IN RE: Mackenzie G. (2012)

MEMORANDUM OF DECISION RE PETITIONS TO TERMINATE PARENTAL RIGHTS

These petitions seeking to terminate the parental rights of the respondents were filed by the commissioner of the Department of Children and Families (“DCF” or “department”) on behalf of these two maternal half-sisters.

Mackenzie's petition was filed on April 27, 2011.   It was served by certified mail to the respondent, Emily G. (“mother”), as well as the respondent, Perry J. (“Perry J.” or “M.'s father”).   Mother appeared, was advised and appointed counsel.   M's father was incarcerated in Rhode Island, unable to appear, and was appointed counsel.

Kylie's petition was filed on January 4, 2011.   It was served by certified mail on the respondent, Emily G. (“mother”).  She was defaulted for her failure to appear, which default was set aside when mother appeared in response to Mackenzie's petition.   Mother's counsel was appointed for both petitions.   Notice by certified mail was attempted on the respondent, Ronald M. (“Ronald M. or “K.'s father”), as it was believed that he was incarcerated in Rhode Island as well.   The department learned that he had been discharged without a reported address.   Notice of this proceeding was given to Ronald by publication.   He failed to appear, was defaulted, and has been whereabouts unknown throughout this proceeding.

Both children were appointed the same counsel, who also served as their guardian ad litem (“GAL”).   The Indian Child Welfare Act does not apply.   This court has jurisdiction.

The cases were bifurcated for trial, so Perry J., Mackenzie's father, could participate by audio-visual technology from his correctional facility in Rhode Island.   The time available was not unlimited, so his exclusive portion of the case was heard first.   His portion of the case involved testimony from one witness, the assigned DCF worker, all of whose testimony Perry J. observed.   He was given the opportunity to consult privately with his attorney before the conclusion of the testimony.

The case then continued with respect to mother and Kylie's father, the defaulted Ronald M. Following the first day of trial, mother submitted consents to the termination of her parental rights to both girls.   She was canvassed on her consents, and her rights were terminated, leaving the two fathers the sole legal parent of their respective daughters, subject to these petitions.

“The hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition ․ In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence.   If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase.   In the dispositional phase, the trial court determines whether termination is in the best interest of the child.”  (Citation omitted.)  In re Shaun B., 97 Conn.App. 203, 206, 903 A.2d 246 (2006).

With respect to both fathers, the department alleges abandonment and a failure to rehabilitate.

“A parent abandons a child if the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ․ General Statutes § 17a–112(j)(3)(A).   Abandonment focuses on the parent's conduct ․ 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 ․ Section 17a–112[ (1)(3)(A) ] does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child.   A parent must maintain a reasonable degree of interest in the welfare of his or her child.   Maintain implies a continuing, reasonable degree of concern.”   (Citation omitted;  internal quotation marks omitted.)  In re Justice V., 111 Conn.App. 500, 513–514, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 959 A.2d 1063 (2009).

The petitions allege that the children have been found in a prior proceeding to have been neglected or uncared for and the fathers have failed to achieve the degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of each child, either father could assume a responsible position in the life of their child, per § 17a–112(j)(3)(B)(i).

“Our Supreme Court has stated that [p]ersonal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [Section 17a–112] 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 ․ Rehabilitate means to restore [a ․ delinquent person] to a useful and constructive place in society through social rehabilitation.  [Webster's] Third New International Dictionary.   The statute does not require [a parent] to prove precisely when she will be able to assume a responsible position in her child's life.   Nor does it require her to prove that she will be able to assume full responsibility for her child, unaided by available support systems.   It requires the court to find, by clear and convincing evidence, that the level of rehabilitation she has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date she can assume a responsible position in her child's life.”   (Citation omitted;  internal quotation marks omitted.)  In re Jeisean M., supra, 270 Conn. 382, 398–399, 852 A.2d 643 (2004).

The court finds the following by clear and convincing evidence.

Mackenzie G. was born on July 28, 2002 to the respondent, Emily G. Her father is the respondent, Perry J., although his paternity was not acknowledged at Mackenzie's birth.   Perry J.'s paternity was established by scientific testing, and he was adjudicated her father on June 22, 2010.   McKenzie's father was not a significant factor in her life.   He did not live with her, provided no support, and visited infrequently.   Mother had become involved romantically with other men, none of whom contributed to a stable, nurturing home.   Mother also had serious issues with substance abuse and transient housing, as a result of which Mackenzie was often living with relatives.   During these periods, her mother and her half-sister Kylie were not necessarily part of Mackenzie's home.   Her father was not part of it either.

Eventually, McKenzie's and Kylie's circumstances led DCF to file neglect petitions on their behalf, dated July 14, 2009.   Perry J. appeared, and was appointed an attorney.   On October 15, 2009, Perry J. was not present in court, but his counsel was, and all parties agreed that Perry J. remained silent as to plea.   Mother entered a plea of nolo contendere, and McKenzie and Kylie were adjudicated neglected on that day.   Mackenzie was then living with a family member and all parties agreed to defer her disposition.   Kylie was committed to the department on October 15, 2009.

On May 13, 2010, McKenzie was committed to the department as her voluntary family placement was no longer viable.   Perry J. that day appeared in court, and was assigned specific steps for reunification in anticipation of a finding of paternity.   The department notified Mr. J. of his positive paternity test results and requested that he communicate with the department regarding visits and his services as called for in his specific steps.   He failed to respond.   Several letters were sent to no avail, other than one phone message from father.   The phone number father left went unanswered with no capacity to leave a voice message.   Father sent no monetary support, no cards, letters, electronic messages, or any indicia of interest in Mackenzie to the child or DCF. He abandoned his daughter, in contravention of his specific steps.   No referrals for services could be made due to Perry J.'s lack of interest and response.   On March 29, 2011, the court found that efforts to reunify with Perry J. were no longer required based upon his abandonment.

Paradoxically, it was Perry J.'s violation of another step that brought him back into contact with the department.   Father was incarcerated in Rhode Island for criminal activity and was incarcerated as of the date of the termination trial.   He was convicted in March 2011, for manufacture or delivery of a controlled substance and sentenced to a two-year term of incarceration.   This was his fifth term of incarceration in Rhode Island since 2001.   Father had commenced compliance with some rehabilitative programs, but there was evidence to suggest this was to secure his earliest possible release date, which would be August 2012.   There is no reason to believe that father will maintain sobriety, lawful income, visitation, lawful behavior, or assume any parental responsibility consistent enough to warrant a belief that he could assume a responsible position in McKenzie's life.

Father abandoned his daughter, and was unable or unwilling to benefit from reunification efforts until incarcerated.   Those few services recently engaged in are too little or too late to encourage any reasonable belief in success.   The court found that continued efforts were no longer required.   Accordingly, the department has proven by clear and convincing evidence the two grounds asserted as to Mackenzie's father, Perry J., abandonment and a failure to rehabilitate.

With respect to Kylie, in addition to those facts found above, the court finds the following by clear and convincing evidence.

Kylie G. was born on August 22, 2004 to the respondents, Emily G. and Ronald M. Mother and Ronald M. remained in a relationship for several years prior to the department's involvement.   The ambiguities of mother's lifestyle meant that Kylie and her half-sister Mackenzie were often not living together.   Eventually, mother's unstable housing and drug use led to DCF filing neglect petitions, and getting an order of temporary custody for Kylie only, on July 14, 2009.   Ronald M. was incarcerated in Rhode Island at the time, and counsel was appointed for him.   The order of temporary custody was sustained on July 24, 2009.   Kylie was adjudicated neglected on October 15, 2009 at a hearing Ronald M. did not attend, although he was no longer incarcerated.   Kylie was committed on that day.   Kylie has been in DCF care since the order of temporary custody.

While he was incarcerated, the department made several attempts to contact Mr. M. Ronald M. never replied to inquire into rehabilitative services.   Upon his release from incarceration, Ronald M. disappeared from the department's perspective.   He knew of DCF's custody, and that he was expected to involve himself in his daughter's life.   He maintained almost no contact with his daughter or DCF. The only exception was a single day when Ronald M. appeared uninvited to a supervised visit between mother and both girls.   Ronald M. arrived in the company of an apparently intoxicated friend, and spoke briefly with Kylie.   The visitation supervisor intervened and Ronald M. left.   This was his only attempt to contact the child.   He has exhibited no other indicia of interest or support for Kylie.   There has been no financial support.   He sent no cards, letters, gifts, electronic messages, and demonstrated no interest in rehabilitative services.   As stated, he has had nothing to do with the department and his whereabouts are currently unknown.   In all likelihood, the department and Kylie will know nothing of Mr. M.'s whereabouts until his next incarceration.   He has a history of criminal court involvement dating back to 1991.   He has a criminal history in Colorado, Connecticut, Rhode Island, South Dakota, Vermont and South Carolina.

On March 29, 2011, the court found that continuing efforts to reunify were no longer required for Ronald M. based upon his abandonment of his daughter.

The department has proven by clear and convincing evidence that Ronald M. abandoned Kylie G., and that he has failed to rehabilitate based upon his disappearance, failure to engage in services, and lack of interest in his daughter.   The court has no basis for believing that within any time he could assume a responsible position in Kylie's life.   Accordingly the first two grounds alleged by the department, abandonment and failure to rehabilitate, have been proven by clear and convincing evidence.

With respect to Ronald M., the department has also alleged no ongoing parent-child relationship.  “General Statutes (Rev. to 1999) § 17a–112[ (c)(3)(D), now] (j)(3)(D), provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child ․ This part of the statute requires the trial court to undertake a two-pronged analysis.   First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop ․ In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance ․ The ultimate question is whether the child has no present memories or feelings for the natural parent ․ Feelings for the natural parent connotes feelings of a positive nature only ․” (Citations omitted;  internal quotation marks omitted.)  In re Jonathon G., 63 Conn.App. 516, 525, 777 A.2d 695 (2001).

This ground has not been proven.   As noted earlier, Ronald M. appeared at a supervised visit, held for mother's benefit, without the prior knowledge of the department or the visitation supervisor.   The visitation supervisor testified, however, that Kylie was pleased and excited to see her father.   This connotes a positive feeling with respect to father.   Based upon this, the no parent-child claim is not proven.

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

1. The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent.

Mother consented.   Both fathers were offered timely case management services, including visitation.   Both fathers ignored DCF and their respective daughters.

2. Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

Reasonable efforts were made by DCF until the court determined they were no longer required for either father.

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.

Steps were set for Ronald M. on July 14, 2009, and on February 25, 2010;  and for Perry J. on May 13, 2010.   The steps contemplated the participation and cooperation of the respective fathers.   Neither had anything to do with DCF or their respective daughters.   In addition, Perry J. was incarcerated, again, on a drug conviction.

4. The feelings and emotional ties of the child with respect to the child's parents, any guardian of such child's person, and any person who has exercised physical care, custody or control for at least one year and with whom the child has developed significant emotional ties.

Neither girl considers her father as a responsible parent.   Both girls have a bond with their mother, with an awareness that she cannot meet their requirements.   Each girl is bonded with her foster family and wishes to be adopted.

5. The age of the child.

Kylie is seven years old, born August 22, 2004.

Mackenzie is nine years old, born July 28, 2002.

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.

There is no evidence that Ronald M. has improved his circumstances in any way other than discharge from incarceration.   He has maintained no contact with DCF or his daughter, other than the one unexpected visit noted above.

Perry J. did not cooperate with DCF to improve his circumstances, nor did he maintain contact with DCF or his child.   He was re-incarcerated, without notice to DCF, and remains so to date.

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.

No such prevention was shown.

Both girls need a stable, nurturing, permanent home.   Their mother recognizes this, and her inability to provide it, and has consented to the termination of her parental rights to free her daughters for adoption.   Ronald M.'s position is unknown because his whereabouts are unknown.   He is not presently capable of providing a permanent, nurturing, stable home for Kylie, and based upon his criminal history and lack of interest, it is highly unlikely that he ever will.   Perry J. is incarcerated at least until August 2012, and based upon his personal history, there is no reasonable encouragement for believing that he has rehabilitated and will not be incarcerated in the future.   There is no reason to believe that he would provide a stable, nurturing, permanent home for Mackenzie.   Mackenzie and Kylie are presently in stable, nurturing homes, which would like to be permanent.   The department attempted to place the girls together, but serious behavioral difficulties required their separation.   Their respective homes, however, are committed to maintaining the girls' sisterly relationship.   Their attorney supports termination and adoption by the respective foster parents.   The girls' best interests clearly call for termination of parental rights to free them for adoption.   The department has proven this by clear and convincing evidence.

Wherefore, after due consideration of the children's need for a secure, permanent placement, and the totality of the circumstances, and having considered all statutory criteria, and having found by clear and convincing evidence that efforts at reunification with both fathers were made and that they were unwilling or unable to benefit from those efforts, and that the court determined that such efforts were no longer required, and that grounds exist to terminate each father's parental rights, and that it is in each respective child's best interest to do so, the court orders:

That the parental rights of respondent father, Perry J., are hereby terminated as to his child, Mackenzie G., born July 28, 2002;

That the parental rights of respondent father, Ronald M., are hereby terminated as to his child, Kylie G., born August 22, 2004;

That mother's parental rights to both children having been terminated by her consent on December 12, 2011, the commissioner of the Department of Children and Families is appointed statutory parent of each child for the purpose of securing each child's adoption, with first consideration to be given to each child's current foster parents;

That a written report of the plan for each child shall be submitted to the court within thirty days, and such further reports shall be filed with the court as required by law;

That the Clerk of the Probate Court with jurisdiction over any subsequent adoption of either child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Waterford of the date when said adoption is finalized, as shall the petitioner.

BY THE COURT

John C. Driscoll, J.

Driscoll, John C., J.