IN RE: Kennedy D.1 (2014)

MEMORANDUM OF DECISION

INTRODUCTION

Pursuant to Connecticut General Statute § 17a–112 et seq., the Department of Children and Families (DCF) has petitioned the court for the termination of parental rights (TPR) in the interest of Kennedy D. (d.o.b 10/21/11).   On September 18, 2013, DCF filed a petition to terminate the parental rights of mother, Chentil D. and father, Brandon D. on the grounds of failure to rehabilitate.   The parents were properly served.   They appeared in court and were appointed counsel as well as separate guardian ad litem.

The statutory grounds alleged in the petition against both parents were that the child had been found in a prior proceeding to have been neglected and the parents had 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, they could assume a responsible position in the life of the children.  C.G.S. 17a–112(j)(B)(i).   The matter was tried to the court on December 17, 2013.   Both parents were present and represented at trial by counsel as well as separate guardian ad litem for both parents.   Also present were attorneys for DCF, the child, and the legal guardian of respondent mother and father.   The attorneys were given the opportunity to cross examine witnesses as well as call witnesses and present evidence.   The petitioner offered seven exhibits without objection.   The court took judicial notice of the neglect adjudication.   The respondents and child's attorney did not present evidence.   The court finds that it has proper jurisdiction of the matter and that there are no pending actions affecting the custody of the minor child.   The court has applied the applicable burden of proof, considered all of the evidence and testimony presented, and the arguments of counsel, according to the standards required by law.   On the basis of the evidence presented and for the reasons stated below, the court finds in favor of the petitioner and hereby terminates the parental rights of the respective parents.

I.

INTRODUCTION

Pursuant to Connecticut General Statute § 17a–112 et seq., the Department of Children and Families (DCF) has petitioned the court for the termination of parental rights (TPR) in the interest of Kennedy D.

II

PROCEDURAL HISTORY

On June 13, 2012, DCF filed a neglect petition on behalf of Kennedy D. with the Superior Court for Juvenile Matters at Rockville.   On January 10, 2013, the child was adjudicated uncared for and was committed to the care and custody of DCF until further order of the Court.

III

FINDINGS OF FACT

Having heard the testimony and reviewed the evidence, the court finds the following facts by clear and convincing evidence:

Child and Parents

The respondent parents share the same legal guardian.   They are adoptive siblings placed in the same home along with other adoptive siblings.   Mother, Chentil D., was born on February 23, 1996.   She was seventeen years old at the time of the trial.   The legal rights of mother's birth parents were terminated when she was very young.   When she was about a year old, mother was placed with her legal guardian, Fretta D. Mother's legal guardian reports that mother spent most of her time in a car seat prior to placement.   Mother's legal guardian reports that mother was developmentally delayed and her posture was bent forward due to lack of muscle tone.   Mother received services through Birth to Three due to significant developmental delays.   Her services included:  speech and language therapy, occupational therapy and physical therapy.   Mother did not begin to speak in sentences until the age of eight or nine years old.   According to mother's legal guardian, mother struggled with adjusting to change and gradually started attending school for about one hour at a time, then three hours at a time.   Her legal guardian attended school with her until mother was able to attend alone.   At the time of the petition mother was a tenth grade special education student under the disability criteria of Intellectual Disability.   Mother has a full scale Intelligence Quotient of forty-six (46).   The school reports that mother reads at a first grade level.   Mother was accepted by the Department of Developmental Services (DDS) in January of 2012 and she will begin to receive services when she turns eighteen years old.   Mother initially reported that she had been sexually assaulted by a male peer at school and that the assault resulted in the pregnancy.   Mother later recanted and admitted to initiating sexual intercourse with father, Brandon D. while at home.   Mother had a healthy pregnancy with no complications during or after delivery.   Mother has indicated that she thinks of Kennedy D. as more of a sister than a daughter.   DCF reports that mother has indicated that she does not want to parent Kennedy on June 13 2012, July 19, 2012, September 26, 2012, and December 4, 2012.   Mother has never been married.   She has never used drugs or alcohol.   Mother has no criminal history.

According to the competency evaluation performed in conjunction with this matter, mother attends individual counseling and receives psychiatric medication.   Her ability to express herself is limited by her cognitive capacity.   Mother is diagnosed with Attention Deficit Hyperactivity Disorder (ADHD), Inattentive Type, Impulse Control Disorder NOS and Moderate MR. Mother is not able to articulate much because of her cognitive limitations.   Her therapist reports that she is somewhat able to express and discuss her feelings.   Her legal guardian believes mother will need to be placed in a group home in the future so that she can be in the presence of peers like her and receive a higher level of support and structure from staff.   Prior to the commencement of the trial, the court found that the respondent mother was not competent.   A guardian ad litem was appointed for her.

In making its decision to proceed to trial and to grant no further continuances for mother to regain her competency, the court reviewed the case of In re Alexander V., 223 Conn. 557, 564, 613 A.2d 780 (1993).   In examining the due process issues implicated, our Supreme Court found that “there is a cognizable risk that a parent unable to assist his or her attorney or to understand the proceedings might suffer an erroneous termination of parental rights regardless of whether a guardian ad litem has been appointed pursuant to Connecticut General Statutes § 45a–708(a).”  In re Alexander V., supra, 563.   In weighing that risk, the court had reviewed the procedural safeguards set forth in Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976), to provide assistance in the decision to proceed with the trial.   As previously found, in the case of In re Aida M. and Carmelo O., Superior Court for Juvenile Matters, H12–CP96–000640, and H12–CP96–00064 (March 25, 1997, Foley J.), the court concludes that the multi-factored balancing test set forth in Matthews must be considered to ensure that all due process rights of the incompetent parent have been addressed before proceeding to a trial on the merits.   It is an effort to balance the interests of the incompetent mother in maintaining her family free of coercive state interference with the interest of the children in a safe and healthy childhood.   The first of the four concerns in Matthews is:

1. “Is it likely that the evidence presented could be refuted by a competent parent?”   It is unlikely that the evidence presented could be refuted by a competent parent.   There is clear and convincing evidence of mother's failure to rehabilitate.   According to the competency evaluation conducted in this matter, mother demonstrates no evidence of concern for the safety of Kennedy, nor does she mention any desire to care for the child.   She is functioning at the level of a six to twelve year old child.   She lacks the intellectual capacity to reflect on the impact of her actions and decisions or the interests of her child.

2. The second concern is “whether the parent could be restored to competence within a reasonable time, considering the age and needs of the child?”   The evaluator was of the opinion that mother has a chronic and fixed condition that results in her cognitive impairment and that she cannot be restored.

3. “If the mother were competent, is there proof of the existence of or prospect of an existing parent-child relationship?”   There is evidence that mother and child operate as siblings.

4. “Was the respondent mother effectively represented by counsel and the guardian ad litem, given the difficulties attendant to such representation?”   Mother was effectively represented.   Because mother is functioning at the level of a six to twelve year old child she had difficulty assisting her counsel during the trial.   Mother's limited understanding of the legal process reveals that she believed that the court proceedings were about the fact that she lied to her mother about a bicycle accident and the paternity of the child.   Despite mother's limitations, her attorney and GAL were given an opportunity to discuss issues with her and raise issues on cross examination.

The court concludes that all of the factors to be considered by the court under a Matthews' analysis support proceeding to trial.   The likelihood of an erroneous termination decision is slight in view of the substantial evidence establishing the failure to rehabilitate.   That remote possibility is greatly outweighed by the child's needs, and the opportunity for counsel and her guardian to prepare with for the trial.   The court concludes that the due process protections to which she is entitled have been provided to mother in the conduct of this trial.   Permitting any further delay, will not necessarily result in any further improvement in mother's condition and the child's best interests require the court to proceed without further delay.

Father, Brandon D. was born on May 21, 1995.   His legal guardian reports that he was born premature and was medically fragile as an infant due to his birth mother's drug use in vitro.   He was placed with the legal guardian directly from the hospital.   He was eventually adopted by legal guardian, Fretta D. His legal guardian reports that father suffered a collapsed lung and heart attack in infancy, as well as kidney and gastrointestinal problems.   Father underwent surgery and treatment for several years.   He is small in stature and suffers from asthma.   Father received services from Birth to Three for speech delays.   At the time of the petition, father was an eleventh grade special education student who received services for his learning disabilities.   Father has had multiple incidents of disciplinary issues in school during the last academic year including multiple school suspensions.   Father has indicated on a number of occasions that he does not want to parent Kennedy.   DCF reports that father has indicated that he is willing to consent to the termination on June 13, 2012, July 19, 2012, September 26, 2012, and December 4, 2012.   Father is developmentally delayed and unable to meet the needs of Kennedy.   Father has never been married.   He has never used drugs or alcohol.   Father has no criminal history

Kennedy was born on October 21, 2011 to the respondent adoptive siblings.   She has no developmental delays and is medically up to date.   She is bonded to Fretta D., the legal guardian of her parents.   Fretta D. describes her as bubbly, intelligent, friendly absorbent, happy, social and easy to get along with.   Fretta D. reports that Kennedy is spoiled by the family and is well loved.   Fretta D. believes that despite Kennedy's parents' limitations, Kennedy is developmentally advanced.   Fretta D. would like to adopt Kennedy.   Presently, the respondent mother and father reside in the same home as Kennedy.

Reasonable Efforts

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

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

The court finds that DCF has made reasonable efforts to locate the parents, as the parents were residing together in an adoptive home with previous DCF involvement.   The primary issues leading to the child's removal is the failure of both parents to rehabilitate and the competency of mother.

DCF made reasonable and active efforts to prevent the removal of and/or to reunify Kennedy with her parents by offering a number of services.   Both parents were offered Intensive Family Preservation services through United Services.   Both parents were permitted to reside in the home with the relative foster mother who is also their legal guardian.   Mother was offered individual and psychiatric services through St. Francis, and the Department of Developmental Services.   Despite these services mother and father have been unable and unwilling to benefit from reunification efforts.   Neither parent has demonstrated the ability to adequately parent Kennedy and both have expressed that they do not wish to parent Kennedy.

The petitioner has made reasonable efforts to reunify the family pursuant to the Federal Adoption Assistance and Child Welfare Act of 1980.   Neither parent has changed their circumstances, conduct, or conditions to make it in the best interest of Kennedy to return to their care in the foreseeable future, including but not limited to:  providing a safe and stable nurturing home environment.

Adjudication

Each statutory basis set out in General Statutes Sec. 17a–112(j) is an independent ground for termination.  In re Baby Girl B., 224 Conn. 263.   The petitioner is required to prove at least one of the grounds alleged in its petition by clear and convincing evidence.

Failure to Rehabilitate–General Statutes § 17a–112(j)(B)(i) as to Respondent Mother and Father.

If the parent of a child who has been found by the court to have been neglected or uncared for in a prior proceeding fail 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, they could assume a reasonable position in the life of the child grounds for termination exists.  General Statutes § 17a–112(j)(B)(i).

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 [and] requires the trial court to analyze the [parent's] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time ․ [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage his own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue.”  (Internal quotation marks omitted.)  In re Zowie N., 135 Conn.App. 470, 503, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d 170 (2012).   Furthermore, “[i]n making its determination, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time.”  (Internal quotation marks omitted.)  In re Gianni C., 129 Conn.App. 227, 234, 19 A.3d 233 (2011).

The parent's compliance with the court ordered expectations entered at the time of the neglect adjudication are relevant but not dispositive to the rehabilitation finding.  In re Luis C., 210 Conn. 157 (1989).   The ultimate question is whether the parent at the time of the filing of the termination petition is more able to resume the responsibilities of parents than he or she was at the time of the commitment.  In re Michael M., 29 Conn.App. 112 (1992).

The presenting issues at the time of the child's removal were:  mother and father's ability to care for the child given their ages and cognitive limitations, parenting skills, and mother's long term competency.

GROUND B1 as to MOTHER

Here, mother and father have a DCF history that began in 2012 for concerns regarding their ability and willingness to provide a safe and stable living environment for Kennedy due to their cognitive limitations.   On January 10, 2013 the Court ruled that reunification efforts were no longer appropriate for mother and father.   Both parents were offered Intensive Family Preservation services through United Services.   Both parents were permitted to reside in the home with the relative foster mother who is also their legal guardian.   Mother was offered individual and psychiatric services through St. Francis, and the Department of Developmental Services.   Despite these services mother and father have been unable and unwilling to benefit from reunification efforts.   Both parents have not demonstrated the ability to adequately parent Kennedy and both have expressed that they do not wish to parent Kennedy.   Mother has indicated that she does not want to parent Kennedy on June 13, 2012, July 19, 2012, September 26, 2012, and December 4, 2012.   Mother has stated on several occasions that she wants Kennedy to be raised as her sibling.   On July 26, 2013 mother participated in a court ordered competency evaluation.   She was diagnosed with Attention Deficit Hyperactivity Disorder, Impulse Control Disorder NOS, Moderate Mental Retardation and Developmental Delay.   She was deemed incompetent with no time frame for restoration.   Since the birth of the child mother has failed to demonstrate an ability to provide basic childcare without intervention or prompting by the legal guardian.

GROUND B1 as to FATHER

Both mother and father have a DCF history that began in 2012 for concerns regarding their ability and willingness to provide a safe and stable living environment for Kennedy due to their cognitive limitations.   On January 10, 2013 the Court ruled that reunification efforts were no longer appropriate for mother and father.   Both parents were offered Intensive Family Preservation services through United Services.   Both parents were permitted to reside in the home with the relative foster mother who is also their legal guardian.   Despite these services mother and father have been unable and unwilling to benefit from reunification efforts.   Both parents have not demonstrated the ability to adequately parent Kennedy and both have expressed that they do not wish to parent Kennedy.   Father has indicated that he does not want to parent Kennedy on June 13, 2012, July 19, 2012, September26, 2012, and December 4, 2012.   Since the birth of the child father has failed to demonstrate an ability to provide basic childcare without intervention or prompting by the legal guardian.

DISPOSITION

General Statute § 17a–112(k) Criteria

The court has found by clear and convincing evidence that the necessary statutory ground alleged by the petitioner for the termination of the parent's parental rights has been proven.   Before making a decision on whether or not to terminate the respondents' parental rights, the court must now consider and make findings on each of the seven criteria set out in General Statute § 17a–112(j).  In re Romance M., 229 Conn. 345 (1994).   These criteria and this court's findings, which have been established by clear and convincing evidence, are as follows:

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

As referenced above the DCF offered services to facilitate the reunion of the parents with their child.

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

DCF made reasonable efforts to reunify mother and father and child by referring the parents to parenting programs, individual counseling, case management services and providing visitation.

(3) “The terms of any court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which the parties have fulfilled their expectations.”

The court issued specific steps to the parties.   DCF has fulfilled its expectations by making timely and appropriate referrals for services.   Mother has limited ability to parent because of her cognitive limitations.   Mother and father have both indicated that they do not wish to parent the child on numerous occasions.

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

The child is bonded to the parents' legal guardian.   The child looks to her for love, nuturance, and guidance on a daily basis.   The child has resided with her parents and the legal guardian since birth.

(5) “The Age of the Child”

Kennedy is two years old.

(6) “The effort of the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return to his home in the foreseeable future including but not limited (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 with the guardian or other custodian of the child.”

The respondent mother has been unable to adjust her circumstances or conduct to allow reunification with Kennedy because of her cognitive limitations.   Father has made no effort to adjust his circumstances to allow for reunification.

(7) “The extent to which a parent has been prevented from maintaining a meaningful relationship by the unreasonable act of any other person or by the economic circumstances of the parent.”

The parents did not face any unreasonable interference from any person or economic circumstance preventing them from establishing or maintaining a meaningful relationship with the child.   Both parents were able to reside in the same home as the child during the pendency of this matter.   They were also each provided attorneys and guardian ad litem at no cost to represent them each in court.

BEST INTERESTS OF THE CHILD

The court must now address the issue of whether termination of parental rights is in the best interest of the child.   This is part of the dispositional phase of a termination proceeding In re Valerie D., 223 Conn. 511.

In determining the issue of the best interests of the child, the court has considered the adjudicatory and dispositional evidence in its entirety, and the court has concluded by clear and convincing evidence that there is no permanency plan that could have secured the best interests of Kennedy that is less restrictive than termination of the parental rights at issue.   The parents are incapable of resuming their parental roles and no alternatives have been proffered.   See In re Azareon Y., 139 Conn.App. 457, 60 A.3d 742 (2012), cert. granted in part, 307 Conn. 950, 60 A.3d 739, and cert. granted in part, 308 Conn. 928 (2013);  In re Julianna B., 141 Conn.App. 163, 61 A.3d 606 (2013).

The court has considered Kennedy's best interests, including her health, safety and need for permanency.  “It is undisputed that children require secure, stable, long-term, continuous relationships with their parents or foster parents.   There is little that can be as detrimental to a child's sound development as uncertainty ․” Lehman v. Lycoming County Children's Services Agency, 458 U.S. 502, 513, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982).   While mother and father have a sibling like relationship with the child, the child looks to their legal guardian for love, nurturance and support.   The legal guardian has been the primary caretaker of the child since birth.   She has been providing Kennedy with a stable and nurturing environment, and she is willing to adopt.   Based upon all of the foregoing, the court finds by clear and convincing evidence that termination of the parental rights of Chentil D. and Brandon D. is in the best interest of the child.

CONCLUSION

Based upon the foregoing findings and having considered all of the evidence, statutory considerations and having found by clear and convincing evidence that grounds exist for termination of parental rights, the court further finds by clear and convincing evidence upon all the facts and circumstances presented that it is in the child's best interest to terminate the parental rights of Chentil D. and Brandon D. Accordingly, it hereby terminates their parental rights to Kennedy.

The court appoints The Department of Children and Families as Statutory Parent for the child.

BY THE COURT,

Westbrook, J.

Westbrook, Dawne G., J.