98 Conn. App. 42 | Conn. App. Ct. | 2006
Lead Opinion
Opinion
After determining whether one of the statutory grounds for termination of parental rights under General Statutes § 17a-112 (j) exists by clear and convincing evidence, a judge is required to evaluate whether severing the legal tie between parent and child is in the child’s best interest. That task is among the most sensitive and difficult with which a judge is charged. Although a judge is guided by legal principles, the ultimate decision to terminate parental rights is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript. Having engaged in that process, the trial court in this case concluded that it was in the best interest of the minor child to terminate the parental rights of the respondent mother.
In its thoughtful and comprehensive memorandum of decision filed March 30, 2005, the court recited the following facts and procedural history. The child, D,
On December 12, 2002, the commissioner filed a petition for the termination of the respondent’s parental rights. The petition alleged that the child was being denied proper care and attention and that the respondent had failed to achieve personal rehabilitation after the court previously had adjudicated the child neglected. On November 16, 2004, the hearing on the termination of parental rights began.. Testimony was heard on a number of days over a period of several months. The court heard testimony from a child psychologist, social workers, the foster care coordinator, the child’s maternal aunt and the respondent.
In the dispositional phase of the proceedings, the court considered and made the requisite factual findings pursuant to § 17a-112 (k) and determined that terminating the respondent’s parental rights would be in the child’s best interest. The court concluded that “the evidence is clear and convincing that the best interest of [the child] is served by termination of [the respondent’s] parental rights . . . .” The respondent appealed. Additional facts will be set forth as necessary.
The respondent claims that the court improperly found, in the dispositional phase of the proceeding, that it would be in the best interest of the child to terminate the respondent’s parental rights. Specifically, the respondent contends that because the child has sufficient ties to his biological family and there is not currently any guarantee of adoption, the termination was not warranted. We disagree.
“Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is
“On appeal, our function is to determine whether the trial court’s conclusion was legally correct and factually supported. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling. . . .
“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 [under § 17a-112 (j)] exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.” (Internal quotation marks omitted.) In re Brea B., 75 Conn. App. 466, 469-70, 816 A.2d 707 (2003).
In the dispositional phase of a termination of parental rights hearing, “the emphasis appropriately shifts from the conduct of the parent to the best interest of the child.” In re Romance M., 229 Conn. 345, 356-57, 641 A.2d 378 (1994). During this dispositional phase, “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].”
In the dispositional phase of the proceedings, the court found that the seven factors listed in § 17a-112 (k) weighed in favor of terminating the respondent’s parental rights, and the court thoroughly documented its conclusions regarding those factors. Those findings, which need not be repeated here, are fully supported by the record. Moreover, the court found by clear and convincing evidence that it was in the child’s best interest to terminate the respondent’s parental rights. The respondent does not challenge the accuracy of any of
Although we acknowledge the respondent’s desire to maintain the child’s ties to his biological family members, we cannot reweigh the evidence or find facts. In re Ashley E., 62 Conn. App. 307, 316, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001). Deciding whether termination is in the best interest of the child is a difficult task that requires the court to weigh many different and sometimes competing interests. “The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. These legitimate interests of parent, child and state require a balancing of the factors involved in those interests. ... In every
The respondent has a serious and long-term history of instability stemming from drug abuse, mental illness and criminal behavior, which resulted in her incarceration. Despite numerous attempts to achieve personal rehabilitation, the respondent failed to stabilize her life. In determining whether termination of the respondent’s parental rights was in the child’s best interest, the court recognized that due to that instability, the respondent had “repeatedly been absent in [the child’s] life for long periods,” and that because of that absence the child “suffered through multiple foster home placements
In reaching its determinations, the court relied on the testimony of various witnesses, including Barbara P. Berkowitz, a psychologist and an expert in the area of child protection, parenting and family assessment as
Finally, the court considered evidence of the child’s progress, both emotionally and academically while in the care of his foster family. The court stated: “He no longer requires individual therapy, he now talks a lot about his feelings, he is doing well in school, he is in mainstream classes, and his grades are now all As and Bs.” As we have stated, “[i]t is indisputable that protecting the physical and psychological well-being of children is a compelling, as well as legitimate, state interest. ... A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens . . . . ” (Citation omitted; internal quotation marks omitted.) In re Shane P., 58 Conn. App. 244, 260, 754 A.2d 169 (2000). Although the termination would sever the legal ties the child had
The court concluded that terminating the respondent’s parental rights would be in the best interest of the child, as it would “allow [the child] to have closure. It would allow him to move on into either permanent foster care in his current and very supportive home with his current foster parents as his primary parents, or eventually, perhaps, give his consent for adoption.” It is abundantly clear that the court gave careful consideration to the concepts of closure and permanency and did not simply use those terms as empty incantations. The court clearly relied on the testimony of the commissioner’s program supervisor, Barbara Stark, who defined the term “closure” as it related to the child: “What it means is, for me and generally for children, is that they don’t have to continually be worried about, am I going to be asked to do something that I don’t want to do; am I going to be having to continually talk about something. . . . Well, closure means to me, and if I could use an analogy, it’s sort of like a revolving door where if you’re constantly bringing up issues, you’re never getting out of that door and moving forward, in or out of your current situation. And for me, that means with that closure, with you shutting that
The judgment is affirmed.
In this opinion PELLEGRINO, J., concurred.
The parental rights of the respondent father also were terminated. Only the respondent mother has appealed. We therefore refer to her in this opinion as the respondent.
The respondent has two other children, J and K. K also was subject of a petition for termination of the respondent’s parental rights. During the course of the termination proceeding, by agreement, the commitment of K was revoked, and custody and guardianship was given to his maternal aunt.
At the time of the hearing, the respondent was incarcerated and had been since September, 2003. She was scheduled to be released in May, 2005.
General Statutes § 17a-l 12 (k) provides: “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered,
The respondent relies on In re Migdalia M., 6 Conn. App. 194, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986), to support her argument that the child’s ties to his biological family should have weighed more heavily in the determination of the child’s best interest. We first note that unlike the present case, in which the respondent is challenging only the dispositional phase of the proceeding, In re Migdalia M. concerned an appeal from the adjudicatory phase of the trial. Second, we, as a reviewing court, cannot substitute our judgment for that of the trial court. In re Brea B., supra, 75 Conn. App. 469. The wisdom of the commissioner’s decision to seek termination of the respondent’s parental rights in the first instance is not, of course, before this court. Nor is this court asked to decide if it would have analyzed the evidence precisely as the court did, drawn the same inferences and reached the same conclusion. We simply cannot substitute our judgment for that of the trial court. Id.
As of the time of the hearing, the foster parents had indicated that although they were willing to provide a home for D as long as he needed one, they were not presently ready to take the next step toward adoption. We note, however, that there was no evidence presented that the foster parents were opposed to the possibility of adoption in the future. We also note that our Supreme Court has stated that “ [although subsequent adoption is the preferred outcome for a child whose biological parents have had their parental rights terminated ... it is not a necessary prerequisite for the termination of parental rights. While long-term stability is critical to a child’s future health and development . . . adoption provides only one option for obtaining such stability.” (Citations omitted.) In re Eden F., 250 Conn. 674, 709, 741 A.2d 873 (1999). Despite foster parents’ “hesitancy about committing themselves to adopting [the child, they] have indicated a willingness to provide [him] with a permanent foster home .... [T]he trial court reasonably could have concluded that the possibility of a permanent placement with [the child’s] current foster family was preferable to the continuing uncertainty of the status quo.” Id., 709-10.
During oral argument, the respondent emphasized the commissioner’s withdrawal of her termination petition with regard to K and reasoned that D should be treated no differently. This argument ignores the fact that there was ample evidence presented to the court that demonstrated that D and K were entirely different children with different issues. As the commissioner’s program supervisor, Barbara Stark, testified, “[t]hey have different needs. They have different desires and wishes. Their behaviors speak differently about them. [D] has stabilized in his placement. He has expressed his wishes, and he is very different. Hopefully, the future for him will be different with the decision for a termination versus what [K] is expressing and where [K] is at emotionally and psychologically at this point.”
Whatever positive feelings the child may have had toward the respondent, at the time of trial, he refused to have any contact with her. Although D expressed no opinion as to whether he wanted the respondent’s parental rights to be terminated, the record reflects that he made it clear to the foster care coordinator, Jill Rusk, that he wanted “to stay in Iris foster home forever . . . .” The respondent suggests that sharing news of her alleged terminal illness might strengthen the weakened bonds between her and the child. The respondent, however, has failed to provide evidence of the existence of her alleged illness despite repeated requests from the commissioner.
The question was asked with reference to both D and K prior to the commissioner’s withdrawal of the termination petition as to K.
The respondent argues that prior to the termination proceeding, Berkowitz had advised against termination. The record, however, shows that Berkowitz did not in fact advise against termination, nor was she asked to make an evaluation on termination, which is illustrated by the following testimony during cross-examination by the respondent’s counsel:
“Q. . . . Regarding your first evaluation done in October of 2002, did you recommend [termination of parental rights] and adoption at that time?
“A. That was not the referral issue. I recommended, in fact, it says right on page fifteen, present time, the psychologist is not aware of any termination of parental rights petition filed by [the commissioner]. So, that was not [a] referral question. This was an assessment about this placement that had just occurred and what services would be needed to facilitate this placement so that it could be either permanent foster care or long-term foster care. I also said that I would not be surprised if termination and potential for adoption might occur down the road, but at that time, that was not the referral issue.
*52 “Q. So, that wasn’t an issue for you at that time?
“A. No, it wasn’t a referral issue. It’s not whether it’s an issue for me.
“Q. Well, on page fifteen, at that time, the appropriateness of termination [and] adoption may be easier to evaluate. That gives me the impression that you were considering it. You said [that] in the future, it would not be surprising if termination and adoption is in their best interest.
“A. That’s what I just said.
“Q. But at thatparticulartimein October of2002, did you consider whether that would be in their best interest at that time?
“A. Well, I’m not sure that I really understand your question. I think what I said in here is pretty clear that in the future, it would not be surprising if this was what is considered. But this was not a court-ordered evaluation. There was no termination petition.”
In reliance on Michaud v. Wawruck, 209 Conn. 407, 413-16, 551 A.2d 738 (1988), the respondent argues that the child’s ties to his biological family members should weigh heavily against termination of her parental rights. In Michaud, our Supreme Court acknowledged the expanding nucleus of the modem family. Although we recognize the importance of a child’s ties to biological family members and do not discount the significance of connections with extended family, we cannot substitute our judgment for that of the trial court. See In re Brea B., supra, 75 Conn. App. 469. Moreover, “[i]n the dispositional phase of a termination proceeding, the court properly considers only whether the parent’s parental rights should be terminated, not where or with whom a child should reside following termination.” In re Sheena I., 63 Conn. App. 713, 726, 778 A.2d 997 (2001).
The following exchange took place during trial when the respondent was questioned about her future plans to reunite with her children:
“Q. Now . . . you are not offering yourself as a placement for the children upon your release. Correct?
“A. Not right at this moment, no.
“Q. But sometime in the future, you probably would want to regain guardianship of the children. Correct?
“A. Yes.
“Q. And what do you feel you need to do in order to be suitable to be their caretakers?
“A. First of all, like I said, I go to mental health. I need mental health, because I need to — not just for medication. I need mental health, you know, because I do have a lot of issues that I need to address: Sexual abuse, drug issues, things that I feel that I have to get myself together before I can take care of my ldds. I need my issues together and those are some of the issues that I need to get together before I can even get to my kids. I need to get my life together as far as my issues of my life and what happens to me and*55 the things that I didn’t do when the things happened to me. I didn’t get the treatment that I needed. I guess I can’t really blame it on drugs, but I fell short and used drugs for that route. But I plan to get my mental health issues and my sexual abuse issues and my drug issues together before I could reunite with my kids.”
Dissenting Opinion
dissenting. “The termination of parental rights ... is a drastic solution; it severs all ties between parent and child . . . A In re Bruce R., 234 Conn. 194, 214, 662 A.2d 107 (1995). In my view, this extreme measure was not warranted in this case. I conclude that this fourteen year old child’s best interest is
The majority correctly notes that we are bound to review, not retry, the trial court’s factual determinations. I wish to emphasize, however, that our authority extends to determining whether the court properly carried out its statutory duties and whether its fact-findings met the requisite standards. In particular, we are bound to review whether the trial court properly made findings by clear and convincing evidence that the child’s best interest is served by termination of the respondent’s parental rights. I take issue with the majority on this score. Although the majority credits the trial court with having found “by clear and convincing evidence that it was in the child’s best interest to terminate the respondent’s parental rights,” nowhere in the court’s memorandum do such findings appear. The adjudication portions of the decision are supported by facts found by clear and convincing evidence. The § 17a-112 (k) portion of the disposition consists of fact-findings by clear and convincing evidence. The crucial section of the court’s memorandum of decision devoted to determining the child’s best interest, a separate portion of the disposition phase, however, consists of a medley of facts drawn from other sections of the memorandum and significantly, of observations, none of them meeting the clear and convincing standard. The reason is evidence. Despite the use of traditional concepts and traditional language of parental termination cases, the
The fundamental facts concerning the child’s present situation add up to a factual conclusion that his best interest will be seived by maintaining his family relationship with the respondent. A result that terminates the only permanent relationship that the child is assured of, that is, with the respondent and her family, leaves him with no permanent relationships, so far as we can tell from the record in this case. At age fourteen with no likelihood of adoption even by the family that, according to some testimony, has made some sort of “long-term foster care” commitment to him, the child has everything to lose and nothing to gain by a termination of the respondent’s rights. It was made crystal clear at trial and on appeal that the child has no opinion— certainly no informed opinion — on the issue of termination. He does not understand the concept; it has no meaning for him at this time. Although at the moment, he does not want to see the respondent and does want to remain in the present foster home, it is likely that his views may change in the future. Nothing in the trial court’s findings or in the record suggests that he will be expelled from this foster family if the respondent’s parental rights remain intact. On the other hand, the
The trial court accepted the arguments made by the petitioner that it was in the best interest of the child to terminate the respondent’s parental rights on the basis of “closure,” “permanency” and “stability.” The record reveals, however, that despite the use of these buzzwords, which deserve no talismanic significance, termination was unnecessary and unwise. According to the trial court’s findings, the child is prospering at present despite the lack of “closure,” “permanency” and “stability” that has existed since he has been in the foster home. I further note that the concepts of “closure,” “permanency” and “stability” were introduced by the petitioner’s witnesses rather than by the child, who did not testify. Moreover, some of the petitioner’s witnesses purported to offer his views through unreliable testimony. When the trial court reached the crucial issue of best interest, which must be established by clear and convincing evidence, it failed to indicate that it found best interest by that standard.
The trial court based its decision on a few facts and numerous observations that departed from the facts that it previously had found. The court noted that “he is a very adoptable child” despite its finding that there is no reason to believe that adoption will occur in this instance. The court next noted: “He is old enough to be fully cognizant of his attachment to his foster parents such that removal from their home would cause him considerable emotional harm as a result of the loss of that bond, particularly in light of the number of times that it has previously happened to him.” Removal from the foster home is a red herring because whether the respondent’s parental rights are terminated or not, he
The court then concluded that the child’s best interest will be served by “freeing him from the legal relationship with [the respondent] and legalizing his status so that a family . . . can provide him with the love and care he requires.” The fact is that this liberation will, a mere four years from reaching majority, serve to terminate permanently his legal relationship with the respondent and her blood relatives. The record reveals no reason why termination is necessary or desirable. His present positive situation, living with his foster family for the next four years, will continue with or without termination of the respondent’s rights. The concepts of
Only one participant in this case has anything to gain by a termination of the parental rights of the respondent — the petitioner. Although not strictly before us, it is evident from the record that the petitioner chose to pursue termination against the advice of Barbara P. Berkowitz, a child psychologist. Berkowitz emphasized that the child needed to consent to any plans for adoption or adoption would not work. Additionally, she indicated that permanent foster care would achieve the same goals as the termination of the respondent’s parental rights. Simply put, according to Berkowitz, who was qualified as an expert witness,
The petitioner also chose to pursue termination contrary to the express recommendation of the child’s
Moreover, the record before this court reveals that the child’s counsel made clear that the child has no wish for and takes no position in favor of terminating the respondent’s rights. Further, there was no indication that he rejected a possible future reconciliation. The reasons cited by the court — closure and permanency— while traditional concepts in this field, are mere artifices, irrelevant to this fourteen year old child at this stage of his life. Nothing in the record indicates that a wish for closure of the respondent’s relationship with the child or permanent foster status without natural or adoptive parents was expressed by the child.
We have stated that “[t]his court is ever mindful of the gravity of the proceeding that may end in the termination of parental rights and results in the complete severance of the legal relationship, with all its rights and responsibilities, between the child and the parent." (Emphasis added.) In re Ashley M., 82 Conn. App 66, 70-71, 842 A.2d 624 (2004); see also In re Kachainy C., 67 Conn. App. 401, 406, 787 A.2d 592 (2001). “The interest of parents in raising their children, and in their children in general, is a fundamental right. That right warrants deference and protection. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972). Termination of parental rights does not follow automatically from parental conduct that might justify the removal of a child from the natural parental home.” (Emphasis added.) In re Alexander T, 81 Conn. App. 668, 672-73, 841 A.2d 274, cert. denied, 268 Conn. 924, 848 A.2d 472 (2004).
The termination of the respondent’s parental rights represents a drastic step that, in my view, should not have been taken. In a real sense, this is a case in which traditional analysis, traditional concepts and traditional
For the foregoing reasons, I respectfully dissent.
The court stated: “Although the foster parents are not willing to be an adoptive resource for [the child], they are committed to caring for him under long-term foster care. The foster parents report that he will be welcome in their home forever.”
Barbara Stark, a program supervisor employed by the department of children and families, conceded in her testimony that the child may want to reconnect with the respondent in the future and that confronting his issues with her may help him to move forward in his development toward adulthood.
“The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T, 9 Conn. App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).” (Internal quotation marks omitted.) In re Kezia M., 33 Conn. App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).
Attorney Mildred Doody, the child’s guardian ad litem, testified that she believed that “for the present time, it would be in [the child’s] best interests to remain in his present placement, but, with a plan of long foster care.” She explained that the fact that the foster family was not ready to take the significant step of adoption, coupled with the child’s clearly expressed desire to continue his relationship with his brother, aunt and grandmother was the basis for her opinion. She further stated that the child never expressed a desire to have the respondent’s parental rights terminated. In short, she disagreed with the petitioner regarding the need to terminate the respondent’s parental rights.
Barbara Stark, a program supervisor employed by the department of children and families, stated that she had never spoken with the child, himself.
Renata Tecza, a permanency planning social worker employed by the department of children and families, testified that it was common for children to be upset by seeing their parents incarcerated.