IN RE: Marisol V.1 (2013)

MEMORANDUM OF DECISION RE PETITION FOR TERMINATION OF PARENTAL RIGHTS

STATEMENT OF CASE

In this child protection proceeding the Commissioner of the Department of Children and Families (DCF) seeks to terminate the parental rights of mother, Luz V., and father, Daniel S., to their minor child, Marisol V. (date of birth:  November 4, 2010).   On January 31, 2013, father tendered to the court a signed, written consent to terminate his parental rights.   After canvassing father and making the findings that father's consent was made knowingly and voluntarily, with a full understanding of all of the consequences, and with the effective assistance of counsel, this court accepted father's consent to terminate his parental rights to the child and granted DCF's motion to amend the petition to reflect consent as the basis for termination of father's parental rights.   The remaining issue of whether termination of father's rights is in the child's best interests was consolidated to be considered and decided at the trial of the petition to terminate mother's parental rights.

FACTUAL BACKGROUND AND CASE PROCEDURAL HISTORY

Mother is twenty-five years old.   When she was a young child, she was removed from the care of her parents and placed in DCF care and custody.   As a teenager mother struggled with mental health issues including post-traumatic stress disorder, oppositional defiant disorder and attention deficit hyperactivity disorder.   Mother has also been diagnosed as suffering from mental retardation.   Mother “aged out” of DCF care at twenty-one years of age and services for mother were transferred to the Connecticut Department of Developmental Services (DDS).  Mother lives alone in an apartment rented by REM, an agency that provides services to persons with intellectual and developmental disabilities.   REM also provides mother with assistance in her daily living activities, spending about twenty-eight hours with mother on weekdays and seventeen hours with mother evenings and on weekends.   Mother also receives services from the Department of Developmental Services (DDS), which provides assistance to mother and ensures that there is continued funding for the services mother needs.

Father is twenty-four years of age.   He too has suffered from mental health and disorder issues.   He was entrusted to DCF care at the age of fourteen.   At the age of eighteen, father was accepted for services at the Connecticut Department of Mental Health and Addiction Services (DMHAS), but he was unable to participate in those services because of incarceration for criminal convictions.

Mother and father are not married and their relationship was brief, ending before their child's birth.   On November 4, 2010, at St. Francis Hospital mother gave birth to Marisol, who weighed four pounds, six ounces.   Marisol was placed in the Neonatal Intensive Care Unit upon a diagnosis of intrauterine growth restriction (poor growth of baby during mother's pregnancy).   On November 5, 2010, St. Francis reported to DCF its concerns about the potential physical neglect of the infant by mother.   DCF investigated the matter, conducting interviews with various persons and with mother during the next several days.   REM personnel reported that they worked with mother for approximately eleven hours every day.   REM had been attempting to prepare mother for the birth of the child, as was a group called Nurturing Families.   REM assists mother with transportation, housekeeping, medical appointments, grocery shopping, financial management, and cooking.   Mother takes care of her own hygiene, cleans her apartment, and has become a proficient cook.   REM is on call for emergencies.   Mother had used illegal substances in the past but is not suffering from substance abuse and is not taking any psychiatric medication.

The REM program director and the weekend/evening staff person advised DCF in the initial interviews that, despite mother's limitations, they believed that mother was capable of handling the demands of a newborn and that the child would not be in danger.   The REM daytime staff person, however, who spends twelve hours per week with mother, opined that she did not believe mother could safely parent an infant without round-the-clock, full-time assistance.   REM cannot provide that service.   She also related that mother herself had expressed concerns about being home alone with the baby.

Nursing staff and the social workers at the hospital also reported considerable concern about mother's abilities.   Mother was unable to learn how to change the baby's diaper despite repeated demonstrations and instruction on the subject.   Mother thought that the baby's normal temperature should be eighty degrees.   Mother refused to assist with evening feeding of the baby, telling the nurse that it was her time to sleep and that someone else would have to do it.   Mother had difficulty holding the baby, and despite demonstration and instruction, mother continued to struggle with this and advised the nursing staff that she was afraid she would drop the baby.   Mother left the hospital prior to discharge and against medical advice.

DCF also learned from the DDS case manager that mother had, in the recent past, spent a great deal of money in the purchase of a puppy, but gave it away shortly thereafter, reporting that she could not take care of the animal.   Just as disturbing was the report that mother had beaten the puppy upon being frustrated with the puppy's behavior.   The DDS case worker also reported that Mother has no family on which she can rely for support.

DCF also learned from the Women's Health Group office that mother had taken prenatal care but the Health Group was concerned that mother could not responsibly care for the baby.   Specifically, mother needs continued instruction for everything, and a worker would need to always be available because mother cannot read or write.

All of the agencies working with mother indicated that they are only able to provide assistance to mother in order to help her take care of herself.   They cannot provide child care or child care assistance.

Mother had presented with mental health problems but, according to her mental health care provider, Mr. Krazinski, mother had been stable for about four years before Marisol's birth.   That therapist reported that mother could follow a concrete plan that was laid out for her but that she would have difficulty with any changes or new developments.

On November 10, 2010, DCF filed a neglect petition and a motion for an ex parte order of temporary custody (OTC), setting forth the results of its investigation since the date of the baby's birth five days earlier, and contending that the child would be in danger if she were allowed to remain in her mother's care because of mother's inability to care for a completely dependent newborn infant by herself.   The motion for an OTC was granted (J. Dyer) and at the preliminary hearing on November 19, 2010, mother and father agreed to sustain the OTC. The Specific Steps required mother, inter alia, to continue in individual therapy, to train in developing basic parenting skills to assure the safety and nurturance of the child, to attend Klingberg Family Center for additional parenting guidance and education, and to undergo substance abuse evaluation and treatment if recommended.   DCF was ordered to make referrals within two weeks.   The parents also agreed to a psychological evaluation and DCF and the parents agreed to Specific Steps that were then entered as orders by the court.  (J. Dyer and J. Keller).

ADJUDICATORY FINDINGS AND DISPOSITION AS TO PETITIONS TO TERMINATE PARENTAL RIGHTS

Termination of parental rights is the complete severance of the legal relationship, with all of its rights and responsibilities, between a child and his parents, rendering the child free for adoption.  General Statutes § 17a–93(e).   Because of the natural rights of parents in their children, recognized in the law on a constitutional level, interference with the parent-child relationship cannot be legitimately invoked or acted upon under the law “absent a powerful countervailing interest, protection.”  In re Barbara J., 215 Conn. 31, 44 (1990), citing Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 8, 31 L.Ed.2d 551 (1972);  See also In re Shaiesha O., 93 Conn.App. 42, 43 (2006).

In General Statutes § 17a–112a, the Connecticut General Assembly has codified the limited circumstances in which there may be consideration by the superior court of a petition by DCF to terminate a parent's rights to a child, and the statute also sets forth strict guidelines for decision-making as to the serious and sensitive matter of terminating parental rights.   Unless a parent consents to termination of his or her parental rights, DCF is required to prove by the very highest civil standard, clear and convincing evidence, that DCF has made reasonable efforts to locate the parent, where necessary, and to reunify the parent with the child.   Secondly, DCF must establish, by that same high standard, at least one of the bases of termination set forth in General Statutes § 17a–112a.   Finally, as to both consenting and non-consenting parents, DCF must prove, again by clear and convincing evidence, that termination of the parent's rights is in the best interests of the child.

The termination-of-parental-rights statute has been construed to require that consideration of termination be separated into two phases.   In the initial adjudicatory phase the court must assess whether one or more grounds for termination exist, and, if that is decided in the affirmative, the court engages in the dispositional phase in which it determines whether termination is in the best interests of the child.  In re Lukas K., 120 Conn.App. 465, 486, confirmed on other grounds, 300 Conn. 463 (2011).

Reasonable Efforts

DCF conducted an intensive investigation prior to removing the baby from mother's care.   DCF also interviewed and investigated relatives suggested by the parents for placement of the child and/or assistance in the care of the child.   None of the suggestions proved to be viable resources.   DCF provided mother with regular and extensive visitation with the child.   DCF made referrals to Klingberg Family Center for parenting training and to ADRC for substance abuse evaluation.   DCF contracted a clinician from Radiance Innovative Services to provide mother with support, role modeling and education services four hours per week.   DCF provided mother with bus passes in order to learn to use public transportation.   DCF provided case management services to mother and followed with REM.

Mother has suggested that DCF did not engage in reasonable efforts sufficient to meet the clear and convincing evidence standard because DCF should have been more creative and should have devised a method for mother to have the child care assistance that mother needs because of mother's limitations.   The case history reveals that there might have possibly been an option of mother going to live with her foster parent who could have provided care for the child.   It is unclear why this did not prove to be a viable option.   Either the 70–year old foster mother could not assist, or was not interested in assisting, or mother was reluctant to leave her apartment, or mother would have lost other REM assistance.

Although neither General Statutes § 17a–112(j), nor the federal legislation from which the phrase originates, defines “reasonable efforts,” the Connecticut Supreme Court has construed the term to mean everything reasonable, not everything that is possible.  In re Melody L., 290 Conn. 131, 147 (2009).   Reasonable efforts are, therefore, modest, moderate, average and/or fair approaches to reunification.   While there may have been some potential opportunity in the scenario presented, and perhaps more follow-through would have provided more concrete information about the viability or non-viability of the plan, DCF's inability to make different arrangements for mother's lifestyle and residence do not negate its otherwise reasonable efforts.   This court is mindful of the need to carefully consider all of the circumstances of a case in order to determine whether reasonable efforts have been made.  In re Ebony H., 68 Conn.App. 343, 349 (2002).   Considering all of the facts and circumstances of this case, the court finds that the clear and convincing evidence reveals that DCF made reasonable efforts.

Termination Basis—Failure to Rehabilitate

In its termination petition, DCF has alleged that mother has failed to rehabilitate, invoking General Statutes § 17a–112(j)(3)(B)(i), which provides in pertinent part:

[T]he child has been found by the Superior Court ․ to have been neglected or uncared for in a prior proceeding ․ (and the parent) has failed 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, such parent could assume a responsible position in the life of the child ․

As the Connecticut Supreme and Appellate Courts have frequently declared:

[P]ersonal rehabilitation ․ refers to the restoration of a parent to his or her former constructive and useful role as a parent [and] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time ․ [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.  (Citation omitted;  internal quotation marks omitted.)  In re Summer S., 124 Conn.App. 540, 545, 5 A.3d 972 (2010).

In re Zowie N., 135 Conn.App. 470, 503, cert. denied, 305 Conn. 916 (2012).

Parental rehabilitation refers to the restoration or development of a parent's skills and ability to serve a constructive, responsible and useful role in the life of the particular child, with utmost focus on that child's needs and that child's age.  In re Eden F., 250 Conn. 674, 706 (1999).   The concept encompasses not only whether a parent has developed the ability to manage his own life, but also whether the parent has developed, in a timely manner, the ability to adequately address the needs of the child.  In re Gianni C., 129 Conn.App. 227, 234 (2011).

DCF must establish, by clear and convincing evidence, that mother had failed to rehabilitate as of the date of the filing of the termination petition, April 10, 2012, and the court is limited to consideration of events preceding the date of the filing of the termination petition, or the latest amendment thereof, in deciding whether the invoked statutory basis for termination exists.   Practice Book § 35a–7(a);  In re Daniel C., 63 Conn.App. 339, 357 (2001).   However, the court may rely upon post-petition events in evaluating whether a parent's degree of rehabilitation supports a finding that restoration is foreseeable within a reasonable time.  In re Latifa K., 67 Conn.App. 742, 748 (2002);  In re Daniel C., 63 Conn.App. 339, 357 (2001);  In re Stanley D., 61 Conn.App. 224, 230 (2000);  Practice Book § 35a–7.

On August 15, 2011, the parents' nolo contendere pleas as to the neglect petition were accepted by the court.   The court entered an adjudication of neglect as to Marisol V. and entrusted her care and custody to DCF. (J. Dyer).   On April 10, 2012, DCF filed the petition to terminate parental rights.

There is certainly evidence in this case in mother's favor.   According to DCF reports, the REM program director, Sonia Campbell, and the weekend/evening staff person, Shanyel Riley, both advised the DCF in its initial investigation that they believed mother could safely care for her newborn infant.   Willie Mayes, a REM worker who worked with mother on a regular basis, seventeen to thirty hours per week, testified at trial that mother kept a clean and neat household, cooked meals from scratch and was otherwise responsible.   He also testified that he knew nothing about mother beating the puppy,³ and that, indeed, when she no longer wanted the dog, she gave it to him because she wanted the dog to have a good home.   Tiffany White, a parenting aide who worked with mother, testified about the difficulties mother encountered in caring for the baby, but also how mother was progressing in overcoming some of those difficulties, and how mother always listened and tried to follow suggestions.   Ms. White also testified that mother was always responsible about advising if she could not make a visit and was always appropriate at visits in disciplining the child, and in bringing snacks, meals or toys.   Mother's visits with Marisol go well and mother has attended many of Marisol's medical appointments.   It is clear that Mother loves her child and wants the best for the child.

Mother's inability to function on her own without the assistance, many hours per week, of a special group of workers, is very telling as to whether mother could adequately attend to the needs and safety of a totally dependent infant, and now a two-year-old child.   If there were another adult with mother on a full-time basis, capable of attending to the child's daily and emergency needs, mother's inability might not serve as a barrier to the child remaining with her.   No such possibility exists.

Even after two years, mother's visits have been limited to supervised visits and the parenting aide must continue to redirect mother in her activities.

Christopher Beebe, the DDS case manager for mother, testified that mother has a history of maladaptive behaviors such as destroying property or being physically aggressive, but that she has improved in the last four years.   He also confirmed that mother has made progress in addressing successfully some of the aspects of her life and that she also does some clerical work at her twelve-hour-per-week job at REM. However, as of the time of trial, according to Mr Beebe, mother still needed the assistance of DDS in order for mother to take care of her own needs.   Although he could not opine the length of time that this need would continue, he was able to testify that mother will continue to need everyday assistance for the foreseeable future.   Mr. Beebe also testified that at some time in the future, DDS may have a program to assist with child care, but it does not exist now, and he did not know when such assistance might become available.   Basically, Mr. Beebe testified that mother needs assistance to meet her own daily needs.   An example of mother's inability to attend to her everyday needs is her failure to take advantage of DCF's provision to her of bus passes because she was unable to comprehend how to use the public transportation system.   Instead, mother continues to rely on REM staff for all of her transportation.

Dr. Bruce Freedman, the court-appointed psychologist, interviewed mother and performed some testing of mother in December 2010.   According to the doctor, mother's IQ is in the “60” to “70” range, the upper end of mild mental retardation.   Dr. Freedman opined that adults at this level of mental ability often encounter difficulty with more advanced parenting tasks and must rely on the presence of another adult who is capable of assisting with the child's care Dr. Freedman testified that mother is in the lowest 2% of adults in intelligence.   If such an individual is raised in a very structured and nurturing environment as a child, that person's self-care skills may develop to self-sufficiency in simple everyday tasks.   However, mother did not have the benefit of such a childhood.   The results of the Millon Clinical Multiaxial Inventory–III testing (with questions read to mother because of her inability to read), revealed a significantly high level of emotional distress, extremely poor judgment in a variety of situations, and detachment, or inability to develop close relationships.

At trial, Dr. Freedman testified that mother had received the highest level of intensive care for years, but has become only slightly more adept in managing her own everyday needs.   He opined that mother's mental ability will not change and her personality problems are not likely to change, and thus, there is no reason to believe that she will be able to develop into the caregiver that her young daughter needs.

The ultimate issue in a termination proceeding is whether the parent, as of the date of the petition, has improved her skills, or changed her status, sufficiently so as to be able to resume or assume the responsibilities of parenting.  In re Hector L., 53 Conn.App. 359, 367 (1999).   Termination of a parent's rights is not ordered to punish a parent, but is ordered so as not to subject a child to the denial of care that the child needs.   Reasonable time must be on a case-by-case basis, depending, again, on the age and needs of the child.  In re Stanley D., 61 Conn.App. 224, 231 (2000).   DCF has established, by clear and convincing evidence, the failure-to-rehabilitate basis it has asserted in its petition to terminate mother's rights.

All child protection cases are sad.   All child protection cases are distressing.   Many child protection cases are bewildering in that most of us cannot fathom that a parent could abuse or neglect any child, much less his or her own innocent and dependent child.   This case is additionally troubling because the “neglect” status of the child is not mother's fault—mother did everything she could to try to be a good parent.   As the Connecticut Appellate Court has written, however, “The sad fact is that there is a difference between parental love and parental competence.”  In re Christina M., 90 Conn.App. 565, 575 (2005), aff'd, 280 Conn. 474 (2006).   As in In re Jessica B., 50 Conn.App. 554 (1998), mother in this case needs assistance in managing her own life and does not have a dependable and capable co-caretaker for the child.   The sad and distressing element of this case extends to mother's situation.   She is a victim of her own parents.   She is so limited that she cannot provide the care that her daughter needs and there are no means of procuring for mother the full-time assistance that would be required if the child were entrusted to her.

In addition, it is also sad that Marisol will have no continued contact with her mother.   Because of the potential benefit that Marisol could experience by having a connection, perhaps Marisol's adoptive parent may consider the wisdom of the compelling adage “It takes a village to raise a child,” and, if possible and in the child's best interests, could arrange some contact between mother and the child.

Best Interests of the Child

The best interests of children encompass sustained growth and development, well-being, continuity and stability of their environment.  In re Jaime S., 120 Conn.App. 712, 733–34 (2010), appeal dismissed, 300 Conn. 294 (2011);  In re Anthony H., 104 Conn.App. 744, 763–64 (2007), cert. denied, 285 Conn. 920 (2008).

Dr. Freedman opined that it would be devastating to take Marisol from her caretaker in light of the long stay the child has had away from mother.   Dr. Freedman also pointed to the well established and accepted principle that children need permanency and need to be removed from any “limbo” status as soon as possible.   He further opined that twelve to eighteen months should be the maximum of any such status.   Marisol has been waiting for more than two years.

As a two-year-old, Marisol needs constant and vigilant supervision and attention.   She should not be made to wait to see if mother might achieve the ability to care for her.   More importantly, and quite unfortunately, this court agrees with Dr. Freedman that mother will not be able to assume a responsible position as a parent, considering the age and needs of Marisol.

Marisol does not know her father.   Termination of mother's and father's parental rights would benefit Marisol in allowing for her permanent placement in a family, without the threat of displacements in the future.   DCF has met its burden of proof on this issue.

MANDATED FACTUAL FINDINGS

In accordance with the directives of General Statutes § 17a–112(k), the following factual findings are specifically set forth as to mother.

1. DCF Services

DCF services were appropriate and timely.

2. Reunification Efforts

As is set forth in the discussion above, DCF made reasonable efforts to reunify mother with Marisol.

3. Feelings and Emotional Ties

Marisol has lived with her foster mother since she was eight days old.   Marisol is a smart and happy little girl who relates to her foster parent as her mother.   Marisol has begun to cry when she sees the driver come to take her for visits with Luz V., but once at the visits, Marisol is fine and she is also fine after the visits.

4. Compliance with Court Orders

Mother and DCF have been compliant with court orders.

5. Child's Age

Marisol was born on November 4, 2010, and is two years of age.

6. Parental Efforts and Parental Contact with Children and Others

Mother has certainly tried to improve her parenting abilities and has cooperated with DCF and the service providers.   Mother's visitation with Marisol has been consistent and the sessions go well.

7. Interference with Reunification

There has not been any conduct by anyone that has prevented the maintenance of a meaningful relationship between mother and Marisol, nor have economic circumstances stood in the way of development of a meaningful relationship.

* * * * * * * * * *

Father's consent to the termination of his parental rights has been accepted by this court and this court has found, on the basis of clear and convincing evidence, that grounds exist to terminate mother's parental rights.   This court has also found that termination of father's and mother's parental rights is in the child's best interests.   On the basis of these findings, the petitions to terminate the parental rights of father, Daniel S., and mother, Luz V., to Marisol V. are granted.   DCF is appointed the statutory parent of the child.

DCF shall file, within thirty days, a report as to the status of the child and shall also timely file any additional reports as are required by law.

DCF may petition the superior court for the adoption of the child pursuant to General Statutes § 46b–129b, or, if an adoption is accomplished in the Probate Court, the clerk of that court shall forward a written notice to the Deputy Chief Clerk of the Superior Court for Juvenile Matters at Hartford when and if any such adoption is finalized.

Judgment is entered accordingly.

BY THE COURT,

Constance L. Epstein, J.

FOOTNOTES

FN2. The decision was made and reported on the record on June 3, 2013, with a transcript ordered for the file.   Written memorandum filed on June 4, 2013..  FN2. The decision was made and reported on the record on June 3, 2013, with a transcript ordered for the file.   Written memorandum filed on June 4, 2013.

FN3. Mr. Mayes also testified that the reason mother gave up the puppy was that she had not expected the expense of taking care of a dog to be as great as it was..  FN3. Mr. Mayes also testified that the reason mother gave up the puppy was that she had not expected the expense of taking care of a dog to be as great as it was.

Epstein, Constance L., J.