In re Alivia C.

IN RE ALIVIA C.^[*]

No. W10CP16017271A

Superior Court of Connecticut, Judicial District of Windham, Willimantic, Juvenile Matters

October 9, 2018

UNPUBLISHED OPINION

File Date: October 10, 2018

OPINION

Boland, J.T.R.

This memorandum addresses a petition seeking the termination of the parental rights of Kelly T., mother, and of Mario D father, of Alivia C., born May 19, 2011. Also addressed is father’s motion to revoke commitment, which he filed after the third day of trial on the termination petition. Although Alivia is one of four children born to Kelly, Mario is her father alone and unrelated to her half-siblings. For that reason, the court writes on this petition separately from those concerning the other children. For the reasons set forth below, the petition for termination of parental rights is granted, and the motion to revoke commitment is denied.

I. Procedural Background

Alivia’s present involvement with this court began on August 17, 2016, when the Commissioner of the Department of Children and Families ("DCF") filed a neglect petition alleging that the child had been neglected, for reasons other than being impoverished, by being denied proper care and attention, physically, educationally, emotionally, or morally; or by being permitted to live under conditions, circumstances or associations injurious to her well-being. The initial hearing on the neglect petition was held on September 21, 2016. Kelly was served at her place of abode, appeared on the scheduled date, and was appointed counsel.

The original neglect petition named as father of this child one Jose C., an individual who was Kelly’s live-in partner and the father of two of her other children. Questions shortly arose as to whether he was actually this child’s biological father. Following paternity testing, the court (Spellman, J.) on December 21, 2016, determined that Mario D. was instead the child’s father. Previously, an amended neglect petition had been served upon him, he had appeared, and counsel had been appointed to represent him.

Meanwhile, on October 29, 2016, DCF had invoked a 96-hour hold on behalf of the child, and, on November 2, 2016, it filed a motion seeking an order of temporary custody of the child. The court (Spellman, J.), granted that motion on an ex parte basis on November 2, 2016, and sustained that order at a November 8 hearing attended by mother and by both Jose and Mario. Accompanying the initial orders preliminary specific steps were set forth for both parents detailing the behavior expected of each to remedy the circumstances that had led to Alivia’s removal.

On January 18, 2017, this court adjudicated the child to have been neglected as alleged, and ordered her committed to DCF. On that occasion, specific steps of similar character as those issued preliminarily were again set forth for both parents aimed at remedying the circumstances that had led to the neglect finding, and to permit the reunification of Alivia with her parents.

On August 30, 2017, this court approved DCF’s permanency plan for the child, which was termination of mother’s parental rights, and, at that time, reunification with father. On November 1, 2017, however, when DCF filed the petition now before this court, the department was instead seeking termination of the parental rights as to both parents. The petition alleges that both parents have failed after the finding of neglect to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time either could assume a responsible position in Alivia’s life considering her age and her needs. On May 14, 2018, Judge Spellman accepted mother’s consent to the granting of the petition, and allowed DCF to amend this petition to allege consent as its sole ground with respect to mother.

Mario D. contests the allegations of the termination petition. Trial on that aspect of the petition was held before this court on multiple dates between May 24, 2018, and September 11, 2018. Thereafter the parties submitted briefs.

On August 28, close to the trial’s completion, father filed a motion to revoke commitment.

There is no action pending in any other court which would affect the custody of this child, and this court has jurisdiction to enter orders with respect to her custody. There is no indication that the child is a member of any Native American tribe.

II. Adjudication

A. Adjudication As to Mother

Sec. 17a-112(i), CGS, provides that a parent’s consent is a sufficient foundation for an order terminating her parental rights as long as the court finds that (1) upon clear and convincing evidence, the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent’s parental rights with respect to such child. Judge Spellman made the requisite findings as to the voluntariness of the consent at the May 14 hearing when he accepted it. The findings related to the child’s best interest are set forth below.

B. Adjudication as to Mario D.

As to father, DCF is proceeding under Sec. 17a-112(j)(3)(B). This provides that a court may grant a petition for termination of parental rights of a parent if, by clear and convincing evidence, the court finds that (i) the child has been found ... to have been neglected, abused, or uncared for in a prior proceeding, or (ii) the child is now found to be neglected, abused, or uncared for and has been in the custody of the commissioner for at least fifteen months and the parent of the child has been provided specific steps to take to facilitate the return of the child to that parent, and that the parent has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in this life of this child. It is indisputably a matter of record, and this court thus finds, that pre-condition (i) of the statute is met; this court made a neglect adjudication here on January 18, 2017. Coincidentally, the child has also been in the custody of the commissioner since November 2, 2016, more than twenty-three months, and specific steps were then provided to Mario D. to facilitate Alivia’s return to him. The pivotal question here is whether Mario D. has achieved or failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time he could assume a responsible position in this child’s life considering her age and particular needs.

In general, "[i]n order to terminate a parent’s parental 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 James O., Jr., 322 Conn. 636, 649 (2016). The James O. opinion continues: "[w]hen the petitioner seeks to terminate a parent’s parental rights on the ground that the parent has failed to rehabilitate, [t]he trial court is required, pursuant to § 17a-112, to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further ... such rehabilitation must be foreseeable within a reasonable time.’ ... Therefore, the trial court must first determine the needs of the particular child before determining whether a parent has achieved a sufficient rehabilitative status to meet those needs." Id., 650-1 (Citations omitted).

1. Alivia’s Needs

Alivia reached age seven in May of this year. The court has before it only scant evidence on the details of her life experiences before the events of 2016. At the time of her birth, mother and Jose C. had already cohabited for several years. Their first child was born in 2009. Both were habitual substance abusers well known to the prosecuting authorities. Their relationship included repeated instances of domestic violence by Jose against Kelly, in response to which she would seek respite with friends. At least once, approximately nine months prior to Alivia’s birth in May of 2011, she became intimate with Mario while sheltering in his home. This resulted in Alivia’s conception, although Kelly did not disclose that fact to him until sometime in 2015 when her relationship with Jose was coming undone. Although Jose had apparently been made aware from the beginning that Alivia was the child of another, he nevertheless signed Alivia’s birth certificate and treated her as his daughter.

In 2009, two years before Alivia was born, DCF had interacted with Kelly and Jose by filing a neglect petition with respect to their firstborn son. The court adjudicated that child to be neglected, but he remained in the parents’ custody under protective supervision. DCF involvement with the family on that basis had ended shortly before Alivia arrived. Jose and Kelly went on to have another child born in 2013 as well as a fourth in 2014. At the time of that child’s birth, mother was incarcerated. Along with her siblings, Alivia remained in the custody of Jose. Kelly again became incarcerated in 2015, and in the later year spent nine months at York Correctional. Apparently Alivia remained in Kelly’s care when Kelly was not in jail, and in Jose’s care when mother was unavailable.

Despite mother’s instability, and despite reports of repeated domestic violence when the two parents were together, the petitioner did not seek additional court intervention on behalf of this child until August 17, 2016. It did, however interact with the parents extensively between March of 2016 and...