2008 Ct. Sup. 10295
No. W10 CP06-014922-AConnecticut Superior Court Judicial District of Windham, Juvenile Matters at Willimantic
June 19, 2008
MEMORANDUM OF DECISION
FOLEY, J.
On January 31, 2007, the petitioner, the Commissioner of the Department of Children and Families, (“DCF”), filed a petition pursuant to C.G.S. § 17a-112 et seq. to terminate the parental rights of Melissa C. and Jose A. to their child, Robbie Jay A. The trial commenced on February 26, 2008. The parents had appeared and were represented by court appointed counsel. A guardian ad litem was present for the father. The child was represented by counsel. Neither parent claimed Indian Tribal affiliation. The court is aware of no other proceedings pending in any other court regarding the custody of this child. This court has jurisdiction. All necessary parties were present for trial.
The statutory grounds alleged against respondent mother and father are that the Robbie Jay was found in a prior proceeding to have been neglected or uncared for and the parents 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, they could assume a responsible position in the lives of the children (C.G.S. § 17a-112(j)(3)(B)(I)).
At the commencement of the trial the mother presented to the court properly executed forms consenting to the termination of her parental rights. Having canvassed the mother, the court finds that she has been represented by competent counsel who is present with her in court. The court further finds that the consent has been knowingly and voluntarily entered with a full understanding of the legal consequences of the consent. The consent is accepted.
The Department of Children and Families (DCF) through counsel has moved to amend the petition to withdraw the non-consensual grounds and to change the grounds to consent § 17a-112(I), as to the mother. Without objection, the motion was granted.
The father was brought to court from the Whiting Forensic Institution CT Page 10296 where he was being held pursuant to a finding of incompetence in GA — 11 (Calmar, J.) on January 4, 2008.[1] Because the Superior Court for Juvenile Matters Court (this court) in earlier proceedings had been alerted to the problems of the father’s mental health, the court had ordered a psychological competency evaluation on February 7, 2007. Jose failed to appear on two occasions for this competency evaluation. The court, acting pursuant to § 45a-708(a), appointed a guardian ad litem for Jose who was present with him in court during the termination proceedings. Both the GAL and the court-appointed attorney actively consulted with Jose during the trial and examined the petitioner’s witnesses.
After the first day of trial, in an effort to comply with the dictates of the Supreme Court and the Appellate Court in the matter o Alexander V., 223 Conn. 557 (1992), and 25 Conn.App. 741 (1991), the court adjourned the matter in the hope of early restoration of competency in the criminal case. After several continuances from the evaluators, on June 5, 2008, Jose was found competent to stand trial, was convicted of two misdemeanors and sentenced to 6 months in jail, suspended after time served with two years probation. The two sentences were imposed concurrently. (Calmar, J.)
Thereafter, the previously adjourned termination of parental rights proceeding was reconvened on this date to hear any additional evidence that Jose wished to present. No additional evidence was presented. The parties stipulated to the competence of the respondent father.
While the decisions of the appellate courts are helpful, the issues before this court were only obliquely considered in the Alexander V. case. Here there is no question that the respondent has been adjudicated not legally competent.[2] He has since been restored to competency and offered the opportunity to present evidence.
In this case there is a well documented history and a psychological evaluation which existed well before the finding of incompetency, as will be later discussed. This relevant and reliable history enables the court to proceed to balance the due process rights, of the male biological parent with the state’s interest as parens patriae, in proceeding under federal and state mandates to expeditiously provide stability and permanency in the placement of this infant child.
The court has attempted to comply with the legislatively mandated procedure for protecting the rights of incompetent persons (45-708(a)), appointing a GAL ? . . . whose duty it is to ensure that the interests of the ward are well represented.” Orsi v. Sentore, 230 Conn. 459, 466
CT Page 10297 (1994). In addition to GAL he had court-appointed counsel, both of whom actively participated in the trial and frequently consulted with the respondent.
The child’s rights are protected by both state and Federal law which require expeditious resolution of cases where children are in and out of home placement. The Adoption and Safe Families Act of 1997 (Pl. 105-89) (ASFA) §§ 42 U.S.C.A. 623 et seq. was enacted to prevent foster care drift, to promote the adoption of children who have been placed in foster care, and to encourage permanent placement of children as quickly as possible once a decision has been made that reunification is not likely. “In order to receive federal funds, states are required under ASFA to implement plans which, among other things, limit the obligation to provide reasonable efforts to reunify parents with children in foster care, require permanency hearings within 12 months after a child enters foster care, and require the state to file or join a petition to terminate parental rights, subject to certain exceptions, when a child has been in foster care for 15 of the most recent 22 months.” 10 ALR 6, 173 ASFA. Robbie has been in foster care for more than two years as of the date trial commenced on February 26, 2008.
In compliance with ASFA, our legislature made substantive changes to § 46b-129 in 1998 (Public Act 98-241). This act changed subsection (k) to require a permanency plan within nine months of out-of-home placement and requires the commissioner to file a petition for termination of parental rights within sixty days after the court approves a plan calling for adoption. Thus, it is clear that both the state and federal law urge the courts to achieve permanent placement of children in foster care as early as possible.
Also important to an analysis of this case are the following facts which the evidence clearly and convincingly establishes, namely, that the parties were never married nor did Jose ever cohabit with the mother and child as a unitary family. Further, Jose never developed a relationship with this child. So even though the right of a parent to raise his or her children has been recognized as a basic constitutional right, his due process rights must be viewed in this context of an unwed father who never established a relationship with the child nor assumed his paternal duties. See notably, Stanley v. Illinois, 405 U.S. 645
(1972), Quilloin v. Walcott, 434 U.S. 246 (1978), Caban v. Mohammed, 441 U.S. 380 (1979), and Lehr v. Robertson, 463 U.S. 248
(1983), as establishing that a liberty interest is created by biological fatherhood plus an established parental relationship developed within the unitary family. Michael H. Victoria D. v. Gerald D., 491 U.S. 110, 122-23 (1989). CT Page 10298
Additional facts are necessary.
The court heard from a probation officer, a mental health case manager, a licensed clinical social worker at the psychiatric unit of Day Kimball hospital, two DCF social workers, and Dr. Michael Haymes, a licensed clinical psychologist who has performed over 700 court evaluations and has been recognized by the court over 100 times as an expert in forensic psychology. The court received into evidence social studies, a psychological evaluation by Dr. Haymes dated October 12, 2007, a police report regarding the most recent arrest of Jose on December 19, 2007, and a record of the criminal history of the respondent. Based upon the testimony and the documentary evidence the court makes the following additional findings by clear and convincing evidence.
Robbie Jay was born on December 19, 2005. Within one month, on January 14, 2006, Robbie was removed from his mother’s care based upon chronic substance abuse and domestic violence between the parents. He has been out of the parents care since that date.
The mother of Robbie Jay was eighteen years old when Robbie was born. She became pregnant at age seventeen. She had dropped out of high school before graduation and was drug involved. The parental rights of her own mother and father to her had been terminated in 1999. Melissa’s teenage years were spent in a series of foster homes from which she often ran away. She self-reports to use of alcohol, marijuana, cocaine and abuse of over-the-counter medications. She reports the pregnancy with Robbie as being an accidental failure of birth control.
In her recent adult life she has a criminal history for breach of peace, intoxication and assault. She has within the past six months (October 2007) been hospitalized for a psychotic episode and for substance abuse and mental health issues. If Robbie’s mother was not prepared for motherhood, Jose, the male biological parent was even less prepared for fatherhood.
Jose was born in August 1984. His mother had multiple mates and there are numerous children half-related to Jose. His family was also the subject of DCF involvement in 1997 for family violence. Both of his parents have used drugs. His father has a criminal history. Jose does not recall his father ever living with his mother. It is notable that both Jose and his mother have been diagnosed as schizophrenic. He thinks a paternal uncle was a paranoid schizophrenic as well.
CT Page 10299 Jose was first diagnosed as schizophrenic, paranoid type, when he was having hallucinations at aged 16. He currently receives Social Security Disability benefits. He had behavioral problems in school which resulted in his withdrawal from school, prior to the 10th grade. He was involved in the juvenile justice system (“a bunch of times”) and as an adult has been arrested five times. He has convictions for assault in the 2nd degree for which he received a sentence of three years, execution suspended, with three years probation. This conviction on January 10, 2007, involved the use of a knife. On March 8, 2007, he was convicted of assault in the third degree, on the same date as a result of another arrest he received a sentence of five years suspended after time served with five years of probation. He is presently on probation for that offense and has more than four years remaining on that sentence. He had been incarcerated from May 2006, for a “dirty urine,” until the date of sentencing, March 8, 2007.
His most recent arrest was on December 19, 2007. This altercation involved his father and a female cousin. (See Exhibit C.) According to the police report, Jose (known to his family as Jason), had been kicked out of his mother’s house for threatening the mother. He went to live with his father, who was aware of his son’s mental health problems. After a short stay, his father told Jason that he could no longer stay with him as the landlord would not permit the adult son to live there. According to the father, Jason became hostile and unstable; Jason threatened to stab his mother, he was using profanity toward the father and his cousin, he kicked two doors causing visible damage and also struck his father several times. Jose (Jason) was arrested and charged with breach of peace and criminal mischief. As a result of this recent arrest, following his arraignment in December 2007, a § 54-56(d) competency evaluation was ordered in the criminal court (GA-11) on January 4, 2008.
With respect to the child protection case, it is fortunate that Jose had previously been psychologically evaluated on September 25, 2007, at the Garner Correctional Institution where he had been held awaiting trial on an assault with a knife charge. He was being held in a unit for persons with substantiated mental health problems. At the time of the evaluation with Dr. Michael Haymes, Jose was oriented to person, place and time; he was fairly cooperative and reported no distress. (Exhibit B. p. 18.) He had no difficulty with screening for immediate and working memory and he was cooperative in the interview. “With accommodations for his slow uptake and responses, (Jose) had no difficulty understanding the purposes and procedures of the evaluations and the results provide a good representation of his current psychological functioning.”
CT Page 10300 The results of testing indicated that persons with similar profiles are found in group studies to be paranoid and delusional.
Fear of humiliation and domination funds arrogant, defensive aggressiveness which frustrates and turns off people who come in regular contact with them. Both provocative and easily provoked they exhibit periods of unanticipated aggressive and even brutal behavior. Reality contact is impaired.
Judgment is likely to be poor and it would be difficult for them to function in an organized and sensible manner as a parent. Idiosyncratic and incorrect understandings of what children’s behaviors mean makes it even more likely that ill-advised child rearing decisions will be made and negative consequences of them will be a surprise or a mystery to such parents. Confusing and inconsistent communications are likely. Therefore these individuals are difficult for children to understand. Dysphoric moods and negative frame of reference for the world also impair parenting.
On the Parenting Awareness Skills Survey, Jose’s responses to hypothetical child rearing situations showed his lack of experience and lack of knowledge of developmentally appropriate ways to communicate with children.
Dr. Haymes diagnosis was schizophrenic, paranoid type with anxiety disorder and cocaine, oxycondine antihistamine and dextromethorphan abuse, all in short-term remission. The Axis V global assessment of functioning (GAF) was 31 (out of 100) “major impairment in psychological/personal, social/familial and occupational functioning — paranoid delusions, poor reality testing and a moderate thought disorder negatively influence behavior and communication can be confusing.” An example of that is illustrated as follows: Jose was asked by Dr. Haymes, what were the stresses on him at age 16 when he was first in therapy? He responded “Being away from my kid.” Dr. Haymes testified that this demonstrates a failure of logic and thought. His chronology looped back on itself. It shows a failure of sequence. He didn’t have a child when he was in treatment at age 16.
Dr. Haymes concluded his testimony by saying that Jose has not yet CT Page 10301 achieved the psychological skills to minimally take care of himself. He does not have sufficient cognitive understanding to take care of a child. Remediation of his several psychological characteristics which need repair would have to be addressed before he could ever become an adequate parent.
Jose reported to Dr. Haymes that Robbie (the child) lived with him for the first five months of his life. The court documents and DCF records reflect that Jose did not live with the mother when Robbie was born; they had earlier separated. The records further reveal that the child was removed from the mother one month after birth. Jose never lived with the child.
During the child’s direct interaction with Jose, the child cried and resisted his touch. Dr. Haymes concluded that they do not have a relationship. Robbie is not familiar with Jose. Robbie found being with him “aversive.” Jose reports that the only visits he has had with the child were recent visits when the child was brought to him by DCF while he was incarcerated. Jose has never had sufficient contact with the child to develop a relationship.
Dr. Haymes concluded his evaluation of Jose as a person suffering from serious mental illness that has a pervasive and negative impact on his ability to form and maintain healthy relationships with others including children. (p. 31.)
Jose is not married to the mother, he was not living with the mother at the birth of the child, he has no history of nurturance, protection, or interest. Jose has never been a part of this child’s unified family. He did not robustly attend visitation, attend administrative hearings or case reviews, and has no established relationship with the child. (Haymes’ report). His only connection to the child was through the act of conception. The sad fact is that, but for one night of intimacy with the female biological parent, nine months before the child was born, Jose is otherwise a complete stranger to this child. The due process rights accorded to him should reflect that he is not now nor has he ever been a family member nor a person closely associated with this child.
The testimony also reflects an inability to care for the child even if he had an interest in doing so. His mother had an extensive criminal history which prevented her from being qualified to care for the child. The maternal grandmother was similarly disqualified due to an extensive DCF history. His history as reported to DCF and to Dr. Haymes reflects a long history of mental health issues and substance abuse. At the birth of the child he was on probation. His probation officer testified to the CT Page 10302 substance abuse and mental health treatment required as part of Jose’s probation. He was unsuccessfully discharged from United Services individual counseling. He tested positive for illegal drugs. He was discharged from some programs due to his subsequent incarceration.
In an effort not to duplicate services required by adult probation, DCF did not set up any services which Jose was attending at the direction of probation. The social worker said she set up parenting classes, visitation, and required him to cooperate and comply with the probation services. But Jose was not compliant with probation nor was he medication compliant. Additionally, the social worker said he had three to four additional criminal charges while she had the case. He never successfully completed substance abuse nor mental health treatment. He often did not attend visitation without explanation. The foster family, the child, the DCF visitation supervisor, all were victims of his lack of courtesy. When he did go to the visits he was also directed to attend the parenting class component of the visit. Jose would often leave the visits early and not attend the parenting instruction. Ultimately he was unsuccessfully discharged from probation and DCF services due to incarceration.
ADJUDICATION
The statutory grounds alleged against respondent father are that Robbie Jay was found in a prior proceeding to have been neglected or uncared for and the father 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 child, he could assume a responsible position in the life of the child. (CGS § 17a-112(j)(3)(B)(I)). The court finds that there was a prior adjudication of neglect on March 29, 2006. Since that time the father has been non-compliant with mental health, substance abuse treatment and parental education. He has been incarcerated for approximately 15 months and hospitalized at Whiting Forensic Institution between December 2007 and June 2008. He has recently been found to be restored to competency but two years into the child’s foster care, the respondent father has unaddressed substance abuse and mental health issues. He is no better prepared to care for Robbie than he was at the child’s birth on December 19, 2005.
The factual determination for this court is whether the father has achieved rehabilitation as contemplated under C.G.S. § 17a-112(j)(3)(B), that is, rehabilitation sufficient to render him able to care for Robbie Jay.
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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 [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 Eden F., 250 Conn. 674, 706 (1999).
In this case the court finds that the child is fragile and vulnerable and is presently in a suitable pre-adoptive foster home. He is presently two and a half years old. The home from which he came, and in particular, the caretakers from whom he came, remain largely unchanged from the date the child was removed on January 14, 2006. The father has not made the necessary changes in his life to improve his own lot in a meaningful way, let alone to acquire the necessary skills and insight to accommodate the needs of this particular child. His conduct does not suggest that it is likely to seek the mental health and substance abuse treatment he needs. Even if he did, the course of treatment would require a great length of time and Robbie has already waited two years for permanent placement.
With these factual findings, the court finds by clear and convincing evidence, the father has failed to achieve such a degree of personal rehabilitation as to encourage the belief that within a reasonable period of time, he will be in a position to assume parenting responsibilities for this child. See In re Daniel C., 63 Conn.App. 339, 354 (2001). 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., CT Page 10304 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. 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 father and the child by an agency to facilitate the reunion of the child with respondent, the court finds that DCF offered services including parenting education, individual counseling, visitation and substance abuse evaluation and treatment. The court relies upon the findings above regarding father’s cooperation with these offered services and those offered by probation. (Services are set forth in the social studies Exhibits A L and are incorporated by reference.)
(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. They integrated and coordinated the services with those required as a function of his adult probation. Jose was unsuccessful at all required and offered services.
(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. This court finds it unnecessary to slavishly itemize the entire litany of specific steps and each offered service to determine the extent of 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. The steps are designed to bring the parent into compliance with generally acceptable parental skills and standards and eliminate unacceptable conduct. As set forth above, there was little compliance by father with some steps, but failure to comply with the vast majority of them most notably relating to his uncontrolled drug addiction and long standing mental health issues.
The focus therefore should 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. 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 CT Page 10305 the removal. The focus is completely on rehabilitation. Here there is no improvement in stabilizing his own life and no increase in his fund of knowledge necessary to properly parent a young child.
(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. There is no parent-child relationship with this parent.
(5) As to the age of the child Robbie Jay is presently aged two. He will be three on December 19, 2008.
(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 effort, as discussed above, to adjust his circumstances in this matter so as to facilitate reunification.
(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 Melissa C., by her consent, and Jose A., to the child Robbie Jay 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; his length of stay in the relative foster care that is providing for him; the nature of his relationship with foster family that is willing CT Page 10306 to adopt him; the degree of contact maintained with the biological parents; and his genetic bond to his parents. 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).
It is accordingly, ORDERED that the parental rights of Melissa C. And Jose A. to Robbie Jay are hereby terminated. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for this child.
With regard to the permanency plans for the child, the court hereby approves the plan of termination of parental rights and adoption 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 19th day of June 2008.
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