2007 Ct. Sup. 9015
No. H14-CP05-008340-AConnecticut Superior Court Judicial District of Middlesex, Child Protection Session at Middletown
June 7, 2007
MEMORANDUM OF DECISION
ROBIN L. WILSON, JUDGE.
STATEMENT OF CASE
On June 6, 2006, the Commissioner of the Department of Children and Families, (“DCF”), filed a petition pursuant to General Statutes §17a-112, et seq. to terminate the parental rights of Sherry R. and David C. to their child, Mariah R. Trial of this matter took place on March 19, 2007. Respondent father David C. did not appear for trial. On March 19, 2007 respondent mother Sherry R. consented to a termination of her parental rights. The court (Wilson, J.), on March 19, 2007, found by clear and convincing evidence that Sherry R.’s consent was knowingly, voluntarily and intelligently entered with a full understanding of the legal consequences and accepted Sherry R.’s consent. The original ground for termination of Sherry R.’s parental rights was withdrawn by the petitioner and the ground of consent was substituted. On June 8, 2006 the petitioner filed a Motion to Review Permanency Plan and Commitment. The permanency plan for Mariah was termination of parental rights and adoption. A hearing on the permanency plan took place on July 27, 2006 at which time the court (Crawford, J.) took no action on the plan. On August 17, 2006 the court (Cohn, J.) maintained commitment of Mariah to the Department and found that reasonable efforts to effectuate the plan of termination and adoption were made by the Department. All other issues relating to the permanency plan were consolidated with the termination trial.
The trial court finds that it has proper jurisdiction of this matter, notice of the proceeding was provided, and no action is pending in any other court affecting the custody of the child.
II. ISSUE
The petitioner seeks to terminate the parental rights of respondent father, David C. on the sole ground that Mariah has been abandoned by David C. within the meaning of General Statutes § 17a-112(j)(3)(A). In CT Page 9016 addition, the petitioner seeks approval of the permanency plan of termination of parental rights and adoption.
III. FACTS
On September 8, 2005, the petitioner invoked a ninety-six hour hold on Mariah R., who is the subject of the termination of parental rights petition before this court and removed her from the care and custody of her mother Sherry R. On September 12, 2005 the court (Quinn, J.), granted the petitioner’s motion for an ex parte order of temporary custody. A preliminary hearing on the ex parte order of temporary custody was held on September 16, 2005 to which mother and father failed to appear. The court (Quinn, J.) on that date sustained the order of temporary custody by default, thus vesting Mariah’s care and custody in the petitioner. A neglect petition was filed on September 12, 2005 in which the petitioner alleged that Mariah was neglected in that she was being denied proper care and attention and permitted to live in conditions injurious to her well-being. On March 24, 2006 a trial was scheduled on the neglect petition. Both Sherry R. and David C. failed to appear. The court (Quinn, J.), entered defaults against them on the petition and adjudicated Mariah neglected and committed her to the care and custody of the petitioner. Specific steps were ordered for Sherry R. and David C. on March 24, 2006 and pursuant to same both were required inter alia, to keep all appointments set by or with DCF, cooperate with home visits, keep whereabouts known to DCF and their respective attorneys, visit Mariah as often as DCF permits and demonstrate appropriate parent/child interaction, participate in individual counseling and parenting classes, submit to a substance abuse assessment and follow recommendations regarding treatment, successfully complete substance abuse treatment and follow recommendations regarding aftercare treatment, including relapse prevention, secure and maintain adequate housing, no substance abuse and no involvement with the criminal justice system.
DCF provided referrals for mother to address her substance abuse, parenting, mental health and housing issues from the time Mariah was removed in September 2005 to the date the termination petition was filed. The petitioner also provided mother with visitation with Mariah from September 2005 to as recent as March 2007. Sherry R. failed to comply with many of the recommendations of providers to address her substance abuse, mental health and housing issues. Sherry R. demonstrated through her noncompliance with treatment recommendations and referrals by the petitioner that she was unwilling to benefit from the services provided. Thus, recognizing her inability to care for Mariah, mother Sherry R. consented to a termination of her parental CT Page 9017 rights on March 19, 2007. Respondent father David C. was born and raised in Hartford, CT. David C. had a very good childhood and has a very good relationship with his parents. David C. graduated from East Granby Highschool. He has maintained regular employment and as of May 2005 he has been employed as an internet receptionist for a communications company in Virginia. David C. has four other children in addition to Mariah. His eldest son lives with his mother and his three other children, Brianna, David, Jr., and Donell, who are committed to DCF, are living with paternal grandparents. At the time of Mariah’s removal, respondent father David C. was living in Virginia. He lives with his brother in Virginia and his housing situation in Virginia is unstable as he does not have his own housing. David C. moved to Virginia in May 2005, before Mariah’s birth on September 6, 2005. He has never seen Mariah, has not inquired of her well-being and has not sent gifts, cards or letters. Prior to July 2006, David C. inquired about his three other children’s well-being through DCF and his parents who are the children’s relative foster parents, however, he did not inquire about the well-being of Mariah.
Mariah was born on September 6, 2005 at Hartford Hospital in Hartford, CT and weighed six pounds at birth. She was removed from her mother’s care only two days after her birth and placed in a DCF licensed foster home. Mariah was diagnosed with gastroesophageal reflux, hemangioma and reactive airway disease for which she was prescribed appropriate medications and is doing very well. Both foster mother and Mariah’s pediatrician have monitored Mariah’s health and her medication. She is up to date medically. As of May 2006 Mariah was having visits with her brothers and sister at the DCF office on a weekly basis. Mother Sherry R. had expressed an interest in having paternal grandparents who are caring for father David C.’s three other committed children to provide care for Mariah. The paternal grandparents indicated that they did not want to be considered a resource for Mariah.
IV. LEGAL DISCUSSION A. ADJUDICATORY TERMINATION OF PARENTAL RIGHTS FINDINGS
Respondent mother Sherry R. has consented to the termination of her parental rights of Mariah and the consent has been accepted by the court. The petitioner moved to amend the petition to the consensual ground without objection. The motion was granted. No findings are, therefore, necessary to be made with respect to mother.
” `Termination of parental rights’ means the complete severance by court order of the legal relationship, with all its rights and CT Page 9018 responsibilities, between the child and the child’s parent or parents so that the child is free for adoption . . .” General Statutes §45a-707(8). “[I]t is both a fundamental right and the policy of this state to maintain the integrity of the family. Where a fundamental right is involved, the burden of proof is always on the party seeking to interfere with that right.” In re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455 A.2d 1313 (1983). “[T]ermination of a parent’s rights to his or her children was unknown to the common law.” In re Eden F., 48 Conn.App. 290, 321, 710 A.2d 771 (1998), rev’d on other grounds, 250 Conn. 674, 741 A.2d 873 (1999). The statutes creating procedures for the termination of parental rights are in derogation of common law Id. Without the existence of such state statutes, the power of a juvenile court to terminate parental rights would not exist Id. “The rights of children to protection from harm and to placement in a nurturing environment are core values of our society. So too, is the right of parents to raise their children without undue government interference . . . Since the severance by the state of a parent-child relationship implicates fundamental rights and the termination of a parent’s rights is a creature of statute, it is essential that a parental termination can be decreed only in both strict and literal compliance with the applicable state statutes.” (Internal quotation marks omitted.) In re Shaiesha O., 93 Conn.App. 42, 43, 887 A.2d 415
(2005).
General Statutes § 17a-112(j) imposes upon DCF the clear and convincing evidence standard for the burden of proof. “In order to terminate rights under § 17a-112, the petitioner is required to prove, by clear and convincing evidence, that: (1) the department has made reasonable efforts to reunify the family; General Statutes §17a-112(j)(1); (2) termination is in the best interest of the child; General Statutes § 17a-112(j)(2); and (3) there exists any one of the seven grounds for termination delineated in § 17a-112(j)(3).” In re Samantha C., 268 Conn. 614, 628, 847 A.2d 883 (2004).
1. Reasonable Efforts to Locate and Reunify § 17a-112(j)(1)
For a child in the custody of DCF, the first requisite for termination of parental rights is the exhaustion of reasonable efforts by DCF to locate the parent and to reunify the child with the parent. General Statutes § 17a-112(j)(1). “[Section 17a-112(j)(1)] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department’s efforts in a particular set of CT Page 9019 circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word effort is, however, defined by our legislature or by the federal act from which the requirement was drawn . . . [R]easonable efforts means doing everything reasonable, not everything possibl .” In re Samantha C., supra, 268 Conn. 632. Section 17a-112(j)(1) does not contemplate that the trial court will rely upon the judicial findings in an earlier proceeding that reunification efforts have been appropriate. The trial court considering the petition for termination of parental rights must make its own determination based upon evidence presented at trial. Here, no such prior finding was made.
Pursuant to § 17a-112(j)(1), the court may grant a termination petition if it finds by clear and convincing evidence that DCF has “made reasonable efforts to locate the parent and reunify the child with the parent, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts.” General Statutes § 17a-112(j)(1). The court need not make such a finding, however, “if a court has previously determined at a [permanency plan] hearing that such efforts are not required.” Id. General Statutes §17a-112(j)(1). Such finding was not made by the court at the permanency plan hearings held on July 27, 2006 and August 17, 2006. Since no such finding was previously made, in order to grant the termination of parental rights petition, the court must first determine by clear and convincing evidence, that DCF has made reasonable reunification efforts prior to the filing of the petition.
Between the time Mariah was removed in September 2005 and up to the filing of the termination petition on June 6, 2006, the petitioner made all reasonable efforts to locate David C. and reunify Mariah with him. David C. moved to Virginia in May 2005 and was residing in Virginia at the time of Mariah’s birth and her removal in September 2005. When Mariah was born in September 2005, the Department contacted David C. to inform him of Mariah’s birth. David C. informed the Department that he did not have a plan for Mariah and denied paternity. The Department scheduled four paternity tests for David C., however he failed to attend them. The Department was able to confirm paternity on David C. by using a DNA sample that was on file regarding his three other children. Paternity was confirmed on David C. and Mariah in September 2006. The clear and convincing evidence demonstrates that the Department made reasonable efforts to locate David C. to establish paternity in order to make efforts at reunifying Mariah with David C. David C. made it impossible for the Department to make reasonable efforts at reunification because he refused to respond to the Department’s requests that he submit to a paternity test ultimately forcing them to establish CT Page 9020 paternity by using a DNA sample that was on file. In addition, after paternity was established in September 2006, the Department sent numerous letters to David C. informing him that paternity had been established. David C. acknowledged receipt of the letters but made no further attempts to inquire about Mariah. On September 28, 2006, the Department sent a letter to David C. requesting that he either come to court or contact New Britain Superior Court for Juvenile Matters regarding the pending termination of parental rights petition and his need for an attorney. David C. did not respond to the Department’s letter. On November 22, 2006, David C. was defaulted on the petition to terminate his parental rights for failure to appear and soon after the default, the Department notified David C. of the default by e-mail. David C. did not respond to the Department’s e-mail nor has he inquired of the Department about Mariah’s well-being since she came into care in September 2005.
2. Adjudicatory Findings
“To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § [17a-112(j)(3)] must be proven by clear and convincing evidence.” In re Michael M., 29 Conn.App. 112, 118, 614 A.2d 832 (1992). “In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact, usually dictate the outcome in termination proceedings, the statutory criteria must be met before termination can be accomplished and adoption proceedings can begin. No all encompassing best interests standard vitiates the requirement of compliance with the statutory criteria.” (Internal quotation marks omitted.) In re Antonio M., 56 Conn.App. 534, 538, 744 A.2d 915 (2000). There must be “strict compliance with the statutory criteria of [§17a-112(j)(3)] before termination of parental rights and subsequent adoption proceedings can occur.” (Internal quotation marks omitted.)In re Juvenile Appeal (84-BC), 194 Conn. 252, 257, n. 9, 479 A.2d 1204
(1984).
The sole statutory ground upon which the petitioner relies to terminate the parental rights of David C. is that Mariah was abandoned by David C. in the sense that he has failed to maintain a reasonable degree of interest concern or responsibility as to the welfare of Mariah. General Statutes § 17a-112(j)(3)(A). “Abandonment focuses on the parent’s conduct . . . A lack of interest in the child is not the sole criterion in determining abandonment . . . General Statutes §17a-112(j)(3)(A) defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child . . . Abandonment occurs where a parent fails to CT Page 9021 visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare . . .” In re Deana E., 61 Conn.App. 185, 193, 763 A.2d 37 (2000). David C. has never seen Mariah, has made no attempts to contact her, has provided no financial support for her, has never asked about her welfare, and has shown no concern for her as evidenced by his denial of paternity, his lack of involvement in visits, medical appointments and his failure to inquire of Mariah’s situation. The evidence is clear and convincing that David C. has abandoned Mariah.
C. DISPOSITION 1. Mandatory Findings § 17a-112(k)
“A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase.” (Citations omitted; internal quotation marks omitted.) In re Danuael D., 51 Conn.App. 829, 835-37, 724 A.2d 546 (1999).
“In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)].” (Internal quotation marks omitted.) In re Vanna A., 83 Conn.App. 17, 26, 847 A.2d 1073 (2004). “The factors, however, serve simply as guidelines to assist the court in its determination of the child’s best interest and each factor need not be proven by clear and convincing evidence.”In re Victoria B., 79 Conn.App. 245, 258-59, 829 A.2d 855 (2003). “The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing, but no disposition may be made by the judicial authority until any mandated social study has been submitted to the judicial authority. Said study shall be marked as an exhibit subject to the right of any party to require that the author, if available, appear for cross-examination.” Practice Book § 53a-9.
The court, after having considered all testimony and documentary evidence relating to the issue of disposition, and, which evidence includes events occurring through the close of the trial, makes the CT Page 9022 following findings by clear and convincing evidence:
1. The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent.
Appropriate and timely services were provided to mother Sherry R. and Mariah by the petitioner. Referrals for Sherry R. were made to numerous service providers to help her address her substance abuse, mental health, parenting and housing issues. These service providers include Catholic Family Services, Wheeler Clinic, Community Mental Health Affiliates, Community Service Board, Catholic Charities, Hispanic Health Council, Hartford Behavioral Health and the Young Women’s Christian Association (YWCA). DCF offered father David C. a DNA test to establish paternity. David C. refused the paternity test and, even after paternity was established, based on a DNA sample obtained from the file of father’s three other children committed to the Department, David C. failed to respond to the Department’s repeated efforts to reunify him with Mariah.
2. 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 previously noted, DCF has made reasonable efforts, to reunify David C. with Mariah. David C. refused to submit to a paternity test offered by the Department and failed to respond to numerous e-mails and letters from the Department regarding the well-being of Mariah. David C. made it impossible for DCF to continue to engage in efforts to reunify him with Mariah, due to his denial of paternity and his refusal to respond to the Department’s e-mails and letters.
3. The terms of an 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(s).
Specific steps were ordered for David C. on March 24, 2006. David C. denied paternity of Mariah, refused to submit to a paternity test and never contacted the Department to inquire of Mariah’s well-being. David C. moved to Virginia in May 2005 and was not present for Mariah’s birth. CT Page 9023 He has never seen Mariah.
4. The feelings and emotional ties of the child with respect to her 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.
Mariah has little if any positive feelings toward Sherry R. and David C. She has been in foster care since birth and has only been in the presence of her mother through supervised visits. Mariah has never seen her father, David C. Mariah, on the other hand, is bonded with her foster parents and has significant emotional ties to them since she has been with them for nearly two years. Mariah’s foster parents want to adopt her.
5. The age of the child.
Mariah was born on September 6, 2005 and is twenty-one months old. The foster parents with whom Mariah is placed are committed to her and have demonstrated an ability to meet her needs. Foster care should be a strictly time-limited interval in the life of any child. The Federal Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. § 670 et seq., as amended, envisages that after twelve months in foster care a child deserves a permanent home. Mariah has been in foster care for almost two years. She deserves a permanent home with her foster parents without further delay.
6. The efforts each parent has made to adjust his or her circumstances, conduct or conditions to make it in the best interest of the child to return home in the foreseeable future.
David C. does not even acknowledge Mariah as his child. There is no evidence that he has adjusted his circumstances, conduct or conditions to make it in the best interest of Mariah to return her to him in the foreseeable future. David C. has failed to put forth any current viable plan for Mariah to live with him. Having recognized her inability to care for Mariah, and that termination would be in Mariah’s best interest, respondent mother Sherry R. consented to a termination of her parental rights.
CT Page 9024 7. 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.
Nothing has prevented David C. from maintaining a meaningful relationship with Mariah. The lack of a meaningful relationship is not due to any unreasonable interference by DCF, foster parents, or any other third party, but rather due to David C.’s continued refusal to acknowledge Mariah as his child.
2. Best Interests
With respect to the best interests of the child as contemplated by General Statutes § 17a-112(j)(2), based upon all of the foregoing, the court finds by clear and convincing evidence that termination of the parental rights of David C. is in Mariah’s best interest. She is in a clean, safe, healthy and loving environment. Mariah is developing appropriately and has no major physical health problems. Mariah has bonded with her foster parents who are fully committed to Mariah and who want to adopt her. She has a sense of permanency, consistency and stability with her foster parents which is crucial for her right now.
David C. does not want to assume a responsible parental role for Mariah as evidenced by his refusal to acknowledge her as his child, and respondent mother Sherry R., having recognized that she was unable to care for Mariah, and that termination would be in Mariah’s best interest, consented to a termination of her parental rights. In view of the fact that David C. and Sherry R. are not in a position to care for Mariah right now or at any reasonably foreseeable time in the future, termination of their parental rights is in Mariah’s best interest.
In finding that termination of the respondents’ parental rights would be in Mariah’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 her environment; her length of stay in foster care; the nature of her relationship with her foster parents and biological parents; the degree of contact maintained with her biological parents; and her genetic bond to the respondents. 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 CT Page 9025 has also balanced the child’s intrinsic need for stability and permanency against the potential benefit of maintaining a connection with her biological parents. See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child’s physical and emotional well-being must be weighed against the interest in preserving family integrity). Under such scrutiny, the clear and convincing evidence in this matter establish that termination of respondents’ parental rights is in Mariah’s best interest.
With regard to permanency, the court considers the social studies which clearly indicate that Mariah’s foster parents are committed to her and want to adopt her. Mariah is entitled to resolution, without delay, of the period of uncertainty as to the availability of respondents to serve as her parents by terminating respondents’ parental rights. After considering Mariah’s sense of time, her need for a secure and permanent environment, her need to avoid future placements, and the totality of the circumstances, the court concludes that termination of respondents’ parental rights is in Mariah’s best interest.
D. REVIEW OF PERMANENCY PLAN
Pursuant to 46b-129(k) and Practice Book § 35a-14, on June 8, 2006, the petitioner filed a Motion to Review Permanency Plan and Maintain Commitment. In its motion, the petitioner requested the court to review and approve the plan for termination and adoption and to maintain commitment of Mariah, as both were in her best interest. The petitioner also requested the court to find that it made reasonable efforts to achieve the identified permanency plan and to find by clear and convincing evidence that continuing efforts to reunify Mariah with Sherry R. and David C. were no longer appropriate. No objections to the permanency plan were filed. On August 17, 2006 the court (Cohn, J.) maintained commitment and found that DCF made reasonable efforts to effectuate the plan. Approval of the plan and a determination of no further efforts was consolidated with the termination of parental rights trial.
At a hearing on the Motion for Review of Permanency Plan and to Maintain Commitment, the judicial authority shall determine by a fair preponderance of the evidence whether it is in the best interest of the child to maintain commitment. The party seeking to maintain the commitment has the burden of proof. In addition to determining whether to maintain the commitment, the judicial authority shall also determine by a preponderance of the evidence whether efforts have been made by DCF to achieve the permanency plan, whether the proposed goal of the permanency plan is in the best interest of the child, and, whether by CT Page 9026 clear and convincing evidence efforts to reunify the child with the parent are still appropriate. DCF has the burden of proof in each determination to be made by the court. General Statutes § 46b-129(k); Practice Book § 35a-14.
Based upon the evidence introduced at the termination of the parental rights trial, including but not limited to, the social study and addendum submitted in support of the permanency plan of termination of parental rights and adoption, the court finds by a preponderance of the evidence that:
1. The plan for termination of parental rights and adoption is in the best interest of Mariah and therefore approves the plan filed on June 8, 2006.
2. It is in Mariah’s best interest to maintain her commitment and therefore the court grants DCF’s Motion to Maintain Commitment filed on June 8, 2006.
3. DCF made reasonable efforts to achieve the identified permanency plan of termination of parental rights and adoption.
The court finds by clear and convincing evidence that:
4. Continuing efforts to reunify Mariah with her mother, Sherry R. and father David C. are no longer appropriate.
V. CONCLUSION AND ORDERS
Based on the findings that have been made by clear and convincing evidence and considering the seven factors set forth in the previous section, it is hereby ORDERED that the parental rights of David C., because he has abandoned Mariah within the meaning of §17a-112(j)(3)(A), and Sherry R. because she has consented, be and hereby are terminated, and that the Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the purpose of placing the child in adoption. A permanency plan shall be submitted within thirty days of this judgment and such further reports shall be timely presented to the court as required by law.
Judgment may enter accordingly.
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