IN RE: Meadow S.1 (2013)

MEMORANDUM OF DECISION

On January 25, 2013, Joette Katz, as she is the commissioner of the Department of Children and Families, (“DCF”), filed a petition to terminate the parental rights of Malynda S. and Jason A. to their children, Meadow, born November 1, 2006 and Brayden, born November 1, 2006.

The parents have been served, have appeared and have had the opportunity to be represented by counsel.   The mother has appointed counsel.   The father has not elected to participate in the proceedings although he has been served for both the termination of parental rights proceeding and the underlying neglect proceeding.   The children are represented by counsel.   Neither of the parents claim established Indian Tribal affiliation.   The father claims Cherokee descent but does not claim tribal affiliation.   Notice was provided to the Cherokee Tribal Nation.   They have determined that the children are not Indian children within the meaning of the Indian Child Welfare Act, 25 U.S.C. § 1903(4).   The court is aware of no other proceedings pending in any other court regarding the custody of the children.   This court has jurisdiction.

The court observed that neither parent was present in court.   Malynda did not appear in court although she had actual notice of the proceeding and had been offered transportation to court.   This is a pattern of behavior that has previously occurred.   The court enters a default against her for her failure to appear.

The father has not participated in the termination proceedings and did not attend any hearings.   The father was personally served in the underlying proceedings, attended the initial hearing, was advised of his rights and procedural protections.   He was offered the opportunity to apply for counsel and indicated he would.   His court appointed counsel made many efforts to engage Jason without success.   The father was defaulted in the underlying proceedings (Graziani, J.) on December 14, 2010.   He was defaulted upon his failure to appear for the neglect trial on October 3, 2011 (Dyer, J.) In the present proceeding DCF was unable to locate the father despite diligent efforts to do so.   Service was made by publication and confirmed (Dyer, J.) The father has failed to appear for the present proceedings and a default may enter against him.

EFFECT OF DEFAULT

Practice Book § 32a–2(a) provides that child protection proceedings, including petitions for termination of parental rights, are civil matters.²  See also In re Samantha C., 268 Conn. 614, 634, 842 A.2d 1124 (2004);  In re Shonna K., 77 Conn.App. 246, 253, 822 A.2d 1009 (2003).   As in other civil matters, “[t]he entry of a default constitutes an admission by the defendant of the truth of the facts alleged in the complaint”;  DeBlasio v. Aetna Life & Casualty Co., 186 Conn. 398, 400, 441 A.2d 838 (1982);  and thereby conclusively establishes that the petitioner has prevailed on each of the elements at issue in the adjudicatory phase of this proceeding.   Commissioner of Social Services v. Smith, 265 Conn. 723, 732–33, 830 A.2d 228 (2003) (respondent in child support proceeding who fails to respond to pleadings “is deemed to have judicially admitted the underlying facts of the support petition”);  see also Bank of America, FSB v. Franco, 57 Conn.App. 688, 693, 751 A.2d 394 (2000).   Under Practice Book § 35a–8, when a party is defaulted for failing to appear in a TPR proceeding, the court may then take evidence and render judgment.   In view of the gravity of the TPR issues at hand, however, the court has considered the petitioner's evidence on the specific adjudicatory grounds alleged to terminate parent's parental rights to the children.

Grounds

As to the Father

The petition alleges that the father has abandoned the children, § 17a–112(j)(3)(A) and that he has no on-going relationship with them § 17a–112(j)(3)(D).  The children are soon to be seven years old.   They have been removed from the home for more than 100 days.   Jason was not living with the children or the mother even before this action commenced.   In September 2010, he was living with his girlfriend at an efficiency apartment in Rhode Island.   (Petitioner's Exhibit B.) On September 22, 2010, DCF offered him substance abuse evaluation and mental health assessment.   He did not follow through with the recommended services.   He has not visited the children.   He has not participated in any services.   The mother reports that she has had no contact with the twin's father since their birth.   He has not inquired as to the children's welfare, he has assumed no responsibility for the children.   He has clearly abandoned the children within the contemplation of the General Statutes.

Further, the court finds, there is no ongoing parent-child relationship with respect to Meadow and Brayden that ordinarily develops as a result of a parent having met on a continuing, day to day basis the physical, emotional, moral or educational needs of the children and to allow further time for the establishment or re-establishment of the parent-child relationship would be detrimental to the best interests of the child.

The petitioner has established both these grounds by clear and convincing evidence.

As to the Mother

As statutory grounds for terminating the mother's rights, the petition alleges failure to rehabilitate under General Statutes § 17a–112(j)(3).   That statute provides in relevant part that termination is warranted if the trial court, in the adjudicative phase, finds by clear and convincing evidence that the child (1) has been found by the Superior Court ․ to have been neglected or uncared for in a prior proceeding ․ and (2) 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 (3) 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.  In re Eden F., 250 Conn. 674, 706 (1999).

(1) The case record reflects a finding that the children have been previously adjudicated to be neglected or uncared for on October 3, 2011.  (Dyer, J.)

(2) The record also reflects that specific steps were provided to the mother at the time the order of temporary custody on December 8, 2010 (Foley, J.) and again on September 29, 2011 (Dyer, J.) See Exhibits E and F.

(3) The third factual determination for this court, and that which requires greater factual attention is:  whether the mother has achieved rehabilitation as contemplated under C.G.S. § 17a–112(j)(3)(B), that is, rehabilitation sufficient to render her able to care for this particular child within a reasonable time, considering the age and needs of the child.

“Personal rehabilitation as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent ․ [Section 17a–112] requires the trial court to analyze the [parents'] 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 [that the parents have] achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [they] can assume a responsible position in [their] child's life ․ [I]n assessing rehabilitation, the critical issue is not whether the parent has improved her ability to manage her own life, but rather whether she has gained the ability to care for the particular needs of the child at issue ․ As part of the analysis, the trial court must obtain a historical perspective of the respondent's child caring and parenting abilities, which includes prior adjudications of neglect, substance abuse and criminal activity.”  (Citations omitted;  internal quotation marks omitted.)  In re Daniel C., 63 Conn.App. 339, 353–54, 776 A.2d 487 (2001).   See also In re Christopher L., 135 Conn.App. 232, 245 (2012).

Malynda is 37 years old.   She has acknowledged longstanding mental health issues.   She suffers from generalized anxiety and manic bipolar disorder.   She is histrionic.   She has always been marginally self-supporting.   She has an older daughter that is in the care of that child's father.   Malynda has never been married.   She has had referrals to DCF since 1999.   The allegations included substance abuse of alcohol, cocaine, and marijuana, domestic violence and unaddressed mental health issues.   The presenting problems of unaddressed mental health issues, lack of supervision and parental inadequacy are well described in Exhibit B.

Malynda was evaluated by a court-appointed psychologist on July 12, 2011.   Dr. Suzanne Ciaramella's summary of Malynda's psychological condition was as follows:

From Petitioner's Exhibit D—Psychological Evaluation

Malynda most certainly requires treatment for mental illness, substance abuse and domestic violence.   Malynda is under extreme psychological duress which includes dealing with unresolved trauma, past abusive relationships, diminished self-esteem, mood disturbance including a history of serious and extreme depression, severe anxiety and personality dysfunction.   Much of how her past history of trauma has affected her choices later in life seems out of Malynda's awareness but not out of her willingness or ability to address them now that she has started the process.   Her insight and judgment while currently poor are likely to improve significantly if she can confront her history of abuse, anxiety and likely anger harbored in some direction towards her parents in treatment and recognize how her substance abuse fits into all of this including her choice of tending bar and abusing alcohol in the process.   On a basic level her mood instability needs to be addressed and her anxiety quelled to eliminate the strong ebb and flow she experiences that affects her sense of self-worth, impulsivity and tolerance for stressors.   Trauma work tied into her history of abusive relationships and dealing in concert with the domestic violence she experienced also needs to be addressed and Malynda confronted on how these choices if not addressed could severely jeopardize her children and their safety and sense of self growing up.   Malynda needs to participate in ongoing medication management and remain adherent to her prescriptions and be abstinent from drug abuse which can interfere with the efficacy of her medications in stabilizing her mood.

Malynda has been offered services through United Services, New Perceptions, Quinebaug Day Treatment Center and InLight counseling services as well as medication management services.   DCF has concluded that “[D]espite the numerous program she has attended she is unable to make progress due to her histrionic behaviors and putting up barriers to successful treatment.”   Petitioner's Exhibit C narrates Malynda's inability or unwillingness to follow through with recommended therapy and counseling.   Her condition actually deteriorated to such level that inpatient therapy was recommended.   Malynda of course declined to follow through with the recommendation.   Indeed, Malynda who has been largely unemployed reports to DCF that she has recently taken a job again as a bartender.   So the two most import requirements identified by the psychological evaluation, her inability to address her mental health issues, and avoid the near occasion of temptation, i.e. working in a bar, have come to pass.   The children have been removed for nearly three years, half their life.   They have specialized needs and require an inordinately structured and secure environment.   Malynda is unable to address her own needs.   The court concludes based upon the documentary evidence presented, that Malynda is either unwilling or unable to benefit from reunification efforts.

The court finds that Malynda's present situation has not improved since the children came into care three years ago.   She is not in a position to assume a responsible position in the life of her children.   Fortunately for Malynda, it is her sister who has been able to assume the role of responsible caretaker for the children.

Based upon the foregoing the court finds that the Petitioner has proven allegations of the petition by clear and convincing evidence that the mother has failed to achieve rehabilitation.

Disposition

“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.   In the dispositional phase of this case the court has considered the evidence and testimony related to circumstances and events up to and including April 24, 2012, the date upon which the evidence was taken in this matter.

a.

Required Statutory Findings

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, 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. 46–47 (2009).

i. 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 noted above, DCF offered appropriate and timely services to help the mother address her mental health issues, to learn better parenting practices, and to assist her with substance abuse issues.

ii. 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 noted above, DCF made reasonable efforts to reunite Malynda with her children pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

iii. 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 issues related to Specific Steps has been previously discussed.   Malynda did not benefit from the programs she did attend and continues to have problems with income, housing, substance abuse and mental health issues.

iv. 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).

Malynda attended visitation fairly regularly.   Notably she missed some visits when her sister traveled with the children by train from New York City to New London for Malynda's four-hour visit.   Needless to say, that was traumatic for her sister and the children.   Notwithstanding Malynda's inconsiderate behavior, the children still have a bond with her and wish to protect her.

v. The ages of the children— § 17a–112(k)(5).

The twins are nearly seven years old.   They are comfortably situated with their maternal aunt in New York City. Meadow is functioning within the normal range.   She misses her mother and feels upset when her mother cries during phone calls.   Meadow does like living with her aunt in New York. Her brother Brayden has been diagnosed with autism and has developmental problems, all of which are being vigorously addressed.   He has some medical issues including seizures which require neurological consultations and medication management.   Brayden attends a special school for autistic children and is progressing developmentally.   It is readily apparent that a person such as Malynda who has manic moods, inconsistent patterns of performance, inability to maintain a medication management schedule or follow medical and psychological advise, would not be able to meet the special needs of these children.

vi. 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 her 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).

Previously discussed and considered.   Malynda has not made successful efforts to place herself in parental capacity.   She is unable to consistently provide for herself.

vii. 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).

Malynda was not prevented from maintaining a relationship, albeit limited, with the children by the unreasonable act or conduct of any other person.   DCF engaged outside services to help facilitate visitation and to provide parental education.   Her economic circumstances did not interfere with her ability to develop and maintain a relationship with the children.   Even when the children were placed with Malynda's sister in New York, efforts were made to accommodate her needs by bringing the children to Connecticut.

viii. Best Interest of the Children— § 17a–112(j)(2)

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 whether terminating the parental rights of Malynda would be in the children's best interest, the court has considered various factors, including their interest “in sustained growth, development, well-being, and in the continuity and stability of her environment”;  Capetta v. Capetta, 196 Conn. 10, 16, 490 A.2d 996 (1985);  their age and special needs;  the length and nature of their stay in foster care;  the contact maintained with their birth mother and the potential benefit or detriment to the children retaining a connection with their biological mother;  the genetic bond to the birth mother;  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 the children's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with the biological mother.   See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).

Clear and convincing evidence establishes that it is in the children's best interest to grant the petition and terminate the parental rights of Malynda.   Thus, in consideration of all the factors relevant here to the children's needs and best interest, it was proven by clear and convincing evidence that terminating the parental rights of both parents is in the twins' best interest.

The court having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for the termination of the parents' parental rights and having also found by clear and convincing evidence, upon consideration all of the facts and circumstances presented, that it is in the children's best interest to terminate the parental rights of the biological parents, it is therefore;

ORDERED

The parental rights of Malynda and Jason to the minor children Meadow and Brayden, are terminated.

The Commissioner of the Department of Children and Families is appointed the statutory parent for the children.   A case plan shall be submitted within thirty days and such other reports as are required by law shall be filed in a timely fashion.

The Clerk of any court with jurisdiction over any subsequent adoption of the children shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at 81 Columbia Ave Willimantic CT. of the date when said adoption are finalized.

Judgment may enter accordingly.

Foley, Judge Trial Referee # 467

FOOTNOTES

FN2. Practice Book § Sec. 32a–2 provides in pertinent part as follows:  “All hearings are essentially civil proceedings except where otherwise provided by statute ․”.  FN2. Practice Book § Sec. 32a–2 provides in pertinent part as follows:  “All hearings are essentially civil proceedings except where otherwise provided by statute ․”

Foley, Francis J., J.T.R.