2009 Ct. Sup. 8835
No. T11 CP07 012724-AConnecticut Superior Court Judicial District of Windham, Juvenile Matters at Willimantic
May 28, 2009
MEMORANDUM OF DECISION
FOLEY, J.
On July 2, 2008, the petitioner, the Commissioner of the Department of Children and Families, (the department), filed a petition pursuant to CGS § 17a-112, et seq., to terminate the parental rights of Melissa S. the mother of the three children, Cori, Destiny and Lexus. The petition also seeks to terminate the parental rights of Cori H. Sr. and Alfredo S., the male biological parents of the children. The parents have appeared and are represented by counsel. The children are represented by counsel. Neither parent claims Indian Tribal affiliation. The court is aware of no other proceedings pending in any other court regarding the custody of these children. This court has jurisdiction.
Prior to the commencement of a contested hearing on the termination of their parental rights, the two male biological parents presented to the court properly executed forms consenting to the termination of their parental rights. Having canvassed the male parents, the court found that they were represented by competent counsel who was present with them when they executed the consent forms. The court (Simon, J.) further found that the consents were knowingly and voluntarily entered with a full understanding of the legal consequences of their action. The consents of both biological fathers were accepted.
The Department of Child and Families (DCF) through counsel had moved to amend the petition to withdraw the non-consensual grounds and to change the grounds to consent § 17a-112(i). Without objection, the motion was granted.
The statutory grounds alleged against respondent mother as to all three children are (1) that the children were found in a prior proceeding to CT Page 8836 have been neglected or uncared for and the mother has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and the needs of the children, she could assume a responsible position in the lives of the children (CGS § 17a-112(j)(3)(B)(I)).
The court heard testimony from Dr. David Mantell, three social workers, a visitation case aide, the mother’s therapist and the respondent/mother, Melissa. Twenty documents were received into evidence, ten from the petitioner and ten from the respondent. The court makes the following findings by clear and convincing evidence.
Precipitating Events:
On Saturday February 24, 2007, a father of two of Melissa’s children, Reynaldo Q., went to Enfield to pick up his two children for visitation.[2] He found that Melissa and her husband, Alfredo S., were not at home and the five children were left unattended in an apartment that the police described as filthy and in complete disarray. (Petitioner’s Exhibit F.) There was no food in the home. The parents had left Cori, then aged 11 in charge of Deana, aged 9, Reynaldo, aged 5, Destiny, age 1 1/2, and Lexus, aged 7 months. There was no working telephone and Cori said the parents left four hours before and that he did not know where they were. Cori indicated that he was frequently left in charge of his younger siblings. In fact, Melissa and Alfredo had gone to Willimantic, to Dan’s Adult World, and to visit Melissa’s sister who had just had a newborn child. When they returned to Enfield and saw police cars at their home, Alfredo went to the home and Melissa fled because she had outstanding warrants for her arrest.
The testimony in court established that Melissa’s husband Alfredo, was a substance abusing, violent man who was jealous, controlling and physically abusive. During his interview with the police who had come to investigate the children being left alone, Alfredo gallantly told the police that Melissa was using Hydrocodone and he did not know where she got the pills as she did not work and her only source of income was child support from Reynaldo. DCF seized on this disclosure and thereafter considered the mother to be a substance abuser. Melissa testified in court that she told the social worker that she had used vicodin and percocet, only when it was prescribed by a physician, usually in conjunction with beatings she received from Alfredo. She testified that he has broken her nose, bruised her ribs, kicked her in the back, put pills in her drinks and been completely dominating and controlling.
A 96-hour hold was invoked on behalf of the children. An order of CT Page 8837 temporary custody was sustained on March 9, 2007. A neglect adjudication was made on May 17, 2007, (Graziani, J.). Very comprehensive Specific Steps were issued on the same day. (Petitioner’s Exhibit A).
The affidavit prepared in conjunction with the Order of Temporary Custody (Exhibit I) establishes convincingly that Melissa has been an overwhelmed and neglectful mother for many years. Upon inquiry by the court, it was learned that Melissa is now 28 years old. She has had six children. Her first child Cori was born when she was fourteen. So when the first DCF referrals were made in April 1999, Melissa was 18 years old and had two children ages 3 1/2 and 1 1/2. She was in an unstable relationship with her first husband. Five DCF referrals were made before the events of February 2007. In retrospect, it is clear that the department’s interventions were insufficient. Melissa was desperately immature and inadequate to the tasks of motherhood and burdened by unreliable and abusive men.
When the department intervenes and removes children, the department has a state and federal obligation to make reasonable efforts to reunite the family. That is a priority under the Adoption and Safe Families Act, 42 U.S.C. §§ 620-79 and Connecticut law, § 46b-129(b). In this case very specific steps were ordered to facilitate reunification the children with the parents. (Petitioner’s Exhibit A.) The obligations are on the parent and DCF, as well. Critical to the obligations of DCF are the following specific steps:
4. Refer the Respondent to appropriate services (see above) and, as otherwise needed, monitor his/her progress and compliance.
8. Provide respondent with written, dated notice of all referrals to service providers and retain copies of such notices for the court.
9. Implement reasonable recommendations made by service providers and/or evaluators in this matter, or obtain relief from the court.
Aside from identifying the areas of parental deficits, in order for the parents to comply with the specific steps, DCF must offer appropriate, timely and available services. DCF did not produce or offer to the court copies of all written referrals to service providers, so it is not known whether the offered services were timely made or made at all. DCF lists the services allegedly offered without further explanation as:
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Mental health counseling with United Services
substance abuse evaluation with United Services
substance abuse treatment at United Services and CPAS
Substance abuse evaluation, testing and treatment at Genesis Center
Referral to Supportive Housing Program
Domestic Violence counseling at CPAS
Parenting classes at Natchaug Hospital
There are only two explanatory paragraphs in the entire social study that deal with offered services and compliance.
10. Present Situation:
Presently Mother has obtained Section 8 for her apartment and Mother continues to work under the table for her friend as a housekeeper. Mother is also pregnant and is due in October 2008. Mother reports she has been compliant with her prenatal care; the Department is attempting to confirm Mother’s compliance. Mother continues to attend substance abuse treatment and mental health counseling with Margaret Lee at United Services. Ms. Lee reports that Mother is making progress with her treatment goals and gaining insight as to the reasons her children are in care. Mother provided a hair test in March 2008, which tested positive for cocaine. Mother denied any cocaine use and reported that the test must have been false. Mother did agree to participate in substance abuse treatment and provide random urine tests, all of which since January 2008 have been negative. Mother also provided an additional hair test in April 2008 which tested negative for all substances. (Social Study page 7.)
11. Reasonable Efforts:
6. Mother is unable or unwilling to benefit from CT Page 8839 reunification services in that, despite the services offered to her, she has failed to engage in services in a timely manner and has failed to demonstrate that she has significantly changed her circumstances to become a viable resource for said children within a reasonable period of time.
That conclusion is completely contrary to the evidence and is inconsistent with the findings noted in paragraph 10.
Mother’s Rehabilitation:
The absence of DCF’s own records or testimony on specifically which services were offered, when they were offered and the degree of compliance as to each offered service would have been very useful to the court, especially as here, where the vigor and enthusiasm of DCF to engage the mother with services is in grave question.
“She said she has had three DCF social workers, she did not get the help she needed until the third social worker, she did not [sic?] find the programs and referrals on her own, and she has managed to go to everything, did all of her programs and is in counseling now. She finds it helpful. She took classes on how to remain sober under stress, get help with domestic violence, get safety, has done parenting, did not have a apartment and had to start life all over. She now has a three bedroom apartment and she says everything is all set up for the three children to come home.” (Dr. Mantell report Exhibit G.)
Melissa testified that she completed the ninth grade in high school. She has just completed her General Equivalency Degree testing on May 4th and 5th. She does not have the results yet but hopes to re-enter cosmetology school and would like to have her own salon some day. After the children were removed she was referred to a CPAS[3] for a “seeking safety” group on surviving stress and trauma without substances, a 12-week program. The focus was domestic violence and substance abuse issues. She said she gained knowledge, but she still needed more. “I had issues to work on.” She said she was starting her life over, she knew she could be a good mother and a good person. “I needed more help.” The next program was a parenting education program. “The worker never made the referral. I found the Natchaug Hospital course on my own. I started the program after they had already done three classes before I started, so I had to finish during the next sequence. I did three in one session and three in another.” DCF tried to discredit her for not completing the first program.
CT Page 8840 Melissa also said she had trouble with the referral for individual counseling. She said DCF did not make the referral until October 2, 2007, seven months after the children were removed. She went for her intake at United Services with Margaret Lee in December 2007. She began the counseling but DCF did not secure authorization to pay for the counseling until March 2008. That is thirteen months after the removal of the children and beyond the date for the first permanency plan. If that is true, it represents a colossal failure to offer timely and reasonable services for reunification.
Melissa began with Margaret Lee in December 2007, and was very diligent in engaging and complying with the therapy according to her therapist. Her therapist is qualified in treating dual diagnosis persons with substance abuse and mental health problems. It is noted that Melissa has no diagnosed mental health problems. The therapist said that Melissa seemed very well versed about domestic violence issues, she understood the patterns and she took responsibility for herself getting into that situation. Melissa did well in therapy and despite health issues from time to time and issues with the birth of her child in October 2008, she has been very responsible in attendance and rescheduling missed visits.[4]
She regularly attends individual treatment weekly and biweekly, uses treatment productively to improve her insight and judgment, particularly in the area of her history as a victim of abuse in her previous relationships. Ms. [S] is demonstrating a good understanding of the dynamics of domestic abuse as well as her responsibility in making healthy choices to protect her children. (Respondent’s Exhibit 8, written six weeks before the Social Study was filed with the court.)
During her individual counseling at United Services she has for over a year insisted on random drug testing. All of her tests, fifteen tests in all, have been negative except for one. Even in that test, there was not sufficient sample to test in three segments, and the test done in April 2008, a month later, showed no evidence of drugs. The court is satisfied that the one incomplete, positive test has very limited value, if any.
The counselor was concerned that Melissa was in another relationship with Carlos P. She testified that Melissa hasn’t displayed any deterioration in her sense of self-strength and her affect is consistent. A change in either of these would tend to be indicators of an abusive relationship. There were none. The therapist testified that CT Page 8841 Melissa had made progress before she came to therapy and has maintained her progress while they have been working together over the past seventeen months.
In summary, contrary to the declaration that Melissa is unable or unwilling to engage in services, the court finds that Melissa did everything she had to do and more, with only tepid assistance from the department.
She got out of an abusive relationship with Alfredo.
She has accepted personal responsibility for her poor parenting.
She attended and completed substance abuse counseling and random drug testing.
She attended 28 sessions of individual counseling.
She attending and completed a parenting education program.
She attended and completed a domestic violence program.
She has obtained a three-bedroom apartment suitable for her children.
She has obtained Section 8 housing assistance.
She works part-time consistent with her educational limitations.
She has taken her tests for a general equivalency high school degree.
She has cooperated with DCF and signed all required releases.
The court finds that while she did at times self-medicate with alcohol in the abusive relationship with Alfredo, she has not used illegal drugs, does not abuse alcohol and has only used prescribed medications under a doctor’s orders. She has no underlying mental health issues. While DCF has raised the issue of a DUI (Driving Under the Influence), a charge which occurred on July 17, 2004, the charge was dismissed after CT Page 8842 successful completion of an Alcohol Education Program. There is no other evidence of on-going alcohol abuse.
As a witness she was poised and credible. She appears to have at least average intelligence, if not more. Her use of the computer to champion her own cause and document her claims is impressive. At twenty-eight years of age she has had a hard life but has taken significant steps toward complete rehabilitation as a parent and as a person.
Findings:
If the promise of reunification upon completion of the Specific Steps and demonstrated commitment to the cause of rehabilitation, is at all meaningful, Melissa has earned an opportunity to be reunited with her children.
The court finds that the petitioner has not proven by clear and convincing evidence that Melissa has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the ages and the needs of the children, she could assume a responsible position in the lives of the children.
Best Interests of the Children:
In a sense these children have been very fortunate. They have been removed from poor parenting, absent parenting, and chaotic living conditions and been moved to a warm, caring and safe environment. The children have been with Cori’s paternal grandfather and his wife, who are the foster parents. The foster parents have done an admirable job providing a safe, loving and nurturing environment for the children. They, as well as the children, will be distressed by this decision. The younger children are especially bonded with the foster parents. A removal of the children from their present care will be an extreme hardship for the children. But the law requires that before the court considers the best interests of the children, the petitioner must establish grounds for termination.
It is tragic and sad for all parties, and especially the children, that DCF did not robustly and actively provide services to the mother in a timely fashion, nor did the department carefully monitor the progress and desire of this mother to reunite with her children. She was dedicated to the task and self-motivating. This petition should not have been brought. Melissa was compliant with all aspects of the Specific Steps and gaining confidence and competence before the petition was filed. CT Page 8843
Whether it was a function of the foster parents or DCF to limit visitation and not arrange for some flexible accommodations for Melissa regarding making up for legitimately missed visits, is not known. General Statutes § 17a-10a(b) requires the Commissioner to provide visitation “as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship.” The visitation plan should encourage the birth parent to directly care for the child as much as possible.[5]
Whether the spirit and letter of the law was followed in this case is open to debate. It is clear, however, that a year ago the stress of a possible reunification for the children would have been significantly less than it is now. As it is, even Melissa recognizes that even if she is ready for reunification, the children are not ready.
Cori has declared his wishes very emphatically that he wishes to stay where he is. The reports suggest that he is fully competent to make such a decision. It may be that if he knows his younger siblings are being returned to Melissa, he may reluctantly wish to join them. But his expressions of where he wishes to live should be honored. If he wishes to remain with his grand-father and his foster mother, his attorney should consider a transfer of guardianship. Given his neglectful history of early childhood with Melissa, she is in no position to obstruct such a request. Dr. Mantel has already noted that Cori’s wishes should be observed.
While this order dismisses the petition, the commitment is maintained. DCF is directed to take such action as to enable a gradual transition of reunification with Melissa. As the sensitivities of some DCF personnel may be riled by these orders, it is suggested that a new worker with specific experience in reunification be assigned to the case.
ORDER:
The petition to terminate the parental rights of Melissa is denied. A hearing will be conducted at 9:30AM, June 11, 2009, to resolve any remaining matters including permanency plans, reasonable efforts findings and the whole issue of the parental rights of Cori H. Sr. and Alfredo S.
Judgment may enter accordingly,
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