2008 Ct. Sup. 10576
No. W10-CP06-015138-AConnecticut Superior Court Judicial District of Windham, Juvenile Matters at Willimantic
June 25, 2008
MEMORANDUM OF DECISION
FOLEY, SR. J.
This is an action for termination of the parental rights of Melanie H., mother and Joseph O., the male biological parent of Isabella O., born November 8, 2004. The mother and father have been served with process, have appeared, have had counsel appointed to represent them. The mother was transported to court each day from Janet York Correctional Institution where she is awaiting trial on an assault charge.
The court has jurisdiction and there is no known action pending in any other court affecting custody of the child. While there is some indication of Indian heritage of the mother, she is not a tribal member and there is no claim of American Indian tribal affiliation of the child.
The parents appeared for trial and have denied the allegations in the petition. The trial, original scheduled for late June, was advanced to May 1, 2008 to take the testimony of out of state witnesses for the respondent mother who were unavailable to testify on the dates originally scheduled for trial. Thereafter the court heard the petitioner’s case on June 23, 2008.
At the commencement of the second day of trial the mother, through counsel, stipulated that she has failed to rehabilitate as alleged by the Department of Children and Families. She indicated that her primary interest is to have her child placed with her sisters in-laws in Maryland (herein after referred to as the Masseys).
BACKGROUND:
Melanie and Joseph are both in their mid-forties. They are unmarried. Abuse of substances has been a hallmark of their relationship. They met in 2003, moved into together and have bounced around from apartment to apartment, low income motel and hotels and living with friends and CT Page 10577 relatives. Both have been involved heavily with cocaine, heroin and alcohol. Both have histories of low level anti-social criminal behavior. There are multiple police reports and arrests for domestic violence related events. Substance abuse has prevented Joseph, a man skilled in plumbing and refrigeration, from holding steady employment. Melanie shows evidence of above average intelligence and successful employment, similarly plagued by substance abuse impairment. She is further burdened by bipolar disorder, insomnia and panic attacks. Her most recent criminal behavior resulted in her present incarceration on charges of stabbing a male drinking companion with a knife. She is facing lengthy incarceration if convicted of Assault in the first degree. (See Exhibits DD EE.)
Melanie gave birth to Isabella on November 8, 2004. The social study reports that the newborn Isabella was born addicted to heroin and was experiencing withdrawal symptoms for which she was treated with morphine. She also tested positive for the presence of cocaine. Melanie reported that the fear of childbirth caused her stress for which she self-medicates with heroin.
DCF immediately intervened on November 15, 2004. A neglect petition was filed. On February 10, 2005, the child was adjudicated neglected and allowed to live with Melanie under protective supervision. Mother was required to attend substance abuse evaluation and treatment. Melanie successfully completed the program and protective supervision was allowed to expire on August 10, 2005.
Throughout Isabella’s life she has been moved from place to place, from relative to relative and to others. In December 2005, Melanie and Joseph could not care for Isabella and, through Melanie’s sister Trina, placed Isabella with Trina’s sister in law and her husband, the Masseys in the state of Maryland. Isabella was with them for two weeks. The Masseys have no children of their own. At one point in the early stages of this case, Melanie told the social worker that the Masseys and her sister had been conspiring to have the Masseys adopt Isabella even before Isabella was born.
In the fall of 2006, things were not going well for Melanie and Joe. On August 28, 2006 Joe was arrested for shoplifting in Middletown and charged with risk of injury to a minor child for leaving Isabella unattended in the car while he was in the store shoplifting. Melanie and Joe had lost their apartment, Joe was unemployed, they were both abusing drugs, and they separated. Isabella was living for six weeks in September and October with the paternal grandparents. According to Melanie (not always a reliable historian), Joe dropped her off in CT Page 10578 Torrington, CT. with no money nor any place to live. Curiously, she and Isabella ended up living in the two-room apartment of a man ten years her junior. When DCF intervened the social worker found this apartment to be wholly unsuitable for Melanie and the child, with cockroaches, inadequate space, unsanitary conditions and a shared bathroom down the hall.
On or about November 8, 2006 the Torrington police notified DCF that Melanie had been taken to the hospital and Isabella was in the apartment. Melanie left the hospital against medical advise. When interviewed by the social worker, Melanie admitted to having refused the offer of substance abuse treatment and further admitted to using heroin during the course of the previous two weeks. She was redolent of alcohol, appeared disheveled, anxious and intoxicated. When contacted by DCF for placement with the father, Joe indicated he was not able to care for Isabella because he was entering Stone Haven, a Rushford Hospital substance abuse treatment program.
The paternal grandparents had been a placement resource throughout Isabella’s life. When contacted by DCF, the grandparents indicated that they were unwilling to be considered due to the conflicts with Melanie. “We couldn’t live like that” the paternal grandmother testified. Melanie had called the police claiming the grandparents had kidnapped Isabella during her last stay with them. They were afraid of Melanie.
On November 13, 2006, the hospital notified DCF that upon admission Melanie tested positive for cocaine. They also reported that Melanie was also taking her psychiatric medication. They were going to have an evaluation conducted to determine the impact of her psychotropic medication and her mental stability. Melanie clearly has dual diagnosis issues.
So, as of Isabella’s second birthday in November of 2006, she had seen little stability, domestic violence, parental incapacity, and intransigent living. There were no known relatives in Connecticut willing to take her. The issue came up of the in-laws of Melanie’s sister Trina, the Masseys. It seems that DCF initially accepted the statements made by Trina and others that the Masseys were “relatives.” DCF ordered an Interstate Compact for the Placement of Children investigation of the Masseys in Maryland. This court finds that the Masseys are not biological relatives within the contemplation of state and federal statutes.
In the mean time, Isabella needed a place to stay. Both mother and father initially wanted DCF to keep the child in Connecticut since they CT Page 10579 wanted reunification with Isabella. DCF made a foster care placement. The foster parents asked DCF to remove Isabella after less than two months due to the complaints and allegations that Melanie was making against them. Isabella was placed in her present foster home on January 5, 2007. She has remained in that placement for the past year and a half Isabella quickly adjusted to a secure loving stable environment. She is bonded with the foster parents and they to her. Dr. Mantell, a well recognized forensic psychologist specializing in adult and children interactional studies, has reported that Isabella view the foster family of two adults and five children as her psychological family. He has indicated that removing her from this home could trigger her latent reactive attachment disorder, “the risks to the child are substantial.” (Exhibit K, p. 8 para 5.)
ADJUDICATION
The ground alleged in the petition as to both parents are that the child was found in a prior proceeding to have been neglected or uncared for and the parents have failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and the needs of the child, they could assume a responsible position in the life of the child. C.G.S. § 17a-112(j)(3)(B)(I).
The factual determination for this court is whether the parents have achieved rehabilitation as contemplated under C.G.S. § 17a-112(j)(3)(B), that is, rehabilitation sufficient to render them able to care for Isabella now or in the reasonably foreseeable future.
`Personal rehabilitation as used in [Section 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 [he] has achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child’s life.’ In re Eden F., 250 Conn. 674(1999) at 706.
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In this case the court finds that the child is in need of a secure, safe nurturing home and is presently in such a pre-adoptive foster home. She is presently three and a half years old. The home from which she came, and in particular, the caretakers from whom she came, remain largely unchanged from the date the child was removed in November 2006. The mother has not made the necessary changes in her life to improve her own lot in any meaningful way, let alone to acquire the necessary skills and insight to accommodate the needs of this particular child. Her conduct does not suggest that those changes will ever be made at all.
While the father has completed the month long drug program he entered in 2006, and in February of 2007 he completed a course on domestic violence (Non-violence program), little is known about his subsequent course of treatment or abstinence.[1] What is significant to this court is that he has refused all subsequent efforts to verify his sobriety. He will not submit to hair toxicology testing. The social worker testified that Joseph knows that DCF requires him to take this test to verify his sobriety. For a person with an admitted history of chronic substance abuse, this lack of cooperation with DCF can only be construed as a red-flag event. It also may signify his underlying wish to avoid parenting. At the same time he mentions that he wishes to be considered a resource, he also mentions the Masseys adopting Isabella and that the present foster family is doing a wonderful job and that they should adopt the child. Not exactly and unqualified bid for personal reunification.
Specific steps and Reasonable efforts:
It is recognized that federal and state law require the department to make reasonable efforts to reunify parents. Those efforts must be promptly made “[b]ecause of the psychological effects of prolonged termination proceedings on young children, time is of the essence . . .”In re Alexander V., supra, 25 Conn.App. 748. Any significant delay would undermine the state’s important interest in protecting the welfare of children.” In re Alexander V. 223 Conn. 557, 565 (1992).
In this case Specific Steps were signed by a judge directing the parents to comply and cooperate with certain counseling and treatment to regain custody of their child.[2] The specific steps also directed the child protection agency to perform certain activities to aid the reunification. These reunification efforts are generally directed at specific parental short-comings which are critical to rehabilitation. This court finds it unnecessary to slavishly itemize the entire litany of specific steps and each offered service to determine the extent of CT Page 10581 compliance. The social studies are in evidence. The court has read them. The factual representations in the social studies were not challenged in court and the court accepts them as true. (See in particular Exhibit I, paragraph 6 and Exhibit J.) The steps are designed to bring the parents into compliance with generally acceptable parental skills and standards and eliminate unacceptable conduct.
The focus therefore is not be on whether the parent complied with the specific steps, but rather on whether the parental conduct, now or foreseeably, will be acceptable and appropriate to parent this particular child. It is quite possible to improve one’s conduct without following the prescribed course laid out in the specific steps. Similarly it is equally possible to fully comply with the specific steps and still fail to extirpate the root causes of the removal. The focus is completely on rehabilitation.
The mother does not challenge the offer of services by DCF nor does she challenge a finding that she has failed to rehabilitate. She is incarcerated and likely will not be available for parenting duties or rehabilitation programming for a considerable period of time.
The most important problem areas for this father are three: substance abuse, mental health treatment to deal with anger and violence, and motivation to parent. There is not much the agency can do about father’s lack of motivation or failure of child care planning. With respect to his substance abuse, mostly alcohol abuse, it has been chronic and unremitting for nearly 10 years. He self-reported starting the use of drugs and alcohol while in high school, continuing through adult years and, even during closing argument at the trial, the father in a statement to the court conceded that he continues to struggle with this issue today.
At the trial on May 1, and June 23, 2008, father did not testify. He has not claimed to be free of addiction. He has not offered a plan for reunion with his daughter. There is no doubt he loves his daughter. But as of the time of trial, eighteen months after removal, father has not vigorously offered himself as a person with a home and a job and as a placement resource for his young daughter. Instead, he maintains that he continues to work on his issues everyday. He wants to be “part of her life.” “If she can’t come and live with me, she has aunts and uncles down in Maryland. My mother and father miss her dearly. We want to be part of her life.” Noticeably absent from these declarations is a statement of present ability or future ability to actually personally provide care for this child. Both he and his parents have declined to be a placement resource. And even eighteen months after placement there is CT Page 10582 no robust assertion of parental fitness and ability to provide a home for the child.
No responsible agency or person would commit a three and a half year old child to the supervision and care of a person whose sobriety cannot be verified. No responsible agency would place a child with a parent who cannot verify their ability to support and shelter a child. This is both sad and unfortunate since the father has a good visiting relationship with his daughter. Regrettably, just as when Joe and Melanie were living together, Joe looks to Melanie for the child care responsibilities and takes his lead from her as to the present dilemma. If Melanie wants Isabella to go to the Masseys in Maryland, that works for him.
With these factual findings, the court finds by clear and convincing evidence, the parents have both failed to achieve such a degree of personal rehabilitation as to encourage the belief that within a reasonable period of time, they will be in a position to resume parenting responsibilities for this child. See, In re Daniel C., 63 Conn.App. 339, 354 (2001); In re Ashley S., 61 Conn.App. 658, 665
(2001); In re Sarah Ann K., 57 Conn.App. 441, 448 (2000). The petitioner has met her burden of proof.
DISPOSITION
During the dispositional phase, the trial court must determine “whether termination is in the best interests of the child.” In re Quanitra M., 60 Conn.App. 96, 103 (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 (2001) (quoting In re Denzel A., 53 Conn.App. 827, 833 (1999)). The seven factors “serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered.” In re Quanitra M., 60 Conn.App. at 104. 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 respondents, the court finds that DCF offered services including parenting education, individual counseling, visitation and substance abuse testing and counseling to both parents. The court relies upon the findings above regarding father’s cooperation with these offered services. (The actual services are set forth in the social studies which the court incorporates by CT Page 10583 reference.)
It is also worth of note that approximately a year ago, while DCF had an obligation to conduct concurrent planning, i.e. reunification and termination planning, the focus changed away from reunification efforts since both parents decided that their plan for Isabella was a transfer of guardianship to the Masseys in Maryland. This represented a complete change of course when compared to the original suggestions that the Masseys were attempting to steal their child.
(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, the court finds that DCF made such efforts as to the father. (See discussion infra.)
(3) As to the extent to which all parties have fulfilled their obligations under the terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, the court finds specific steps were ordered as to respondent father. As set forth above, there was compliance by father with some steps, but failure to comply with the specific steps relating to verifying his sobriety during the past year. Mother’s continued drug usage and criminal activities during the past two years supports the finding that she has failed to comply with the specific steps to avoid illegal substances and refrain from criminal activity.
(4) As to the feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’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 court has previously addressed this issue.
The most vexing part of this case is not whether the parents have rehabilitated to the point that they could foreseeable parent again, they haven’t. But the father has maintained contact with Isabella while in foster care. He visited with her with some regularity. He is appropriate at visitation. Isabella did look forward to visiting with her father. Both parents love their daughter. But father is not assertive of his parental ability. He lacks confidence and perhaps motivation to parent. But neither the court nor DCF can make him robustly plan, organize and execute a plan of parental care. It is not even clear from the studies whether he is successfully managing his own life at this time. He did not testify himself.
Isabella loves her foster mother also. She knows she is secure, free CT Page 10584 from domestic disharmony, from the evils of addictive behaviors and the disordered conduct of her parents. She is happy, well adjusted, and progressing on all levels in her present home. She wants to stay there. The foster parents love Isabella and wish to adopt her. The court is satisfied that they will keep her safe and act in her best interest. The child’s attorney indicates that adoption is in Isabella’s best interest.
(5) As to the age of the child: Isabella is 3 1/2.
(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 parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions, and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; the court finds as follows: The father has made insufficient efforts, as discussed above, to adjust his circumstances in this matter so as to facilitate reunification. He has maintained contact with his daughter. Neither has done the things necessary, over the last eighteen months, to properly parent a three-year-old. The court finds that the need for a safe, nurturing and supportive permanent home at this time is the most important goal for overall child development.
(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, foster parent or third parties.
With respect to the best interests of the child contemplated by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of Melanie H. and Joseph O., to the child Isabella is in the best interest of the child.
In finding that termination of the respondents’ parental rights would be in the child’s best interest, the court has examined multiple relevant factors including the child’s interests in sustained growth, development, well-being, stability and continuity of his environment; her length of stay in foster care; the nature of her relationship with foster mother and biological parents; the degree of contact maintained with their biological parents; and her genetic bond to her parents. CT Page 1058 In re Alexander C., 60 Conn.App. 555, 559 (2000); In re Shyina B., 58 Conn.App. 159, 167 (2000); In re Savanna M., 55 Conn.App. 807, 816
(1999). The court has also balanced the child’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with the biological parents. See Pamela B. v. Ment, 244 Conn. 296, 313-14 (1998).
In this case the court has the opportunity to consider placement options. The mother has filed a motion to transfer guardianship to the Masseys in Maryland. DCF favors a placement with the current foster family for adoption. The Masseys have gone to considerable expense and inconvenience to make themselves available to provide for Isabella. They have passed the scrutiny of the state of Maryland and the investigators from the Interstate Compact for the Placement of Children. They have taken necessary courses including Cardiopulmonary Resuscitation. They have exposed their home and their finances to judicial scrutiny. This court finds that they are suitable and worthy persons for the placement of a child. The parents, Melanie and Joseph now support a transfer to the Masseys. But a child is not a chattel.
In determining the issues of guardianship § 45a-617 directs that the court consider the following factors: (1) The ability of the prospective guardians to meet on a continuing day to day basis the physical, emotional, moral and educational needs of the minor, (2) the minor’s wishes if the child is over 12 or of sufficient age and capacity to form an intelligent choice, (3) the existence or nonexistence an established relationship between the minor and the prospective guardians and (4) the best interests of the child.
Here there is no question but that the Masseys have been put at a disadvantage by the considerable delay of the ICPC study and the licensing requirements. That is unfortunate, but the court’s obligation is not to them but to the child. The Masseys are aware of the findings of Dr. Mantell. They are aware of the child’s resistance to them. They are aware of the child’s near-parental bond with the foster parents. They have been plagued by distance, delay and most importantly, by a lack of a previously established relationship with the child. The court cannot overlook these important facts.
The court will not direct DCF to remove a child from a home in which the child is adjusted, happy and developing in a healthy, loving family. While the Masseys are suitable and worthy, placement with them is not in the child’s best interest. The evidence clearly and convincingly establishes that the best interest of Isabella is a placement through adoption in the present foster home. The family consists of a mother, CT Page 10586 father, three older biological children, Isabella and a younger foster child. Isabella’s only real fears in her daily confrontations with the real world revolve around the fear of loss of her foster mother. Isabella gets anxious when separated from her foster mother. She is at risk of reactive attachment disorder. The court is compelled to support the DCF plan of adoption. Therefore, the motion to transfer guardianship is accordingly, denied.
It is accordingly, ORDERED that the parental rights of Melanie H. and Joseph O. to Isabella are hereby terminated. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the child.
With regard to the permanency plans for the child, the court hereby approves the plan of termination of parental rights and adoption as to Isabella as being in the best interest of this child. To the extent not previously found, the court also finds that DCF has made reasonable efforts to effectuate the permanency plans and to reunify the parents with the child.
The Commissioner will file, within 30 days hereof, a report as to the status of this child as required by statute and such further reports shall be timely presented to the court as required by law.
The Clerk of the Probate Court with jurisdiction over any subsequent adoption of this child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters, 81 Columbia Avenue, Willimantic of the date when said adoption is finalized.
Judgment may enter accordingly.
It is so ordered this 25th day of June 2008.
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