother did not object to the motion or amendment or to the court proceeding on the petition as amended without the mother being re-served.   The motion was thereupon granted, and the petition amended accordingly.⁵  As Practice Book § 35a–8(a) requires that “[a]ll parties except the child or youth shall be present at trial unless excused for good cause shown,” ⁶ counsel for DCF moved for a default against the respondent mother for her failure to appear for trial, which the court granted pursuant to that same rule.   See also Practice Book § 34a–1.⁷

Prior to the commencement of trial, counsel for DCF informed the court that, although the respondent mother had told DCF that Tracey B. was Joshua's father, she had been married to Evans C. when Joshua was conceived and that there had been no genetic testing to establish the identity of Joshua's father by scientific means.   In view of this state's recognition of the common-law presumption of legitimacy, “which provides that a child born in wedlock is presumed to be the issue of the mother and her husband”;  Weidenbacher v. Duclos, 234 Conn. 51, 63, 661 A.2d 988 (1995);  DCF moved to amend the petition to name Mr. C. as an additional respondent.   DCF also moved, in light of the facts that Ms. S. had been married to one person and named another as the child's father and that there had been no genetic testing, to add John Doe as a putative father and respondent.   The court granted DCF's oral motion to add both as named respondents, and for them to be given notice of the proceeding by publication with future plea dates.   Although Mr. B. had been previously defaulted, counsel for DCF also sought court approval for him to be notified of the amended petition and given a new opportunity to appear and defend.   The court concurred with that proposal;  and the default against Mr. B. has been vacated.   An amended petition naming all three men as respondent putative fathers has been filed, and the date for their initial appearance is scheduled for February 23, 2012.

Trial of the petition regarding the parental rights of the respondent mother then proceeded in her absence although her attorney remained in attendance.   Counsel for the minor child was absent, but had submitted a letter to the court supporting the petition.   Counsel for DCF did not object to proceeding in the absence of the child's attorney or to her letter being submitted into evidence as a statement of her position.   During the trial, DCF presented testimony from DCF social workers Maria Cruz and Stephanie Carvalho and offered four exhibits into evidence, and the court notified the parties, without objection from them, of its intention to take judicial notice of the contents of the court file and all orders entered in this matter, pursuant to sections 2.1 and 2.2 of the Connecticut Code of Evidence.⁸

The court is not aware of proceedings pending in any other court regarding the custody of this child, and this court has jurisdiction.   The respondent mother does not claim tribal affiliation.   The matter is now ready for decision, and the facts found herein were established by clear and convincing evidence.

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, according to the standards required by law.   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.

A

The Mother, Gerline S.

Gerline S. was born and raised in the state of Florida, where she graduated from high school, then attended various vocational programs, was married, and had her first child in May 2005.   In June 2006, pregnant with her second child, Joshua, she moved to Connecticut to live with a family friend, Ronique S. When Joshua was born in August, a hospital social worker called DCF to report that Ms. S. and the children were going to be homeless, as Ronique S. was returning to Florida, and Ms. S. had no baby supplies or a plan for herself and her children.   DCF helped her find an apartment, provided financial assistance so that she could get baby supplies, and pursued the matter no further.   A year later, DCF received an anonymous report that Ms. S.'s boyfriend was slapping the children and shaking Anthony.   When police went to the home, they found no signs that the children had been abused, but a social worker visiting the home two days later found it dirty, the counters covered with food and garbage, and boxes of clothing on the floor.   The social worker told Ms. S. that the conditions in her apartment were unsafe for her children.   Ms. S. denied that the children had been physically abused and said that she was moving with them back to Florida the next day.   When DCF later returned to the apartment, it was vacant, and the department did not pursue the matter further.

While Ms. S. was in Florida for the next two years, DCF in Florida received a referral in 2008 and found her to be highly depressed, exhibiting poor coping and parenting skills, and overwhelmed by the special needs of her two children, both of whom were developmentally delayed.   The older child could not speak and was still in diapers at age three.  “Joshua was reported to be even more delayed and displayed a very poor disposition.”   Exhibit A, TPR social study, at 3. Florida DCF told Ms. S. that unless she agreed to an inpatient mental health assessment, her children would be taken away;  and Ms. S. later told Connecticut DCF that she was then hospitalized for psychiatric reasons for two weeks.

When Ms. S. returned to Connecticut in August 2009, she left her older child with his father in Florida but brought Joshua back with her.   A doctor referred Ms. S. for mental health treatment at Charter Oak Health Center, where she appeared suicidal in two appointments and was hospitalized for a psychiatric assessment after the second session.   The therapist told the DCF hotline that there appeared to be no bonding between Ms. S. and Joshua, and that she was unable to interact appropriately with him.   Joshua was taken into custody on a 96–hour hold and four days later, the court, Prestley, J., entered an order of temporary custody (OTC).   The OTC was sustained by agreement at the initial hearing on October 16, 2009.

After the psychiatric assessment, Ms. S. was referred to the day treatment program at the Institute of Living (IOL) for four-hour sessions three days a week.   She attended that program consistently although the treating therapist told DCF that she was anxious and guarded in group sessions.   At the end of December 2009 she was discharged from that program to outpatient group therapy at the IOL. She attended those group sessions fairly regularly until being hospitalized again at the IOL from November 11 through 18 of 2010 because of depression and suicidal ideation.   She then again attended the IOL intensive outpatient program three days a week through January 13, 2011.   In March 2011 her IOL clinician told the department that Ms. S. was diagnosed with Major Depressive Disorder Recurrent Severe with Psychotic Features, chronic, Post Traumatic Stress Disorder, and Borderline Personality Disorder.   Her treatment recommendations were regular group therapy, individual therapy as needed, monthly reviews of her medications, and a visiting nurse daily to make sure she took her prescribed medications.   In June 2011 she told DCF that she had not taken her medications, no longer wanted a visiting nurse to come to her home to administer the medications, and wanted to be able to take her medications on her own.   She was then hospitalized again at the IOL from June 30 to July 6, 2011, for depression and suicidal ideation.   On July 14, 2011, she told DCF that she was no longer willing to participate in mental health services at the IOL, had not taken any of her medications since being discharged from the IOL, and was no longer willing to cooperate with the visiting nurses for administration and monitoring of her medications.   When DCF offered to refer her again for mental health services at an administrative case review (ACR) in September 2011, Ms. S. again refused such services.

After Joshua's removal, Ms. S. at first asked to have weekly visitation with him at the DCF office, but beginning in April 2010 the supervised visits began occurring at her home.   She missed five of the 25 visits offered between October 2009 and June 2010.   Due to the reports from Florida DCF about Joshua's developmental delays and from her therapist at the Charter Oak health Center about Ms. S.'s inability to interact with him appropriately, DCF referred her after the OTC for parenting classes at the Village for Families and Children.   Those classes began in November 2009;  but she did not start them on schedule and attended only four classes.   Ms. S. complained to DCF that they were boring and that she was not getting much out of listening to someone talk about parenting skills.   DCF then referred her to the New Life Family Center for one-on-one parenting instruction, first at the New Life Center twice a week between January and April 2010 and then in her own home.

The parenting educator from that program told DCF that sometimes Ms. S. allowed Joshua to run around the apartment during the sessions and that she did not appear to recognize when Joshua had enough to eat.   The Center's final report in June 2010, however, did indicate that she had successfully completed a number of its goals, including learning to be nurturing to Joshua and to discipline him appropriately.   In June DCF increased her visits to twice a week, one at her home and one at the Abundant Family Center (AFC) and the next month filed a motion for approval of a permanency plan of reunification, which the court, Keller, J., approved without objection on August 24, 2010.

To effectuate the permanency plan, DCF referred Ms. S. to the Reconnecting Families program (RFP) on June 25, 2010, for reunification services, but that program quickly discovered that she did not have adequate income or adequate and stable housing.   Her cash benefits from the department of social services ended in August, and by October she was two months behind in rent, had no food in the home, and owed $600 on her electricity bill.   Her apartment was also infested with roaches and mice, which RFP reported “could become a safety issues for a special needs child.”   Exhibit A, TPR social study, at 11.   DCF paid the overdue rent.   Ms. S. tried to work, but was unable to do so, and quit a job after only one day.   In November 2010, RFP discontinued its services until she had addressed her needs for adequate housing and income, which would also have been necessary for Joshua to return home.

Meanwhile, the visitations supervised by the Abundant Family Center were not going well.   In August 2010 AFC reported that Ms. S. was not engaging with Joshua during the visits by reading to or playing with him, that she was often distracted by the television, and that Joshua was having great difficulty leaving her at the end of visits.   All of the visits were then switched to the AFC office so that there would be more staff to help get Joshua into a car at the end of the visits and AFC staff could observe Ms. S. interacting with Joshua in an environment that had more space than her small apartment and more toys to engage him.   AFC reported that “Mother's inability to engage Joshua was concerning, given the fact that Joshua has speech and language delays which could be the result of a lack of stimulation while in his Mother's care.”   Exhibit A, TPR social study, at 6. In late October, AFC services were discontinued because she had missed so many visits in September and October.

After Ms. S.'s discharge from her November 2010 psychiatric hospitalization, DCF allowed weekly visits with Joshua to resume.   Although she attended them consistently, missing only two visits in the next six months, she interacted only minimally with Joshua during the visitations.   For example, twice she read a book aloud for several minutes while Joshua was at the other end of the visitation room and not paying attention;  yet she did not get up and attempt to engage him.   On another occasion, “staff supervising the visit observed Mother looking at and holding a doll and staring at it like she was in a trance for several minutes, and not paying attention to Joshua.”   Exhibit A, TPR social study, at 7.

At a meeting in March 2011, DCF warned Ms. S. that, unless she were able to obtain adequate housing and stable income, continue in her mental health treatment, and remain medication compliant, the department would seek court approval to change the permanency plan from reunification to TPR and adoption.   In May 2011 Ms. S. told DCF that she had been awarded social security disability benefits, because of her mental health and other medical issues, and that as of June she would be receiving $674 per month in benefits.   DCF agreed to refer her back to the Reconnecting Families Program, to the VNA to review her medication compliance, and to contact her mental health clinicians to determine their views on her mental health stability.   The RFP visitation supervisor told DCF that “the first couple of visits were okay” but that afterward “Mother's interaction and engagement decreased.”  Id. Ms. S. often slept during the visits, and often appeared lethargic.   One time she did not notice that Joshua had gotten too close to a hot stove on which Ms. S. was cooking, and the supervisor had to intervene to protect the child.   Sometimes she fed Joshua food that was too hot, even after being cautioned by the visitation supervisor to wait until it had cooled down.   The last time she visited with Joshua was on May 11, 2011, although DCF offered weekly visits through August.   At the September ACR, DCF offered to resume visits but Ms. S. told social worker Carvalho that if DCF was going to seek to terminate her parental rights she did not want to visit Joshua any longer.

B

The Child, Joshua S.

Upon entering DCF custody, Joshua had significant developmental delays.   He did not walk until age two and had not learned to use a toilet by age three.   He preferred to sleep on the floor, where the foster mother would find him after putting him in bed, because he had become accustomed to sleeping on the floor in his mother's apartment, which had no beds.   He had not seen a doctor since his return to Connecticut with his mother earlier that year, but his pediatrician here, who had not seen him since before the move to Florida in 2007, told DCF that he had chronic problems of Failure to Thrive, Global Developmental Delays, Hypotonia Truncal, Gastric Esophageal Reflux (GER) and Congenital Nevomelanocytic nevus and would benefit from Birth–to–Three Services.   He has now been diagnosed as having autism, and he needs constant supervision, structure, and routine.   For the last two years, he has received ten hours a week of special education services to address his developmental delays in speech and visual and fine motor skills.   At trial the DCF permanency social worker Stephanie Carvalho stated that “I wouldn't say he is a high-functioning autistic child.”   She described his behaviors as sometimes being aggressive or using profanity.   He walks on his tiptoes, flops his hands, bites the side of his cheek, and sometimes urinates on himself.   He does not look directly at those talking to him, does not show emotion, and “shuts down when you start to talk to him.”

On May 24, 2011, DCF filed a motion for review of a permanency plan for termination of parental rights and adoption, and the social study then reported that DCF would be seeking a pre-adoptive home in which to place Joshua.   By the time of trial in January 2012, Joshua had been placed in the foster home of his godmother, Ronique S., whom DCF intends as his adoptive parent should the TPR petitions all be granted.   This woman is a friend of the mother and someone that Ms. S. identified at the time of the initial OTC hearing as a placement resource for Joshua.   She lives in the same apartment complex as the mother, has a good relationship with her, and it is likely that an adoption would result in Joshua continuing to have a connection with his mother.

II

TPR Adjudicatory Findings

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

Effect of Default

Practice Book § 32a–2(a) provides that child protection proceedings, including petitions for termination of parental rights, are civil matters.⁹  See also In re Samantha C., 268 Conn. 614, 634, 842 A.2d 1124 (2004);  In re Shonna K., 77 Conn.App. 246, 253, 822 A.2d 1009 (2003).   As in other civil matters, “[t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint”;  DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982);  and thereby conclusively establishes that the petitioner has prevailed on each of the elements at issue in the adjudicatory phase of this proceeding.   Commissioner of Social Services v. Smith, 265 Conn. 723, 732–33, 830 A.2d 228 (2003) (respondent in child support proceeding who fails to respond to pleadings “is deemed to have judicially admitted the underlying facts of the support petition”);  see also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000).   Under Practice Book § 35a–8, when a party is defaulted for failing to appear in a TPR proceeding, the court may then take evidence and render judgment.   In view of the gravity of the TPR issues at hand, however, the court has considered the petitioner's evidence on the specific adjudicatory grounds alleged.

B

Reasonable Efforts

A termination 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 on these issues as follows:

1. Reasonable efforts to locate

There is clear and convincing evidence that DCF made reasonable efforts to locate Ms. S. DCF caused her to be served with the neglect and TPR petitions, on both of which she appeared before the court, was advised of her rights and appointed counsel, and entered denials to the allegations in the petition.   The evidence showed that DCF knew of her whereabouts and had contact with her throughout the case.¹¹

2. Reasonable efforts to reunify

There is clear and convincing evidence that DCF made reasonable efforts to reunify Ms. S. with Joshua.   The main reasons that Joshua was taken into and has remained in DCF custody were Ms. S.'s mental instability, her lack of knowledge about how to take proper care of a child, and her financial and housing instability.   DCF repeatedly referred her for mental health treatment, for instruction and assistance in learning how to take proper care of a child, and repeatedly provided funds for her to pay back rent and utility bills.

C

Statutory Grounds for Termination

As statutory grounds for terminating Ms. S.'s parental rights, the TPR petition alleges abandonment and failure to rehabilitate under General Statutes § 17a–112.   To prevail on a petition to terminate parental rights, DCF must prove at least one of these grounds 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).

The petition was filed on August 15, 2011, and amended on January 12, 2012.   The amendment asserted that DCF had made reasonable efforts to reunify Ms. S. with Joshua, an allegation that, as noted in the previous section, is an essential element for terminating an individual's parental rights on non-consensual grounds under § 17a–112.   At the time of the amendment, counsel for DCF argued that the amendment was technical in nature, because, she maintained, the substance of an allegation of reasonable efforts had already been set forth in the department's Summary of Facts to Substantiate Petition for Termination of Parental Rights filed at the same time as the original petition (and made DCF exhibit D in this proceeding).   The court has reviewed exhibit D, and that document does contain eight numbered paragraphs under the heading of “Reasonable Efforts.”   The department did not expressly argue, however, that such a “technical amendment” of the petition including an omitted essential element meant that the adjudicatory date, for the purpose of evaluating the department's evidence, remained the original filing date.

In the case of In Re Brea B., 75 Conn.App. 466, 816 A.2d 707 (2003), a similar situation was presented to the court.   In that case, the petition “was amended to include several grounds for termination that inadvertently had been left unchecked on the standard petition form”;  id., 468;  and it is clear from the appellate opinion that the court looked at the date the original petition was filed to determine whether adjudicatory grounds had been proven.   In determining whether the department had met its burden of establishing no ongoing parent-child relationship, for example, the court noted that “it is the character of that relationship at the time of the filing of the termination petition that is relevant to the court's inquiry.”  (Emphasis added.)  Id., 471.   That court, however, did not specifically address the issue, however, of whether Practice Book Section 35a–7 mandated assessing the adjudicatory grounds as of the date of the amendment, and that case thus has little precedential value here.   In the present case, however, this court need not decide such an issue, for, as will be discussed below, both statutory grounds were proven by clear and convincing evidence when measured by the facts established prior to the date the petition was originally filed and also prior to when it was later amended.

1. Abandonment— § 17a–112(j)(3)(A)

The first ground alleged in the TPR petition for terminating Ms. S.'s parental rights to Joshua is that, pursuant to General Statutes § 17a–112(j)(3)(A),¹² she abandoned Joshua.  “In adjudicating a petition to terminate parental rights on the ground of abandonment, the court's focus is on the parent's conduct.”  In re Jaime S., 120 Conn.App. 712, 994 A.2d 233 (2010).

A lack of interest in the child is not the sole criterion in determining abandonment ․ General Statutes [Rev. to 1995] § 17a–112(b)(1) [now § 17a–112(j)(3)(A) ] defines abandonment as the [failure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ․ Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child ․ Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child's welfare ․

In re Kezia M., 33 Conn.App. 12, 17–18, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).   The statute requires DCF to show by clear and convincing evidence that a parent has failed to maintain a reasonable degree of interest in the welfare of his or her child.  “Maintain implies a continuing, reasonable degree of concern,” “not ․ a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child.”  Id., 18.   “The commonly understood general obligations of parenthood entail these minimum attributes:  (1) express love and affection for the child;  (2) express personal concern over the health, education and general well-being of the child;  (3) the duty to supply the necessary food, clothing, and medical care;  (4) the duty to provide an adequate domicile;  and (5) the duty to furnish social and religious guidance ․” (Citation omitted;  internal quotation marks omitted.)  Id.

The evidence shows by clear and convincing evidence that, prior to the date that the TPR was filed on August 15, 2011, Ms. S. had abandoned Joshua, whom she had not seen since May 11, 2011.   After being told by DCF on May 23, 2011, that it intended to propose a permanency plan of TPR and adoption for Joshua, Ms. S. effectively gave up and stopped visiting with Joshua, although the court had not yet approved such a plan and she could have contested DCF's proposal.   She missed her last two scheduled visits in May, three scheduled visits in June, four scheduled visits in July, and all her scheduled visits in August before the TPR was filed.   After her psychiatric hospitalization between June 30 and July 6, 2011, she told DCF that if DCF was going to seek termination of her parental rights she did not want to visit with the child any longer.

The evidence shows, moreover, that Ms. S.'s decision to stop visiting Joshua was not simply a reaction to DCF's statement of its intentions, but was instead consistent with her conduct toward Joshua in the weeks and months before that.   During her visitations with Joshua over the last year, Ms. S. had not shown reasonable interest in or concern about him but instead a gradual abandonment that culminated in her no longer seeing him.   In the visitations supervised by the Abundant Family Center between June and October of 2010, for example, she did not engage with Joshua during the visits and was often distracted by the television.   She missed so many visits in September and October of 2010 that the AFC supervised visits were discontinued.   When visits with Joshua were resumed after her discharge from a psychiatric hospitalization in November 2010, she attended the visits consistently, but paid only minimal attention to Joshua during them.   In the visits during the three months immediately prior to the cessation of visitation, she was often lethargic and sleepy, and on one occasion did not pay attention or react when Joshua got too close to a hot stove.   And since discontinuing visitation, Ms. S. has not sent Joshua any cards, gifts or letters, made any inquiries to DCF about him, shown any interest in his health or welfare to DCF, and not requested any further visitation.   As of the date that the TPR petition was filed, Ms. S. had not seen Joshua for almost three months, and had shown none of the other attributes contained in the statute or discussed in the case law as showing a reasonable degree of interest in him or his welfare.

The evidence also shows by clear and convincing evidence that, prior to the date that the TPR petition was amended on the day of trial, January 12, 2012, Ms. S. had abandoned Joshua.   The only time she had seen him since May 11, 2011, had been on Joshua's birthday in August 2011, but on that occasion the DCF worker had to persuade her to attend the visit, which the social worker had then cut short because Ms. S. was not paying attention to Joshua.   In September 2011 Ms. S. did attend an administrative case review regarding Joshua, but she refused DCF's offer of renewed visitation and said she would not visit Joshua as long as DCF was involved.   Since stopping visitation in May 2011, she had not sent Joshua any cards, gifts or letters, made any inquiries about him, shown any interest in his health or welfare to DCF, and not requested any further visitation.   The foster mother and Ms. S. talk regularly on the phone, but even in those conversations Ms. S. does not ask about Joshua.

This ground for terminating Ms. S.'s parental rights was thus proven by clear and convincing evidence regardless of which date, when the TPR petition was filed or amended, is used for determining whether she had abandoned Joshua by failing to maintain a reasonable degree of interest, concern or responsibility as to his welfare.

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

On January 5, 2010, Joshua was adjudicated neglected and committed to DCF after Tracey B. was defaulted for failing to appear and plead and Ms. S. entered a written plea of nolo contendere to a count of neglect by conditions injurious to Joshua's well-being under General Statutes § 46b–120(8).¹³  In accordance with General Statutes 46b–129(j),¹⁴ the court, Dannehy, J., that day entered an order of specific steps that Ms. S. should undertake to regain custody of her son.   To address the issues of her mental and financial instability and lack of knowledge of and skill in proper parenting practices, those steps ordered her, inter alia, to participate in individual and group therapy and medication management at the Institute of Living and parenting counseling and reunification services at the New Life Center.   The treatment goals identified in the specific steps were for her to address her mental health issues and obtain proper parenting skills.

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 [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue.”  (Internal quotation marks omitted.)  In re Amneris P., 66 Conn.App. 377, 384, 784 A.2d 457 (2001).  “Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate;  it is ordered so as not to punish a child by denying [the child] a safe permanent home with proven competent caretakers because [the] biological [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 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.   This ground for termination of parental rights requires the court to inquire both as of the adjudicatory date and also as of the close of evidence whether the degree of a parent's rehabilitation is sufficient to foresee that such parent may assume a responsible role in the child's life, in view of that child's age and needs, within a reasonable time.   Like the prior ground, this ground was proven by clear and convincing evidence both as of the date the TPR petition was filed and at the time the petition was amended.   Furthermore, looking into the future, it was proven by clear and convincing evidence that, as of the date of trial, Ms. S. had not achieved a sufficient degree of rehabilitation to foresee that she could assume a responsible position in Joshua's life, in view of his age and needs, within a reasonable time.

Joshua was in departmental care rather than his mother's because of her mental health problems, her financial and housing instability, and her poor parenting.   The award of social security disability benefits, although only $674 per month, should help address the financial instability that she has long experienced and give her the means also to maintain adequate housing.   She appears to be in a stable relationship with her boyfriend, with whom she has lived and shared expenses for more than two years.   But Ms. S. has significant psychiatric diagnoses that inpatient and outpatient treatment have not successfully addressed.   As of the date that the TPR petition was filed on August 15, 2011, she had repeatedly been hospitalized in psychiatric facilities because of her depression and suicidal ideation:  for two weeks in 2008 after Florida DCF threatened to take away her children, for a day in August 2009 after she was suicidal in a therapy session at Charter Oak Medical Center, for a week in November 2010 at the Institute of Living, and for another week from June 30 to July 6, 2011.   Between hospitalizations, she would engage in individual and group therapy and receive medications to address her symptoms, but the mental health treatment has unfortunately not been successful in addressing her mental health issues.   In July 2011, after her discharge from the Institute of Living for her most recent hospitalization, Ms. S. told DCF that she was no longer willing to participate in mental health services at the IOL, had not taken any of her medications since being discharged from IOL, and was no longer willing to cooperate with VNA services for the administration and monitoring of her medications.   The evidence has thus shown a cyclical pattern of psychiatric hospitalization, outpatient treatment, and noncompliance while in the community with her medication regimen.

Although visiting nurse services were put into place to ensure that she took her medications regularly, by mid–2011 she was no longer willing to work with the VNA and insisted she wanted to take her medications on her own;  yet, only a few days later she was again hospitalized for depression and suicidal thoughts, and even after leaving the IOL she continued to reject any assistance from the VNA in maintaining her medication schedule.   In effect, Ms. S. has told DCF and, through her conduct has shown, that she would no longer seek treatment for the mental health problems that were the main reason Joshua was in DCF care and custody.   Moreover, the evidence throughout the history of this case is that she has never been able to master minimally appropriate parenting skills, as demonstrated by her inability to interact with Joshua and engage him during her visits.

DCF has therefore proven by clear and convincing evidence that as of the date the TPR petition was filed on August 15, 2011, and as of the date the petition was amended on January 12, 2012, Ms. S. had not sufficiently rehabilitated herself that she could then, or in the reasonable future, in view of Joshua's age and needs, assume a responsible position in his life.   Joshua is an autistic child with special needs, and is also developmentally delayed in his speech and his visual and fine motor skills.   He loves to play and can be energetic, but he is also aggressive sometimes.   When people try to talk to him, he does not show any emotion or look at them and instead “shuts down.”   He requires a caretaker with patience and good judgment.   He needs a parent who is able to engage him and stimulate him, characteristics that Ms. S. has never displayed while with him.   He needs stability and permanency, attributes that Ms. S. cannot now provide him.   Her recurring pattern of depression, suicidal ideation, and psychiatric hospitalization mean that she would probably ignore him and his needs because of her own mental state and then be hospitalized, thereby leaving him in the care of someone else.   Moreover, her stated intention to refuse any further mental health services or psychotropic medication means that for the indefinite future she will continue to feel depressed and suicidal and require periodic psychiatric hospitalizations.   Under these circumstances it was proven by clear and convincing evidence that as of the close of evidence Ms. S. had not sufficiently rehabilitated herself so that she could then or in the reasonably foreseeable future, considering Joshua's age and needs, assume a responsible position in Joshua's life.

III

TPR 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 January 12, 2012, 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).¹⁵  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 in Joshua's best interest to terminate the parental rights of Ms. S. In re Quanitra M., 60 Conn.App. 96, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).

1. “The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent”— § 17a–112(k)(1).

As noted above, DCF offered appropriate and timely services to help the mother address her mental health issues, to learn better parenting practices, and to assist her with financial and shelter problems.

2. “Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended”— § 17a–112(k)(2).

As noted above, DCF made reasonable efforts to reunite Ms. S. with her son pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

3. “The terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order”— § 17a–112(k)(3).

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.

There was no evidence that Ms. S. missed appointments for meetings with DCF.

Keep whereabouts known to DCF and your attorney.

There was no evidence that Ms. S. did not comply with this order.

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

Except for the period between November 2010 and May 2011, when she visited regularly with Joshua, Ms. S. missed many visits with Joshua and did not demonstrate appropriate parent/child interaction when she did visit with him.   She stopped visiting with him after May of 2011.

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

Ms. S. was first referred for parenting classes at the Village for Families and Children, but she did not start them on schedule, missed many of them, and reported that they were boring.   DCF then referred her to the New Life Family Center for one-on-one parenting counseling with a parent educator, who met with her individually and reported that Ms. S. completed the reading assigned on child development and made moderate progress toward their goals.   She was referred in June 2010 for reunification services through the Reconnecting Families Program, but those services were discontinued because she did not have adequate income or housing for her son.   The services were offered again in the spring of 2011, but during the weekly supervised visits Ms. S. did not interact appropriately with Joshua, was often lethargic and sleepy, and did not supervise him properly.   The evidence thus shows that she did not make adequate progress toward the identified treatment goal of learning and showing appropriate parenting skills.

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

Ms. S. accepted and cooperated with the in-home reunification service but as noted above did not show adequate progress toward her parenting goals.   She cooperated irregularly with the in-home visiting nurse medication management services that were instituted to ensure that she took her medications and insulin regularly and properly, but since the summer of 2011 she has refused to work with the VNA any longer.   She did not make adequate progress toward the goal of proper medication management.

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

There was no evidence of drug or alcohol abuse.

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. S. did not cooperate with the first provider to whom she was referred for parenting counseling, but did thereafter cooperate with the New Life Family Center and the Reconnecting Families program.   She has not always cooperated with the medication regimen prescribed by her mental health providers, and as of the close of evidence was also refusing to participate any longer in mental health treatment at the Institute of Living or to use the VNA for medication management.

Cooperate with court-ordered evaluations.

Not applicable.

Secure and maintain adequate housing and legal income.

Ms. S. had significant problems obtaining adequate income and maintaining adequate housing for much of this case.   She has lived in the same home with her boyfriend since the neglect petition was filed, but during 2010 the apartment was infested with roaches and mice that would have been a health hazard to her autistic son.   The landlord did remedy the infestation problem.   Ms. S. has significant psychiatric diagnoses that prevent her from being able to work, and did not have adequate income until finally being awarded social security disability benefits last year.   She often fell behind on rent and utility payments and had no food in her house.   DCF assisted with rent and utility bills and made referrals for her to food pantries and Section 8, the Hartford Housing Authority, and supportive housing.   The combination of her disability income and that of her boyfriend should now be enough for them to maintain their home and meet their basic needs.

Identify changes in household composition.

There was no evidence that Ms. S. did not comply.

No further involvement in the criminal justice system.

There was no evidence that Ms. S. did not comply.

Cooperate with child's therapy.

Not applicable.

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

Ms. S. named her friend Ronique S. as a placement resource at the beginning of this case.   DCF was ordered to investigate her as a possible resource and has now approved that person as a pre-adoptive foster parent.

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).

Joshua has been in foster care for more than 27 months.   Sometime after the filing of the TPR social study in September 2011, Joshua was placed with Ronique S. as a pre-adoptive foster parent.   Ms. S. and Joshua had lived with her for a few months after they moved back to Connecticut from Florida in August of 2009, and Ronique S. agreed then to become Joshua's legal guardian.   Before being placed with her in 2011, Joshua lived for approximately a year in a foster home with an individual who was not willing to adopt him.   Once Joshua started visiting with Ronique S. in preparing to move to her home, he did not want to leave her at the end of the visits and said that he wanted to stay with her, facts from which the court infers that he did not have strong positive feelings for or close emotional ties to the previous foster parent.   The court finds credible and adopts as proven the testimony of permanency social worker Carvalho that, in the few months Joshua has lived with Ronique S., they have developed a very loving relationship, despite the fact that Joshua has difficulty showing affection.

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

Born on August 25, 2006, Joshua is five and a half years 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. S. did address the financial insecurity and apartment infestation that would have made it difficult for her to provide suitable care of Joshua, but she has not been able to overcome the mental health problems that afflict her life and led to Joshua's initially going into DCF care.   She has not learned how to take adequate care of a child of Joshua's age and with his needs.   She missed many of the scheduled visits with him, and then stopped visiting altogether.   Ms. S. thus has made insufficient efforts to adjust her conditions or circumstances for it to be in Joshua's best interest to reunify with her.

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).

Ms. S. was not prevented from maintaining a relationship with Joshua by the unreasonable act or conduct of any other person.   Her economic circumstances did not interfere with her ability to develop and maintain a relationship with Joshua, but were a factor preventing reunification until she was awarded social security disability benefits.

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 parental rights of Ms. S. would be in Joshua'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 contact maintained with his birth mother and the potential benefit or detriment to Joshua of his retaining a connection with his biological mother;  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 Joshua'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).

Clear and convincing evidence establishes that it is Joshua's best interest to grant the petition and terminate the parental rights of Gerline S. to him.   Ms. S.'s mental instability leaves her with recurring episodes of depression, suicidal feelings, and psychiatric hospitalization.   Despite several hospitalizations and outpatient treatment after each discharge, she has been unable to end that cycle.   She is now refusing outpatient treatment, not complying with the recommendations to use the visiting nurse program in order to stay current with her medications for her psychiatric illness and her insulin problems, and therefore is likely to have additional times when she again becomes so depressed and suicidal that she needs to be hospitalized.   Her visitations with Joshua have shown her to be unaware of his needs, unable to keep him safe, and unwilling or unable to interact with him appropriately.   Yet his needs are great—beyond those of all five-year-old children for stability, nurturing, and permanency.   His autism and developmental delays require special attention, not someone lethargic and unaware of him and his needs.

Joshua is fortunate that Ronique S. has come forward in his life.   In the past she was willing to take care of him and even become his legal guardian.   When Ms. S. initially suggested Ronique S. as a foster care resource, the department did not consider her to be licensable because of the small size of her apartment.   Whether the department's change of views about the suitability of Ronique S. as a placement resource results from a change in its rules or policies or from Ronique S. moving to larger space, the end result is beneficial to Joshua.   It is obvious from the evidence that he gets along with her well and looked to her to meet his needs even while he was still in the previous foster home.   Because Ronique S. has been a lifelong friend of Ms. S. and her family, it is likely that Joshua can continue to have some contact with his biological mother even if Ronique S. does adopt him.   Thus, in consideration of all the factors relevant here to Joshua's needs and best interest, it was proven by clear and convincing evidence that terminating the parental rights of Ms. S. is in his best interest.

IV

Permanency Plan

On July 13, 2010, after Joshua had been in foster care for nine months and as required by General Statutes § 46b–129(k),¹⁶ DCF filed a motion for review of a permanency plan for Joshua to be reunified with his mother.   That plan was approved by the court, Keller, J., on August 24, 2010.   Nine months thereafter, again as required by § 46b–129(k)(1), DCF filed a second MRP, this time proposing termination of parental rights and adoption, and after an objection to that plan was filed by the respondent mother, the hearing on the plan was consolidated for trial of the TPR petition.   Under the statute, DCF has the burden of proving that the proposed permanency plan is in the best interests of the child or youth.   For the reasons stated herein, the court finds that the department's proposed permanency plan of termination of parental rights and adoption is in the best interest of Joshua, finds that DCF has made reasonable efforts to achieve that plan, and approves the plan.

V

Orders of Termination

The court having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for the termination of the respondent mother's parental rights and having also found by clear and convincing evidence, upon consideration all of the facts and circumstances presented, that it is in the child's best interest to terminate her parental rights, it is therefore HEREBY ORDERED:  The parental rights of Gerline S. to Joshua S. are 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. Ms. S. had identified Tracey B. as Joshua's father to DCF, told DCF that he lived in Florida, but said that she did not know his address.   DCF then sought and obtained court permission to notify him of the petition by publication in the Sun Sentinel in Fort Lauderdale, Florida, in accordance in accordance with General Statutes § 45a–716(c), which provides that “[i]f the address of any person entitled to personal service or service at the person's usual place of abode is unknown, ․ a judge or the clerk of the court shall order notice to be given ․ by publication at least ten days before the date of the hearing.   Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or, if no such address is known, in the place where the petition has been filed.”.  FN3. Ms. S. had identified Tracey B. as Joshua's father to DCF, told DCF that he lived in Florida, but said that she did not know his address.   DCF then sought and obtained court permission to notify him of the petition by publication in the Sun Sentinel in Fort Lauderdale, Florida, in accordance in accordance with General Statutes § 45a–716(c), which provides that “[i]f the address of any person entitled to personal service or service at the person's usual place of abode is unknown, ․ a judge or the clerk of the court shall order notice to be given ․ by publication at least ten days before the date of the hearing.   Any such publication shall be in a newspaper of general circulation in the place of the last-known address of the person to be notified, whether within or without this state, or, if no such address is known, in the place where the petition has been filed.”

FN4. Practice Book Section 35a–8(b) provides as follows:  “If a parent fails to appear at the initial hearing and no military affidavit has been filed, the judicial authority shall continue the proceedings prior to entering a default for failure to appear until such time as the military affidavit is filed, provided if the identity of the parent, after reasonable search, cannot be determined, then default may enter and no military affidavit is required.”.  FN4. Practice Book Section 35a–8(b) provides as follows:  “If a parent fails to appear at the initial hearing and no military affidavit has been filed, the judicial authority shall continue the proceedings prior to entering a default for failure to appear until such time as the military affidavit is filed, provided if the identity of the parent, after reasonable search, cannot be determined, then default may enter and no military affidavit is required.”

FN5. The motion to amend requested the court “to amend the Termination Petition ․ to correct a technical flaw on the face of the Petition to include the boxes being checked for sections One and Two.” Both the original and amended petitions used the standard judicial branch TPR petition form JD–JM–40.   Section one of the standard TPR petition form alleges that the mother and father have consented to the termination of their parental rights.   Section two alleges that (i) DCF made reasonable efforts to locate the parents and to reunify the child with each parent, (ii) each parent was unwilling or unable to benefit from reunification efforts, and (iii) reasonable efforts at reunification were not necessary as a court had previously determined, pursuant to General Statutes Sec. 17a–11b that such efforts were no longer needed.   Although the motion to amend would thus lead one to believe that DCF was alleging consent as an adjudicatory basis for TPR, the amended petition attached to the motion itself does not allege consent.   The amended petition appended to the motion to amend alleged that DCF had made reasonable efforts to locate the father and to reunify the child with the mother and father, and that the father was unable or unwilling to benefit from reunification efforts.   The amended petition did not specifically allege that DCF had made reasonable efforts to locate the respondent mother.The absence of a reasonable efforts to reunify Joshua with Ms. S. allegation in the petition (an absence corrected by the amended petition) would not have not been fatal to the department, since the Summary of Facts to Substantiate Petition for Termination of Parental Rights, filed simultaneously with the TPR petition on August 15, 2011, contained five paragraphs of facts regarding the reasonable efforts made by DCF to reunify Ms. S. with Joshua, thereby placing her on reasonable notice that DCF was making such an allegation and satisfying the fundamental requirements of due process.   In the case of In re Michael M., 29 Conn.App. 112, 614 A.2d 832 (1991), the court had granted a TPR petition on the grounds on abandonment, and the mother claimed on appeal that “abandonment was not properly pleaded because the paragraph on the face of the two petitions for termination alleging abandonment did not have a check in the box next to ‘mother,’ and consequently the trial court lacked subject matter jurisdiction to consider the allegation.”  Id., 119.   In rejecting that claim, the Appellate Court stated as follows:It is axiomatic that DCYS [the predecessor name of DCF], in petitioning to terminate parental rights on the basis of abandonment, in the absence of consent, must allege and prove abandonment as set forth in 17–43a(b)(1) [now 17a–112(a)(1) ].   The statutory criteria must be strictly complied with before termination can be accomplished.The respondent notes correctly that a fundamental aspect of due process requires that a party be fully apprised of the allegations that he or she is facing and that strict adherence to the criteria of 17–43a furthers this goal.   We are also cognizant, however, of the presumption in favor of upholding a trial court's ruling;  and the nonbinding effect of clerical defects where notice has otherwise been effectively given.Although the petitioner failed to check the appropriate box on the face of the petition, the accompanying document, entitled “Summary of Facts Substantiating the Termination Petition,” clearly alleged abandonment as to the mother, as did other portions of the petition itself.   The summary of facts stated that “[t]he children have been abandoned by their mother Gwendolyn [M]. Since commitment on 6/15/89, mother has had minimal contact with her children or with DCYS regarding a plan for the children's future.”   Moreover, a review of the petition itself supports the conclusion that the respondent was on notice of the abandonment allegations against her.   In the portion of each of the petitions where the petitioner is provided with the opportunity to allege specific misconduct in support of the allegations, the petitioner indicated that “Mother has had minimal contact with her child.”   We conclude that the trial court properly found that the respondent was notified of the allegations of abandonment.(Citations omitted.)  Id., 119–20..  FN5. The motion to amend requested the court “to amend the Termination Petition ․ to correct a technical flaw on the face of the Petition to include the boxes being checked for sections One and Two.” Both the original and amended petitions used the standard judicial branch TPR petition form JD–JM–40.   Section one of the standard TPR petition form alleges that the mother and father have consented to the termination of their parental rights.   Section two alleges that (i) DCF made reasonable efforts to locate the parents and to reunify the child with each parent, (ii) each parent was unwilling or unable to benefit from reunification efforts, and (iii) reasonable efforts at reunification were not necessary as a court had previously determined, pursuant to General Statutes Sec. 17a–11b that such efforts were no longer needed.   Although the motion to amend would thus lead one to believe that DCF was alleging consent as an adjudicatory basis for TPR, the amended petition attached to the motion itself does not allege consent.   The amended petition appended to the motion to amend alleged that DCF had made reasonable efforts to locate the father and to reunify the child with the mother and father, and that the father was unable or unwilling to benefit from reunification efforts.   The amended petition did not specifically allege that DCF had made reasonable efforts to locate the respondent mother.The absence of a reasonable efforts to reunify Joshua with Ms. S. allegation in the petition (an absence corrected by the amended petition) would not have not been fatal to the department, since the Summary of Facts to Substantiate Petition for Termination of Parental Rights, filed simultaneously with the TPR petition on August 15, 2011, contained five paragraphs of facts regarding the reasonable efforts made by DCF to reunify Ms. S. with Joshua, thereby placing her on reasonable notice that DCF was making such an allegation and satisfying the fundamental requirements of due process.   In the case of In re Michael M., 29 Conn.App. 112, 614 A.2d 832 (1991), the court had granted a TPR petition on the grounds on abandonment, and the mother claimed on appeal that “abandonment was not properly pleaded because the paragraph on the face of the two petitions for termination alleging abandonment did not have a check in the box next to ‘mother,’ and consequently the trial court lacked subject matter jurisdiction to consider the allegation.”  Id., 119.   In rejecting that claim, the Appellate Court stated as follows:It is axiomatic that DCYS [the predecessor name of DCF], in petitioning to terminate parental rights on the basis of abandonment, in the absence of consent, must allege and prove abandonment as set forth in 17–43a(b)(1) [now 17a–112(a)(1) ].   The statutory criteria must be strictly complied with before termination can be accomplished.The respondent notes correctly that a fundamental aspect of due process requires that a party be fully apprised of the allegations that he or she is facing and that strict adherence to the criteria of 17–43a furthers this goal.   We are also cognizant, however, of the presumption in favor of upholding a trial court's ruling;  and the nonbinding effect of clerical defects where notice has otherwise been effectively given.Although the petitioner failed to check the appropriate box on the face of the petition, the accompanying document, entitled “Summary of Facts Substantiating the Termination Petition,” clearly alleged abandonment as to the mother, as did other portions of the petition itself.   The summary of facts stated that “[t]he children have been abandoned by their mother Gwendolyn [M]. Since commitment on 6/15/89, mother has had minimal contact with her children or with DCYS regarding a plan for the children's future.”   Moreover, a review of the petition itself supports the conclusion that the respondent was on notice of the abandonment allegations against her.   In the portion of each of the petitions where the petitioner is provided with the opportunity to allege specific misconduct in support of the allegations, the petitioner indicated that “Mother has had minimal contact with her child.”   We conclude that the trial court properly found that the respondent was notified of the allegations of abandonment.(Citations omitted.)  Id., 119–20.

FN6. Practice Book § 35a–8 provides, in pertinent part, as follows:  “(a) ․ All parties except the child or youth shall be present at trial unless excused for good cause shown.   Failure of any party to appear in person or by their statutorily permitted designee may result in a default or nonsuit for failure to appear for trial, as the case may be, and evidence may be introduced and judgment rendered.”.  FN6. Practice Book § 35a–8 provides, in pertinent part, as follows:  “(a) ․ All parties except the child or youth shall be present at trial unless excused for good cause shown.   Failure of any party to appear in person or by their statutorily permitted designee may result in a default or nonsuit for failure to appear for trial, as the case may be, and evidence may be introduced and judgment rendered.”

FN7. Practice Book Section 34a–1 provides in pertinent part as follows:  “(b) The provisions of Sections 8–2, 9–5, 9–22, 10–12(a) and (c), 10–13, 10–14, 10–17, 10–18, 10–29, 10–62, 11–4, 11–5, 11–6, 11–7, 11–8, 11–10, 11–11, 11–12, 11–13, 12–1, 12–2, 12–3, 13–1 through 13–11 inclusive, 13–14, 13–16, 13–21 through 13–32 inclusive, subject to Sections 34a–20, 17–4 and 17–21 of the rules of practice shall apply to juvenile matters as defined by General Statutes § 46b–121.”.  FN7. Practice Book Section 34a–1 provides in pertinent part as follows:  “(b) The provisions of Sections 8–2, 9–5, 9–22, 10–12(a) and (c), 10–13, 10–14, 10–17, 10–18, 10–29, 10–62, 11–4, 11–5, 11–6, 11–7, 11–8, 11–10, 11–11, 11–12, 11–13, 12–1, 12–2, 12–3, 13–1 through 13–11 inclusive, 13–14, 13–16, 13–21 through 13–32 inclusive, subject to Sections 34a–20, 17–4 and 17–21 of the rules of practice shall apply to juvenile matters as defined by General Statutes § 46b–121.”

FN8. 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.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..  FN8. 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.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.

FN9. Practice Book Section Sec. 32a–2 provides in pertinent part as follows:  “All hearings are essentially civil proceedings except where otherwise provided by statute ․”.  FN9. Practice Book Section Sec. 32a–2 provides in pertinent part as follows:  “All hearings are essentially civil proceedings except where otherwise provided by statute ․”

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. The absence of an allegation in the amended petition that DCF made reasonable efforts to locate Ms. S. is not fatal to DCF's petition for two reasons.  Section 17a–112 does require proof of designated her address, the marshal's return for the original petition shows abode service at that address, and Ms. S. appeared after service of the original petition on her.   The Summary of Facts appended to the original petition, moreover, clearly specified numerous instances in which DCF made successful efforts to locate Ms. S., showed that her whereabouts have been known to DCF and the court throughout the neglect and TPR proceedings, and were sufficient put her on notice that DCF was claiming to have made reasonable and successful efforts to locate her.   Second, the absence of an express allegation that DCF made reasonable efforts to locate her, either in the petition or the Summary of Facts, may be cured by the court, on its own motion, hereby ordering the pleadings amended to allege reasonable efforts to locate the respondent mother so as to conform the pleadings to the proof, pursuant to Practice Book Section 34a–1(d), which provides as follows:  “A petition may be amended at any time by the judicial authority on its own motion or in response to a motion prior to any final adjudication.   When an amendment has been so ordered, a continuance shall be granted whenever the judicial authority finds that the new allegations in the petition justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”   As noted in the text, clear and convincing evidence established that DCF made reasonable efforts to locate the respondent mother and in fact did locate her.   The court finds that this new allegation in the petition does not justify the need “for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances” and accordingly finds no need or cause to grant a continuance of the trial or opening of the evidence..  FN11. The absence of an allegation in the amended petition that DCF made reasonable efforts to locate Ms. S. is not fatal to DCF's petition for two reasons.  Section 17a–112 does require proof of designated her address, the marshal's return for the original petition shows abode service at that address, and Ms. S. appeared after service of the original petition on her.   The Summary of Facts appended to the original petition, moreover, clearly specified numerous instances in which DCF made successful efforts to locate Ms. S., showed that her whereabouts have been known to DCF and the court throughout the neglect and TPR proceedings, and were sufficient put her on notice that DCF was claiming to have made reasonable and successful efforts to locate her.   Second, the absence of an express allegation that DCF made reasonable efforts to locate her, either in the petition or the Summary of Facts, may be cured by the court, on its own motion, hereby ordering the pleadings amended to allege reasonable efforts to locate the respondent mother so as to conform the pleadings to the proof, pursuant to Practice Book Section 34a–1(d), which provides as follows:  “A petition may be amended at any time by the judicial authority on its own motion or in response to a motion prior to any final adjudication.   When an amendment has been so ordered, a continuance shall be granted whenever the judicial authority finds that the new allegations in the petition justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”   As noted in the text, clear and convincing evidence established that DCF made reasonable efforts to locate the respondent mother and in fact did locate her.   The court finds that this new allegation in the petition does not justify the need “for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances” and accordingly finds no need or cause to grant a continuance of the trial or opening of the evidence.

FN12. 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;  ․”.  FN12. 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;  ․”

FN13. 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, ․”.  FN13. 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, ․”

FN14. General Statutes Section 46b–129 provides in pertinent part as follows:  “(j) 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 46b–129 provides in pertinent part as follows:  “(j) 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.”

FN15. 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.”.  FN15. 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.”

FN16. General Statutes Section 46b–129 provides, in pertinent part, as follows:(k)(1) Nine months after placement of the child or youth in the care and custody of the commissioner pursuant to a voluntary placement agreement, or removal of a child or youth pursuant to section 17a–101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan.   Nine months after a permanency plan has been approved by the court pursuant to this subsection, the commissioner shall file a motion for review of the permanency plan ․ The commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth ․(2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency.   The child's or youth's health and safety shall be of paramount concern in formulating such plan.   Such permanency plan may include the goal of (A) revocation of commitment and reunification of the child or youth with the parent or guardian, with or without protective supervision;  (B) transfer of guardianship;  (C) long-term foster care with a relative licensed as a foster parent;  (D) filing of termination of parental rights and adoption;  or (E) another planned permanent living arrangement ordered by the court, provided the Commissioner of Children and Families has documented a compelling reason why it would not be in the best interest of the child or youth for the permanency plan to include the goals in subparagraphs (A) to (D), inclusive, of this subdivision.   Such other planned permanent living arrangement may include, but not be limited to, placement of a child or youth in an independent living program or long term foster care with an identified foster parent.(3) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner has made reasonable efforts to achieve the permanency plan.   The court may revoke commitment if a cause for commitment no longer exists and it is in the best interests of the child or youth.”.  FN16. General Statutes Section 46b–129 provides, in pertinent part, as follows:(k)(1) Nine months after placement of the child or youth in the care and custody of the commissioner pursuant to a voluntary placement agreement, or removal of a child or youth pursuant to section 17a–101g or an order issued by a court of competent jurisdiction, whichever is earlier, the commissioner shall file a motion for review of a permanency plan.   Nine months after a permanency plan has been approved by the court pursuant to this subsection, the commissioner shall file a motion for review of the permanency plan ․ The commissioner shall have the burden of proving that the proposed permanency plan is in the best interests of the child or youth ․(2) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency.   The child's or youth's health and safety shall be of paramount concern in formulating such plan.   Such permanency plan may include the goal of (A) revocation of commitment and reunification of the child or youth with the parent or guardian, with or without protective supervision;  (B) transfer of guardianship;  (C) long-term foster care with a relative licensed as a foster parent;  (D) filing of termination of parental rights and adoption;  or (E) another planned permanent living arrangement ordered by the court, provided the Commissioner of Children and Families has documented a compelling reason why it would not be in the best interest of the child or youth for the permanency plan to include the goals in subparagraphs (A) to (D), inclusive, of this subdivision.   Such other planned permanent living arrangement may include, but not be limited to, placement of a child or youth in an independent living program or long term foster care with an identified foster parent.(3) At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection, the court shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner has made reasonable efforts to achieve the permanency plan.   The court may revoke commitment if a cause for commitment no longer exists and it is in the best interests of the child or youth.”

Frazzini, Stephen F., J.