IN RE: Jasmine C.1 dob 12/20/2010 (2014)

MEMORANDUM OF DECISION RE PETITIONS FOR NEGLECT AND TERMINATION OF PARENTAL RIGHTS AND MOTION TO TRANSFER CUSTODY AND GUARDIANSHIP

I. INTRODUCTION

The commissioner of the Department of Children and Families (DCF, the Department or the petitioner) seeks an adjudication of neglect with respect to the minor children, Jasmine C. (Jasmine, DOB 12/20/10) and Joseph C., Jr. (Joseph, DOB 1/20/12) pursuant to a neglect petition filed on May 16, 2012, and the termination of the parental rights of the respondent mother, Lisa V. and the respondent father, Joseph C., Sr., pursuant to a termination of parental rights (TPR) petition filed on behalf of both children on October 26, 2012.   On January 24, 2013, the respondent-father filed a motion to transfer custody and guardianship to Kim S., the paternal aunt.   At the trial on the motion and these petitions held on October 21, 22, 23, 2013 and November 13, 2013, Lisa V. and Joseph C., Sr. were present and each was represented by legal counsel.

The court finds that it has jurisdiction and there is no known action pending in any other court affecting custody of these children.   There is no claim of Native American affiliation of the children.

“In the adjudicatory phase of the neglect proceedings, the judicial authority is limited to evidence of events preceding the filing of the petition ․” Practice Book § 35a–7(a).   The petitioner bears the burden of proving the allegations of neglect by a fair preponderance of the evidence.   See In re Juvenile Appeal (84–AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984);  In re Brandon W., 56 Conn.App. 418, 427, 747 A.2d 526 (2000).   The petition alleges Jasmine and Joseph were neglected in that they were being permitted to live under conditions, circumstances, or associations injurious to their well being.   Because the statutory grounds necessary to grant a neglect petition are expressed in the disjunctive, the court need find only one ground, as alleged in the petition, has been proven by a preponderance of the evidence in order to grant the petition.

The proceedings relative to the termination of parental rights are governed by General Statutes § 17a–112 et seq.   In a proceeding for termination of parental rights, the petitioner must first prove, in the adjudicatory phase, a ground for termination alleged in the petition, as of the date of filing the petition or the last amendment, by clear and convincing evidence.  Practice Book §§ 32a–3(b), 35a–7;  In re Joshua Z., 26 Conn.App. 58, 63, 597 A.2d 842, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).   Only one ground need be established for the granting of a TPR petition.  In re Juvenile Appeal (84–BC), 194 Conn. 252, 258, 479 A.2d 1204 (1984);  In re Shane P., 58 Conn.App. 234, 242–43, 753 A.2d 409 (2000).   Notwithstanding the foregoing, “[i]n the adjudicatory phase, 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.”  (Emphasis in original.)  In re Stanley D., 61 Conn.App. 224, 230, 763 A.2d 83 (2000).

If a ground for termination is proven, the court must next consider the disposition stage.   Therein, the court must consider whether the facts, as of the last day of trial, establish by clear and convincing evidence that termination is in the child's best interest.

II. PROCEDURAL HISTORY

On May 16, 2012, DCF filed neglect petitions, and sought and received orders of temporary custody on behalf of both Jasmine and Joseph, Jr. Following the filing of the termination of parental rights petitions on October 26, 2012, the court, Cofield, J., granted the petitioner's motion to consolidate the neglect and termination petitions filed on behalf of the children.   On September 27, 2013, the court, Elgo, J., granted without objection the petitioner's motion to amend the termination of parental rights petitions.   On October 21, 2013, this court, Elgo, J., granted by agreement the petitioner's motion for judicial notice of the following legal history dating back to 2006 and detailing this prior court's involvement with Lisa V. and her children.

1. On September 28, 2006, the petitioner filed neglect petitions as to Lisa V.'s first two children, Alexander and Kyle.

2. On July 25, 2007, the respondent mother entered a plea of nolo contendere.   The court, Baldwin, J., adjudicated Alexander and Kyle neglected and ordered protective supervision and final specific steps.

3. On October 11, 2007, the petitioner filed a neglect petition regarding Lisa V.'s third child, Joshua.

4. On October 18, 2007, the petitioner sought and was granted an ex parte order of temporary custody regarding Alexander, Joshua, and Kyle.

5. On October 26, 2007, the OTC was sustained by agreement as to the mother.   The court, Baldwin, J., issued preliminary specific steps for the respondent mother.

7. On November 5, 2007, the petitioner filed a motion to open and modify the disposition from protective supervision to commitment for Alexander and Kyle.

8. On January 16, 2008, the court, Baldwin, J., granted the petitioner's motion to open and modify disposition to commitment for Alexander and Kyle. The respondent parents entered nolo contendere pleas as to Joshua.   The court, Baldwin, J., adjudicated Joshua neglected and committed him to DCF. The court also ordered that the previous specific steps were to remain in effect.

9. On September 5, 2008, the petitioner sought and was granted an ex parte order of temporary custody regarding Lisa V.'s fourth child, Mikala V.

10. On September 11, 2009, the OTC for Mikala was sustained.

11. On March 11, 2009, the respondent parents entered pleas of nolo contendere;  Mikala was adjudicated neglected and committed to DCF.

12. On June 11, 2009, the disposition for Mikala was modified from commitment to protective supervision for six months.   Lisa V.'s three older children remained committed to DCF.

13. On August 21, 2009, the petitioner filed termination of parental rights petitions alleging failure to rehabilitate regarding the respondent mother and Jason M., father of Kyle and Joshua, and the additional grounds of abandonment and no on-going parent child relationship as to Jason M.

14. On September 21, 2009, the petitioner filed a termination of parental rights petition on behalf of Alex alleging the same grounds of failure to rehabilitate regarding the respondent mother and Jason M., as well as the additional grounds of abandonment and no on-going parent child relationship as to Jason M.

15. On November 5, 2009, the court, Gleeson, J., extended the protective supervision for Mikala for an additional six months until June 11, 2010.

16. On May 24, 2010, the petitioner sought and was granted an ex parte order of temporary custody regarding Mikala.

17. On May 25, 2010, the court, Olear, J., accepted the respondent mother's consent to the termination of her parental rights regarding Alex M., Joshua M., and Kyle M.

18. On May 28, 2010, the OTC was sustained by agreement as to Mikala.

19. On May 28, 2010, the court, Cohn, J., granted the petitioner's motion to open and modify disposition from protective supervision to commitment regarding Mikala.   Specific steps were ordered and signed by the mother.

20. On June 23, 2010, the court, Olear, J., terminated the parental rights of the respondent mother and father, Jason M., as to the children Alex, Kyle, and Joshua.

21. On August 20, 2010, the petitioner filed termination of parental rights petitions with respect to Mikala alleging failure to rehabilitate as to the respondent parents, Lisa V. and Enrique “Rick” V., and the additional grounds of abandonment, no on-going parent child relationship, and prior TPR (ground E) as to the respondent mother.

22. On September 27, 2010, the respondent parents entered pro forma denials to Mikala's TPR petition.

23. On March 28, 2011, the court, Epstein, J., accepted Enrique V.'s written consent to the termination of parental rights petition.

24. On February 3, 2012, the court, Epstein, J., terminated the parental rights of the respondent mother and Enrique V. as to Mikala and appointed DCF statutory parent.

III. FINDINGS OF FACTS

The credible and reliable evidence offered at trial and a review of the judicially noticed court orders, memoranda and findings support the finding of the following facts.   Unless otherwise specified, all facts are found by clear and convincing evidence (notwithstanding the standard for determination of the neglect petition being a preponderance of the evidence, the facts relating to the neglect adjudication are likewise found by clear and convincing evidence unless otherwise specified).

The orders of temporary custody and neglect petitions filed on behalf of Jasmine and Joseph on May 16, 2012 followed a DCF investigation of an incident involving domestic violence between Lisa V. and Joseph C. on May 14, 2012.   Joseph C. violated two active protective orders by entering Lisa V.'s residence and assaulting her while she was holding Jasmine, who was one and one-half years old at the time.   In the course of the beating, Joseph C. inadvertently hit Jasmine, which resulted in bleeding to her nose.   Jasmine also had bruising and some swelling to her eyelid and minor lacerations on her face.   Joseph C. was intoxicated at the time.   According to the responding police officer, Reginald Green, Joseph C. was reported to be frequently at the home and intoxicated and Lisa V. had willingly allowed him access in violation of the protective orders.

The protective orders at issue resulted from a series of incidents, beginning on December 3, 2011, culminating in the May 2012 disturbance.   On December 3, 2011, New Britain police department officers had received a report of an assault in which a neighbor reported ongoing violence between Joseph C. and Lisa V., and heard Joseph C. yell “I'm gonna kill you bitch.”   When the officers arrived, Joseph C. refused to open the door for them and threatened “if you come in you'll see what's gonna happen.”   Lisa V., who had fled to her neighbor's apartment, reported that Joseph C. had picked up a bedroom lamp and chased her around their apartment intending to hit her with it.   She also reported that she had a one-year-old daughter with Joseph C. and was also eight months pregnant with their second child.   When the officers returned to the couple's apartment, Joseph C. continued to be extremely uncooperative and was described as belligerent and combative.   He was taken into custody and charged with disorderly conduct and interfering with a police officer.   The officers also observed a broken lamp pole in the apartment.   Following this incident, a full protective order was issued on December 5, 2011.

Notwithstanding that protective order, the couple was seen together on February 20, 2012 in the course of a subsequent criminal investigation in which Joseph C. was charged with trespassing.   The responding New Britain police officer noted the existence of the protective order and additionally charged Joseph C. with violation of that protective order.   Three weeks later, Joseph C. was found operating Lisa V.'s car in the course of a motor vehicle stop in which he was charged with illegally operating a motor vehicle with a suspended license.

It is not clear that DCF was made aware of the events subsequent to the December 2011 incident.   During this period of time, however, DCF still had an open case with Mikala, in which the TPR was pending.   Notably, Lisa V. arrived at a visit with Mikala in January 2012 with two black eyes.   When questioned, Lisa V. said she had been in an altercation with a fifteen-year-old girl who had had “a crush” on Joseph C. As to domestic violence with Joseph C., Lisa V. continued to deny any violence between the couple and denied DCF access to both Jasmine and Joseph.   As a result, by March 2012, following the decision terminating mother's parental rights as to Mikala, DCF closed its case with Lisa V.

In its investigation of the May 14, 2012 incident, DCF spoke to various neighbors, relatives and family friends who were present during several incidents, all of whom consistently reported that father violently and repeatedly beat mother.   On May 11, 2012, father grabbed mother by the neck, punched her in the face multiple times and kicked her in the back.   On May 14, 2012, father hit Lisa V. while she was holding Jasmine, then picked the mother, slammed her on the bed while she was still holding Jasmine and continued to strike mother.   In the course of that beating, Jasmine was injured.   According to the reports, Joseph C. threatened to kill Lisa V. and admitted to his mother, Debra S., that he used crack because of Lisa V.

During the investigation, Debra S. also showed the DCF investigator the injuries sustained by Lisa V. Debra S. reported that she used to live with her son and Lisa V. from April 2011 through December 2011 and would threaten to report the domestic violence between the two, but never followed through on her concerns.   In Lisa V.'s presence, Debra S. also stated to the investigator that her son beat Lisa V. several times a week in front of the children and expressed her concern that Joseph C. would kill Lisa V. Debra S. then asked Lisa V. how she could protect her children when she could not protect herself.   Upon questioning by DCF, Lisa V. minimized the incident, including obvious injuries sustained by Jasmine.   Moreover, Lisa V. denied the existence of freshly sustained injuries to the left side of her own face as well as a large bruise on her arm.   Instead, Lisa V. denied that her relationship with Joseph C. was ever physical or violent and admitted that she has prevented him from leaving the home because she loves him so much.   She stated that “I love him so much, I want him on top of me, and to be around me 24/7.”   Lisa V. further acknowledged that, notwithstanding the existence of two protective orders, she had allowed Joseph C. to sleep in her home for the past three months.   She did admit that Joseph C. poured beer on her in this most recent dispute, but rationalized that that was better than getting hurt.   She also admitted that Joseph C. is an alcoholic and drinks daily.   Mother stated that although she was prescribed medication for anxiety, post-traumatic stress disorder and a bi-polar disorder, she stopped taking the medication because Joseph C. told her she did not need them.   Although she was in individual therapy at Community Mental Health Affiliates (CMHA), Lisa V. admitted that she did not disclose or address domestic violence with her therapist.   Subsequently, Lisa V. admitted to seeking leniency for Joseph C. when he was arraigned on the May 2012 charges.   She insisted that she wanted to reunite with Joseph C. when he was released from incarceration.   Lisa V. has admitted that she lied many times to DCF about the violence between her and Joseph C.

DCF's investigators in this most recent incident also reviewed DCF's extensive, twelve-year history with Lisa V., dating back to October 2004, which revolved around persistent issues of abuse and neglect, characterized by domestic violence, mother's unaddressed mental health needs, inadequate supervision of the children and inadequate housing.   Lisa V.'s early history includes extreme trauma, including exposure to domestic violence and her father's alcoholism as well as being raped and sexually assaulted as a child.   Although Lisa V. continued to deny domestic violence with Joseph C., she admitted being in three prior relationships in which she sustained physical injuries.   She acknowledged that her children were removed from her care as a result of domestic violence in which she was repeatedly assaulted in prior relationships, and also eventually acknowledged that her son, Alex, was injured by his father during one of those incidents.   In those cases, mother's three oldest children were removed in 2007 and by June 2010, her parental rights to those children had been terminated.   The father of her fourth child, Mikala, was Enrique V., who was similarly abusive.   Enrique V. had kicked Lisa V. with steel-toed shoes during her pregnancy with Mikala and according to Lisa V., tried to smother Mikala when he tired of her crying.   In addition to other abusive and threatening behaviors, Enrique V. also attempted to set the couple's apartment on fire.

Her relationship with Enrique V. ended only to be replaced by the current one with Joseph C. At some point, when DCF became aware of Joseph C.'s extensive criminal history, including convictions for assault, burglary and drug-related charges and conviction for a sexual assault in the second degree and risk of injury to a minor, DCF warned Lisa V. that a romantic relationship with Joseph C. was likely to undermine her ability to reunify with her children and/or to maintain custody of Mikala, who had been returned to her care in April 2009 under a period of protective supervision.   She was advised that she needed to focus on Mikala, continue with services at the Prudence Crandall Center and secure stable housing.   Lisa V. ignored these concerns and instead began leaving Mikala in the care of individuals she did not know or with various relatives.   Ultimately, she abandoned the apartment she had procured through Prudence Crandall in May 2010 and then abandoned Mikala to be cared for by relatives.   She finalized her divorce as to Enrique V. in March 2010 and immediately became pregnant with Jasmine, who was born December 20, 2010.   She and Joseph C. refused to allow DCF access to Jasmine.

The latest decision terminating her parental rights to the fourth child, Mikala, who had been returned for the second time to foster care in May 2010, was issued on February 3, 2012, just three months before this most recent incident.

In several conversations with Joseph C. while he was being held at Hartford corrections, Joseph C. was extremely hostile and threatening, and initially denied that the children were involved with DCF or in DCF custody.   He denied that he was ever physical with Lisa or that he had injured Jasmine.   He insisted that Lisa V. cannot live without him, that they are married in their hearts, even if not on paper, and that he provides for her.   In discussing the May 2012 incident, Joseph C. also maintained that Lisa V. was not even at the apartment.   Joseph C. made clear that he opposed DCF's custody of his children and threatened that “it will be war” if DCF has his children.

Joseph C.'s recalcitrance with respect to DCF involvement and services persisted throughout the case.   He has continually denied violence in his relationship with Lisa V. and has denied ever hitting Jasmine.   He has made clear that he has no intention of cooperating with DCF. He has threatened to kill the mother if he is released and the children are not returned to his care and maintains that he is unable to participate in services due to his incarceration.   During an Administrative Case review on January 15, 2013, Joseph C. began cursing and became enraged and belligerent.   He said “I don't need to participate in services.   All the services I need are in my head ․ I am going to put a stop to all this when I get out and put you all in jail.   I am the father of those kids;  they are going to be with me.”   Six months later on July 3, 2013, Joseph C. again became enraged, made clear that he was not interested in hearing about the children from the social worker, and stated, “When I get out of here, I am coming for my kids no matter where they are.”   As of the date of trial, Joseph C. had been incarcerated since the May 2012 arrest.   On August 13, 2013, Joseph C. pled guilty to three charges of violation of protective order arising from the incidents of May 23, 2012, May 15, 2012 and February 20, 2012.   He was scheduled for sentencing on December 20, 2013.   As a result of the protective orders prohibiting contact with his children, Joseph C. has not had visitation with Jasmine or Joseph.

By May 25, 2012, DCF confirmed that Lisa V. had made arrangements to receive domestic violence services at Prudence Crandall as well as parenting classes at Wheeler Clinic.   By the end of July 2012, Lisa V. had completed Prudence Crandall's eight-week group program and then re-engaged in services in October 2012 following a meeting with DCF and its domestic violence consultant.   In that meeting, Lisa V. finally admitted and discussed at length the violence between her and Joseph C. and the degree to which domestic violence was a daily occurrence in her relationship with him.   She claimed that she was worried that Joseph C. would take the children and would kill her if she left him.   She admitted that he would hit and threaten her and attempt to control her every activity.   She also admitted that Jasmine and Joseph witnessed the domestic violence on a regular basis and that Jasmine would attempt physically to intervene between the couple during disputes.

Just two months later, however, DCF lost contact with Lisa V.'s providers in December 2012, because Lisa V. revoked releases in contravention of her specific steps.   At the time of trial, Lisa V. had attended only fourteen (14) individual sessions and eighteen (18) support group sessions at Prudence Crandall Center.   In April 2013, Lisa V. admitted that she stopped going to Prudence Crandall because she moved to Bristol, but assured DCF that she would re-engage with the program.   She did not.

In addition to Prudence Crandall domestic violence services, Lisa V. had already been referred to mental health services at Community Mental Health Affiliates for individual therapy pursuant to DCF's interventions with her prior children.   She admitted in May 2012, however, that she had been attending inconsistently.   Having agreed to reengage with individual therapy at CMHA, Lisa V. also agreed on June 11, 2012 to cooperate with additional DCF referrals to Community Residences Incorporated (CRI), which provided parenting education and supervised visitation as well as case management services.   CRI's service included one-on-one assessment of Lisa's parenting skills and the implementation of recommended interventions and techniques.   DCF's goals for Lisa V. included demonstrating that she could put Jasmine and Joseph's needs first, providing proper stimulation to support their developmental needs, and ensuring that she could keep her children safe and stable.   CRI provided two hours of supervised visitation twice per week and an additional parenting session once per week for two hours.

Lisa V., however, failed to attend and/or arrive consistently on time for scheduled visits and also failed consistently to attend weekly parenting sessions.   Lisa V. frequently arrived thirty to forty minutes late when she did attend visits.   As a result, by January 2013, the DCF social worker, Katherine Bush, mailed to Lisa V. a letter which required mother to call the CRI social worker by noon on the day of her scheduled visit to confirm her attendance.   If she failed to confirm or arrived more than fifteen minutes late, her visit would be cancelled.   On April 19, 2013, Lisa V. signed a letter indicating her understanding that she had missed four out of five parenting sessions in thirty days and that if she missed one more session in the next thirty days, she would be discharged from the parenting education and case management services provided by CRI. On May 3, 2013, Lisa V. was discharged from the Parenting Education and Case Management program after failing to comply with these conditions and has received only supervised visitation services from CRI until September 6, 2013, when the parenting program was reinstated.

The CRI social worker, Erica Kane, testified that Lisa V. was inconsistent in every aspect of her parenting.   At times, she was appropriate and nurturing while at other times, her affect was flat and she did not engage with the children.   As a result, the children would respond accordingly.   When Lisa V. was warm and affectionate, the children were happy, engaged and responsive.   At other times, Lisa V. would complain that she was tired or had a rough week, and then would sit and do nothing to engage the children during the visits or to address their conduct.   Consequently, the children were difficult to manage and they would become restless and misbehave.   Similarly, there were times when Lisa V., as instructed, would bring toys and activities to help engage the children and develop a bond with them.   In fact, Kane had taken Lisa V. shopping to select and purchase a duffel bag and appropriate toys for Lisa to bring for the children to each visit.   When Lisa V. remembered to bring the toys, which she did not consistently do, she had to be prompted to use them.   Eventually, Lisa V. lost the bag of toys.   Sometimes, Lisa V., with instruction, brought appropriate, healthy snacks and meals for the children at times;  at other times, Lisa V. would bring inappropriate junk food and sweets for their meals.   When Kane offered to take Lisa V. grocery shopping to learn what foods were appropriate, Lisa V. simply refused and said she gave her food stamps to the paternal grandmother.   By July 2013, Lisa V. had made some progress during the visits she attended, although she still had difficulty managing and supervising the children.   In August 2013, Lisa V. cancelled four of her eight scheduled visits.   On August 27, 2013, Lisa V. had a particularly bad visit with the children.   She was impatient with the children, yelled at them, refused to engage the children and brought nothing for them to do.

These inconsistencies in both her parenting and motivation to parent also manifested as instability in other aspects of her life.   Lisa V. was referred to an employment specialist, Mary Patricia Daniels, from CMHA who provided Lisa V. with support and resources like assisting with job search applications, interview preparations and transportation to interviews and education training.   Daniels described Lisa V. as being inconsistent with respect to her motivation.   Lisa V. was last employed in August 2012 and is not currently employed.

Kane, who also offered case management and support services with respect to housing, employment and mental health treatment, testified that Lisa V. never had a stable residence during the period of time in which Kane worked with her.   When DCF first became involved, Lisa V. moved from Debra S.'s home to a domestic violence shelter which, after six weeks, she was asked to leave after improperly disclosing the location of the shelter.   She next moved to her sister's home for four to six weeks, then moved back with Debra S. for many months until March 2013, when Lisa V., Debra S. and her partner began living in a hotel.   According to Kane, Lisa V. shared a bed with a man at one hotel, then woke up the next morning and found him dead.   Eventually, Lisa V. moved to a different sister's home for a period of four to six weeks and then returned to live with Debra S., who had resumed living in an apartment.   In August 2013, Lisa V. moved out again to an unknown residence and currently reports that she is living with a male roommate.

Given the above circumstances, Lisa V.'s prospects for reunification were already bleak by the spring 2013.   In March 2013, however, Lisa V. admitted to DCF that she had begun to abuse crack cocaine over the past several months, thereby introducing an additional impediment to reunification.   As a result of this new issue, DCF recommended that Lisa V. receive substance abuse treatment services at CMHA, where she was already receiving mental health services.   Lisa V. declined, however, to have her substance abuse issues evaluated and addressed at CMHA, preferring to be referred for a substance abuse evaluation at Advanced Behavioral Health at Wheeler Clinic.   After missing her appointment for evaluation at Wheeler Clinic on May 8, 2013, Lisa V. attended the evaluation on May 21, 2013 and was recommended for intensive outpatient treatment.   In the evaluation, Lisa V. reported that she began smoking crack cocaine one year before, and that she was currently smoking at least three times per week.   By July 26, 2013, Lisa V. had been discharged from Wheeler Clinic due to a series of missed sessions and weekly positive screens for cocaine use.   She was recommended for inpatient treatment but as of the date of trial, she was not engaged in recommended treatment.   She did participate and complete the Safety Counts Program, a seven-session substance abuse educational workshop since May 2013 through August 2013.   However, she tested positive for cocaine as recently as October 1, 2013.   She purchases the crack cocaine with her unemployment compensation monies.

Dr. Bruce Freedman, the court-appointed psychologist, was appointed to conduct four evaluations of Lisa V. from 2007 through 2011.   At trial in this matter, two of his redacted evaluations from 2009 and 2011 were introduced as evidence and provided critical history in those matters involving mother's four oldest children.   When Dr. Freedman evaluated mother in 2011 and testified before this court in October 2013, Lisa V. had an entrenched pattern of acknowledging abusive partners and leaving them only when she already had another existing romantic prospect.   Dr. Freedman observed that Lisa V. had a tendency to overlook her partners' harsh and abusive behavior toward her children and would hide the abuse of her children in order to avoid scrutiny and/or risk of losing her children to DCF. According to Dr. Freedman, Lisa V. was excessively needy and so emotionally desperate that she attached herself to anyone who paid attention to her.   For example, Dr. Freedman testified that Lisa V. could not describe how her abusive relationships negatively impacted her children, even though he noted in his October 2009 evaluation that DCF first became involved in 2007 when Lisa V.'s son, Alexander, sustained burns on his body after his father, Jason M., splashed hot water on him out of anger.   This led to DCF removal and then intensive reunification services with Casey Family Services who worked with Lisa V. on two separate occasions.   In working the second time with Lisa V. and her new husband, Enrique “Rick” V., Casey Family Services noted that Rick was verbally and emotionally abusive to Lisa V. and her children, especially Alex, toward whom he was particularly cruel.   Ultimately, the Casey staff concluded that Lisa V. was “unable to reliably put her children first, to protect her children and herself from an abusive, mutually dependent relationship, leaving her parenting inconsistent, and her home environment unsafe for young children.”

In Dr. Freedman's 2011 evaluation, when mother was in a relationship with Joseph C., Lisa V. admitted that Rick V. would flick his cigarette on Mikala's lips, leaving red burns on her lips.   She said Rick would do this when Mikala was laughing or giggling because it bothered him since he did not have a good childhood himself.   He would also flick his cigarette on her lips when she was crying as well, since he also had no patience for her crying.   Rick would also attempt to smother Mikala when she cried because he realized it was effective and, according to Lisa V., he tried to set the couple's apartment on fire.   Notably, she did not divorce Rick V. until she became involved with Joseph C., whom she met days after he was released from prison, and where he had spent most of the past ten years of his life.

In the 2011 evaluation, Dr. Freedman concluded that “Lisa could not tolerate being alone, even for short periods of time, and in her emotional desperation, she attached herself to men in an impulsive manner, without taking time to get to know each man or learn important parts of his background.   Over the past year, Lisa had gained the emotional and practical support of the Birth to Three and Prudence Crandall staff.   This had allowed her to create a support network, move into extremely affordable housing, greatly increasing her chances to be able to care for her children.   However, when faced with the prospect of having to honestly choose between her new boyfriend (Joseph C.) and this network, she walked away from it to wait for Mr. C. to get out of jail.”

By October 2013, Dr. Freedman opined that Lisa V.'s rehabilitative prospects had worsened.   With current evidence presented to him by way of hypothetical facts, Dr. Freedman noted not only the repeated pattern of domestic violence with Joseph C. but that her treatment needs were now further complicated by her abuse of crack cocaine.   Her drug use further undermined the mother's already very poor judgment and increased the danger which her poor parenting presents to her children.

At the time of removal, Jasmine C. was fifteen (15) months old and Joseph C. was four (4) months old.   While in their parents' care, the children were exposed to a significant amount of domestic violence and instability.   Lisa V. eventually admitted to DCF that Jasmine witnessed violence on a regular, daily basis and that Jasmine has attempted to intervene when the parents had disputes.   While in their mother's care and exposed to constant violence, the children were exposed to conditions toxic to their development, compounded by parenting that was, at best, inconsistently nurturing.   Even in an environment where Lisa V. was being supported and coached by CRI, Lisa V. was sometimes engaged with her children and nurturing, but at other times, she was unengaged and unresponsive to her children.   This court infers from the evidence that mother's motivation and ability to focus on her children's safety and their need for a nurturing and emotionally secure environment to grow and develop was grossly lacking while her children were in her care.

Once in foster care, the children were referred for Birth to Three services and due to obvious developmental delays, immediately qualified for services.   At nineteen (19) months old, Jasmine presented with the expressive language skills of a six-month-old infant.   For example, Jasmine experienced significant difficulty in expressing her needs;  she was limited to grunting, whining, and gesturing to get her needs met.   Jasmine should have been able to begin using simple words or labeling family members, which she was not able to do.

Jasmine also had mild developmental delays in her social emotional development and was in the mildly below average range for her receptive language skills.   For example, with respect to her personal/social skills, Jasmine should have been able to attach to a caregiver and eventually warm up to new individuals.   She should have also been self-centered and able to parallel play.   When Amy Podgorski, the Birth to Three services clinician, first began working with her, Jasmine was inordinately focused on her brother, Joseph, while he was receiving services from his Birth to Three clinician.   Jasmine also had a lot of difficulty following simple directions, especially because it took time for Jasmine to become comfortable with Podgorski.   To address these delays, Podgorski utilized play-based therapeutic activities with Jasmine, and also worked with the foster parents who utilized and applied the recommended strategies.

When Jasmine was re-evaluated at the annual review one year later in July and August 2013, she still had delays compared to other children her age, but she had made definite progress.   Jasmine is currently using three to five words in a session, uses more words during the day and is starting to combine words as well.   Nevertheless, with respect to her receptive language abilities, i.e. her understanding of language, she is developmentally at the level of a seventeen-month-old, while her expressive language skills are at the level of a thirteen-month-old child.

With respect to her personal/social skills, Jasmine has made significant progress and is showing only slight delays.   More recently, when Jasmine has gone to play groups and engaged with children her age, she has shown dramatic improvement in her personal/social skills, especially with respect to peers.   Jasmine has also made some improvement in her cognitive skills and is following directions and able to stay on task much longer than she did a year ago.

At the time of trial, Jasmine was approaching three years of age and as a result, was scheduled to transition from Birth to Three services into special education services through New Britain Public Schools.   In order to continue the progress Jasmine is making, Podgorski recommended consistency and follow through by Jasmine's caregivers, both at school and in the home.   Jasmine requires patient and nurturing caregivers who will follow through with clinicians and service providers in the home, as well as provide a stable home environment.

When evaluated at six months, Joseph had significant delays in gross and fine motor skills, which was affecting his ability to hold his bottle for feeding and to hold his head up and track objects.   He had low muscle tone and poor trunk control, which made it harder for him to move his muscles, and he could not roll, and could not sit well.   Notably, mother admitted that she left Joseph C., Jr. sleeping in his car seat rather than putting him to sleep in his crib, which in light of mother's passivity and inconsistency with respect to caregiving, raises significant concerns.   In order to address these delays, his Birth to Three services provider, Sheryl Hart, met once a week with both Joseph and his foster parents, and reviewed with them the various physical therapy exercises that Joseph would require.   The foster parents were required to commit to not only these weekly sessions but to assist Joseph with these exercises throughout the day on a daily basis.

One year later, when Joseph was re-evaluated, Joseph was “a completely different child” and was “walking, running and climbing.”   While his gross and fine motor skills are now at an age-appropriate level of development, Joseph's speech and communication skills continue to be mildly delayed.   According to Hart, in order for Joseph to sustain the kind of progress he has made thus far, however, he will continue to need an enriching environment that is loving and nurturing, and one in which his parents and/or caregivers would be expected to be actively involved in the child's activities and games.   Hart also testified that the home environment should be stable and free from abuse, generally be a positive place in which to grow and develop.

IV. COTERMINOUS PETITION

A. STATUTORY AUTHORITY

In this matter, the neglect petition filed on May 16, 2012 was pending when DCF filed petitions to terminate the parental rights as to the respondent-parents on October 26, 2012.   Pursuant to General Statutes § 17a–112(l), the court, Cofield, J., granted the motion to consolidate the neglect and termination petitions.   See also Practice Book § 35A–6A.   That section provides as follows:  “Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b–129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child.   Notice of the hearing on such petitions shall be given in accordance with sections 45a–716 and 45a–717.   The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b–129, grant the petition for termination of parental rights as provided in section 45a–717.”

B. NEGLECT ADJUDICATION

“A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named.   Neglect proceedings, as do termination of parental rights cases, consist of two phases:  adjudication and disposition.   In the adjudicatory phase, the trial court must determine if the child is neglected.   A neglected child is defined as a child who (A) has been abandoned or (B) is being denied proper care and attention, physically, educationally, emotionally or morally or (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being or (D) has been abused ․” (Internal quotation marks omitted.)  In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999).   See also General Statutes § 46b–120(6).

“[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault.   A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect.   Although § 46b–129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition;  [i]t is not directed against them as parents, but rather is a finding that the children are neglected ․” In re David L., supra, 54 Conn.App. 191.

DCF has alleged that, as of May 16, 2012, both children were “permitted to live under conditions, circumstances or associations injurious to [their] well-being.”   This court finds that the petitioner has proven by a fair preponderance of the evidence this adjudicatory ground.   Both children were exposed on a daily basis to extreme violence between the parents.   At the time of the children's removal from the home, Lisa V. demonstrated the same pattern of failing to recognize and/or address the emotional and physical danger which her partners have presented to her other children as well as to herself.   Notwithstanding years of services since 2004, Lisa V. was still not able to address those conditions which left her and all of her children over the years, including Jasmine and Joseph Jr., in physical, emotional and psychological jeopardy.   In fact, like mother's other children, Alexander and Mikala, who were injured by Lisa V.'s domestic partners, Jasmine was also injured as result of the violent conditions in the home.   As noted earlier in this decision, Jasmine sustained injury when inadvertently hit by Joseph C., Sr., and has been at risk of being injured when she has attempted physically to intervene between her parents.   This court concludes, based on the above findings of fact, that the petitioner has met its burden of proving this adjudicatory ground by a fair preponderance of evidence and that the children were neglected within the meaning of § 46b–120(6)(C).

C. TERMINATION OF PARENTAL RIGHTS PETITIONS

1. Adjudication

The TPR petitions, as amended and filed by DCF to terminate the respondents' parental rights to Jasmine and Joseph, allege the following grounds.   As to Lisa V., the petitioner has alleged two grounds in General Statutes § 17a–112(j)(3), grounds C and E, and as to Joseph C., ground C. Only one ground needs to be established for the granting of a petition.  In re Juvenile Appeal (84–BC), supra, 194 Conn. 258;  In re Karrlo K., 44 Conn.Sup. 101, 106, 669 A.2d 1249 (1994), aff'd, 40 Conn.App. 73, 668 A.2d 1353 (1996).

a. Reasonable Efforts § 17a–112(j)(1)

Preliminary to consideration of the adjudicatory grounds under § 17a–112(j)(3), unless the court grants the petition due to the consent of the respondent parent, DCF must prove, by clear and convincing evidence, the statutory element requiring “reasonable efforts to locate the parent and to reunify the child with the parent.”  General Statutes § 17a–112(j)(1).   Alternatively, however, “[the] court need not make that finding ․ if the evidence establishes that the parent is unable or unwilling to benefit from reunification efforts ․” (Internal quotation marks omitted.)  In re Shaiesha O., 93 Conn.App. 42, 47, 887 A.2d 415 (2005).

“The 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.”  (Internal quotation marks omitted.)  In re Shaiesha O., supra, 93 Conn.App. 48.   Although “[n]either the word reasonable nor the word efforts is ․ 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 Ryan R., 102 Conn.App. 608, 619, 926 A.2d 690 (2007);  In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).   The court must look to events prior to the date the petition was filed, to determine whether reasonable efforts at reunification were made.  In re Shaiesha O., supra, 93 Conn.App. 47.

As set forth above in the findings of facts, the petitioner has proven, by clear and convincing evidence as of the adjudicatory date of the October 26, 2012 termination petitions, that it made reasonable efforts to locate and reunify both parents with their children and in the alternative, that both parents are unable or unwilling to benefit from reunification efforts.

i. Joseph C.

From the beginning of DCF's involvement, Joseph C. has resisted DCF's attempts to assess the well-being of Jasmine and then Joseph C., Jr. Once the children were removed, Joseph C. has been consistently hostile, threatening and aggressive in his refusal of services, an attitude which marked all of his interactions with DCF and other authority figures.   Although there are protective orders which prohibit his contact with both Lisa V. and his children, he has consistently denied that he has been physically violent toward Lisa V. and that his violent nature has had any impact on his children.   Prior to the filing of the termination petitions, his resistance to services was such that Joseph C. had even refused to acknowledge that DCF had custody of his children and threatened there would be “war” if it had custody.   Nevertheless, DCF has attempted to meet and talk with the father in order to discuss the children's well-being and the father's need for services.   Given the inherent limits in the ability to provide services due to Joseph C.'s incarceration since May 2012, his criminal record and protracted incarceration history as well as the father's intensely hostile attitude toward DCF intervention, DCF has proven by clear and convincing evidence that it has made reasonable efforts under the circumstances.

The above findings also support, by clear and convincing evidence, this court's conclusion that the petitioner has proven the alternative ground that Joseph C. is unable and unwilling to benefit from reunification efforts.   To the extent that father is incarcerated and has been hostile and aggressive with DCF in its attempt to work with him, Joseph C. is unable to benefit from reunification services.   Services are inherently limited while the father remains in a correctional facility, and Joseph C.'s case was still pending at the time on the adjudicatory date of October 26, 2012.   His release date was uncertain at that time, and Joseph C. has a long, thirty-year criminal history, much of which includes arrests and/or convictions for violence-related crimes.   Even if released, Joseph C. would have to demonstrate a significant period of stability and rehabilitation before his viability as a functioning parent could be realistically assessed.   To the extent that the father has consistently demonstrated an unrelentingly hostile attitude toward DCF and its attempt to discuss his children and to offer services, Joseph C. is also unwilling to benefit from reunification services as well.

ii. Lisa V.

The petitioner has also proven by clear and convincing evidence that it has made reasonable efforts to reunify Lisa V. with her children and, in the alternative, that Lisa V. is unable and unwilling to benefit from reunification services.   As of October 26, 2012, DCF's history of services with Lisa V. spanned over eight years around the issues of severe domestic violence, her choice of and dependency upon extremely violent and abusive partners, mother's mental health issues, and her transience and lack of stability with respect to housing and income.   She has demonstrated a pattern of failing to recognize and/or address the degree to which her relationships put her children at physical and emotional risk, even when they have been, in fact, physically harmed.   Lisa V. has participated in mental health treatment and received support services for housing, employment and transportation at Community Mental Health Affiliates (CMHA) as well as one-on-one parenting and supervised visitation from CRI. Lisa V. has received extensive, wrap-around type services from Casey Family Services in the past which has included parenting, housing, individual counseling, etc., and has been offered similar services through Wheeler Clinic for parenting and from Prudence Crandall for domestic violence counseling and shelter services.   Thus, although DCF has offered appropriate services and Lisa V. has, to some extent, participated in services, Lisa V. has been both inconsistent and unable to sustain any benefit from her participation in services.

As Dr. Freedman testified and as was apparent in the services which were in place at the time the termination petition was filed, Lisa V. is extremely passive and has a compulsive need for companionship.   Dr. Freedman observed that Casey Family Services had gone to great lengths on two separate occasions to provide services, ultimately securing for mother wrap-around services which included a two-bedroom apartment and significant psychological services as well as practical support to help her function.   Nevertheless, Lisa V. abandoned the program for Joseph C., her third abusive partner, returned to her pattern of transience and lost custody of and eventually her parental rights to Mikala, and then lost custody of Jasmine and Joseph as well.   This court finds that the petitioner has proven, by clear and convincing evidence, that it has made reasonable efforts toward reunification as well as the alternative ground that Lisa V. is unable and/or unwilling to benefit from reunification efforts.

b. Failure to Rehabilitate pursuant to General Statutes § 17a–112(j)(3)(E)

The petitioner seeks to terminate Mother's parental rights to Jasmine and Joseph C., Jr. alleging that she has failed to rehabilitate pursuant to § 17a–112(j)(3)(E).   Under the relevant provisions, the court may terminate the parental rights of “the parent of a child under the age of seven years who is neglected or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families ․”

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.”  (Internal quotation marks omitted.)  In re Anthony H., 104 Conn.App. 744, 757, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008).   In the case of a termination under either § 17a–112(j)(3)(B)(ii) or § 17a–112(j)(3)(E), “[t]he court should consider all potentially relevant evidence, no matter the time to which it relates.”  In re Joseph W., Jr., 53 Conn.Sup. 1, 150, 79 A.3d 155 (2013), quoting In re Mia M., 127 Conn.App. 363, 14 A.3d 1024 (2011).

An inquiry regarding personal rehabilitation requires a historical perspective of the respondent's child caring and parenting abilities.  In re Joseph W., Jr., supra, 53 Conn.Sup. 150, citing In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003);  In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999);  see also In re Christopher B., 117 Conn.App. 773, 786–87, 980 A.2d 961 (2009) (trial court properly relied on respondent's history with department prior to filing of most recent neglect petition).

“In making its determination under subsection (j)(3)(E), the court may base the requisite finding that the child is neglected on evidence presented at the termination proceedings.   The statutory basis for termination does not mandate a preexisting finding of neglect in a prior proceeding.”  In re Joseph W., supra, 53 Conn.Sup. 143.   Under § 17a–112(j)(3)(E), this court relies on its finding of neglect as to both Jasmine and Joseph C. Jr., as articulated in Section IV.B. of this decision.   The court also finds pursuant to this ground that Jasmine (DOB:  12/20/2010) and Joseph C. Jr. (DOB: 1/20/2012) are under the age of seven.   Finally, in taking judicial notice of the court file, this court finds that Lisa V.'s parental rights were previously terminated as to her children Alex, Kyle and Joshua on June 23, 2010 and as to Mikala, her parental rights were terminated on February 3, 2012.

Thus, the critical issue left for this court to consider is whether Lisa V. has failed, or is unable or unwilling, to achieve that degree of rehabilitation as would allow the court to find that she is unable to care for Jasmine and Joseph C., Jr. within a reasonable time considering the age and needs of the children.   This court concludes that Lisa V.'s long history of being subject to the jurisdiction of the court since 2006, with services offered and monitored by DCF since 2004, supports the conclusion that Lisa V. is completely unable and unwilling to benefit from rehabilitation services and that she has ultimately failed to achieve that degree of rehabilitation necessary given the age and needs of both of her children.

“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 [she] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [she] can assume a responsible position in her child's life.”  In re Amneris P., 66 Conn.App. 377, 384–85, 784 A.2d 457 (2001), quoting In re Eden F., 250 Conn. 674, 706, 741 A.2d 873 (1999).  “[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.”  (Internal quotation marks omitted.)  In re Amneris P., supra, 385.  “Terminating a parent's rights is not ordered to punish a parent who has not tried to rehabilitate;  it is ordered so as not to punish a child by denying her a safe, permanent home with proven competent care-takers because her biological mother has tried hard but continues to be incapable of providing such a home for her.”  In re Samantha B., 45 Conn.Sup. 468, 477, 722 A.2d 300 (1997), aff'd, 51 Conn.App. 376, 721 A.2d 1255 (1998), cert. denied, 248 Conn. 902, 732 A.2d 177 (1999).

In assessing rehabilitative progress, the question is not simply how far the parent has come, but whether the parent has come far enough to encourage the belief that within a reasonable period of time, the parent can assume the role as parent in the life of the child.  In re Stanley D., supra, 61 Conn.App. 230.   See also In re Sheila J., 62 Conn.App. 470, 479–80, 771 A.2d 244 (2001).  “What constitutes a reasonable time is a factual determination that must be made on a case-by-case basis.”  In re Stanley D., supra, 231, citing In re Michael L., 56 Conn.App. 688, 694, 745 A.2d 847 (2000).   Furthermore, in considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may assume or resume within a reasonable time a useful role in the child's life, the court may rely on events occurring after the date of the filing of the termination of parental rights petition.  In re Stanley D., supra, 230.

As the authority in § 17a–112(j)(3)(E) makes clear, Lisa V.'s rehabilitative prospects duly require consideration of the mother's entire history before this court.   The prior termination of her parental rights as to four children, premised on two separate instances in which the court's jurisdiction was invoked, is a sobering indictment of the mother's failure to benefit from services to address the issues which have plagued all of her children.   This history reveals Lisa V.'s utter inability to safely, competently and responsibly parent them even though she knew her children were being injured by her romantic partners, even though all of her children had been removed from her care, and even though termination of parental rights petitions were pending.   She had been offered extensive and comprehensive services, in particular, wraparound services on several occasions which provided her affordable housing, mental health services, one-on-one parenting education and visitation services, employment support and domestic violence services.

Lisa V.'s rehabilitative status, however, must also be assessed in relation to her ability to meet the needs of her children.   As the evidence makes clear, Jasmine and Joseph entered foster care with significant developmental delays.   The degree and pace of progress they both made in foster care reflects the extent to which a loving, nurturing and enriching environment, supported by Birth to Three services, can compensate for the deprivation they endured while in their parents' care.   At the same time, Lisa V.'s inability to competently and consistently care for her children in supervised visits is in itself evidence of her inability to provide even basic childcare for her children.   Jasmine and Joseph, however, require more than basic childcare.   They require a committed and motivated caregiver who provides not only a safe, stable and sober environment, but one who will work diligently with providers and follow through with addressing the children's specialized needs.   In none of these ways does Lisa V. qualify, given her persistent instability, abuse of substances and lack of sustained commitment to services provided to her and the children.

c. Acts of Omission or Commission § 17a–112(j)(3)(C).

The petitioner seeks to terminate the parental rights of Joseph C. and Lisa V. as to both Jasmine and Joseph C. pursuant to General Statutes § 17a–112(j)(3)(C).  Said provision states, in relevant part, that the court may grant termination when “the child has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being.   Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights.”  (Emphasis added.)

The specified acts of omission and commission, such as severe physical abuse, sexual abuse and/or non-accidental/inadequately explained serious physical injury, have been the basis for most terminations granted under this provision.   See, e.g., In re Clark K., 70 Conn.App. 665, 675–76, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002) (court affirmed lower court having found by clear and convincing evidence that respondent deliberately and “nonaccidentally” slammed child's head against the floor resulting in fracture of skull);  In re Sheena I., 63 Conn.App. 713, 723, 778 A.2d 997 (2001) (lower court found, by clear and convincing evidence, that respondent had burned child's arms and had engaged in acts of parental commission and omission in terms of her lengthy absences from home, her knowledge of neglect and abuse inflicted on her children by father, and her failure to take steps to protect her children from abuse);  In re Cheyenne A., 59 Conn.App. 151, 59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000) (lower court found by clear and convincing evidence that child's severe physical injuries, consisting of seventeen rib fractures that occurred at different times and could not be explained by mother, was sufficient to support conclusion that respondents, by acts of omission or commission, denied child the care necessary for her physical well-being).

In those cases most frequently cited for the petitioner's failure to establish this ground based on the absence of acts of omission or commission contributing to physical or emotional injury, the children subject to this ground were not in the physical care or custody of the parent.   See, e.g., In re Kelly S., 29 Conn.App. 600, 614, 616 A.2d 1161 (1992) (acts of omission/commission ground unavailable when parent has never had custody or control of child);  In re Luke G., 40 Conn.Sup. 316, 324, 498 A.2d 1054 (1985) (acts of omission/commission ground inapplicable when parent barred from custody and, therefore, cannot exercise care, guidance and control);  In re Lourdes R., Superior Court, judicial district of Hartford (June 28, 2002, Keller, J.) (32 Conn. L. Rptr. 699, 700) (court grants motion to strike acts of omission/commission ground when child removed from birth and therefore, parent never exercised physical care, guidance or control of child.).   See also In re Kezia M., 33 Conn.App. 12, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993);  In re Shannon, 41 Conn.Sup. 145, 562 A.2d 79, aff'd, 19 Conn.App. 20, 560 A.2d 993 (1989).   The court has also denied the acts of omission/commission ground when the petitioner alleges, but fails to prove, that a child has suffered serious, nonaccidental or inadequately explained, physical injury as the basis for a prima facie case of termination.  In re Jessica M., 49 Conn.App. 229, 241, 714 A.2d 64, appeal dismissed, 250 Conn. 747, 738 A.2d 1087 (1998).

As the plain language of the statute clearly states, however, this ground is not limited to severe physical abuse, nonaccidental or inadequately explained serious physical injury, sexual molestation or exploitation, or even a pattern of abuse.   Therefore, the legislature contemplated some quantum of evidence that rises to the level of acts of omission or commission which may not be among the acts specifically enumerated in the statute itself.   Otherwise, the language that allows for termination based on acts which have denied the child “the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being” would have no meaning whatsoever.  “[I]n interpreting a statute, we do not interpret some clauses of a statute in a manner that nullifies other clauses but, rather, read the statute as a whole in order to reconcile all of its parts ․ Every word and phrase is presumed to have meaning, and we do not construe statutes so as to render certain words and phrases surplusage.”  (Citation omitted;  internal quotation marks omitted.)   Vibert v. Board of Education, 260 Conn. 167, 176, 793 A.2d 1076 (2002).

Instead, the parameters of this ground are defined by a parent's denial of “the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being,” which includes, but is not limited to, physical abuse as well as a pattern of abuse.   As our courts have long observed “[t]he [deprivation of care, guidance or control] statute rests on two distinct and often contradictory interests [of the child].   The first is a basic interest in safety;  the second is the important interest ․ in having a stable family environment.”  (Internal quotation marks omitted.)  In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992).   Relying on this fundamental principle articulated In re Valerie D., the court in In re Brian T., 134 Conn.App. 1, 38 A.3d 114 (2012), recently held that the respondent's extensive criminal history, prolonged incarceration and limited visitation were sufficient to affirm the trial court's finding that the respondent denied his child the care, guidance and control necessary for the child's well-being.

Our courts have also long recognized that a parent who exposes a child to extreme or sustained violence, even in the absence of physical injury to a given child, can commit acts of omission or commission which deny his or her child the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being.   See In re Sean H., 24 Conn.App. 135, 144–45, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991) (acts of omission/commission ground found as to father who stabbed mother repeatedly in the presence of their children);  In re Nelmarie O., 97 Conn.App. 624, 629, 905 A.2d 706 (2006) (mother's biological children witnessed mother and father's physical abuse of their step-siblings, although they were not abused themselves);  In re Heather D., Superior Court, judicial district of Middletown, Child Protection Session (November 13, 2001, Jongbloed, J.) (court finds acts of omission/commission ground as to father who physically and emotionally abused mother and brother of the child, Heather D., who witnessed abuse but was not herself physically abused).

The profound harm that results from domestic violence has been recognized by our legislature as well as by our courts.   For example, in referencing trauma-informed care as a service that should be offered to victims of domestic violence, our legislature has defined “trauma-informed care” as one which is “directed by a thorough understanding of the neurological, biological, psychological and social effects of trauma and violence on a person.”   General Statutes § 46b–38b(d).  Similarly, in In re Za'Mora S., Superior Court, judicial district of Middletown, Child Protection Session, Docket No. U06–CP06–005860–A (September 29, 2011, Elgo, J.), the court found persuasive testimony citing research that exposure to chronic conditions of trauma, including domestic violence, can manifest in developmental delays in very young children due to the high degree of abnormal and chronic stress.   See also In re Aiden S., Superior Court, judicial district of Middletown, Child Protection Session, Docket No. K–09–CP08–011–560–A (March 21, 2011, Elgo, J.).

i. Joseph C., Sr.

In this case, the clear and convincing evidence is that the children were subjected on a daily basis to an environment of extreme violence in which their developmental delays went ignored and unnoticed and their basic need for safety and stability were completely disregarded.   As a result of the mother's decision to invite him back into the family home, Joseph C. repeatedly beat and punched Lisa V. in the face, kicked her in the back and threatened to kill her.   As Debra S. reported, and as Lisa V. eventually admitted in October 2012, violence was a daily occurrence in the parents' relationship and the children were constantly exposed to this.   Lisa V. admitted that, not only did Joseph C. hit her and threaten her, he also attempted to control her every activity, including insisting that she did not need to take prescribed psychiatric medication for her diagnoses of post-traumatic stress disorder and bi-polar disorder.   In so doing, Joseph C. consciously ignored and intentionally violated existing protective orders.   In the last incident, Jasmine sustained bruises, a bloody nose, swelling to her eyelid and minor lacerations to her face.   In according to Lisa V. and Debra S., Jasmine has attempted to intervene in other violent incidents between the parents.   The chronic nature of the violence indicates that Joseph C. apparently had, and continues to have, no appreciation for the degree of emotional harm and physical risk of harm his violence presents to his children.   Moreover, Joseph C.'s penchant for violence and aggressive, threatening behavior has been a consistent theme, even while incarcerated, and characterizes all of his exchanges with individuals of authority.

By exposing the children to chronic and extreme levels of violence, Joseph C. has denied his children the care, guidance and control they required for their physical, educational, moral and emotional well-being.   Joseph C. contributed to creating for his children a violent and dangerous home environment from which they were removed and found to have significant developmental delays.   He has adamantly refused to acknowledge their delays, even though Jasmine, who was fifteen (15) months old when removed and was assessed at seventeen (17) months of age, could only grunt, whine and gesture to get her needs met.   Joseph, Jr. also had significant delays in his gross and fine motor skills, had low muscle tone and poor trunk control, which limited his ability to roll, sit, hold his head up and track objects.   By refusing to acknowledge not only the children's need for physical and emotional safety, but their developmental needs as well, Joseph C. has repudiated an obvious and necessary precondition to meeting the children's physical, educational, moral and emotional well-being.

By regularly abusing Lisa V. emotionally as well as physically, Joseph V. has also exacerbated the already compromised ability of the mother to parent the children.   In so finding, this court does not absolve the mother of her obligation to accept responsibility to protect and nurture her children.   Nevertheless, Joseph C. has contributed to the fact that the children are no longer in the care of either biological parent.   As evidenced by the protective orders which were in effect in early 2012, Joseph C.'s mere association with Lisa V. was in violation of a judicially sanctioned recognition that his presence put Lisa V. and therefore, their children at risk of harm.   Beating mother regularly notwithstanding such orders, combined with the mother's own failure to enforce those orders, resulted in the children's removal from their parents' care.

Combined with these factors is Joseph C.'s extraordinary thirty-year criminal history.   A careful review of that history reveals that Joseph C. has been arrested, incarcerated and/or under the supervision of probation for every year of his life since 1981.   The forty charges on his criminal record involve risk of injury, assault, interfering/resisting arrest, weapons and drug-related charges, burglaries and larcenies, as well as charges for breach of peace, disorderly conduct and failures to appear.   In those years when he has enjoyed a hiatus from arrests, Joseph C. was actually incarcerated and thus relatively constrained from illegal activity.

In the context of his criminal history, Joseph's C.'s pending criminal charges, combined with his hostile and aggressive attitude toward DCF's attempts to discuss his children's needs and rehabilitative services, underscore the importance of the acts of omission/commission ground as the basis for termination in this case.   As this court has found, Joseph C. was arrested on December 3, 2011 after he had chased Lisa V. around the apartment, attempting to hit her with a floor lamp while she was eight months pregnant with their second child.   He engaged in this conduct a little over a year after being sentenced to five years' incarceration, execution suspended after six months on his conviction for assaulting a public safety officer, which, at the time was the latest in his nearly thirty-year history of criminal activity.   Subsequently, he went on to violate the protective order that ensued from the December incident, as well as other, subsequent protective orders.   Joseph C. has a history of nineteen felony convictions and, as of the filing date of the termination of parental rights petition, his maximum exposure on all pending charges was thirty years.   Even if he is not incarcerated for yet another significant period of time on his pending charges, Joseph C. has a proven, thirty-year record of being unable to be a stable, non-violent, law-abiding individual.   He knew or should have known that his continued criminal conduct makes him completely unavailable as a viable parent to his children.

Even if the father were not incarcerated and voiced the intention of cooperating with DCF, Joseph C.'s viability as a responsible parent would be tenuous.   He would need to establish, at a minimum, stability and a track record of responsible behavior, which he has not in thirty years been able to demonstrate in his care for himself, much less two vulnerable children with specialized needs.   At the outset, Joseph C. made clear he had no intention of working with DCF;  he is not even attempting to understand his children's needs.   At the same time, an adjudication of neglect, probably secured only after the case was duly tried in court, would have led to specific steps and the perfunctory recommendation of whatever services were available to the father while incarcerated.   Given father's thirty-year criminal history, his blatantly aggressive and persistently hostile attitude toward reunification services, such efforts would have been futile and a waste of precious time, especially in light of the mother's own discouraging eight-year history of failed services with DCF at the time termination petitions were filed.

Joseph C. is completely and thoroughly without insight and empathy for his children's circumstances.   By refusing to recognize their specialized needs, and their need for safety, guidance, and stability, and by being unable and by demonstrating his unwillingness to meet their needs by virtue of his ongoing violence, criminal behaviors and persistent status of incarceration, Joseph C. has effectively denied them the care, guidance and control they require for their physical, educational, emotional and moral well-being.   See also In re Brian T., supra, 134 Conn.App. 18 (Robinson, J., concurring) (an extensive criminal history, prolonged incarceration and minimal visitation are factors which may be considered in concluding that a parent has denied his child the care, guidance and control as defined by § 17a–112(j)(3)(C)).  This court finds that the petitioner has proven this ground by clear and convincing evidence.

ii. Lisa V.

With respect to Lisa V., this court finds that the petitioner has met its burden of clear and convincing evidence with respect to this ground as well.   Lisa V.'s responsibility to protect her children from domestic violence, and to provide them with the care, guidance and control necessary for their physical, educational, moral or emotional well-being is no less clear simply because she is also a victim of domestic violence.

Our courts have long recognized and affirmed the right of a parent to the care and custody of one's children and the child and parent's right to family integrity.  In re Juvenile Appeal (83–CD), 189 Conn. 276, 284, 455 A.2d 1313 (1983).   The facts supporting this ground should, therefore, rise to the level of something more than evidence that supports a finding of neglect, for which a period of rehabilitation is additionally appropriate because it implicitly recognizes the fundamental rights of both a parent and children to family integrity.  “Termination of parental rights does not follow automatically from parental conduct justifying the removal of custody.   The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.   Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.”  (Internal quotation marks omitted.)  In re Valerie D., supra, 223 Conn. 513.   A reasonable opportunity for rehabilitation and reunification is, therefore, crucial to effect this fundamental liberty interest.   For this reason, the state's obligation to assess and/or offer appropriate rehabilitative services has been embodied, not only in the failure to rehabilitate grounds pursuant to General Statutes §§ 17a–112(j)(B)(i) and (ii), and 17a–112(j)(E), but in the reasonable efforts grounds in the adjudication and in the disposition §§ 17a–112(j) and 17a–112(k)(1)and(2).

At the same time, the statutory framework recognizes that there are some circumstances for which the extent of a parent's rehabilitation from parental neglect and abuse need not be an element of an adjudicatory ground for termination.   See, e.g., General Statutes §§ 17a–112(j)(A), (C), (D), (F) and (G) (the grounds of abandonment, acts of omission/commission, no ongoing parent-child relationship, the killing/assault of another child, and the conviction of sexual assault which results in conception).   While in alleging those adjudicatory grounds, the petitioner still needs to address the appropriateness and extent of rehabilitative services pursuant to §§ 17a–112(j) and 17a–112(k)(1) and (2), the conduct of the parent as it affects the child is the primary focus of the adjudication.   In other words, with respect to certain conduct, the parent and child's interest in family integrity can and must give way to the child's paramount interest in safety and stability.  In re Valerie D., supra, 223 Conn. 512.

In this case, Lisa V. has demonstrated over a period of eight years that she repeatedly tolerates a wholly unacceptable threshold of violence and harm to her children and that she will not take action to protect them even though her children have been removed and her parental rights terminated as to four children born before Jasmine and Joseph, Jr. Indeed, not only has Lisa V. demonstrated that she cannot protect her children, she has actively hidden their abuse and exposure to domestic violence from DCF and even her individual therapist at CMHA, with whom she was already receiving services in May 2012.

As discussed in Section III of this decision, Lisa V.'s son, Alexander, sustained burns on his body after Lisa V.'s first husband splashed hot water on him out of anger.   In her second marriage, Rick V. was verbally and emotionally abusive to her and the children, and was particularly cruel to Alexander.   Rick V. would burn the lips of their daughter, Mikala, with his cigarette when she cried, because he could not tolerate her crying, but also when she was laughing or giggling because he did not have a good childhood and could not tolerate her happiness.   Rick V. had also attempted to smother Mikala when she cried because he realized it was effective and at some point, tried to set the couple's apartment on fire.

Even in light of this history, Lisa V. continued to fail to protect her children and she and Joseph C., Sr. actively refused DCF access to the children, even though, as she later admitted, the children were exposed to domestic violence on a daily basis.   Lisa V. admitted that Joseph C., Sr., was an alcoholic and drank daily;  father admitted that he used crack cocaine.   Although mother was prescribed medications for anxiety, post-traumatic stress disorder and a bi-polar disorder, she stopped taking them because father said she did not need them.   Lisa V. admitted that Joseph C., Jr. frequently slept in his car seat, rather than in a crib.   Not surprisingly, Joseph C., Jr. had significant gross and fine motor delays, manifest by low muscle tone and poor trunk control, which made it harder for him to move his muscles, and he could not roll, and could not sit well.   Jasmine could only grunt, whine and gesture when she was removed at fifteen months of age, yet mother admitted that Jasmine would attempt to intervene during violent exchanges between the parents.   When Jasmine eventually got hurt, Lisa V. minimized the injuries to Jasmine as little scratch, insisted that she would “do anything” for Joseph C., Sr., and that she loved him so much that she wanted him “on top of her 24/7.”   Notwithstanding two protective orders, Lisa V. not only invited Joseph C., Sr. back into her home, but admitted that she would prevent him from leaving the home.

From this conduct, this court infers that Lisa V. knew well that there was a risk that DCF would determine that her children might require DCF intervention and possibly removal to keep the children safe.   As Dr. Freedman observed in his 2011 evaluation, Lisa V. “had a striking ability to ignore information or advice which did not suit her, and she also had a history of trying to hide domestic violence, child abuse or other problems from scrutiny.”

It is against this backdrop that Lisa V.'s status as a victim in May 2012 is incompatible with her responsibilities as a parent and her duty to protect.   While it is understandable that victims of domestic violence may fear DCF intervention and even regard removal as further victimization, her status as a victim should not be used as a shield that obscures the impact of violence and an environment of chronic trauma on her children.   Removal, and when necessary, termination of parental rights, are legal remedies for children when services are not adequate to protect the safety and well-being of a child.   Lisa V.'s pattern of actively hiding the children's exposure to domestic violence is willful conduct which essentially denies her children the protection they require which she knows she cannot or will not provide.

Although this court has already found adjudicatory grounds for termination pursuant to General Statutes § 17a–112(j)(B)(ii), decisional law is replete with instances in which more than one adjudicatory ground has been alleged and established on similar or overlapping facts.   In this particular case, the petitioner has established, by clear and convincing evidence, that Lisa V. repeatedly subjected her children to an extremely dangerous and traumatic home environment and actively prevented her children, both of whom had severe developmental delays, from getting the protection and care that they required.   The willfulness of this conduct, given her eight-year history of receiving services from DCF, warrants a finding that she has denied her children the care, guidance and control necessary for their physical, educational, moral or emotional well-being.

IV. DISPOSITION

“During the dispositional phase, the trial court must determine whether termination is in the best interests of the child.”  (Internal quotation marks omitted.)  In re Quanitra M., 60 Conn.App. 96, 103, 758 A.2d 863, cert. denied, 255 Conn. 903, 762 A.2d 909 (2000).  “In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a–112(k) ].”  In re Jonathon G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001), quoting In re Denzel A., 53 Conn.App. 827, 833, 733 A.2d 298 (1999).   The court considers each of them in determining whether to terminate parental rights under this section.   The court makes the following seven written findings:

(1) As to the timeliness, nature and extent of services offered, provided and made available to the parents and the child by an agency to facilitate the reunion of the child with respondent, DCF has offered services to Lisa V. since 2004 and has continued to offer Lisa V. services to address domestic violence, mental health, parenting, housing, employment and most recently, services to address her substance abuse.   In several instances, DCF has been able to offer Lisa V. comprehensive, wrap-around type services.   The court finds that these services were timely and appropriate to facilitate rehabilitation and reunification.   With respect to the father, the court finds that DCF made whatever efforts were possible to the extent that DCF attempted to speak to the father about services.   However, the father was consistently adamant in his refusal to participate in services, even while incarcerated and, given his incarceration, such services were inherently limited.

(2) As to whether DCF has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended:  As found in § IV.C.1.(a)(i) and (ii) of this decision, the court concludes that DCF made reasonable efforts to reunify with respect to the mother and the father but that reasonable efforts were limited with respect to the father.

(3) As to 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, the court finds specific steps were ordered as to Lisa V. on May 25, 2012 and July 20, 2012 and as to Joseph C., Sr. on May 25, 2012.   As discussed earlier in this decision, Lisa V. was inconsistent in her participation with services, and failed ultimately to benefit from them.   Joseph C., Sr. made clear he had no intention of participating in services and refused completely to cooperate with DCF.

(4) As to the feelings and emotional ties of the children with respect to the children's parents, any guardian of such children's 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 children both respond well to their mother during visits if and when she engages with them and they appear bonded to her.   They are strongly bonded with the foster parents and look to their foster parents for comfort and support.   Due to the protective order prohibiting contact with their father, Jasmine and Joseph C., Jr. do not have a relationship with their father.

(5) As to the age of the children:  Jasmine was born on December 20, 2010 and is three years old;  Joseph C., Jr. was born on January 20, 2012 and is two years old.

(6) As to the efforts the parents have made to adjust such parent's circumstances, conduct, or conditions to make it in the best interest of the children to return such children home in the foreseeable future, including, but not limited to, (A) the extent to which the parents have maintained contact with the children as part of an effort to reunite the children 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 children;  the court finds as follows:  The mother's efforts to participate in services and to reunify have been inconsistent.   The father has adamantly refused to participate in services.   He has a protective order in effect that prohibits contact with his children.

(7) As to 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, the court finds no unreasonable conduct by the child protection agency or third parties nor does the court find economic circumstances of the respondents preventing a meaningful relationship with either parent.

In addition to considering the evidence presented in this case, the court has also considered the totality of the circumstances surrounding the children including each child's interest in sustained growth, development, well-being, stability, continuity of his and her environment, length of stay in foster care, the nature of the child's relationship with the foster and biological parents.  In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000);  In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000);  In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999).   The court has also balanced the children's intrinsic need for stability and permanency against the benefits of maintaining a connection with the biological parents.  Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998).

Based upon all of the foregoing, the court by clear and convincing evidence finds termination of the parental rights of Lisa V. and Joseph C., Sr. as to Jasmine and Joseph C., Jr. is in the best interest of each child.

V. MOTION TO TRANSFER CUSTODY AND GUARDIANSHIP

On January 24, 2013, Joseph C., Sr. filed a motion to transfer custody and guardianship to Kimberly S., the paternal aunt of the child.   Pursuant to Practice Book § 35a–12A(d), the movant has the burden of proving that the proposed guardian is suitable and worthy and that the transfer of guardianship is in the best interests of the child.   Although there is no indication that Kimberly S. or her home is inappropriate, Joseph C., Sr. has not established that transfer of guardianship is in the best interests of the children.   The children are placed with their half-siblings in a stable, loving home where they have made tremendous progress in the care of foster parents who are willing to be adoptive resources for them.   They have bonded with the foster family and thrived in their care.   The court finds that it would not be in their best interests to be removed from the foster family whose commitment to meeting their specialized needs has required intensive cooperation with Birth to Three and special education services.   Having endured such deprivation in the care of their parents, Jasmine and Joseph C., Jr., deserve continuity, stability and the opportunity to continue to thrive in the loving, committed care of these foster parents.   The motion to transfer guardianship is denied.

VI. ORDERS

It is accordingly, ORDERED that the parental rights of Mother, Lisa V., to Jasmine C. and Joseph C., Jr. are hereby terminated.

It is further, ORDERED, that the parental rights of Father, Joseph C., Sr. to Jasmine C. and Joseph C., Jr. are hereby terminated.

The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for each of these children.

The Commissioner will file, within thirty days hereof, a report as to the status of these children as required by statute and such further reports shall be timely presented to the court as required by law.

Judgment shall enter accordingly.

It is so ordered this 13th day of March 2014.

BY THE COURT,

Elgo, J.

Elgo, Nina F., J.