IN RE: Sam O. (dob 9/16/11) 1 (2013)

MEMORANDUM OF DECISION

On May 25, 2012, the commissioner of children and families filed a petition under General Statutes § 17a–112 seeking to terminate the parental rights (TPR) of Lisa O. and Randolph O. to the minor child named above.   Since the whereabouts of the respondent mother were then unknown, the court authorized notice to her of the petition by publication in the Hartford Courant, pursuant to the provisions of Practice Book §§ 33a–4a and 33a–5.²  On the date of the initial hearing, the respondent father appeared, was advised of his rights and appointed counsel, and entered a denial to the allegations of the petition.   The court was informed that the mother had now provided her address;  FTR, 6–21–2012 @2:23:15; ³  and the matter was continued for her to be served at that location, and a new initial hearing date was set for her on August 1, 2012.   She did not appear on that date, and after the court had confirmed abode service on her and reviewed a military affidavit showing that Ms. O. was not in the military services of this country, a default was entered against her for failing to appear, as permitted by Practice Book § 35a–8.⁴

Trial on the petition was scheduled for May 13 and 14 of this year.   The respondent father, a social worker employed by the department of children and families (also referred to in this decision as DCF or the department), and attorneys for the commissioner, respondent father, and minor child were all present for both days of trial, during which testimony was presented from the following people:

DCF social worker Dorothy Zyla;

Dr. Robert Neems, Ph.D., a licensed clinical-psychologist, who conducted a court-ordered psychological evaluation of the respondent father and an interactional assessment of father and child;

Terrell Epps, a senior counselor at Crossroads, an inpatient drug treatment program where the father resided for five months;

Katharine Kindelan, a mental health and substance abuse clinician at the Wheeler Clinic, who is group leader of the enhanced relapse prevention program in which the father has participated;  and

the respondent father.

In addition, the parties offered various exhibits into evidence, including the TPR social study and an addendum thereto;  a status report dated October 2, 2012;  criminal records of the mother and father;  excerpts from the DCF running narrative;  an investigation protocol regarding the child's removal from parental custody;  a discharge summary prepared after the father's successful discharge from Crossroads;  progress notes concerning the father's participation in the enhanced relapse prevention group at Wheeler Clinic;  results of drug tests while he was in treatment at Wheeler;  two police reports regarding arrests of the mother and father;  and the written report of the psychological evaluation conducted by Dr. Neems and his written resume.   Finally, the court has taken judicial notice of the court file (except that factual allegations contained therein are not taken as substantively true unless independent evidence was introduced and found credible in this proceeding), prior court orders and proceedings involving the minor child.

The court is not aware of proceedings pending in any other court regarding the custody of this child and has jurisdiction.   As neither of the parents claims Native American heritage, the requirements of the Indian Child Welfare Act are not pertinent to these proceedings.   The court has carefully considered the petition, all of the evidence presented, and the information or materials judicially noticed according to the standards required by law.   Upon such consideration, the court finds that the following facts were proven by clear and convincing evidence at trial.

I

Trial of a TPR petition has two phases, adjudication and disposition.   Under Practice Book § 35a–7(a), in the adjudicatory phase of the proceeding, “the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as part of its determination as to the existence of a ground for termination of parental rights.”   See In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).   The TPR petition in this proceeding was filed on May 25, 2012, and there have been no amendments to it.   That day is, therefore, the adjudicatory date, as of which the court must make its determinations as to reasonable efforts and the statutory grounds for termination (except where the court must consider subsequent events regarding a TPR adjudicatory ground).

A

Non-consensual terminations of parental rights under § 17a–112(j) require the court to find whether:

There is clear and convincing evidence that DCF has made reasonable efforts to locate the parent and to reunify the child with the parent,

Unless the court finds that the parent is unable or unwilling to benefit from reunification efforts.5

The evidence proved clearly and convincingly here that DCF made reasonable efforts to locate each parent and to reunify Sam with each parent.   DCF caused both parents to be served with the underlying neglect petition, and both parents appeared in that proceeding, were advised of their rights, and were appointed counsel (even though both parents then subsequently stopped participating in the neglect proceeding and were then defaulted for not appearing at trial).   Despite each parent's whereabouts being unknown at various times during both the neglect and TPR proceedings, DCF has diligently attempted to contact and locate the parents throughout both proceedings.

Both parents have had serious substance abuse issues since at least 2006,⁶ and that substance abuse was the principal reason for Sam's removal from parental custody on a 96–hour hold a day after his birth, the order of temporary custody entered four days later, the subsequent adjudication of neglect, and the child's commitment to DCF. Substance abuse was also the reason that guardianship of the respondents' two older children had been transferred to their paternal grandparents after adjudications of neglect in 2009.   Before Sam was born in 2011, Ms. O. had been referred for substance abuse treatment at least three times and had been discharged from treatment each time.   Although Mr. O. had successfully completed an intensive outpatient program at Wheeler Clinic in 2008, he had then not completed a recommended follow-up relapse prevention program.   He later attended the Hartford Dispensary for a few months, was then discharged for non-attendance, re-engaged there and was again discharged, and then refused treatment at Blue Hills Hospital.   When Sam was born, the mother and infant both tested positive for cocaine, and both parents admitted using cocaine.   After Sam's birth, both parents refused DCF services and said they would go on their own to St. Francis Hospital for a substance abuse evaluation, but neither one actually did so.

From the child's removal until December 2011, Ms. O. was in regular contact with the department and visiting with her children, but her whereabouts were then unknown to DCF for several months.   In March 2012, the paternal grandparents told DCF that they had allowed her to live with them and her three sons (including Sam) from December 2011 until February 2012;  but both they and Ms. O. concealed that fact from DCF. Ms. O. even gave DCF a false address in January 2012.   Ms. O. did have a supervised visit with Sam in March 2012, but her whereabouts were then again unknown until May 25, 2012, when the paternal grandmother brought her to the DCF office.   On that day, Ms. O. told the DCF social worker that “I'm here because I need help,” and said she last used cocaine twenty-six hours earlier.   She also said that she had made no progress in addressing her mental health and substance abuse issues since September 2011, and asked for referral to an inpatient drug treatment program.   Yet, after DCF scheduled an intake for inpatient services for her at ADRC for May 29, the mother failed to attend that appointment.   DCF has had no in-person contact with her since then, although DCF social workers have repeatedly called the mobile phone number that the paternal grandparents gave them for her and sent emails to an email address that Ms. O. provided to DCF. DCF did have occasional email contact with her through April of this year.

DCF referred Ms. O. for substance abuse evaluation and treatment three times between the date of Sam's removal and the filing of the TPR petition,⁷ but each time she refused services.   Before the adjudicatory date, DCF also offered her referrals for mental health treatment twice, but each time she did not follow through.   One of those referrals was in December 2011, when DCF offered to place Ms. O. in an inpatient women-and-children's program, where she could receive treatment for her mental health and drug abuse issues and have Sam live with her.   After initially agreeing to that referral, however, she later refused, telling the department social worker that the paternal grandparents discouraged her from accepting the referral because they told her they needed her help with the two older children.   In January 2012, Ms. O. claimed to DCF that she had attended several treatment sessions with a psychologist named Dr. Westin at the University of Connecticut Health Center, but there was no such person at that facility.

DCF had only a few contacts with Mr. O. between Sam's removal into DCF custody and the date that the TPR petition was filed.   He told a department social worker on September 19, 2011, that he was actively using cocaine, suffering from anxiety and depression, and living with the mother in a local motel with funds provided by his parents, but he said they did not know where they were going to live next and were going to be homeless.   Four days later, DCF spoke to him to arrange a supervised visit with Sam on September 26, but he missed that visit.   DCF next spoke to him on the 26th, and asked why he had missed the visit.   The evidence did not disclose his reply to that inquiry.   Although DCF tried to reach him by his cell phone after that, he had no further contact with the department and DCF had no knowledge of his whereabouts ⁸ until he called the department on December 21, 2011, and told a social worker that he was living with his “grandmother” ⁹ in Newington, where the social worker visited him that same day.   The worker offered him a referral for drug treatment and visits with Sam, but he declined both, denying that he had a drug problem and claiming instead to have only “a drinking issue.”   Petitioner's exhibit 10, DCF running narrative, pp. 1–2.   He said he was going to jail in a few days and would contact DCF after his release to arrange for services and visitation.   He was then incarcerated from December 28, 2011, until March 6, 2012.   After his release from jail in March, however, he did not contact the department, but instead stayed for a week in a motel and continued using drugs until he turned himself in on other outstanding warrants.   His whereabouts were again then unknown to DCF, which tried unsuccessfully to find him by contacting his last telephone numbers, emailing his last known email, mailing to his last known addresses, and contacting his parents.   Although there was no actual evidence about how the department learned he had been re-incarcerated, it is evident from the facts that the TPR petition filed on May 25, 2012, listed his address as “whereabouts unknown” but the Notice and Summons dated that same day listed a corrections facility as his address and a marshal's return in the court file shows in-hand service on Mr. O. there on May 31, 2012, that DCF became aware of this fact.   The department's next actual contact with Mr. O. was on the date of the initial hearing for the TPR petition, when he appeared and told social worker Zyla that he was incarcerated.

Under these circumstances, the evidence proved clearly and convincingly not only that DCF made reasonable efforts to locate each parent and to reunify each parent with their child by offering treatment services for their drug abuse that was the principal reason for Sam's removal, but that, as of the adjudicatory date, by virtue of their failure to keep in contact with DCF, to accept services offered by DCF,¹⁰ and to engage in any treatment for their drug abuse, both parents were unwilling and unable to benefit from reunification services.

B

As statutory grounds for terminating parental rights, the TPR petition alleges:

Abandonment against both parents, pursuant to § 17a–112(j)(3)(A),

Failure to rehabilitate against both parents, pursuant to § 17a–112(j)(3)(B), and

No on-going parent-child relationship against the father, pursuant to § 17a–112(j)(3)(D).11

To prevail on the petition as to either parent, the commissioner must prove at least one of the statutory grounds for terminating that person's parental rights by clear and convincing evidence.   See In re Juvenile Appeal (84–BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984);  In re Michael B., 49 Conn.App. 510, 512, 714 A.2d 1279, cert. denied, 247 Conn. 919, 722 A.2d 807 (1998).

1. Abandonment

The first ground alleged in the TPR petition alleges, pursuant to General Statutes § 17a–112(j)(3)(A), that as of the adjudicatory date, each parent had abandoned this child.  “In adjudicating a petition to terminate parental rights on the ground of abandonment, the court's focus is on the parent's conduct.”   In re Jaime S., 120 Conn.App. 712, 713, 994 A.2d 233 (2010), appeal dismissed, 300 Conn. 294, 12 A.3d 566 (2011).

A lack of interest in the child is not the sole criterion in determining abandonment ․ General Statutes [Rev. to 1991] § 17a–112(b)(1) [now § 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 ․

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

a. Mother

There is insufficient evidence to meet the clear and convincing standard on this adjudicatory ground as to Ms. O. DCF exhibits and the testimony of its social worker premise the department's claim of abandonment primarily on the mother's failure to participate in DCF sponsored visitation after November 6, 2011, or to express interest or concern regarding the child to the department.   But the evidence shows that Ms. O. had other ongoing contact with the child and his caretakers.

After Sam was removed from parental custody at the hospital after his birth, DCF placed him with his paternal grandparents, Mr. and Mrs. D., who also have guardianship of the parents' two older children, Jack and Riley.   The evidence showed that Ms. O. participated in DCF-sponsored visits with Sam after removal until sometime in November 2011.   From December 2011 until sometime in February 2012, unbeknownst to DCF, she lived with the paternal grandparents and Sam. Although DCF social worker Dorothy Zyla testified that the department believes Ms. O. had no contact with Sam after February 2012, other than one supervised visit in March 2012, the evidence in the social studies and the testimony of social worker Zyla make clear that the mother continued to have ongoing contact with the paternal grandparents after she left their home in February 2012.   Although neither of the grandparents testified, and the court draws no negative inference from that fact, the principal evidence offered by the petitioner to support the claim of abandonment by the mother is her failure to participate in DCF-sponsored visits.   In light, however, of her residing with Sam for several months and her ongoing contact with his foster parents, the evidence does not prove clearly and convincingly that she abandoned the child.

b. Father

The evidence does prove clearly and convincingly that, as of the adjudicatory date, the father had abandoned Sam. The evidence shows that Mr. O. did not have any DCF-approved visits with Sam between the date of removal and the adjudicatory date, and he did not request any visitation after he missed the visit that DCF offered on September 26, 2011.   Although incarcerated for part of the period between the OTC and adjudicatory date,¹² in December 2011 he expressly declined DCF's offer of visits while in jail.   His failure to keep DCF apprised of his whereabouts while in the community made it impossible for DCF to provide him with visits.   Moreover, when not in jail he did not contact the department to request visitation.   Between incarcerations, he preferred to use cocaine rather than see his son.   There is credible evidence that during one of his three incarcerations between September 2011 and September 2012, his parents did bring Sam to the Hartford Correctional Center for two visits with Mr. O., but Sam and his father were separated by glass partitions both times and they did not have any direct contact.   Based on Mr. O.'s own testimony, these visits probably occurred during his third stint in jail.¹³  Such incidental contact, even if it occurred before the adjudicatory date, however, does not defeat a claim of abandonment.   See In re Shane P., 58 Conn.App. 244, 256, 754 A.2d 169 (2000), citing In re Migdalia M., 6 Conn.App. 194, 210, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986):  “A parent's interest in his child must not merely be sporadic in nature, but must exist on a consistent and continuing basis.”   As of the adjudicatory date, Mr. O. had seen Sam after the OTC for no more than two non-contact visits, never requested regular visitation from DCF, and never sent DCF any cards, gifts, or letters for the child, and had not provided any financial or emotional support for the child.   By his conduct, Mr. O. had not “maintain[ed] a reasonable degree of interest, concern or responsibility as to the welfare of [his] child.”   This ground was proven by clear and convincing evidence.

2. Failure to rehabilitate

General Statutes § 17a–112(j)(3)(B) provides that the court may grant a petition for termination of parental rights if it finds by clear and convincing evidence that:

the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b–129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ․

The TPR petition form used by the commissioner here invokes the ground contained in subsection (B)(i) of the statute without alleging the provision of specific steps, but the summary of facts to substantiate the TPR petition, which the petition specifically incorporated by reference, did allege that each respondent parent was issued specific steps to facilitate reunification prior to filing of the TPR. Hence, any dispute as to whether a TPR petition brought under § 17a–112(j)(3)(B)(i) must allege and prove specific steps ¹⁴ need not be addressed here.   The evidence here, as discussed above, proved clearly and convincingly that Sam was previously found to have been neglected in a prior proceeding on May 2, 2012, and that each respondent parent was issued specific steps upon issuance of the order of temporary custody on September 21, 2011, to facilitate return of the child.

“Personal rehabilitation as used in [§ 17a–112] refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [The statute] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time ․ [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child's life.”  (Citations omitted;  internal quotation marks omitted.)  In re Eden F., 250 Conn. 674, 706, 741 A.2d 873, reargument denied, 251 Conn. 924, 742 A.2d 364 (1999).   The crux of the adjudicatory ground of failure to rehabilitate is whether a parent has sufficiently addressed the problems and deficiencies in parenting that led to state intervention in the family so that the parent can, considering the age and needs of the child, assume a responsible position in the child's life, or will be able to do so in the reasonably foreseeable future.  “What is a reasonable time is a factual determination that must be made on a case-by-case basis,” depending on the age and needs of the particular child.  (Internal quotation marks omitted.)  In re Zion R., 116 Conn.App. 723, 735, 977 A.2d 247, (2009).

There is absolutely no doubt that, as of the adjudicatory date, neither parent had sufficiently rehabilitated himself or herself to be able to assume a responsible position in Sam's life, in view of his age and needs, on that date or in the reasonable future.   As of the adjudicatory date, neither parent had done anything to address the serious substance abuse problems that have plagued both of them since at least 2006, and led to the removal of three children from their care and custody.   Before this TPR petition was filed, both had repeatedly been offered treatment services, but neither one had successfully completed such services, and neither one had ended his and her drug use.

That same failure to rehabilitate has continued for the mother since then.   In May 2012, Ms. O. admitted to DCF that she continued to abuse drugs after Sam's birth and had made no progress in dealing with the issues that had led to Sam's removal.   She then failed to attend two appointments made by DCF for her to begin inpatient substance abuse treatment.   Arrested twice in February 2013 for larcenies and a burglary, she admitted to the police that she and the others involved in one of the crimes had sold the stolen goods to buy drugs.   Three times in March and April of 2013, DCF social worker Dorothy Zyla offered Ms. O., via email, appointments to assess and offer services for Ms. O.'s substance abuse problem, and each time the mother agreed to the appointment but did not show up.   In social worker Zyla's last communication with Ms. O. in April 2013, the mother admitted she was still an addict and needed help.   The evidence offered at trial thus proved clearly and convincingly that Ms. O. had not sufficiently rehabilitated herself, by the adjudicatory date or the time of trial, as would encourage the belief that she could assume a responsible position in Sam's life either then or in the reasonable future.   This ground for terminating Ms. O.'s parental rights was proven by clear and convincing evidence.

By the time of trial, Mr. O., on the other hand, had successfully engaged in substance abuse treatment and had been clean and sober for several months.   Mr. O. testified credibly at trial that at some point after Sam's removal from parental custody, he realized that he needed to change his life.   Over the next few months, he turned himself in on all pending criminal charges, stopped using drugs in March 2012, and has worked hard to turn his life around.   On September 17, 2012, he was released from the Hartford Correctional Center and entered the Crossroads inpatient drug treatment program in New Haven.   He remained there for five months until March 1, 2013, when he was successfully discharged back to the community.

Since then, he has been living with his parents and his two children, for whom they are legal guardians.   He has received suspended sentences and probation on all his previously pending criminal cases.   After Crossroads, he participated successfully in the intensive relapse prevention program at Wheeler Clinic, which meets twice weekly for sixteen sessions and then once a week for four final sessions.   He attends narcotics anonymous twice a week and goes to yoga sessions every day.   Counselors who worked with him at both Crossroads and Wheeler Clinic testified on his behalf at trial, and documentary evidence was also introduced concerning his conduct in both.   The court finds that he actively engaged in treatment in both programs and has had all negative drug screens since entering Crossroads.   When he faced the stressful event of the death of a friend he had met at Crossroads, he reached out appropriately to his former Crossroads counselor for comfort and guidance.   When he considered discontinuing narcotics anonymous (NA) meetings, in order to go to yoga classes, he consulted an experienced member of NA, who advised him on the necessity of lifelong attendance, and Mr. O. wisely abandoned any plans to stop going to NA, even if, as he testified credibly, the yoga classes themselves are very helpful to his recovery.   He now appears to be sober and intent on staying such.

Dr. Robert Neems, Ph.D., a clinical psychologist who conducted a court-ordered psychological evaluation of Mr. O., as well as an assessment of his interactions with Sam, testified that Mr. O. showed a genuine desire to make constructive changes in his life.   Although the court is not bound to accept the testimony or opinion of any witness, and is free to reject expert testimony found lacking in substance or credibility;  the court may also accept expert evidence that it finds credible or useful.   See, e.g., Ford v. Ford, 68 Conn.App. 173, 190, 789 A.2d 1104, cert. denied, 260 Conn. 910, 796 A.2d 556 (2002), citing Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).   Here, the court found Dr. Neems' testimony and report to be lucid, well-reasoned, credible and persuasive.   Dr. Neems concluded, credibly in the court's opinion, that Mr. O. “needs a substantial period of sober time, with a high degree of focus on his recovery, before he could be counted upon to dependably focus on and attend to the needs of his child.”   Petitioner's exhibit 7, Court–Ordered Psychological Evaluation, dated November 19, 2012, at 13.   At trial, Dr. Neems elucidated this statement further by testifying that, despite the substantial positive progress that Mr. O. has made, he needs to continue his recovery and sobriety for at least a year after his release from Crossroads “before he can be counted on to sustain his recovery and to be able to pay attention to his children in ways that he hasn't in the past” and “lay down a path of action that helps you more dependably predict what they are really going to do in the future.”   FTR, 5–13–2013 @ 2:3 5:20—2:35:47.

Dr. Neems provided cogent reasons why such a year is an important period for assessing Mr. O.'s rehabilitative status and his ability to assume a responsible position in Sam's life.   He testified that Mr. O. has a history of impulsivity, conduct destructive to his own life despite multiple adverse consequences, not placing a high enough priority in the past on his recovery, and not seeking enough services and help to stay sober.   As Dr. Neems pointed out, at Crossroads Mr. O. lived in a supervised and constructive environment that supported his recovery, but upon his discharge back into the community, Mr. O. will be in all sorts of settings:

in that course of time people lay down a path of action that helps you more dependably predict what they are really going to do in the future ․ Once out in the environment you make all sorts of choices that increase the challenges you face or help to manage the challenges more constructively.   A year gives time to understand what decisions he's making, how he is dealing with the risks that he faces and gives much more of a basis to predict whether he's going to be able to sustain those changes or not.

FTR, 5–13–2012 @ 2:35:35—2:47:01.   The court found Dr. Neems' opinion and conclusions on this issue to be credible and well-founded.

Dr. Neems also specifically recommended that after discharge from Crossroads Mr. O. remain actively involved in treatment by participating in a relapse prevention program and AA or NA step meetings, both of which Mr. O. has done, and by living in a sober house, which he has not done.   Dr. Neems testified that too many people involved in recovery try to leap back into their former lives too quickly and place themselves at risk of being triggered back into substance use.   He recommended that Mr. O. live in a sober house so that he could involve himself “in a community of people who are learning to live differently ․ It is extremely important to surround yourself with people who are trying to make the same changes that you're trying to make.”   FTR, 5–13–2013 @ 2:23:50—2:24:06.   Throughout his life, Mr. O. has found it difficult to avoid irresponsible behavior, often because of the influence of drugs or alcohol.   In high school, for example, Mr. O. told Dr. Neems in his interview for the psychological evaluation that “[w]hatever my environment produced, I let it happen.”   Petitioner's exhibit 7, at 4. He also told Dr. Neems that when he tried to stop using drugs and turn his life around in the past, “[h]e would then hang round the wrong people and relapse.”  Id., 5. Dr. Neems expressed concern in his testimony about Mr. O.'s return to his parents' home, since they have overlooked the drug use of Mr. and Ms. O. in the past, had allowed one or both parents to live with them while actively using drugs, had enabled that drug use, and still show signs of denying the seriousness of the parents' drug problems.   From the court's perspective, Dr. Neems's recommendation of a sober house makes sense, and the court finds credible his testimony that former addicts living in a community of like-minded individuals have the best prognosis for sustained recovery.

Mr. O.'s successful participation in Crossroads and Wheeler Clinic is commendable, but, as pointed out by Dr. Neems, he has entered detoxification and treatment programs before but relapsed.   After DCF removed his older children in May 2008, and they were adjudicated neglected, for example, Mr. O.'s active participation in drug treatment led evaluator Dr. Ines Shroeder to view him in September 2009 as a good candidate for reunification.   Yet, by the time that Sam was born two years later, Mr. O. had relapsed.   After Sam was born, he told Dr. Neems that he spent the next three months “partying, using cocaine and alcohol”;  id., 7;  until his incarceration in December 2011.   At the time of trial, Mr. O. had been out of Crossroads for less than three months, which is not enough time to count on him being sober tomorrow or the next day, even if he has been drug-free for that entire period.   Mr. O.'s long history of drug use and sustained relapses, the ongoing negative impact of that drug abuse on his three children, and his history of impulsive and irresponsible behavior all support and make persuasive Dr. Neems' recommendation that Mr. O. needs to have been sober and drug-free for a least a year after his release from Crossroads before he could be counted on to remain sober and would be ready to assume a responsible position in Sam's life.

The evidence is thus clear and convincing that, as of the time of the TPR trial, Mr. O. had not sufficiently rehabilitated himself to be in a position to assume a responsible position in Sam's life within a reasonable time, in view of the child's age and needs.   Sam is less than two years old and needs a competent and sober caretaker, not someone whose sobriety cannot yet be counted on.   In the past, his substance abuse directly affected his children.   During those years of cocaine abuse, while he was still responsible for Sam's older siblings Riley and Jack, for example, Mr. O. did not carry out the normal and responsible parental task of taking young children for regular doctor visits, and neither child saw a doctor or had any immunizations between 2003 and April 2008.   In contrast to that failure to ensure regular medical care, he once took the children for a ride in the car while possessing heroin, and another time he used one of them to help him carry stolen goods away from the scene of a crime.   A child of Sam's young age cannot afford to have a parent who makes these types of decisions.   Until Mr. O.'s sobriety can be depended upon, he cannot be entrusted with the care or assume a responsible position in the life of such a young child.

In this case, just as the trial court had noted in In re William R. III, 65 Conn.App. 538, 543, 782 A.2d 1262 (2001), “[t]here is no certainty about the stability of [the respondent's] recovery ․ The difficulty lies not with the progress [he] has made, but with the length of time that is still required.”   This case is not one of merely waiting for an event that is likely or certain to occur on a known date in the future.   The court here must not only weigh the impact on a young child of waiting another 91/212 months from the end of trial before reunification could begin, but also the fact that, as Dr. Neems credibly opined, Mr. O.'s present sincerity and sobriety are not adequate predictors or indicia of future sobriety.   Until he has shown sobriety and avoidance of drugs for at least a year in the community, the reliability and dependability of continued sobriety will be sufficiently uncertain that one could not entrust a young child to his care.   This is particularly true in light of Mr. O.'s history of irresponsibility, impulsivity and failed treatment.

As of the time of trial, it would take nine and a half months for Mr. O. to attain a year of sobriety in the community.   By then, Sam would be two and a half years old.   It would not be in this child's best interest to have to wait so long to achieve the possibility of stability and permanency, both of which he needs now.   This ground for terminating his parental rights was proven by clear and convincing evidence.   See In re Christopher L., 135 Conn.App. 232, 245–48, 41 A.3d 664 (2012) (upholding TPR judgment where trial court relied on testimony of department social worker and expert psychologist that, based on parent's substance abuse history and mental health issues, respondent parent needed at least two more years of sobriety in the community because the risk of relapse before then was too great to entrust a child into her care);  In re William R. III, supra, 65 Conn.App. 545 (upholding TPR judgment, and noting that “[a]lthough the respondent has made progress in addressing her substance abuse problems, that has been accomplished in a structured residential program.  [The court-appointed psychological evaluator] advised the court that as a result of the past decades of drug and alcohol abuse, the respondent would require another two years of participation in the program to prepare her to parent the children safely”).

3. No ongoing parent child-relationship

A third ground set forth in the petition for terminating Mr. O.'s parental rights alleges, pursuant to General Statutes § 17a–112(j)(3)(D), that there is no ongoing parent child-relationship between Sam and him and that allowing further time for such a relationship to develop would be detrimental to Sam. The statute defines an ongoing parent-child relationship as meaning “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 ․” General Statutes § 17a–112(j)(3)(D).

Under this section of the statute, the court must “undertake a two-pronged analysis.   First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop.”  (Internal quotation marks omitted.)  In re John G., 56 Conn.App. 12, 22, 740 A.2d 496 (1999).   Ordinarily, “[i]n considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance ․ The ultimate question is whether the child has no present memories or feelings for the natural parent.”  (Citations omitted;  internal quotation marks omitted.)   Id., 23.   This standard contemplates a relationship that has some positive attributes.  In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991).   In the case of a young child, however, whose feelings are not readily discernible, “the inquiry must focus, not on the feelings of the infant, but on the positive feelings of the natured parent.”  In re Valerie B., 223 Conn. 492, 532, 613 A.2d 748 (1991).  “To satisfy the second prong [of the analysis], the trial court [is] required to determine whether it would be in the child's best interest to allow additional time for the establishment of a parent-child relationship ․ The ‘best interest’ standard, therefore, does not become relevant until after it has been determined that no ongoing parent-child relationship exists.”  (Citation omitted.)  In re Kezia M., supra, 33 Conn.App. 22.

As of the adjudicatory date, there was no ongoing parent-child relationship between Mr. O. and Sam within the meaning of the statute.   Although Mr. O. had been present for Sam's birth in a motel and saw Sam at the hospital, he was not allowed to hold Sam after the child's removal into DCF custody the next day.   After Sam left the hospital, Mr. O. saw him no more than twice again through the adjudicatory date, and then, even if those two times occurred before the adjudicatory date, only through a glass partition.¹⁵

In the case of In re Valerie D., supra, 223 Conn. 492, our Supreme Court found constitutional infirmity in terminating parental rights on the basis of no ongoing parent-child relationship when a child's placement into DCF custody immediately after birth has prevented a parent from developing a parent-child relationship within the meaning of the statute.   Sam's placement into DCF custody a day after his birth is not the sole factor, however, leading to the lack of a parent-child relationship with his father.   In the present case, prior to the adjudicatory date, Mr. O. engaged in no act whatsoever to attempt to see Sam or build any kind of relationship with his son, and his conduct showed virtually no positive feelings for the child.   While in the community for the first three months after Sam's birth, Mr. O. did not attempt to visit or have any contact with the child, and instead wanted to party and use cocaine rather than see his son.   He did not request any visitation while he was incarcerated between December 2011 and March 2012, during the one-week interval between that incarceration and his next one, or during his next incarceration.   As Dr. Neems noted, as of October 2012, Mr. O. had barely any relationship with Sam. Petitioner's exhibit 7, at 4. In the present case, as in In re Alexander C., 67 Conn.App. 417, 425–27, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003), “the absence of the respondent from [the child's] life prevent[ed] him from taking even the most minimal steps of parenting.   His absence may have prevented him from providing a home and other life necessities, but it did not prevent him from expressing interest in the health, care and well-being of the child during that absence ․ The respondent's separation from the child, his failure to seek out supervised visitation and his lack of interest in the child's life precluded the development of an ongoing parent-child relationship.”

The cases of In re Valerie D. and In re Alexander C., read together, stand for the proposition that parental rights may not be terminated for lack of an ongoing parent-child relationship resulting exclusively or primarily from the child's removal from parental custody and placement into DCF care, but when a parent has taken no action to see the child or to establish a relationship with the child, the lack of an ongoing parent-child relationship may be attributed directly to the parent and made a basis for terminating parental rights.   See, e.g., In re Eric Q., Superior Court, Child Protection Session at Middletown, Docket No. N05 CP02 003971 B (December 13, 2005, Taylor, J.) (stating that “[the mother's] failure to visit Eric Jr. and her failure to comply with reasonable conditions in order to attempt the resumption of visitation were matters of her own making, and, consequently, In re Valerie D. is inapplicable to this case”).   The court therefore finds by clear and convincing evidence that there existed no ongoing parent-child relationship between Mr. O and Sam within the meaning of the statute on the adjudicatory date.

The remaining issue for a TPR on this ground is whether allowing further time for development of a parent-child relationship would be detrimental to the child or in the child's best interest.   The factors to be considered in deciding whether it would be in the best interest of a child to permit further time for a relationship with his parent to develop include “(1) the length of stay with [the] foster parents, (2) the nature of [the child's] relationship with [the] foster parents, (3) the degree of contact maintained with the natural parent, and (4) the nature of [the child's] relationship to [his or her] natural parent.”  In re Kezia M., supra, 33 Conn.App. 22.

Mr. O. did not have or request any visits with Sam after the OTC until September 2012, when, once at Crossroads, he asked to begin seeing his son.   In DCF's limited number of contacts with him between the OTC and his entering Crossroads, he said each time that he did not want visits at the present time, including when he met with the social worker in December 2011 and at the initial hearing for the TPR petition on June 21, 2012.   Both times, he said he did not want any visitation while in jail.   Mr. O. began having supervised visits with Sam on November 12, 2012, and now sees his son for two hours every other week.   DCF social worker Zyla testified that DCF had no concerns about those visits.   Dr. Neems' report states that Mr. O. “appeared to be skilled in interacting with little children.”   Petitioner's exhibit 7, at 11.   The report also observed that Mr. O. “related to Sam in a warm, confident, capable manner.   He was gentle and affectionate with Sam. He engaged Sam in activities, provided a steady stream of verbal stimulation, set limits appropriately, used distraction to redirect Sam, initiated activities with Sam, and also followed Sam's lead in activities.”  Id., 13.¹⁶

Although Mr. O. will not be able to develop a “parent-child” relationship while seeing Sam on the present visitation schedule, over time (if not already) the child may begin to recognize Mr. O. and, in view of Dr. Neems' description of Mr. O.'s ability to interact well with Sam, to welcome those visits.   Should Mr. O. maintain his sobriety, the frequency and duration of the visits conceivably might increase during the next nine months.   Hence, it is possible, perhaps even probable, that during that time Mr. O. and Sam could develop a solid “visiting” relationship.

Yet, even in the face of that prospect, it is not in Sam's best interest to allow such further time for a parent-child relationship to develop, and in fact would be detrimental to his best interest, for the very same reasons that led the court to find that the failure-to-rehabilitate adjudicatory ground had been proven.   At this early stage in Mr. O.'s recovery, his continued sobriety is still an open question.   He has undergone what appeared to be successful drug treatment in the past, yet relapsed.   At trial, Mr. O. distinguished those earlier failed attempts from his present recovery by saying that, in the past, sobriety had been a goal in order to get his children back, but now he believes that by focusing on his own needs he is more likely to stay on the path.   The court hopes that he is right, but cannot base a child's future on hope alone.   At Sam's young age, he needs permanency, dependability, and stability now.   He has been in his current foster placement for close to half his young life, and Sam has developed a close bond with his foster mother, foster father, and foster sister.   He seeks and gets their attention and readily turns to the foster parents for comfort.   Even Mr. O. has recognized that the present foster placement is one that meets his child's needs.   The foster parents are willing to adopt Sam and give him the permanency that he needs.   It is not in this child's best interest to continue to develop a relationship with his father and delay his prospects of permanency, and doing so would be detrimental to that best interest.   This ground was proven by clear and convincing evidence.

II

“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition ․ If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase.   In the dispositional phase, the trial court determines whether termination is in the best interest of the child.”  (Citation omitted;  internal quotation marks omitted.)  In re Roshawn R., 51 Conn.App. 44, 52, 720 A.2d 1112 (1998).   Unlike the adjudicatory phase, on disposition the court may consider information through the close of the evidentiary hearing.

A

In making the dispositional decision in a non-consensual case, the court is mandated to consider and make written findings regarding seven factors specified in General Statutes § 17a–112(k).  See, e.g., In re Tabitha P., 39 Conn.App. 353, 362, 664 A.2d 1168 (1995).  “[T]hose ‘seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered ․ There is no requirement that each factor be proven by clear and convincing evidence.’  “ In re Davonta V., 98 Conn.App. 42, 46–47, 907 A.2d 126 (2006), aff'd, 285 Conn. 483, 940 A.2d 733 (2008).   As required by the statute, the court has considered the statutory factors and makes the following written findings with regard to the commissioner's petition to terminate the respondents' parental rights, and the court has considered these findings in determining that terminating the parental rights of the respondents is in Sam's best interest.

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

As discussed above, DCF offered timely and appropriate services to both respondent parents to facilitate their reunion with their child.

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

As discussed above, DCF made reasonable efforts to reunite each parent with his or her child, as is required under the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

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

The following specific steps were ordered on September 21, 2011, for Mr. and Ms. O. to regain custody of their child:

Keep all appointments set by or with DCF. Cooperate with DCF home visits, announced or unannounced, and visits by the child(ren)'s court-appointed attorney and/or guardian ad litem

MOTHER:  Ms. O. did not comply.   She missed several appointments made by DCF to enter drug treatment and at least one departmental decision-making conference.   FATHER:  For many months Mr. O. also failed to comply, but since completing Crossroads has met his obligations under this order.

Keep whereabouts known to DCF, your attorney, and child's attorney.

MOTHER:  The mother kept DCF apprised of her whereabouts until November 2011.   After that, she did not tell DCF where she was living until the paternal grandmother brought her to the DCF office on May 25, 2012, the date the TPR petition was filed.   She concealed from DCF that she lived with her children and their paternal grandparents from December 2011 until February 2012, even giving DCF a false address in January 2012.   Since May 2012, DCF has been unable to ascertain her whereabouts on an ongoing basis although the department social worker has communicated occasionally with her by email.   FATHER:  The father did not disclose his whereabouts after Sam's removal until he contacted the department in December 2011 and said he was living with his “grandmother” in Newington, where a DCF social worker then visited him.   During that visit, Mr. O. said he was going to be incarcerated shortly and would contact DCF upon his release.   Upon his release in March 2012, he did not contact DCF, and the department did not know of his whereabouts until ascertaining in May 2012, that he had been re-incarcerated in March 2012 after living for a week in the community.   Since then, he has complied with this order by informing DCF of his release to Crossroads in September 2012, his discharge from that facility in March 2013, and his subsequent residence with his parents.

Take part in parenting and individual counseling and make progress toward the identified treatment goal of achieving and maintaining sobriety.

After the OTC, DCF offered to refer both parents to St. Francis Behavioral Health for parenting and individual counseling, as provided for in the specific steps, but they both declined, saying they would go there themselves (which they did not do).   MOTHER:  DCF referred Ms. O. for individual counseling in October 2011, but she failed to follow through.   DCF then arranged for her to attend a dual diagnosis women-and-children's program and planned to reunify her with Sam at the program within ninety days.   Ms. O. again failed to follow through.   In February 2012, DCF again provided mother with contact information for mental health clinics in Hartford and New Britain, but she again failed to follow through.   FATHER:  DCF repeatedly offered services to Mr. O. before the adjudicatory date, but he would not accept them.   Since his release from Crossroads, DCF referred him for parenting counseling that was scheduled to begin in April, but low enrollment in the program has led to a delay in its start.

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

MOTHER:  Mother did not comply.   She missed two drug tests, a drug screen on October 31, 2011, and a hair test on February 28, 2012.   As discussed above, DCF made several referrals for her to attend a substance abuse evaluation and drug screen that she did not attend.   In November 2011, she apparently did attend a substance abuse evaluation, since the DCF social study reported that she “was recommended to attend an inpatient program by the Substance Abuse Managed Service System.”   Petitioner's exhibit 1, at 12.   DCF referred her to the dual diagnosis women-and-children's inpatient program, but she failed to follow through.   In the spring of 2012, DCF made three more referrals for substance abuse appointments;  each time she agreed to attend the appointment but then failed to do so.   FATHER:  Father did not comply until entering Crossroads in September 2012.   Before that, he had continued to abuse cocaine while in the community.   Upon his discharge from Crossroads, he complied with its recommendation to enter a relapse prevention program and comply with regular drug testing (but did not follow Dr. Neems' recommendation to reside in a sober home).

Cooperate with service providers recommended for parenting/individual/family counseling, in-home support services, and/or substance abuse treatment.

The specific steps ordered mother and father to attend parenting and individual counseling at St. Francis Behavioral Health.   When DCF offered the parents a referral there after the OTC, both said that they would go there on their own but neither did so.   MOTHER:  Ms. O. later claimed to have attended an intake for therapy there in September 2011, but never provided DCF with any documentation that she actually did so.   As noted above, DCF referred her to several service providers for drug and mental health treatment, but she did not comply.   The women-and-children's program that DCF offered Ms. O. (and she declined) in December 2011 would have provided parenting services, as well as mental health and drug treatment.   FATHER:  Mr. O. did not accept any DCF referrals for drug treatment or mental health counseling, but eventually arranged on his own to attend Crossroads, with which he cooperated, and he has also successfully cooperated with the intensive relapse prevention program at Wheeler Clinic, to which he was referred by Crossroads after discharge from inpatient treatment.   He has agreed to attend the parenting program at the Hospital of Central Connecticut to which DCF has referred him, but that program has been delayed through no fault of his part because of low enrollment.

Sign releases allowing DCF to communicate with the providers and your child's attorney to review your child's records.

MOTHER:  There was no evidence offered as to whether mother complied with the order to sign releases.   FATHER:  Father did not comply, at least through the adjudicatory date;  but there is no evidence about whether he has complied since then.

Cooperate with court-ordered evaluations.

Not applicable to mother.   Father complied by participating in a court-ordered psychological evaluation with Dr. Robert Neems.

Secure and maintain adequate housing and legal income.

MOTHER:  Since Ms. O. refused to disclose her whereabouts for most of this case, she has not provided DCF with the means of ascertaining whether she complied with these orders.   FATHER:  Mr. O. lived with his “grandmother” in Newington between September and December 2011, and there is no evidence that the premises were inadequate.   He had no source of legal income and stole approximately $30,000 from her, by using checks from her bank account without permission, to buy drugs and alcohol and pay for legal fees and bail.   During his one week between incarcerations in March 2012, he had no job and lived in a motel.   Since his release from Crossroads, he has lived with his parents, initially worked part-time, and has just obtained full-time employment.   Although his parents' home is adequate in terms of habitability, there is a serious question whether it is adequate for Mr. O in terms of helping him prepare for a life of sobriety for the reasons identified above.

Identify changes in household composition.

MOTHER:  Ms. O. has not complied with this step.   FATHER:  Mr. O. did not comply, in the sense that he did not tell DCF where he was living, except in December 2011, and did not disclose at other times whether he was living with anyone, until his release from Crossroads, when he did tell DCF that he was living with his parents and his two older sons.

No further involvement in the criminal justice system.  Comply with probation or parole.

MOTHER:  Mother did not comply.   In February 2013, she committed larcenies and a burglary in order to obtain money to buy drugs and was arrested twice.   FATHER:  Father did not comply.   He committed larcenies that resulted in incarceration.   He has complied with his probation since discharge from Crossroads.

Visit child(ren) as often as DCF permits.

MOTHER:  The mother initially complied, then stopped participating in regular DCF-sponsored visits in November 2011, had one more supervised in March 2012, and then stopped visiting Sam. She concealed from DCF the fact that she lived with Sam without DCF permission between November 2011 and February 2012.   FATHER:  Father did not comply until he began visiting Sam once at Crossroads.   Since then, he has complied.

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

From the social studies and documentary exhibits, it appears that both mother and father complied with this order.

4. “The feelings and emotional ties of the child with respect to his parents, any guardian of his person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties”— § 17a–112(k)(4).

There is no evidence that this child has any close feelings for or emotional ties with either of his parents.   Ms. O. lived with Sam, albeit without DCF permission, from December 2011 to February 2012, when Sam was between three and six months old, but it is unlikely they developed any bond from that short period, when he was so young. and she has not seen him since except for one DCF-sponsored visit.   Mr. O. has probably begun to develop a visiting relationship with Sam based on his bi-weekly visits since last September.

As noted above, however, Sam does have close emotional ties with and feelings for his foster family.

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

Born on September 16, 2011, Sam is one year and almost ten months old.

6. “The efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child”— § 17a–112(k)(6).

Ms. O. has made no effort to adjust her circumstances, conduct, or conditions to make it in Sam's best interest to return him to her home.   She has not undergone treatment for the substance abuse that led to removal of all three of her children.

For many months after Sam's removal, Mr. O. continued to use narcotics and to avoid treatment for his substance abuse.   Eventually, by surrendering himself on outstanding criminal charges, resolving his criminal cases, beginning substance abuse treatment, and staying drug-free since the spring of last year, Mr. O. began trying to put himself in a position where it would be in Sam's best interest to return to his father's care.   Even now, however, he has not adequately “adjust[ed] his circumstances, conduct, or conditions” so as to make it in Sam's interest to return to his custody.   His recovery and sobriety are relatively new, and need longer time before Mr. O. can be counted on to provide dependable care for his son.   Moreover, Mr. O. has deliberately chosen not to follow Dr. Neems' recommendations for an optimal path to sustained recovery by living in sober house.

7. “The extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent”— § 17a–112(k)(7).

There has been no unreasonable act by any other person that has prevented either respondent parent from developing and maintaining a meaningful relationship with Sam. Instead, each parent's continued drug use, lack of or delayed substance abuse treatment, and failure to visit Sam regularly throughout the child's time in foster care have been the principal factors in the lack of such a relationship for each parent.   There is no evidence that either parent's economic circumstances have affected the ability of either one to develop or maintain such a relationship.

B

The final element of the termination of the parental rights statute, § 17a–112(j), requires that, before granting a petition for such termination, the court must find “by clear and convincing evidence ․ (2) that termination is in the best interest of the child ․” The best interest standard is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare.   In determining that terminating the respondent parents' parental rights is in Sam's best interest, the court has considered various factors, including his interest “in sustained growth, development, well-being, and in the continuity and stability of [his] environment”;  Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985);  his age and needs;  the length and nature of his stay in foster care;  the contact and lack thereof that he has had with his father and mother;  the potential benefit or detriment of his retaining a connection with his biological parents;  his genetic bond to each birth parent;  In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999);  and the seven statutory factors and the court's findings thereon.   The court has also balanced Sam's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with his biological parents.   See Pamela B. v. Ment, 244 Conn. 296, 313–14, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).   In consideration of all these factors and after weighing all of the evidence, the court finds that clear and convincing evidence established that it is in the best interests of this child to terminate the parental rights of both respondent parents.

The mother, Lisa O. has shown by her conduct that she is not a resource for her son.   She has stopped visiting, has no significant relationship with him, and continues the drug abuse that led to removal of all three of her children from her custody.   There is no factor or evidence whatsoever to suggest that the child's best interest would be served by any judicial order or act other than terminating her parental rights.

The father, Randolph O., is not in the same position as the mother.   He has successfully engaged in substance abuse treatment, has not relapsed since then, and appears sincere in his desire to maintain his recovery.   Not until Sam was a year old, however, did Mr. O. begin drug treatment.   It is still too early in his recovery for Sam to depend on him now for responsible and reliable caretaking.   Moreover, Mr. O.'s history of drug abuse, long history of impulsivity, his prior relapse after successfully engaging in drug treatment, and his decision not to follow all of Dr. Neems' recommendations about his aftercare treatment support Dr. Neems' conclusion that Mr. O. should demonstrate sobriety in the community for at least a year, or 9 1/2 more months from the end of trial, before he could be considered be a safe and reliable resource for his son.

This young child needs permanency and stability now, rather than to wait for an uncertain event.   Clear and convincing evidence has proven that it is in Sam's best interest to terminate parental rights of both respondent parents.

III

The court having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for the termination of each respondent's parental rights and having determined, upon all of the facts and circumstances presented, that it is in this child's best interest to terminate the parental rights of each respondent parent, it is therefore HEREBY ORDERED:

The parental rights of Randolph and Lisa O. to Sam O. are hereby terminated.   The commissioner of the department of children and families is appointed statutory parent for this child pursuant to General Statutes § 17a–112(m) so that he may be placed for adoption.   In securing the adoption, the court urges the department to give first preference to the present foster parents.

Pursuant to General Statutes § 17a–112(o) and Practice Book § 35a–14(g), the statutory parent shall file a written report on the case plan, the permanency plan, and the status of the child with the clerk of the Superior Court for Juvenile Matters at New Britain on or before August 9, 2013, at 9:00 a.m. and every three months thereafter on implementation of the plan.   A permanency plan was last approved by the court, Gleeson, J., on August 1, 2012, and the most recent motion for approval of a permanency plan, filed on May 30, 2013, is now pending and scheduled to be heard on July 11, 2013.

BY THE COURT

STEPHEN F. FRAZZINI

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN2. Practice Book § 33a–4, captioned “Identity or Location of Respondent Unknown,” provides, in pertinent part, as follows:  “(a) If the identity or present location of a respondent is unknown when a petition is filed, an affidavit shall be attached reciting the efforts to identify and locate that respondent.   Notice by publication to unidentified persons shall be required in any petition for termination of parental rights.”   Practice Book § 33a–5, captioned, “Address of Person Entitled to Personal Service Unknown,” states as follows:  “If the address of any person entitled to personal service is unknown, service may be by publication as ordered by the judicial authority.”.  FN2. Practice Book § 33a–4, captioned “Identity or Location of Respondent Unknown,” provides, in pertinent part, as follows:  “(a) If the identity or present location of a respondent is unknown when a petition is filed, an affidavit shall be attached reciting the efforts to identify and locate that respondent.   Notice by publication to unidentified persons shall be required in any petition for termination of parental rights.”   Practice Book § 33a–5, captioned, “Address of Person Entitled to Personal Service Unknown,” states as follows:  “If the address of any person entitled to personal service is unknown, service may be by publication as ordered by the judicial authority.”

FN3. FTR (For The Record) is the recording software used by the court monitor that digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time..  FN3. FTR (For The Record) is the recording software used by the court monitor that digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time.

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

FN5. General Statutes § 17a–112(j) provides, in pertinent part, as follows.  “The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a–111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ․”.  FN5. General Statutes § 17a–112(j) provides, in pertinent part, as follows.  “The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a–111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts ․”

FN6. The father's drug problem dates back even further.   He admitted to staff at Crossroads in September 2012 that he had been dependent on cocaine for eight years and on heroin for seven years—an admission that traces his substance abuse to at least 2004.   He later told intake staff at Wheeler Clinic that he began using marijuana at age 18, and that “his heaviest use [was] between the ages of 18 and 29 in which he used 1 joint every day.”   He said that he had used “a quarter of an 8 ball daily” of cocaine since age 29 and “a bundle a day” of heroin since age 31.   Father's exhibit C, at p. 1. (He was 38 years old when he made those statements at Wheeler.).  FN6. The father's drug problem dates back even further.   He admitted to staff at Crossroads in September 2012 that he had been dependent on cocaine for eight years and on heroin for seven years—an admission that traces his substance abuse to at least 2004.   He later told intake staff at Wheeler Clinic that he began using marijuana at age 18, and that “his heaviest use [was] between the ages of 18 and 29 in which he used 1 joint every day.”   He said that he had used “a quarter of an 8 ball daily” of cocaine since age 29 and “a bundle a day” of heroin since age 31.   Father's exhibit C, at p. 1. (He was 38 years old when he made those statements at Wheeler.)

FN7. The DCF Running Narrative documents some details of Ms. O.'s visit to the DCF office on May 25, 2012, and the court also heard testimony from social worker Zyla about the visit.   The running narrative shows that the mother was informed at the visit that the “next court date” was June 21, 2012, at 2 p.m. See petitioner's exhibit 10, running narrative for 5/25/12.   The court file shows that the TPR petition was filed on the day of Ms. O.'s visit to the DCF office at 11:25 a.m. and that the clerk had designated June 21 at 2 p.m. as the date and time for the initial hearing.  (See General Statutes § 17a–112(j):  “The Superior Court, upon notice and hearing as provided in sections 45a–716 and 45a–717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ․” and § 45a–716(a):  “Upon receipt of a petition for termination of parental rights, the Court of Probate, or the Superior Court on a case transferred to it from the Court of Probate in accordance with the provisions of subsection (g) of section 45a–715, shall set a time and place for hearing the petition.”)   Since the date and time for the initial hearing date cannot be set by the court until a petition has been filed, this court infers and finds that Ms. O.'s visit to DCF on May 25 occurred after the filing of the TPR petition.   Even if this visit had occurred prior to the filing, however, DCF's numerous referrals for services shows its compliance with its obligation to provide reasonable efforts at reunification..  FN7. The DCF Running Narrative documents some details of Ms. O.'s visit to the DCF office on May 25, 2012, and the court also heard testimony from social worker Zyla about the visit.   The running narrative shows that the mother was informed at the visit that the “next court date” was June 21, 2012, at 2 p.m. See petitioner's exhibit 10, running narrative for 5/25/12.   The court file shows that the TPR petition was filed on the day of Ms. O.'s visit to the DCF office at 11:25 a.m. and that the clerk had designated June 21 at 2 p.m. as the date and time for the initial hearing.  (See General Statutes § 17a–112(j):  “The Superior Court, upon notice and hearing as provided in sections 45a–716 and 45a–717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ․” and § 45a–716(a):  “Upon receipt of a petition for termination of parental rights, the Court of Probate, or the Superior Court on a case transferred to it from the Court of Probate in accordance with the provisions of subsection (g) of section 45a–715, shall set a time and place for hearing the petition.”)   Since the date and time for the initial hearing date cannot be set by the court until a petition has been filed, this court infers and finds that Ms. O.'s visit to DCF on May 25 occurred after the filing of the TPR petition.   Even if this visit had occurred prior to the filing, however, DCF's numerous referrals for services shows its compliance with its obligation to provide reasonable efforts at reunification.

FN8. At trial, Mr. O. said that he spent a few days in jail right after Sam was born, and continued to use drugs after his release;  with no reason in the evidence to doubt this testimony, the court accepts it as true..  FN8. At trial, Mr. O. said that he spent a few days in jail right after Sam was born, and continued to use drugs after his release;  with no reason in the evidence to doubt this testimony, the court accepts it as true.

FN9. The evidence suggests that the Newington woman with whom he lived was not his actual grandmother but a long-time family friend.   See Petitioner's exhibit six, at 1..  FN9. The evidence suggests that the Newington woman with whom he lived was not his actual grandmother but a long-time family friend.   See Petitioner's exhibit six, at 1.

FN10. Even if Ms. O.'s visit to the DCF office on May 25 occurred earlier that day than the 11:25 a.m. filing of the TPR petition, her request then for a referral for inpatient treatment and stated willingness to attend a drug intake four days later at ADRC does not undercut this finding.   Her later failure to attend the May 29 intake shows this request to have been either insincere or one on which Ms. O. was unwilling or unable to follow through..  FN10. Even if Ms. O.'s visit to the DCF office on May 25 occurred earlier that day than the 11:25 a.m. filing of the TPR petition, her request then for a referral for inpatient treatment and stated willingness to attend a drug intake four days later at ADRC does not undercut this finding.   Her later failure to attend the May 29 intake shows this request to have been either insincere or one on which Ms. O. was unwilling or unable to follow through.

FN11. General Statutes § 17a–112 provides in pertinent part as follows:  “(j) The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ․ (3)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child;  [or] (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b–129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ․ [or] (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”.  FN11. General Statutes § 17a–112 provides in pertinent part as follows:  “(j) The Superior Court ․ may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ․ (3)(A) the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child;  [or] (B) the child (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of such child has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b–129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child ․ [or] (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child.”

FN12. In addition to a brief period of jail right after Sam's birth, Mr. O. was incarcerated two more times during the pendency of this case:  from December 28, 2011 through March 6, 2012, and from March 14, 2012 to September 17, 2012.   At trial, Mr. O. described himself as being at Niantic for at least part of the second incarceration, although he did say he was released at the Hartford Correctional Center (HCC).  It appears from the evidence that the entire third period of incarceration was at HCC..  FN12. In addition to a brief period of jail right after Sam's birth, Mr. O. was incarcerated two more times during the pendency of this case:  from December 28, 2011 through March 6, 2012, and from March 14, 2012 to September 17, 2012.   At trial, Mr. O. described himself as being at Niantic for at least part of the second incarceration, although he did say he was released at the Hartford Correctional Center (HCC).  It appears from the evidence that the entire third period of incarceration was at HCC.

FN13. When asked by his attorney at trial when he had next seen Sam after the hospital, Mr. O. answered as follows:  “Knowing DCF was involved, knowing how the process goes, I knew I would need to straighten my life and at that time I had not.   So in my mind it was difficult for me to have a relationship with DCF knowing that I was not clean and not living the life that I had in the past or know that I should.”   FTR, 5–13–2013 @ 10:34:28 –10:35:08.   When asked by his attorney at trial whether he had seen Sam/during the December 2011 through March 2012 incarceration, Mr. O. did not answer yes.   Instead, he testified that he had contact with his wife, parents, and the two other children.   The remainder of his answer implied that he had not seen Sam during this period:  “I did not have any visits during that winter session, during that winter time that I was incarcerated.   Not knowing how long I was going to be there for, I didn't think it was something that I needed to get done because I always expected to be released upon my court date which I had three or four during that time, during that 45 days ․”.  FN13. When asked by his attorney at trial when he had next seen Sam after the hospital, Mr. O. answered as follows:  “Knowing DCF was involved, knowing how the process goes, I knew I would need to straighten my life and at that time I had not.   So in my mind it was difficult for me to have a relationship with DCF knowing that I was not clean and not living the life that I had in the past or know that I should.”   FTR, 5–13–2013 @ 10:34:28 –10:35:08.   When asked by his attorney at trial whether he had seen Sam/during the December 2011 through March 2012 incarceration, Mr. O. did not answer yes.   Instead, he testified that he had contact with his wife, parents, and the two other children.   The remainder of his answer implied that he had not seen Sam during this period:  “I did not have any visits during that winter session, during that winter time that I was incarcerated.   Not knowing how long I was going to be there for, I didn't think it was something that I needed to get done because I always expected to be released upon my court date which I had three or four during that time, during that 45 days ․”

FN14. Compare In re Zowie N., 135 Conn.App. 470, 503, 41 A.3d 1056 (stating as follows:  “In the present case, the petitioner alleged in her petition that the respondent, in part, had failed to achieve sufficient rehabilitation pursuant to § 17a–112(j)(3)(B)(i).   That statute provides for the termination of parental rights where the child ‘has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding ․ and the parent ․ 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 ․’ ”), cert. denied, 305 Conn. 915, 46 A.3d 170 (2012), with In re Justice V., 111 Conn.App. 500, 510–12, 959 A.2d 1063 (2008) (stating that “a failure to order specific steps would preclude termination for a failure to achieve sufficient personal rehabilitation under 17a–112(j)(3)(B),” but holding that because parental rights had been properly terminated on the ground of abandonment the lack of specific steps “did not result in manifest injustice”), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009).   Lower courts have also disagreed.   Compare In re Carlos M., Superior Court, Child Protection Session at Middletown, Docket No. F01 CP06 001904A (February 9, 2010, Olear, J.);   In re Kaitlyn B., Superior Court, Child Protection Session at Middletown, Docket No. F04 CP07 007648 A (August 30, 2010, Bentivegna, J.), In re Adrianna S., Superior Court, Child Protection Session at Middletown, Docket No. K09 CP08 011433 A (April 18, 2011, Epstein, J.), all holding that specific steps are necessary for a TPR brought underground (B)(i), with In re Randi R., Superior Court for juvenile matters at Hartford, Docket No. H12 CPO8 0111870 A (July 10, 2012, Frazzini, J);  In re Nicholas G. V., Superior Court, Child Protection Session at Middletown, Docket No. D03 CP07 002405 A (May 21, 2009, Bear, J.);   In re Jennifer O., Superior Court, Child Protection Session at Middletown (Rubinow, J., October 21, 2002);  In re Aubrey S., Superior Court, Child Protection Session at Middletown (January 17, 2001, Levin, J.), all holding that TPRs brought under (B)(i) do not require prior steps..  FN14. Compare In re Zowie N., 135 Conn.App. 470, 503, 41 A.3d 1056 (stating as follows:  “In the present case, the petitioner alleged in her petition that the respondent, in part, had failed to achieve sufficient rehabilitation pursuant to § 17a–112(j)(3)(B)(i).   That statute provides for the termination of parental rights where the child ‘has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding ․ and the parent ․ 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 ․’ ”), cert. denied, 305 Conn. 915, 46 A.3d 170 (2012), with In re Justice V., 111 Conn.App. 500, 510–12, 959 A.2d 1063 (2008) (stating that “a failure to order specific steps would preclude termination for a failure to achieve sufficient personal rehabilitation under 17a–112(j)(3)(B),” but holding that because parental rights had been properly terminated on the ground of abandonment the lack of specific steps “did not result in manifest injustice”), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009).   Lower courts have also disagreed.   Compare In re Carlos M., Superior Court, Child Protection Session at Middletown, Docket No. F01 CP06 001904A (February 9, 2010, Olear, J.);   In re Kaitlyn B., Superior Court, Child Protection Session at Middletown, Docket No. F04 CP07 007648 A (August 30, 2010, Bentivegna, J.), In re Adrianna S., Superior Court, Child Protection Session at Middletown, Docket No. K09 CP08 011433 A (April 18, 2011, Epstein, J.), all holding that specific steps are necessary for a TPR brought underground (B)(i), with In re Randi R., Superior Court for juvenile matters at Hartford, Docket No. H12 CPO8 0111870 A (July 10, 2012, Frazzini, J);  In re Nicholas G. V., Superior Court, Child Protection Session at Middletown, Docket No. D03 CP07 002405 A (May 21, 2009, Bear, J.);   In re Jennifer O., Superior Court, Child Protection Session at Middletown (Rubinow, J., October 21, 2002);  In re Aubrey S., Superior Court, Child Protection Session at Middletown (January 17, 2001, Levin, J.), all holding that TPRs brought under (B)(i) do not require prior steps.

FN15. Mr. O. claimed to Dr. Neems, during the interview for the psychological evaluation, that he had seen Sam “about 20 times for a couple of minutes when his mom came by in her car”;  Petitioner's exhibit 7, at 10.   But this statement is not credible in light of his testimony at trial;  see, e.g., the testimony recounted above in footnote 13;  and the paternal grandmother's report to DCF, in response to an inquiry from social worker Zyla in the fall of 2012 asking “what contact, if any, Mr. O. has had with Sam,” that Mr. O. had seen Sam for two jail visits, two short visits at Crossroads, and “briefly over the weekend for Sam's first birthday.”   Petitioner's exhibit 3, Addendum to TPR social study dated March 7, 2013, at 2..  FN15. Mr. O. claimed to Dr. Neems, during the interview for the psychological evaluation, that he had seen Sam “about 20 times for a couple of minutes when his mom came by in her car”;  Petitioner's exhibit 7, at 10.   But this statement is not credible in light of his testimony at trial;  see, e.g., the testimony recounted above in footnote 13;  and the paternal grandmother's report to DCF, in response to an inquiry from social worker Zyla in the fall of 2012 asking “what contact, if any, Mr. O. has had with Sam,” that Mr. O. had seen Sam for two jail visits, two short visits at Crossroads, and “briefly over the weekend for Sam's first birthday.”   Petitioner's exhibit 3, Addendum to TPR social study dated March 7, 2013, at 2.

FN16. Dr Neems' only critique of Mr. O. during the parent-child interaction was the father's failure to protect his 14–month–old son when Sam pulled himself up to a standing position.   Dr. Neems testified that Sam was not yet standing up and walking by himself, and that Mr. O.'s view that he should not be an “overprotective parent” was of some concern:His attitude and opinion is that kids should learn to function for themselves and that was why he didn't reach in to protect Sam more and ․ why he takes certain attitudes with his older kids.   That problems happen and they need to take care of it themselves.   The concern that I had in that situation was, an attitude of not being quite as protective as most parent would be with little little children and an attitude that kids have to take care of themselves—which on the one hand makes a lot of sense and on the other hand when you've been absent from and a negative influence on your children's lives for years there's also a lot to be said for taking responsibility for your own negative impact on the kids and figuring out what you need to do make up to them for the absence and the negative impact you've had on them.   I didn't see this as an impossible and entirely unworkable issue but one that he needed to attend to.FTR, 5–13–2013 @ 2:15:14–2:15:21..  FN16. Dr Neems' only critique of Mr. O. during the parent-child interaction was the father's failure to protect his 14–month–old son when Sam pulled himself up to a standing position.   Dr. Neems testified that Sam was not yet standing up and walking by himself, and that Mr. O.'s view that he should not be an “overprotective parent” was of some concern:His attitude and opinion is that kids should learn to function for themselves and that was why he didn't reach in to protect Sam more and ․ why he takes certain attitudes with his older kids.   That problems happen and they need to take care of it themselves.   The concern that I had in that situation was, an attitude of not being quite as protective as most parent would be with little little children and an attitude that kids have to take care of themselves—which on the one hand makes a lot of sense and on the other hand when you've been absent from and a negative influence on your children's lives for years there's also a lot to be said for taking responsibility for your own negative impact on the kids and figuring out what you need to do make up to them for the absence and the negative impact you've had on them.   I didn't see this as an impossible and entirely unworkable issue but one that he needed to attend to.FTR, 5–13–2013 @ 2:15:14–2:15:21.

Frazzini, Stephen F., J.