IN RE: Trace O. (2013)

MEMORANDUM OF DECISION

This child protection matter concerns Trace O., a four-year-old child who was born on October 31, 2008.   Melissa M. is the child's mother.   Richard O. is the child's father.

Trace has been in DCF's care continuously since September 21, 2012 when the Department of Children and Families (DCF) invoked an administrative “96–hour hold” on his custody.   On September 25, 2012, the court (Foley, JTR) issued an ex parte order granting the department temporary custody of Trace.   That order of temporary custody was subsequently sustained by Judge Foley at a hearing on October 2, 2012.   Trace was adjudicated as a neglected child by the undersigned during a hearing at this venue on December 12, 2012.   He was committed to DCF's custody and guardianship on that date.

DCF has filed a motion for review of permanency plan in this case that recommends the termination of both parents' parental rights, and adoption of the child.   Counsel for Melissa M. and Richard O. both filed timely objections to the proposed permanency plan.   A contested evidentiary hearing on DCF's motion for approval of the plan, and the parents' objections to it, was conducted before the undersigned on August 29, 2013.   Both parents appeared at court on that date with their counsel.   DCF was represented by an assistant attorney general, and Trace was represented by his court-appointed attorney.

At the outset of the hearing, counsel for Melissa M. informed the court that the mother wished to withdraw her objection to the permanency plan.   The court conducted a canvass and found that the mother's decision to withdraw her objection was knowingly and voluntarily made, after the adequate and effective assistance of counsel.   Counsel for Richard O. indicated that the father still wished to pursue his objection to the permanency plan.   Melissa M. and her lawyer requested permission to be excused from the remainder of the hearing.   The court granted the request, and the contested evidentiary hearing proceeded in their absence.   The court has carefully reviewed and considered all of the evidence that was presented during the hearing, and finds that the facts discussed below were proven by a preponderance of the evidence.

FACTUAL FINDINGS

DCF filed neglect petitions concerning Trace O. and his 14–year–old half-sibling, Joseph M., on July 3, 2012.   Both children were removed from the mother's care on September 21, 2012, after a police officer overheard Melissa M. speak with Joseph on the phone and instruct him to hide marijuana at the family residence.   The police obtained a search warrant and confiscated two marijuana plants, marijuana, and drug paraphernalia from the home.   DCF's social study indicates that conditions in the home on that date were “deplorable” and that Melissa M. admitted to a social worker and a police officer that she had been abusing marijuana and K–2. (Petitioner's Exhibit A, p. 2.)

At the time of Trace's entry into foster care, and on the date of the neglect adjudication, Richard O. was in prison.   The father was incarcerated during June 2012 for a violation of probation.   He was released from the Corrigan Correctional Institution on January 30, 2013.

This court issued specific steps orders at the neglect hearing on December 12, 2012.   The specific steps orders for Melissa M. are credibly set forth on pages 3–10 of Petitioner's Exhibit A, and are incorporated herein by reference.   The specific steps orders for Richard O. were introduced into evidence during the present proceeding as Father's Exhibit 1. They are also incorporated by reference herein.

The evidence established that at the time of the neglect adjudication, the mother's abilities to properly care for Trace were impeded by her serious substance abuse problems, which included prior addiction to heroin, housing issues, and her tendency to expose the children to other individuals who engaged in substance abuse, domestic violence and other criminal behavior.   (Petitioner's Exhibit A, p. 2.) The evidence also proved that at the time of the neglect adjudication, Richard O. was incarcerated for a violation of probation related to his involvement in a domestic violence incident.   (Testimony of Jennifer Torres, Petitioner's Exhibit A, p. 11.)   There was evidence that the father had abused substances prior to his incarceration.   (Testimony of Richard O., Father's Exhibit 2.) The specific steps orders issued by the court at the neglect hearing were intended by the court to assist both of the parties to address the forgoing issues, and achieve reunification.

Melissa M. has visited with Trace consistently since the child's removal from her care.  (Petitioner's Exhibit A, p. 10.)   The DCF social study credibly stated that her interaction with the child is appropriate, and that a strong bond of mutual love and affection exists between them.  (Id.)

Unfortunately, the evidence also proved that Melissa M. has not sufficiently cooperated with the treatment programs and services to which she was referred by DCF, and that she has not made sufficient progress addressing the problems that resulted in the removal of Trace from her care.   Although she apparently abstained from heroin use since January 2012, Melissa M. has remained on legally prescribed methadone since 2011.  (Petitioner's Exhibit A., p. 18.)   Since the child was removed from her care, Melissa M. was discharged unsuccessfully from a drug treatment program and a methadone maintenance program for failure to comply with the rules of those programs.  (Petitioner's Exhibit A, p. 4–5.)   She is currently enrolled in the methadone maintenance program at the Hartford Dispensary in Willimantic.  (Id., p. 6.) She attends the methadone clinic to receive her prescribed dose (130 milligrams).   However, Melissa M. does not attend the individual or group therapy offered by the Hartford Dispensary, and she is frequently late for her scheduled meetings there (Id.).

In April 2013, Melissa M. was evicted from her apartment for non-payment of rent.   DCF subsequently referred her to the Supportive Housing Program.   She was unsuccessfully discharged from the Supportive Housing Program because she failed to comply with requests that she sign a lease and not allow a certain individual (of whom DCF did not approve) to live in her residence.  (Id., p. 8.) Melissa M. was subsequently readmitted into the Supportive Housing Program.   She secured an apartment in Dayville with the help of the program in May. (Id., p. 9.)

The mother was arrested again on April 1, 2013 and charged with the crimes of interfering with a police officer and hindering prosecution following a domestic dispute with her present boyfriend, Jeremy H. (Id.).

The court credits all of the foregoing evidence.   The court finds that, despite her strong bond of attachment with Trace, Melissa M. still has persistent and unaddressed substance abuse, domestic violence, and criminal behavior problems that render her unable to effectively and safely parent her son now, or within a reasonable period of time in the future.

DCF's social study credibly indicated that Richard O. was incarcerated from “June 2012 until January 30, 2013.”  (Id., p. 14.)   Accordingly, he was in prison, and therefore largely unavailable to Trace, for approximately the first three months after the child was placed in foster care.¹

With one exception that will be discussed below, the credible evidence presented at this hearing proved that Richard O. has generally cooperated with his specific steps orders and has attempted to do the things that DCF and the court said were required for reunification.   It was proven that, since his release, the father has regularly attended all of his weekly supervised visits with Trace.  (Id.) He has interacted positively and engaged in age-appropriate activities with Trace during these contacts.   The DCF social study dated June 6, 2013 noted that the father is slowly developing a strong bond with his son.  (Id., p. 17.)   The social study also noted that Richard O. would benefit from participation in parent education training classes.   Richard O. enrolled in the 12–week “Dad 24/7” group offered by the Fatherhood Initiative Program at Madonna Place last April.   Although he missed a few of the sessions, he had completed 10 as of the date of this hearing, and he is expected to successfully complete the course in the near future.   In July, Richard O. enrolled in the Family Network program, which observes his visits and provides feedback about his interactions with Trace.

The evidence at hearing also proved that Richard O. avoided new arrests, maintained a legal source of income via disability payments, worked for a period of time, and is now looking for other employment.   After his release from incarceration, he lived for a while in a motel.   He testified credibly that on his own initiative he located and rented an efficiency apartment in July. He is also on the Supportive Housing Program's list for future assistance, although his successful effort at self-help in locating his current rental makes him a lower priority for their aid.   DCF had not visited Richard O.'s efficiency apartment as of the hearing date, and the court was provided with no information about whether or not the premises were suitable for Trace to live there.

There was also evidence that Richard O. had completed a domestic violence education program while in the custody of the Department of Correction.   The court received no other information about this program during the hearing.

When the court issued specific steps orders in this case on December 12, 2012, it ordered the father, inter alia, to “Submit to a substance abuse evaluation and follow the recommendations about treatment, including inpatient treatment if necessary, aftercare and relapse prevention.”  (Respondent Father's Exhibit 2.) After his release from custody at the end of January, Richard O. was referred by DCF for a substance abuse evaluation conducted by the Southeastern Counsel on Alcohol and Drug Dependence (SCADD) in New London.   The father admitted that he missed one intake appointment at SCADD in April 2013.   DCF alleged that he failed to attend two intake appointments.   Richard O. attended the evaluation at SCADD on May 15, 2013 and provided a urine sample that was negative for illegal substances.  (Petitioner's Exhibit A, p. 20.)   SCADD recommended then that Richard O. attend its 12–week outpatient substance abuse treatment program one time each week.   SCADD believed that he needed this treatment because he lacked insight about his addiction and the recovery process, and necessary relapse prevention skills.   Jennifer Torres, the DCF social worker, testified credibly that between May 15, 2013 and late July 2013, Richard O. refused to attend the recommended treatment, despite being informed by the department that his failure to do so was a “barrier to reunification.”   The DCF social study also credibly detailed the father's adamant refusal at that time to cooperate with the recommended therapy.  (Id.) ²

However, in July 2013, the father reconsidered his position and enrolled in the 12–week substance abuse program run by SCADD.   He had attended three of the weekly sessions as of August 29th, when this hearing was conducted.  (Father's Exhibit 2.) If he attends the program without missing any sessions, he should complete it in late October.   As noted, the urine sample provided by Richard O. was negative for drugs on May 15, 2013, and there was no evidence offered during this hearing that he has abused illicit substances since his release from incarceration in late January.   Drug tests conducted by SCADD on July 25, 2013 and August 22, 2013 were also negative.  (Id.)

DCF provided reunification services to both parents that are credibly outlined on pages 21–23 of Petitioner's Exhibit A. The court incorporates that listing by reference here.   The court finds that the services provided to each parent by DCF, or other agencies, were reasonable and appropriate.   The court finds that through the provision of said services to the respondents, DCF made reasonable efforts to achieve the existing permanency plan of parental reunification.

DISCUSSION

When a proposed permanency plan is challenged by a party, DCF has the burden of proving by a preponderance of the evidence that the plan is in the child's best interests.   See:  C.G.S. 46b–129(k)(1)–(3).

As noted, the preponderance of the evidence presented during this proceeding proved that it is not likely that Trace could be successfully reunified with Melissa M. within a reasonable period of time in the future, given the child's age and current circumstances.

However, the court finds that the evidence does not support a similar determination at this time with respect to Richard O. Since his discharge from incarceration, the father has attempted to comply with many of the specific steps orders, and reunification services.   He has obtained housing, maintained legal income and worked, or looked for employment.   Richard O. has visited Trace regularly, interacted appropriately with the child during contacts, and has willingly participated in parenting programs offered by the Fatherhood Initiative and the Family Network.   His bond with Trace, although not as strong as the attachment that exists between the mother and the child, is developing, and is described as strong.

Richard O.'s refusal to immediately comply with SCADD's May 15, 2013 treatment recommendation was unfortunate and problematic.   His initial response reflected a lack of insight about his substance abuse problem, and its relationship to this child protection proceeding.   By his tardy entry into necessary treatment, he has delayed possible reunification with Trace, and extended the length of time that the child must remain in foster care without a permanent home.   Richard O. admitted during his testimony at this hearing that he made a mistake last May when he initially refused to enter out-patient substance abuse therapy.   He claims that he now recognizes that he needs it, because of all the problems substance abuse has caused in his life.   As noted, the father should complete the outpatient program by the end of October if he diligently attends all scheduled therapy sessions.   His intake drug screen at SCADD on May 15th, and two subsequent tests, were all negative.   There was no evidence indicating that he has abused illegal substances since his discharge from Department of Correction custody.

Trace O. has resided in his present foster home for more than 11 months.   He will celebrate his fifth birthday on October 31, 2013, 40 days after the first anniversary of his entry into DCF's temporary custody.   His foster parents speak Spanish and Trace is becoming proficient with the language.   All of his needs are being met by his foster parents.

The court has carefully considered all of the evidence presented with respect to the proposed permanency plan, including the child's age and the length of time that he has already spent in foster care.   The court is mindful that Trace has a very close and strong bond with Melissa M., and is developing a strong bond with Richard O. Ms. Torres testified that DCF believed that the father does not need any other reunification services in addition to the ones he is already receiving.   Richard O. is now cooperating with all the reunification services recommended for him, and is attempting to rectify the significant misstep he made last May.

The court finds from the preponderance of the evidence introduced at hearing that it would be in the best interests of the child to afford Richard O. a brief period of additional time (e.g. not to exceed five or six months) ³ to complete the existing programs in which he is involved, and accomplish reunification with Trace.

Therefore, DCF's proposed permanency plan of adoption and termination of parental rights is hereby DENIED.   The Respondent Father's objection to the proposed permanency plan is hereby SUSTAINED.   As noted above, the court found that DCF has previously made reasonable efforts to achieve the present permanency plan of parental reunification.   The court cautions that the amount of time left for parental reunification is exceptionally limited, and that there is very little margin of error remaining with respect to parental conduct, cooperation, and capacity to successfully reunite with the child.

Pursuant to CPB § 35a–14(e),⁴ the court orders DCF to file a revised permanency plan, consistent with these findings and orders, within 60 days of the date hereof.   The revised permanency plan shall be filed with the Clerk of this court by the close of business on October 16, 2013.   The court shall review said revised permanency plan at a hearing to be held at this venue on November 6, 2013 at 10:15 a.m. All counsel, parties and the assigned social worker shall attend this hearing.   Prior to said hearing, all counsel, parties and the assigned social worker shall meet with the Court Services Officer of this court to agree upon, draft and sign revised specific steps orders consistent with the findings and orders set forth in this Memorandum of Decision.   The date and time of this meeting shall be set by the Court Services Officer.

SO ORDERED.

BY THE COURT

Dyer, J.

FOOTNOTES

FN1. Trace visited with Richard O. at the Corrigan Correctional Institution on November 9, 2012, December 7, 2012 and January 8, 2013.   These contacts were facilitated by DCF. (Petitioner's Exhibit A, p. 14.).  FN1. Trace visited with Richard O. at the Corrigan Correctional Institution on November 9, 2012, December 7, 2012 and January 8, 2013.   These contacts were facilitated by DCF. (Petitioner's Exhibit A, p. 14.)

FN2. When informed about SCADD's recommendation that he participate in outpatient treatment, Richard O. told the evaluator:  “[A]ll I had to do was come for the evaluation and give clean urine.   I have done that.   I am clean.   I do not do drugs.”  (Petitioner's Exhibit A, p. 12.).  FN2. When informed about SCADD's recommendation that he participate in outpatient treatment, Richard O. told the evaluator:  “[A]ll I had to do was come for the evaluation and give clean urine.   I have done that.   I am clean.   I do not do drugs.”  (Petitioner's Exhibit A, p. 12.)

FN3. C.G.S. § 46b–129(k)(3) provides in pertinent part:  “At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection the court shall ․ determine a timetable for attaining the permanency plan.”.  FN3. C.G.S. § 46b–129(k)(3) provides in pertinent part:  “At a permanency hearing held in accordance with the provisions of subdivision (1) of this subsection the court shall ․ determine a timetable for attaining the permanency plan.”

FN4. That practice book rule provides in pertinent part:  “If a permanency plan is not approved by the judicial authority, it shall order the filing of a revised plan and set a hearing to review said revised plan within sixty days.”.  FN4. That practice book rule provides in pertinent part:  “If a permanency plan is not approved by the judicial authority, it shall order the filing of a revised plan and set a hearing to review said revised plan within sixty days.”

Dyer, Richard W., J.