IN RE: Shmarr J.1 (2013)

CORRECTED MEMORANDUM OF DECISION (Correction to Memorandum of Decision Dated April 1, 2013 Corrections made to correct typographical errors and the spacing of one paragraph)

I. INTRODUCTION

Before this court are termination of parental rights (TPR) petitions filed on July 5, 2011, by the commissioner of the department of children and families (DCF or department) in the interest of Shmarr J. (d.o.b.5/22/05) and Lendsey J., Jr. (d.o.b.8/19/08).   In the petition, the commissioner seeks to terminate the parental rights of the mother, Lavonia J., on the grounds of abandonment and failure to rehabilitate after a prior adjudication of neglect.  General Statutes § 17a–112(j)(3)(A) and (B)(i).   In addition, the commissioner alleges that the parental rights of the father, Lendsey J., Sr., should be terminated on the same two grounds.   According to the returns of service, the petitions were served on both of the respondents at their abode, and service was confirmed by the court, Frazzini, J., on August 4, 2011.   On that date, the court also entered pro forma denials on the behalf of both respondents.   Neither one of the respondents appeared at the trial on March 28, 2012.   Mother's attorney did appear,² as did the attorney for the children and the attorney for the petitioner.   No other action affecting the custody of these children is pending in another court.   Therefore, this court finds that it has jurisdiction to hear this matter.

These proceedings are governed by General Statutes § 17a–112 et seq.   In a proceeding for termination of parental rights, the petitioner must first prove, in the adjudicatory phase, by clear and convincing evidence, one of the grounds for termination alleged in the petition, as of the date of filing the petition or the date it was last amended.  In re Melody L., 290 Conn. 131, 163, 962 A.2d 81 (2009).   Only one of the grounds needs be established for the granting of the petition.  In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992).

If the petitioner proves a ground for termination, the proceeding moves to the disposition phase.   In that phase, the court considers whether the facts, as of the last day of trial, establish by clear and convincing evidence that termination is in the child's best interest.  In re Melody L., supra, 290 Conn. 163.   In this case, the TPR petitions were filed on July 5, 2011, and there have been no amendments thereto.   Here, as is allowed under our law, the evidence as to both adjudicatory and dispositional phases was heard at the same trial.   Practice Book § 35a–7(b).  See In re Eden F., 250 Conn. 674, 688–89, 741 A.2d 873 (1999).

The court has applied the burden of proof applicable to the TPR petitions and has reviewed the neglect petition, the social studies and the exhibits that were submitted into evidence.   The court has used the applicable legal standards in considering the evidence and the testimony of the witnesses.³  At the time of trial, counsel for the petitioner submitted twenty-four exhibits.   The petitioner introduced the testimony of three witnesses, Barbara T., the maternal grandmother, who intervened in the proceedings on July 10, 2010;  Eileen Ballestas, the family's previous DCF social worker;  and Lisa Butler, the family's current social worker.   No other party presented any exhibits or witnesses.

Upon review of all the evidence, including the testimony of the witnesses and the verified petitions, the court finds that the petitioner has met her burden of proof by clear and convincing evidence as to all matters except abandonment and orders that the parental rights of Lavonia J. and Lendsey J., Sr. be terminated as to both children, and that Shmarr J. and Lendsey J., Jr. be committed to the custody of the commissioner and become legally free for adoption.

II. FINDINGS OF FACT

Having heard testimony and accepted documentary evidence, this court makes the following findings of fact by clear and convincing evidence.

A. PROCEDURAL HISTORY

The record of this file reflects that DCF removed Shmarr J. and Lendsey J., Jr. from their home pursuant to a ninety-six-hour hold on May 28, 2010.   On June 1, 2010, DCF applied for ex parte orders of temporary custody (OTC) for the children, and the commissioner filed neglect petitions for each child.   In the petitions the commissioner alleged the children were neglected in that they were being denied proper care and attention and were being permitted to live under conditions, circumstances or associations that were injurious to their well-being.   In the addenda, the commissioner added that mother was not providing her children with a safe and stable home and was unable to provide for their care, and that she had untreated mental health and substance abuse issues;  father was incarcerated and unable to provide for the children's needs and both respondents had lost guardianship of their other children.

The court, Dannehy, J., sustained the OTC by agreement on June 11, 2010.   At that time, preliminary steps for each respondent were reviewed, approved and made orders of the court.   On October 12, 2010, at the hearing on the neglect petition, the mother entered a plea of nolo contendere and the father stood silent.   The court, Wollenberg, J., adjudicated the children as neglected in that they were being permitted to live under conditions that were injurious to them, and committed the children to the custody of the commissioner.   On that date, the court reviewed and approved the final steps for each respondent and ordered them as final steps.⁴  As of October 21, 2010, the children were placed in the home of the maternal grandmother, where they remained through the date of the trial.   In February 2011, DCF filed a motion to review permanency plans for the children that called for termination of the respondents' parental rights and adoption by the maternal grandmother.   The court, Dyer, J., approved the plans and overruled mother's objection thereto on May 2, 2011.

On July 5, 2011, the commissioner filed petitions to terminate the parental rights of both of the respondents as to both children on the grounds of abandonment and failure to rehabilitate.   Both respondents appeared on the TPR plea date of August 4, 2011, and entered pro forma denials.   The court, Frazzini, J., advised them to apply for counsel.   As previously noted, neither respondent appeared at trial.   Mother's attorney did appear as did counsel for the petitioner, and the attorney for the children, who supported the TPR petitions.

B. HISTORICAL FACTS

These respondents, who have five children, have been involved with the department as parents since 1993.   The respondents' three oldest children, aged fifteen, fourteen and eleven as of the trial date, have been in the care of the maternal grandmother, along with their nineteen-year-old half sister, since they were very young, two pursuant to probate guardianships, and one through a subsidized guardianship.   Maternal grandmother testified at trial that the nineteen-year-old had been with her for seventeen years;  the fifteen-year-old was placed with her a month after she was born;  the fourteen-year-old was placed with her directly from the hospital;  and the eleven-year-old was placed with her a month after she was born.

1. Mother

Mother, Lavonia J. (d.o.b.8/2/1971), is the oldest of her parents' four children.   She attended school through the tenth grade.   During the pendency of these matters, she was sporadically employed, and lived with family or friends.   Mother was referred to Family Connections for parenting classes, where she completed one of the three phases of the program in December 2010, and appeared to gain an understanding as to how her conduct affect her family.   She was referred to another parenting program, but did not engage in further parenting services.

Mother was offered weekly supervised visitation with the children.   Although Lavonia J. attended visitation from the date of removal to December 2010, she began missing visits in January 2011.   From that date to July 22, 2011, she missed eleven of twenty-two visits.   As of January 12, 2012, her last visit with the children was in May 2011.   She was informed that she had to contact DCF to resume visitation, but she did not do so.

DCF referred mother to St. Francis Behavior Health for a mental health evaluation and assessment, and she began individual therapy in May 2010.   Her attendance was sporadic, in the spring of 2011, and, as of July 2011, she had not returned for therapy for three months, and the therapist eventually discharged mother from services.   Mother also received psychiatric services during the spring of 2011, and was prescribed medication.   She reported that she did not take the medication, did not feel that she needed therapy and only attended when she felt depressed.

DCF referred mother for substance abuse evaluation and treatment through the Wheeler Clinic.   Although no treatment was recommended after her first visit, she tested positive for marijuana as a result of a hair test on December 30, 2010, and she was referred to Alcohol and Drug Recovery Center (ADRC) for an intake.   She did not attend her appointment on April 20, 2011, because she had scheduled her own appointment at Wheeler for May 5, 2011, which she also missed.   In addition, she missed the other two appointments that she made at Wheeler for June 15, 2011, and August 25, 2011, and two more appointments at ADRC for June 13, 2011, and December 7, 2011.   Both providers refused to schedule mother for further appointments because of the missed appointments.

2. Father

Lendsey J., Sr. (d.o.b.12/20/67) completed school through the eleventh grade.   Father was incarcerated at the time the children were removed from the home for violation of a protective order, and he was released in August 2010.   He is a convicted felon.   As of January 2012, he resided with his girlfriend and was employed full-time in the roofing business.   Father has three other children in addition to the five children he has with mother.

On two occasions, in November 2010, and in June 2011, DCF referred father to a parenting program, but he indicated that he did not need such services, and did not engage in the services.   Father visits Shmarr J. and Lendsey J., Jr. at the home of the maternal grandmother, and she reports that their interactions are positive.   He has not complied with DCF's request that he schedule a home visit, and reportedly stated that he is not able to care for these children, as it would not be fair to his girlfriend to have to raise them.   Father reportedly does not really want his rights terminated, but will go along with the termination of his parental rights, as long as the children remain in the care of maternal grandmother, and he is able to visit them.   He expressed some concern regarding what the status of his visitation of the children would be if, for some reason, maternal grandmother no longer had them in her care.

DCF referred father to ADRC for substance abuse evaluation and a toxicology screen.   He participated in an evaluation on September 21, 2010.   As a result of the tests, the agency made a no treatment recommendation.

3. Children

At the time of trial, Shmarr J. was approximately seven years old.   He resides in the home of his maternal grandmother with Lendsey J., Jr. and his four other siblings.   His physical health is good.   Although he initially had some behavior problems at school, his behavior has improved.   He takes medication for attention deficit disorder and attends individual therapy.   Shmarr is reportedly happy to be living with his grandmother.   Although he used to be disappointed when mother missed her visits, as of January 2012, he no longer asked to see her.   He has ongoing visits with father during which they have positive interactions.

At the time of trial, Lendsey J., Jr. was approximately three and a half years old.   He resides in the home of his maternal grandmother with Shmarr and his four other siblings.   His physical health is good.   When he was initially placed in foster care, he displayed aggressive behavior, but his behavior has improved.   He reports that he likes living with his grandmother.   As of January 2012, he does not ask about visiting mother and he regularly visits with father.

III. ADJUDICATION

In the adjudicatory phase of this proceeding, the court considers the evidence regarding the circumstances and events that occurred prior to July 5, 2011, the date on which the TPR petitions were filed as to the allegations regarding reasonable efforts, and allegations that the respondents abandoned the children, as required by Practice Book § 35a–7(a).⁵  With regard to the allegations that both respondents failed to achieve rehabilitation, which requires the court to assess the respondents' past conduct, the extent to which they have rehabilitated it and predict whether they will be able to achieve rehabilitation within a reasonable time in the future, as this status relates to the children's needs and interests, the court has considered such evidence, as well as evidence related to circumstances through the close of trial, as permitted by Practice Book § 35a–7(a).   See In re Luciano B., 129 Conn.App. 449, 469, 21 A.3d 858 (2011).

A. REASONABLE EFFORTS (As to Both Respondents)

In order to terminate parental rights absent consent, DCF must prove, by clear and convincing evidence, that it made “reasonable efforts to locate the parent and to reunify the child with the parent ․ unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ․” General Statutes § 17a–112(j)(1).  “Because the two clauses are separated by the word ‘unless,’ this statute plainly is written in the conjunctive.   Accordingly, the department must prove either that it has made reasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts.”  (Emphasis in original.)   In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009).

In reviewing reasonable efforts, “[t]he word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof.   Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn ․ [R]easonable efforts means doing everything reasonable, not everything possible.”  (Internal quotation marks omitted.)  In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2001).   The court must look to events that occurred prior to the date the petition was filed to determine whether reasonable efforts at reunification were made.  In re Shaiesha O., 93 Conn.App. 42, 47, 887 A.2d 415 (2006).

In this case, as detailed above, the petitioner has established by clear and convincing evidence that, as of the adjudicatory date, it made the following reasonable efforts as to mother.   Mother's presenting issues were transiency, substance abuse, unaddressed mental health and parenting issues.   DCF referred mother to numerous services, including parenting classes, individual therapy, psychiatric services, substance abuse evaluations and treatment, and offered her supervised visitation with the children.   As detailed above, Lavonia J. made some efforts to engage with some of the services, but she did not follow through, and, as a result, was not able to benefit from most of the services that were offered.

The court finds that the clear and convincing evidence shows that the department made reasonable efforts to locate Lavonia J. and to reunify her with Shmarr J. and Lendsey J., Jr. Because she refused to fully cooperate with and engage the services that were offered to her, the court also finds that Lavonia J. was unable or unwilling to benefit from the reunification efforts.   Therefore, the court concludes by clear and convincing evidence, that the petitioner has met her burden of proving reasonable efforts as to Lavonia J.

The petitioner has also established by clear and convincing evidence that, as of the adjudicatory date, it had made reasonable efforts to reunify Lendsey J., Sr. with the children.   As detailed above, the department referred father to parenting classes, domestic violence counseling and for substance abuse evaluation and treatment.   He was also offered supervised visits with the children.   Father did not comply with the parenting referral, but did undergo substance abuse evaluation, and treatment was not recommended.   Due to father's failure to cooperate with the parenting services that were offered to him and his stated disinterest in providing for his children, the court also finds that Lendsey J., Sr. was unable or unwilling to benefit from the reunification efforts.   Therefore, the court finds that the clear and convincing evidence shows that the department made reasonable efforts to locate Lendsey J., Sr., and to reunify him with Shmarr J. and Lendsey J., Jr.

B. ABANDONMENT (As to Both Respondents)

The petitioner alleges that the petitions should be granted as to both respondents on the ground of abandonment.   The court may grant a petition for termination of parental rights “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 ․” General Statutes § 17a–112(j).  In this context, “[a]bandonment focuses on the parent's conduct ․ A lack of interest in the child is not the sole criteria in determining abandonment ․ [Section 17a–112(j)(3)(A) ] defines abandonment as the fail [ure] 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 ․

“Section 17a–112[ (j)(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.   The commonly understood general obligations or 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.”  (Internal quotation marks omitted.)   In re Jermaine S., 86 Conn.App. 819, 839–40, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 403 (2005).

With respect to mother, the petitioner has not proved this ground by clear and convincing evidence.   The evidence indicates that, as of the date the TPR petitions were filed on July 5, 2011, mother had last visited the children on May 14, 2011.   Although mother missed numerous visits between the time the children were removed from her care and the date of the TPR petitions, and the evidence indicates that she was not able to provide an adequate domicile for them, this does not provide clear and convincing evidence that, as of that date, mother had failed to maintain a reasonable degree of interest, concern or responsibility for the children.   The petitioner did not present any additional evidence as to these issues.   Accordingly, the court finds that the petitioner has not proved the ground of abandonment by clear and convincing evidence as to Lavonia J.

The court comes to the same conclusion as to Lendsey J., Sr. The evidence indicates that father visited with his children from the time he was released from incarceration up to the date that the TPR petitions were filed.   In the social study in support of the petition, DCF alleges that father “has never shown any interest in his children's welfare,” and father “has not seen his children in a lengthy period of time.”  (Petitioner's Exhibit I, p. 8.) In that same document, DCF states:  “When [father] visited with the boys, he was able to interact well with the boys.   He was observed to be caring and concerned about Shmarr and Lendsey.   He asked what they needed and wanted updates of how they were doing and where they were living.”  (Petitioner's Exhibit I, p. 5.) Although DCF reported that father did not visit with Shmarr from October 2010 to February 2011, the report also states, “[s]ince February 2011, Father visits at relative foster parent's home and sees the children frequently.   There have been no concerns reported by relative foster parent who is present when he spends time with the boys.”  (Petitioner's Exhibit I, p. 5.) At trial, Barbara T., the maternal grandmother-foster parent, testified the children love their father, he visits them weekly and they are very happy to see him.

Accordingly, the court finds that the petitioner has not proved the ground of abandonment by clear and convincing evidence as to Lendsey J., Sr.

C. FAILURE TO REHABILITATE (As to Both Respondents)

The petitioner also alleges that the petitions should be granted as to both respondents on the ground of failure to rehabilitate.  General Statutes § 17a–112(j) provides in relevant part, that the court may grant a petition for termination of parental rights if it finds by clear and convincing evidence “that ․ (B) the child ․ has been found by the Superior Court ․ to have been neglected or uncared for in a prior proceeding ․ and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent ․ and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ․”

Regarding the second part of the second element, “[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 [and] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time ․ [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 Zowie N., 135 Conn.App. 470, 503, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d 170 (2012).   Furthermore, “[i]n making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Internal quotation marks omitted.)  In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011).

In light of the statutory elements, as well as the case law interpreting them, the court finds by clear and convincing evidence that the petitioner has met her burden as to both respondents on this ground.   The first element is satisfied in that, on October 12, 2010, the court adjudicated Shmarr J. and Lendsey I., Jr. as neglected.   The first part of the next element is satisfied in that the respondents were provided with the specific steps that they each needed to take to facilitate their reunification with their children on June 1, 2010, and again on October 12, 2010.

As for the respondents' personal rehabilitation, it is noted “[t]he 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.”   (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 149.  “Although the standard is not full rehabilitation, the parent must show more than ‘any’ rehabilitation.”  (Internal quotation marks omitted.)  In re Victoria B., 79 Conn.App. 245, 254, 829 A.2d 855 (2003).

Here, mother's presenting issues were transiency, substance abuse, lack of parenting abilities and unaddressed mental health issues.   She was provided with specific steps that clearly outlined the court's expectations of what she needed to do to address her issues and regain the custody of the children.   “The court, in proceedings to terminate parental rights ․ considers the specific steps issued in the order [in the neglect proceeding] as a measure of the degree of ‘personal rehabilitation.’  ․ The specific steps are also considered ‘fair warning’ of the potential termination of parental rights in subsequent proceedings pursuant to § 17a–112.”  (Citation omitted.)  In re Jeffrey C., 64 Conn.App. 55, 61–62, 779 A.2d 765 (2001), rev'd on other grounds, 261 Conn. 189, 802 A.2d 772 (2002).

As detailed above, Lavonia J. made some limited attempts to address her issues, in that she completed one phase of a parenting program, attended some counseling sessions and occasionally visited the children.   Nevertheless, she did not follow through with the treatments and services that were provided to her, and, as of the adjudicatory date, she had not made significant progress in resolving her issues.   As of that date, she had not completed the parenting program, she had not obtained adequate housing or employment, she had not undergone substance abuse evaluations or treatment or completed mental health treatment, she missed many of her appointments and visits with the children, and only attended therapy when she felt depressed.   As of the date of the trial, Lavonia J. had not made any additional improvement.   In fact, she had only seen the children one time in the interim, and the maternal grandmother testified that mother did not see them on Christmas in 2011.   Mother was discharged from individual therapy, missed more appointments for substance abuse evaluations, and did not appear at trial.   Her conduct falls short of conduct that would reasonably encourage a belief that she would be able to assume a responsible position in the lives of her children in the future.   This appears to be part of a long-standing pattern for her, given that all four of her other children, the oldest of whom is nineteen, are also in the custody of the maternal grandmother, and have been since they were very young.   Shmarr J. and Lendsey J. Jr. are young, and they need sober and competent care givers who will protect them and meet their needs on a consistent basis.

The court finds by clear and convincing evidence that the petitioner has established that mother did not have the ability to assume a responsible position in the life of Shmarr J. and Lendsey J., Jr. as of the adjudicatory date and the trial date, and that she would not be able to do so within a reasonable time in the future, in view of their ages and needs.   Accordingly, the court concludes that the petitioner has proved the ground of failure to rehabilitate as to Lavonia J. by clear and convincing evidence.

Lendsey J., Sr.'s presenting issues were lack of parenting, history of domestic violence and criminal involvement.   He was provided with specific steps that clearly outlined the court's expectations of what he needed to do to address his issues and reunite with the children.   As detailed above, father did complete some of the steps and visited with the children on numerous occasions.   Nevertheless, he refused to engage in parenting services, missed numerous court hearings and declined to adjust his personal circumstances in a manner that would permit him to be able to provide a home for his children.   His conduct indicates that he has chosen to maintain his relationship with his girlfriend over providing for his children, and has apparently decided that his only obligation as a parent is to appear once a week for a visit with the children.   Shmarr J. and Lendsey J., Jr. are young, and they need competent care givers who will protect them and meet all of their needs on a consistent basis.

The court finds by clear and convincing evidence that the petitioner has established that father did not have the ability to assume a responsible position in the life of Shmarr J. and Lendsey J., Jr. as of the adjudicatory date and the trial date, and that he would not be able to do so within a reasonable time in the future, in view of their ages and needs.   Accordingly, the court concludes that the petitioner has proved the ground of failure to rehabilitate as to Lendsey J., Sr. by clear and convincing evidence.

IV. DISPOSITION

“In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child ․ The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment ․ In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child.   In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [General Statutes § 17a–112(k) ].  The 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.”  (Citations omitted;  internal quotation marks omitted.)  In re Janazia S., 112 Conn.App. 69, 97–98, 961 A.2d 1036 (2009).

The court concludes by clear and convincing evidence that continuation of the parental rights of Lavonia J. and Lendsey J., Sr. is not in the best interests of the children, Shmarr J. and Lendsey J., Jr. In arriving at this conclusion, the court considered, inter alia, the seven factors outlined in § 17a–112(k) as to the children and their mother and father:

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

As detailed above in sections II and III, DCF referred each of the respondents to numerous providers that offered services that would have facilitated his or her reunion with the children, and these referrals were made on a timely, consistent basis.

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

As detailed above in sections II and III, DCF made reasonable efforts to reunify the family and these efforts were consistent with the requirements of 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.

On June 1, 2010, when the OTC was issued, and again on June 11, 2010, at the preliminary hearing on the OTC, the court approved and ordered specific steps for each of the respondents, which they both signed on the latter date.   On October 12, 2011, at the neglect adjudication, the court reviewed and again approved and ordered specific steps, as the respondents' final steps.

As detailed above, mother made some attempts to, but did not fulfill her obligations, and father complied with some, but not all of his specific steps.

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.

The children apparently have limited emotional ties to mother, and positive emotional ties to father.   They each have expressed, however, that they are happy living with the maternal grandmother, and apparently have very strong emotional ties to her.   Based on the testimony presented at trial, the court will infer that DCF intends to create permanency for these children by supporting their adoption by their maternal grandmother.   However the court notes with interest, in the social worker's report, that on November 20, 2011, Lavonia J. started to cry and stated that she did not know why maternal grandmother does not want her to have contact with her children.   She stated that something had changed between her and her mother and that she was hurt that her mother did not allow her to attend her oldest daughter's graduation.   She requested a family therapy session with maternal grandmother and stated that her therapist thought that a family therapy session between Lavonia J. and Barbara T. would be helpful.   Social Worker Butler stated that she would discuss this with maternal grandmother, but there is no evidence from which this court determines that this family therapy session took place.

5. The age of the child

Shmarr J. was born on May 22, 2005, and was approximately seven years old at the time of the trial.   Lendsey J., Jr. was born on August 19, 2008, and was approximately three and a half years old at that time.

6. The efforts the parent has made to adjust her 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

Mother has made very limited efforts to adjust her circumstances, conduct or conditions to make it in the best interest of Shmarr J. and Lendsey J., Jr. to reunify with her.   In addition, she does not maintain regular meaningful contact with the maternal grandmother.   Father has maintained contact with both of the children and the maternal grandmother, but not as part of an effort to regain custody of them.   He has chosen not to adjust his personal life in a manner that it would allow him to provide an adequate home for them.

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.

There is no evidence to indicate that either parent has been prevented from maintaining a meaningful relationship with Shmarr J. and Lendsey J., Jr. by the unreasonable act or conduct of the other parent or the unreasonable act of any other person or by the economic circumstances of either parent.

In accordance with the best interests of the children pursuant to General Statutes § 17a–112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that the continuation of the parental rights of Lavonia J. and Lendsey J., Sr. is not in the best interests of Shmarr J. and Lendsey J., Jr. It bears repeating that “[t]he best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment.”  (Internal quotation marks omitted.)  In re Sarah O., 128 Conn.App. 323, 340, 16 A.3d 1250, cert. denied, 301 Conn. 928, 22 A.3d 1275 (2011).

Mother has already lost custody of four other children, who now reside with maternal grandmother with these two children.   Mother has not addressed her presenting issues of transiency, lack of parenting skills and substance abuse.   The evidence indicates that mother is not able to parent or provide for these children, which appears to be part of a long-standing pattern of behavior for her, given the ages of her other children and the number of years that they have out of her care.   She has not shown signs that her behavior has improved.   She had not visited with the children during the ten months prior to trial;  she had not obtained housing that would be adequate for the children;  she had not secured employment that would enable her to provide for them.

Father previously indicated that is was all right with him if his parental rights were terminated, as long as he was able to visit the children.   He is not willing to change his circumstances in order to put the needs of these children first.   He currently lives with his girlfriend and feels that it would be unfair to ask her to parent these children, since that are not hers.   Thus, he has chosen to maintain his relationship with the girlfriend over providing for these children.   In effect, he demonstrates poor judgment as it relates to the best interests of the children, in that he apparently thinks his only obligation to them is to visit them once a week.

In contrast, maternal grandmother has opened her home to Shmarr J. and Lendsey J., Jr., and wants to adopt them.   The two children are happy to be in the same home with their four other siblings.   The maternal grandmother has addressed their identified needs, is a good advocate for them, and has obtained services for them.   Shmarr J. has stated that he likes living with her.   At trial, social worker Ballestas testified that she visited the children in Barbara T.'s home and found that all the children's needs were being met.   She further testified that there is enough space in the home for the two boys, they share a room, and that Barbara T. provides a loving environment for the children.   The children have been in the home since October 21, 2010.   Maternal grandmother became a licensed foster parent on January 24, 2011.   By all outward appearances she is as strong as the Rock of Gibraltar and as tender-hearted as Mother Teresa.

The court has ongoing concern whether DCF has resolved issues from the past that may eventually dismantle the placement without further intervention on the part of the department.   This is a relative adoption by mother's mother.   It appears that Lavonia J. and her mother, for better or for worse, will continue to have ongoing contact.   Once the adoption is finalized, maternal grandmother will make the rules concerning visitation, if any.   Maternal grandmother will decide, as she has in the past, if the children can be alone with Lavonia J. Therefore, it would appear to be in the best interest of the children if DCF would honor Lavonia J.'s request for family therapy with maternal grandmother.   Lavonia J.'s report of the tension in her relationship with her mother is buffered by maternal grandmother's testimony at trial that she saw Lavonia J. the day before the trial at her other daughter's house, but did not mention the trial the following day or say much more than hello.   Permanency does not just contemplate a place to sleep, it also encompasses living in a safe, nurturing and loving environment free from strife and family disharmony.  (See Running Narrative dated December 7, 2011, Department's Exhibit D.)

For all of the foregoing reasons, the court concludes that the petitioner has met her burden of proving, by clear and convincing evidence, that the continuation of the parental rights of Lavonia J. and Lendsey J., Sr. is not in the best interests of Shmarr J. and Lendsey J., Jr.

V. CONCLUSION AND ORDER

For the reasons stated above, the court renders judgment as follows.   The termination of parental rights petitions are granted and judgment may enter terminating the parental rights of Lavonia J. and Lendsey J., Sr. as to Shmarr J. and Lendsey J., Jr. It is further ordered that the Commissioner of Children and Families is appointed the statutory parent for the children.

Pursuant to § 17a–112(o), the department shall report to the court, not later than thirty days after the date judgment is entered, on case plans, as defined by the federal Adoption Assistance and Child Welfare Act of 1980, for the children, which shall include measurable objectives and time schedules.   At least every three months thereafter, the department shall report to the court on the progress that has been made on the implementation of the plans.

The department is directed to facilitate the adoption of the children as expeditiously as possible.   The Clerk of the Superior Court with jurisdiction over any subsequent adoption of Shmarr J. and Lendsey J., Jr. shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Hartford, of the date on which said adoptions are finalized.   Judgment may enter accordingly.

COFIELD, J.

FOOTNOTES

FN2. Mother's attorney made an oral motion for continuance so that he could try to locate his client, to which the petitioner's attorney objected on the ground, inter alia, that mother had a history of not appearing for hearings.   Mother's counsel was excused to try to reach mother on her cell phone.   He reported to the court that he was unable to reach mother, but he left her a voice message.   The court checked the file and determined that notice had been sent to both respondents.   Additionally, the clerk determined that the notices sent by their office had not been returned.   Accordingly, the court denied the motion..  FN2. Mother's attorney made an oral motion for continuance so that he could try to locate his client, to which the petitioner's attorney objected on the ground, inter alia, that mother had a history of not appearing for hearings.   Mother's counsel was excused to try to reach mother on her cell phone.   He reported to the court that he was unable to reach mother, but he left her a voice message.   The court checked the file and determined that notice had been sent to both respondents.   Additionally, the clerk determined that the notices sent by their office had not been returned.   Accordingly, the court denied the motion.

FN3. “ ‘It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ․ The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible ․ It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any ․ testimony.’  ․ In re Carissa K., 55 Conn.App. 768, 781–82, 740 A.2d 896 (1999).”  In re Jason R., 129 Conn.App. 746, 772–73, 23 A.3d 18 (2011), aff'd, 306 Conn. 438, 51 A.3d 334 (2012).   Moreover, “ ‘[i]t is within the province of the trial court to find facts and draw proper inferences from the evidence presented.’  ․ McKenna v. Delente, 123 Conn.App. 146, 165–66, 2 A.3d 38 (2010).”  McKeon v. Lennon, 131 Conn.App. 585, 597, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011)..  FN3. “ ‘It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ․ The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible ․ It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any ․ testimony.’  ․ In re Carissa K., 55 Conn.App. 768, 781–82, 740 A.2d 896 (1999).”  In re Jason R., 129 Conn.App. 746, 772–73, 23 A.3d 18 (2011), aff'd, 306 Conn. 438, 51 A.3d 334 (2012).   Moreover, “ ‘[i]t is within the province of the trial court to find facts and draw proper inferences from the evidence presented.’  ․ McKenna v. Delente, 123 Conn.App. 146, 165–66, 2 A.3d 38 (2010).”  McKeon v. Lennon, 131 Conn.App. 585, 597, 27 A.3d 436, cert. denied, 303 Conn. 901, 31 A.3d 1178 (2011).

FN4. Both of the respondents' specific steps included the following:  cooperate and keep appointments with DCF and keep the department informed of your address;  undergo individual and parenting counseling and cooperate with recommendations regarding assessment and treatment;  submit to substance abuse evaluation, treatment and random drug testing;  refrain from drug and alcohol use, and involvement with the criminal justice system;  cooperate with court ordered evaluations and testing;  sign releases to enable DCF to communicate with service providers;  get and maintain adequate housing and income;  make arrangements for child care to assure that the children are properly cared for;  visit children as often as DCF permits;  inform DCF of any person who the parent would like DCF to consider as a placement for the children;  provide DCF with names and addresses of the children's grandparents.   The goals specified for mother were to “address her mental health needs.   Parenting to learn appropriate discipline tech[niques].”   The goals specified for father were “[t]o be assessed for mental health treatment.   Father to learn effective parenting skills.”.  FN4. Both of the respondents' specific steps included the following:  cooperate and keep appointments with DCF and keep the department informed of your address;  undergo individual and parenting counseling and cooperate with recommendations regarding assessment and treatment;  submit to substance abuse evaluation, treatment and random drug testing;  refrain from drug and alcohol use, and involvement with the criminal justice system;  cooperate with court ordered evaluations and testing;  sign releases to enable DCF to communicate with service providers;  get and maintain adequate housing and income;  make arrangements for child care to assure that the children are properly cared for;  visit children as often as DCF permits;  inform DCF of any person who the parent would like DCF to consider as a placement for the children;  provide DCF with names and addresses of the children's grandparents.   The goals specified for mother were to “address her mental health needs.   Parenting to learn appropriate discipline tech[niques].”   The goals specified for father were “[t]o be assessed for mental health treatment.   Father to learn effective parenting skills.”

FN5. Practice Book § 35a–7(a) provides:  “In the adjudicatory phase, 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.”.  FN5. Practice Book § 35a–7(a) provides:  “In the adjudicatory phase, 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.”

Cofield, E. Curtissa R., J.