as: 1993 WL 566662)
Superior Court of Connecticut, Juvenile Matters.
In re JESSICA T. FN1
FN1. Consistent with General Statutes Section 46b-124 and the practice employed by our appellate courts pursuant to General Statutes Section 46b-142(b) and Practice Book Section 2026, the full names of the individuals involved in this Juvenile Court proceeding are not disclosed herein.
Dec. 20, 1993.
MEMORANDUM OF DECISION
*1 Jessica T. was born on April 5, 1983. The mother of the child is Janet A., date of birth January 17, 1965; the father is Paul T., date of birth June 13, 1962. Jessica T. was committed to the Department of Children and Youth Services (DCYS), now the Department of Children and Families (DCF), as a neglected child on August 31, 1989. FN2 This petition to terminate parental rights was filed by the Department on November 18, 1991.
FN2. The commitment was extended to September 2, 1992, and thereafter, to March 2, 1994.
The termination petition alleges statutory grounds under General Statutes Section 17a-112(b)(1) (Abandonment: respondent/father), (2) (Failure to Rehabilitate: respondent/mother), and, (3) (Acts of Commission or Omission: respondent/mother).
NOTICE AND JURISDICTION
The petition shows respondent/mother residing at a specified address; the return of service annexed to the petition indicates that the mother was served in hand at the said address.
The named father is shown on the petition as last known of East Hartford; pursuant to this court's order of notice, legal publication was placed in the Hartford Courant. FN3
FN3. The newspaper filed an affidavit, with an attached, clipped legal advertisement, confirming publication in the Legal Notices section on November 25, 1991. On December 17, 1991, service on both parents was confirmed, on the record, in court: “mother in hand; father by publication.”
The petition indicates that respondent/mother is of Native American descent: Athabascan (Alaskan); accordingly, Jessica T. is an “Indian child” and the federal Indian Child Welfare Act (ICWA), 25 United States Code, Section 1901 et seq., pertains in this proceeding. FN4 Regarding notice, the ICWA provides, as follows: “In any involuntary proceeding in a State court, where the court knows ... that an Indian child is involved, the party seeking ... termination of parental rights ... shall notify the ... Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” 25 United States Code, Section 1912(a). In compliance with the ICWA, notices were sent (with enclosed copies of pleadings) to: Village Administrator, Native Village of Tyonek, Tyonek, Alaska; and, Cook Inlet Tribal Council, Family Services Dept., Cook Inlet Region, Inc., Anchorage, Alaska. FN5 As per the federal enactment, the aforesaid said notices were forwarded by registered mail, return receipts requested; the official court file contains signed green receipt cards for both of the said mailings.
FN4. Evidence was received regarding the applicability of the ICWA. Documentation was presented from the Native Village of Tyonek, Tyonek, Alaska, and from the United States Department of Interior, Bureau of Indian Affairs (BIA), Juneau, Alaska Office; the documents indicate that respondent/mother is registered as one-half Native American (her mother, also shown as registered, was native Athapascan), and, that both Janet A. and Jessica A. (as well as the child's maternal grandmother) are registered on the Tribal Roll as members of the Athapascan Tribe of the Native Village of Tyonek. Additionally, the names of both mother and child are certified by the BIA as listed in the Alaska Native Claims Settlement Act roll, with an issued ANCSA enrollment number.
Under the ICWA, the term “Indian child” is defined as meaning “any unmarried person who is under the age of eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” Title 25 United States Code, Section 1903(3). The term “Indian tribe” means “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians, including any Alaska Native village as defined ... [in] the [ANCSA].” See: Title 43 United States Code, Section 1602(c).
The parties hereto have stipulated that Jessica A. qualifies as an “Indian child” under the federal Act and, therefore, that the ICWA is applicable to these proceedings. See: Petitioner's Memorandum Re Applicability of the ICWA, filed 1/13/93; Trial Brief, filed by the child's attorney dated July 30, 1993; and, Respondent's Trial Brief, dated September 17, 1993.
FN5. The court file indicates that initially (on or about November 21, 1991) notice of the TPR filing was sent by the Clerk to: Tribal Court/Clerk, Athapascan Indian Tribe, A.H.P.N.A., Inc., P.O. Box 823, Cooper Landing, Alaska. The certified mailing (return receipt requested) came back with a notation showing an incorrect, undeliverable address. On or about 12/30/91, respondent/mother's counsel informed the Clerk of Court of the correct addresses for purposes of notice under the ICWA; following receipt of that information, notices, with copies of the pleadings, were forwarded as required by the ICWA.
Attorneys were appointed for both the respondent/mother and the child; the petition was contested and fully litigated. The court hereby finds that notice was provided in accordance with the requirements of law, and that this court has jurisdiction to adjudicate the instant petition.
STANDARD OF PROOF
With regard to “termination of parental rights,” the term is statutorily defined as “the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent or parents so that the child is free for adoption....” General Statutes § 45a-707(g). It is a judicial matter of exceptional gravity and sensitivity. Anonymous v. Norton, 166 Conn. 421, 430 (1975). Termination of parental rights is the ultimate interference by the state in the parent-child relationship and, although such judicial action may be required under certain circumstances, the natural rights of the parents in their children “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, 405 U.S. 645, 651 (1972).
*2 The constitutional guarantee of due process of law requires that the statutory ground(s) for termination of parental rights be established by “clear and convincing” evidence; not merely a fair preponderance. Stantosky v. Kramer, 455 U.S. 75 (1982). Thus, the standard of proof as mandated by General Statutes § 17a-112(b) and Practice Book § 1049 is “clear and convincing” evidence.
Termination of parental rights is in two stages: the adjudication and the disposition. The adjudicatory stage involves the issue of whether the evidence presented established, by clear and convincing evidence, the existence of one or more of the statutory grounds as of the date the petition was filed or last amended (substantively). In Re Juvenile Appeal (84-AB), 192 Conn. 254, 262 (1984) ; In Re Nicolina T., 9 Conn.App. 598, 602 (1987) ; In Re Luke G., 40 Conn.Sup. 316, 324 (1985). Only upon establishment of one or more of the statutory grounds, in accord with the mandated standard of proof, may inquiry be made regarding the ultimate best interests of the child.
The parties have agreed that the ICWA applies to this litigation. Section 1901, of Title 25 United States Code, entitled “Congressional findings”, recognizes “the special relationship between the United States and the Indian tribes ... and the Federal responsibility to the Indian people;” it reads, in various parts, as follows:
“... congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources”
“there is no resource that is more vital to the continued existence and integrity of Indians than their children and ... the United States has a direct interest ... in protecting Indian children who are members of or are eligible for membership in an Indian tribe”
“an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and ... an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes....”Consistent with the aforesaid, Section 1912(f) of the federal statute mandates: “No termination of parental rights may be ordered ... in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” Respondent/mother has filed, and relies upon, the United States Department of the Interior, Bureau of Indian Affairs, Guidelines for State Courts, Indian Child Custody Proceedings, 44 Federal Register No. 228, pages 67584 thru 67595, November 26, 1979. With reference to Section 1912(f), and “Standards of Evidence”, the federal guidelines state:
*3 “By imposing these standards, Congress has changed the rules of law of many states with respect to the placement of Indian children. A child may not be removed simply because there is someone else willing to raise the child who is likely to do a better job or that it would be ‘in the best interests of the child’ for him or her to live with someone else. Neither can a ... termination of parental rights be ordered simply based on a determination that the parents .. are ‘unfit parents.’ It must be shown ... that it is dangerous for the child to remain with his or her present custodians. Evidence of that must be ‘clear and convincing’ for placements, and ‘beyond a reasonable doubt’ for termination. (Emphasis added).
44 Federal Register No. 228, at p. 67593.
The credible evidence presented during the orderly course of the trial established the following facts.
A. Factual Findings As to Events Antedating the Filing of the Termination Petition
Respondent, twenty-eight years of age, grew up primarily in the Hartford area as the youngest of two children; her mother was of native Alaskan origin and her father was French Canadian. FN6 She completed ten grades of formal education and received her GED in 1985. It is reported that respondent, around the age of two, moved from Connecticut to Alaska with her mother and sister, living there for approximately one year. The family returned to the Hartford/New Britain area where respondent/mother reentered local schools. Janet A. then returned to Alaska for approximately two months at age fourteen, and later for roughly three months at age sixteen.
FN6. Both of respondent/mother's parents (the maternal grandparents) are now deceased. Respondent's mother died in 1984; it is reported that respondent's father was the victim of a murder when she was approximately seven years of age. Respondent had two siblings, one of whom died at age three months.
When she was fourteen years of age, respondent/mother resided with a foster family in Connecticut. She returned to her mother's Hartford home when she was fifteen, but not long thereafter the family ceased living together. FN7 Respondent left high school, worked briefly in a fast food restaurant, and, when evicted from the Hartford apartment, went to Arizona to live with relatives. She returned to Hartford in a few months and, around that time, met the respondent/father, Paul T. Janet A. and Paul T. subsequently took up residence together and lived at various times, in a number of states including Maine, California, Alaska, and Utah. The couple had been together for roughly three years when Jessica T. was born in Connecticut in 1983. Shortly after the child's birth, they moved to California, but were again back in Connecticut when the child was approximately age seven months. At about this time, Paul T. apparently insisted on returning to California, but respondent/mother, having tired of the frequent moves, and because of the increasing turmoil in their relationship, remained in Connecticut with the baby. Respondent/father has had no significant contact with Jessica T. since that time and, as stated, his whereabouts have been, and are, unknown.
FN7. According to documentation in the court file, respondent and her sister were substantially “deserted” by their mother who left them no means of support.
After Paul T. left Connecticut, the mother, having no place to stay with the baby, requested foster placement for Jessica in late 1983. Around that time, respondent/mother secured employment at a discount store, met JD, and began living with him in Hartford; in early 1984, Jessica T. returned to her mother's care. Janet A. and JD were married in 1985. The family resided at a number of addresses in Hartford and in New Britain; two sons (Jessica T.'s half-brothers) were born to respondent/mother from the marriage to JD: Jos. D., d/o/b, 2/9/85; and, Jar. D., d/o/b 3/6/88. According to the mother, JD cared for Jessica a great deal while the child was very young; also, apparently two of JD's sisters were close to the family during this period: BB and AP. Additionally, Jessica A. developed and maintained, a relationship with Marie D., JD's mother, who was the paternal grandmother of Jessica's two half-siblings.
*4 The marriage between Janet A and JD was marked by domestic violence and spousal abuse. In 1987, DCYS received reports of alcohol abuse, dreadful living conditions in the family's apartment, and at least two referrals regarding Jessica T. FN8 The couple separated in May 1988, and a dissolution of the marriage was finalized in December, 1988. At some point in 1988, respondent/mother took up residence with BA; in December 1988, a referral was received by the agency from Jessica's school nurse; the child reported that a scratch on her face resulted from disciplining by BA. FN9
FN8. Information and referrals were received from members of JD's family.
FN9. Jessica A. was observed to have a scratched area on her face the size of a silver dollar. The child stated that BA disciplined her and her brother with a belt. When the DCYS worker confronted the mother with the child's statement, Janet A. denied that BA was ever allowed to discipline the children, stating that it was JD who had hit them with a belt, which was the primary reason she had separated from him. The mother stated that JD was physically abusive to both her and the children. A month earlier, the child also was observed to have had a scratch and, at that time, indicated that her brother “did it.”
In mid-January 1989, DCYS received a referral from the principal of Jessica's school regarding a mark on the child's eye; Jessica had reported that she had been hit in the eye and on the backside with a belt. Investigation revealed that respondent/mother had moved and agency workers were unable to locate the family. On March 9, 1989, the Department received an anonymous referral regarding fading bruises on the child; the family was located and Jessica stated she had been hit “awhile earlier” by her mother “with a spoon.” When interviewed, respondent/mother denied striking the child, but requested that Jessica be placed in foster care. The respondent mother maintained that the child did “not care about the family,” wanted everything, was “spoiled”, and would not “help out” (clean her room, etc.); it was explained to mother that foster placement was utilized as a “last resort,” and that, in the worker's view, the existing problems should be addressed, initially, through counseling. Although respondent/mother reportedly agreed to contact the Manchester Community Child Guidance Clinic, she allegedly informed the agency that she did not have time to attend counseling sessions, and still wished Jessica to be placed.
In April 1989, the child reported that her mother hit her with “the thing she uses on the horses”; however, Jessica, at that time, did not have any observable marks, and she did not recall when she had last been struck. On May 12, 1989, a DCYS worker, as part of a continuing investigation, interviewed Jessica T. in the presence of a police officer, along with members of the school system. Jessica repeated that her mother had hit her with a riding crop FN10 and, upon examination in the nurse's office, healing bruises were observed on the child's thighs. FN11 The child stated that she was hit by her mother, not the mother's boyfriend, and that her siblings were not struck by the mother. FN12 When confronted regarding the child's statement, respondent/mother denied hitting the child, stating that she had little time to devote to Jessica, because she was busy caring for the baby, FN13 going to school, working, and cleaning the house; the mother continued to maintain that the child was dreadfully “spoiled” and, by way of explanation for the bruises, stated that they might have been caused by neighborhood children throwing objects at her daughter. It was explained to the mother that the child would not be permitted to return home while the investigation continued, and respondent, reluctantly, signed a voluntary placement; FN14 however, later on 5/12/89, the mother rescinded the voluntary placement, insisting that Jessica be returned home. At that time, the DCYS worker sought, and obtained, a ninety-six hour hold. On or about May 15, 1989, the child was examined by a pediatrician who found observable linear bruises on the child's thighs and buttocks to be consistent with the statement of Jessica that she had been struck with a horse crop. On that date (5/15/89), the Department, based on the affidavits of the physician and the social worker, obtained an OTC which, following a contested hearing, was sustained on May 23, 1989.
FN10. During a portion of her childhood years, respondent spent much time at a friend's home, where that family kept horses; it is reported that Janet A. “learned all about horses” and apparently developed a degree of proficiency in the care and grooming of horses. Her work history includes employment (around the 1989 period) at the Mounted Police Division of a Connecticut law enforcement agency.
FN11. Multiple healing bruises were observed on the top entire left thigh which went around to the back of the thigh; another bruise, approximately the size of a half dollar, was observed on the back of the right thigh.
FN12. Jessica stated that her mother had struck her because her brother, Jos. D., had told the mother that she had kicked another person. The child told the social worker that she is hit by her mother because Jos. D. “lies and gets her in trouble.”
FN13. As stated, respondent's youngest child, Jar. D., was born on March 6, 1988.
FN14. Respondent/mother initially refused to sign the voluntary, stating she felt it would constitute an admission of guilt. At the time, police authorities were involved and criminal charges were contemplated; from the documentation admitted into evidence at this trial, it appears that Cruelty to Persons and Assault III charges were eventually brought, stemming from the 1989 allegations.
*5 With the request for the OTC, the agency, on May 15, 1989, filed a neglect petition; the petition alleged that Jessica was abused, in that she had non-accidental injuries, injuries at variance with the history given, emotional maltreatment, and was subjected to cruel punishment; further, that the child was neglected, in that she had been permitted to live under conditions, circumstances, and associations injurious to her well-being. On August 1, 1989, Jessica T., by agreement of the respondent/mother, was adjudicated a neglected child (“permitted to live under conditions, circumstances injurious to her well-being in that she was inappropriately disciplined”), and the abuse allegations were dismissed, without findings and prejudice. As stated heretofore, Jessica T. was thereafter committed to the Department on August 31, 1989 (also by agreement of the mother) for the statutory eighteen month period, which commitment has been periodically extended and remains in effect.
Prior to the adjudication and commitment, the court had ordered psychological evaluations of the mother and the child (with P/C and P/C with the foster parent). The order, dated 5/23/89, requested that the psychologist, in addition to the eleven standard areas of inquiry, determine “to what extent .. the mother's cultural ties with her Indian Tribe affect her child caretaking.” Dr. Mantell conducted his evaluation on June 22, 1989; he stated in a report dated July 10, 1989, the following:
“In the judgment of this examiner, the mother is presenting significant difficulties in her attitudes towards child rearing as well as in her particular attitudes towards this child which interfere with her ability to develop and discharge an appropriate parental relationship. There is no evidence at this time to indicate that the child rearing practices and problems of the mother are derived from her native Alaskan cultural heritage.” FN15
FN15. With regard to the mother's native Alaskan background, and the court's inquiry as to its impact on child rearing practices, Dr. Mantell's report refers to the following pertinent discourse with the respondent:
“Janet was asked about her knowledge of native Alaskan culture. She did not understand this question. She was asked whether she speaks a language other than English and she said she did not. She was asked if she was taught her native Alaskan culture and she said she was not. She remembered being teased as an Eskimo during her Hartford childhood. She has only spent a few months in Alaska and appears to be unfamiliar in a personal sense with its native language, culture, and practices. She currently works at a horse stable for the Mounted Police and said that her children love her work.”
The psychologist recommended: (1) the child be committed to DCYS to remain in the foster home; (2) respondent/mother be referred for out-patient counseling directed at her child rearing practices and attitudes; FN16 and, (3) the out-patient treatment be structured to explore those child rearing practices to which the child has been exposed within the extended family. FN17
FN16. Dr. Mantell indicated that the anger between mother and child, in 1989, was so strong that they were unable to bridge it with “even simple, positive communications and interactions.” The psychologist felt that if positive changes occurred showing a readiness on the mother's part to accept Jessica, and to love and properly rear her, then such might constitute a basis for a planned reconciliation. Otherwise, “the prospect for mother and child” would be an eventual “permanent transfer of guardianship” or a “termination of parental rights.”
FN17. The psychologist, in 1989, stressed additionally the importance of conducting “a full child rearing history ... in order to properly understand the behavior that the child is .. exhibiting and the dilemmas that have arisen in the relationship between mother and child.”
Consistent with Dr. Mantell's findings, the court, at the August 31, 1989 dispositional hearing, set the following expectations: (1) respondent/mother to maintain contact with DCYS; (2) full cooperation with the agency; (3) visit the child as often as the agency permits; (4) cooperate with the parent-aide in the home; (5) continue in individual and family counseling (Dr. Neems); (6) cooperate with the child's therapy (Manchester Child Guidance); and, (7) no inappropriate disciplining of the child. The CIP written expectation form was signed by the mother on 8/31/89, in the presence of her attorney; the form included the written advisement that failure to comply with the court established expectations would quite likely result in the Department's petitioning for termination of parental rights.
*6 Shortly after an initial placement under the ninety-six hour hold, Jessica T. was placed in the R foster home, where she has remained to date. Supervised visitation was established on a weekly basis at the foster home. Janet A. visited generally on a regular basis at the foster home into mid-August of 1990; FN18 the supervised visitations at the foster home were usually two hours in duration. The foster mother testified that the visits went well, the interaction between mother and child was favorable, the mother sometimes brought one or both of Jessica's half-brothers, and the child displayed signs of affection (hugs and kisses) toward her mother. On August 10, 1990, unsupervised home visitations (at respondent's home) were put in place; FN19 under the arrangement, Jessica would spend about six hours in her mother's home during each such unsupervised visitation session. The child was consistently expressing the wish to be with her mother and brothers; accordingly, the Department, acting pursuant to its statutory mandate, was undertaking, during this period, to effectuate a reunification. On September 22, 1990, the unsupervised home visits were extended to twelve hours and, on November 17, 1990, full weekend visitation was put in place (two days and two nights).
FN18. According to testimony, respondent/mother attended approximately fourteen arranged visitations between August and December 1989; during 1990, the mother attended thirty-nine supervised visitations, missing only four of those arranged.
FN19. It appears that the unsupervised visitation at home was supposed to commence on August 4, 1990, but was deferred as the mother travelled out of the country on that weekend with her husband, BA.
Janet A. began psychotherapy with Dr. Robert H. Neems on or about June 29, 1989; the purpose of the therapy was “to improve Mrs. A.'s parenting skills so that her daughter could be returned from foster care.” FN20 The therapy addressed several areas of the mother's parenting difficulties, including: (1) excessive use of punishment; (2) inadequate use of praise; (3) inconsistent discipline; and, (4) serious misconceptions by the mother regarding her daughter which had led to a lack of understanding of Jessica's wants and needs. In late November 1990, Dr. Neems reported that respondent/mother had made “minimal and inadequate progress” and that any return of Jessica to her mother's care would require “close supervision” by DCYS. The therapist's assessment was premised, primarily, on the mother's reluctance to acknowledge that she had mistreated Jessica, and what Dr. Neems perceived as an overly permissive parenting style on the part of the mother; in a progress report dated November 28, 1991, the psychologist wrote:
“This assessment is based upon the writer's work with Mrs. A. over the past one and one-half years. Mrs. A. has never acknowledged her mistreatment of her daughter. She insists that her parenting of her children is adequate despite the fact that she continues to be laid back in setting and maintaining limits, which sets up a situation where the children misbehave and Mrs. A. gets angry with them. This pattern of over-permissive parenting has been seen in the office in the way that Mrs. A. parents her youngest child, Jar. D. Repeated attempts to discuss this issue have been unsuccessful.”
In November 1990, Dr. Neems indicated that there existed “a strong bond” between respondent/mother and Jessica T., that they enjoyed seeing one another, and that the child has looked forward to increasing visitation with her mother. The psychologist maintained, however, that respondent's parenting methods allowed “too much freedom, setting the stage for subsequent disapproval, criticism, and punishment.” Such circumstances, in the therapist's view, placed that child at “significant risk” of further physical abuse, and at “some risk” of depression. Accordingly, it was recommended by Dr. Neems that Jessica T remain committed to the Department for “an extended trial period” following the return of the child to the mother's home, and that both mother and daughter continue in psychotherapy for the purpose of working on the mother's parenting skills and to assist Jessica in adjusting to the changes in her life.
*7 Through DCYS, arrangements were made for respondent/mother to receive the services and support of a parent-aide through the North Central Coalition for Children. Parent-aide contact, and services, began on or about July 20, 1990. FN21 On December 20, 1990, it was reported that respondent/mother had met with the parent-aide approximately three times each month (since 7/20/90), having missed roughly one-forth of the appointments. FN22 By December 1990, respondent had developed a good relationship with the parent-aide and, while the aide had not noticed a great deal of improvement relative to the mother's parenting skills, Janet A. had become more open in discussing her feelings, particularly regarding BA's angry outbursts, his drinking, and her own sadness about an abusive childhood; the parent-aide encouraged Janet A. to discuss those issues with Dr. Neems. In December 1990, the plan was for visits with the parent-aide to continue on a weekly basis, with the mother urged to contact NCCC if she needed additional help. The parent-aide was to remain involved with the family during the initial reunification with Jessica.
FN21. Unsuccessful efforts were apparently made by NCCC to contact the mother on 6/27/90, 6/29/90, and 7/3/90.
FN22. According to NCCC, the missed appointments were generally the result of the mother's leaving the home to do short errands before the parent-aide arrived, and then returning home past the appointed time.
On December 21, 1990, the child was returned to her mother's home. The reunification necessitated Jessica's transferring to a new school in the town where the mother resided with her husband, BA, and the two younger children. The evidence indicated that the child was not happy either in the new school or in her mother's home. The school nurse stated that Jessica was registered in the school during the December holiday vacation period; after she began classes, she was seen by the school nurse on several occasions and was described as a “sad, very unresponsive child.” On one occasion, Jessica fell asleep and told the nurse that she did not feel well. The foster mother, who maintained some contact with Jessica during this period, testified that the child spoke of a number of babysitters, that she hated the school she was attending, and that she tried to keep her room clean, but “the boys made it a mess.” The child indicated to the social worker that she helped her mother with the housework, that she swept, did dishes, and had mopped the floor; also, that she often took care of her brothers because her mother would be talking on the phone at a next door neighbor's residence. She also told various adults that her mother “yelled at her a lot,” and that at such times, she would often cry. On March 20, 1991, Jessica T. arrived at the school upset and crying; she reported to the school nurse that her mother had “yelled at her.” On March 21, 1991, the child was interviewed by the DCYS social worker in the presence of the school nurse; she stated she wished to return to, and reside at, the R foster home where she would be happier. Both the school nurse and the social worker testified that the discussed prospect of Jessica's returning to the R home resulted in the child's becoming a noticeably happier and more animated little girl.
*8 In mid-April 1991, respondent/mother requested the placement of all three of her children: Jessica T., Jos. D., and Jar. D.; at or about that time, Jessica T. was returned to the R foster home. Janet A. told the worker that she was experiencing financial difficulties, was losing her apartment, and had “no one to leave the children with while she worked a third shift job.” The mother stated that she was divorcing BA and was “overwhelmed as her children did not listen to her.” FN23 Jessica T. returned to the R home under the existing commitment, and her two brothers were placed by DCF under a voluntary. FN24
FN23. The information before the court seems to indicate that during the period Jessica was home, the mother was undergoing troublesome domestic problems and that there existed considerable turmoil in the household. Furthermore, documentation in evidence discloses that shortly before the requested placement of her children, respondent was arrested in connection with a criminal investigation in West Hartford (entirely unrelated to the children or this case).
FN24. On or about July 11, 1991, the two boys, at Janet A.'s request, were returned to their mother at a Western Massachusetts address.
Following the return of Jessica T. to the R. foster home, extended weekend visitations were discontinued; however, respondent/mother did visit the child approximately twelve times between April and December 1991. There were a number of scheduled visitations when the mother either did not appear at all, or called and spoke with Jessica, indicating that she could not keep the scheduled appointment. FN25 On August 5, 1991, respondent visited at the foster home while the Department social worker was present; the mother refused to communicate with the worker, but spoke with the foster mother, stating: “It's up to Jessica-if she can learn to live with the family.” According to the foster mother, the respondent stated she had not decided whether to sign termination consent forms, became angry, and left. She did, however, visit shortly thereafter, on August 10, at the foster home. Following an August 29 visit, Jessica revealed that her mother had inquired of her “if she thought she could get along with the boys (her two brothers);” the child reportedly stated to her mother, “I think I'm starting to like Joey a little bit.” At a September 12 visit, respondent/mother brought Jessica some clothes and sneakers.
FN25. It is reported that respondent/mother had arranged visitation with Jessica on April 24 and 27, 1991 to bring her to Riverside Park, but on both occasions neither showed up nor called to explain. The mother did, however, visit with the child on May 1 and 19, 1991.
Difficulties developed following an unsupervised visitation on October 14, 1991. After that visit, Jessica T. told her foster mother that respondent had given her a new telephone number, instructing the child not to divulge the number to either the foster parent or agency social worker. The child became upset and, according to the foster parent, went into “complete withdrawal,” not responding to questions directed to her. FN26 Upon discussion with the therapist, Dr. Neems, it was the psychologist's opinion that it was harmful to the child for the mother to tell her that she must keep secrets from those persons whom the child had come to trust. Dr. Neems felt, based on what had occurred, that future visits between the mother and child needed to be “highly supervised.” On or about October 18, 1991, respondent/mother was advised that with respect to future visitation, she would be required to telephone DCF and arrange supervised visits. The testimony indicated that during the balance of the calendar year 1991, there was at least one visitation in November, and two visitations in the month of December. As stated heretofore, the instant petition was filed on November 18, 1991.
FN26. It was also reported by Jessica's school teacher that Jessica was “withdrawn” and had “shut down” on three school days: October 23, 25, and 28, 1991; since this had never occurred before on successive days, the teacher telephoned Dr. Neems regarding “concrete ways to handle the situation.”
*9 Janet A. discontinued the therapy with Dr. Neems around the end of March 1991, shortly before Jessica returned to the foster home. FN27 Additionally, it appears from documentation in evidence that respondent's last contact with the parent-aide was around March 1, 1991. FN28 With regard to the court established expectation that the mother not engage in any inappropriate discipline of her children, there is no evidence that Janet A. physically abused the child at any time during the protracted period of commitment, including the four month period that Jessica had returned home; similarly, there was no evidence that Janet A. was abusive of either of the two boys. FN29
FN27. In a January 30, 1991 progress report, Dr. Neems stated that he had seen Jessica T. with her mother twice since the child's return home. The psychologist described the child, during both of the sessions, as looking very sad and expressing very sensitive feelings. The therapist believed that Jessica's sadness was, in part, because she missed the “love and attention she experienced in her foster family;” he stated: “she ... left a foster family that was very warm, loving, and nurturing and .. returned to her mother's home where there is an inadequate expression of love and praise.”
FN28. The documents indicate that during the months that the parent-aide worked with Janet A., approximately nineteen visits actually took place. Although the initial plan was to provide weekly service, respondent frequently was not present for a number of the scheduled meetings. On January 16, 1991, it was reported that the parent-aide had only been able to see the mother and child together on January 11, 1991; apparently the mother had not appeared for the aide's visit scheduled for the prior week (1/4/91). On April 18, 1991, following the March 1 visit, the parent-aide supervisor wrote respondent/mother referring to the difficulty encountered in contacting her, and set up an appointment for Friday, April 26. On May 3, 1991, NCCC wrote the mother terminating the parent-aide services, stating that “repeated attempts on the part of [the aide] to visit you have proven fruitless.”
FN29. There were reports (not direct evidence) concerning disciplinary incidents involving a stepfather (and the boys) which, at best, demonstrated very questionable disciplinary practices. DCYS has received no referrals regarding the boys during the long period that Jessica has remained under commitment to DCF. When the isolated incidents involving the stepfather were disclosed, the social worker spoke with him about participating in the counseling with Dr. Neems; the stepfather agreed to do so, but never did follow through on the recommended counseling.
With reference to maintaining contact and cooperating with DCF, it is the agency's position that over the years respondent was just minimally cooperative. However, the evidence indicates that for most periods during the commitment, the worker, the foster parent, and the therapist were all aware of where the mother was residing and had recurring contact with her. The mother and child visited, and communicated telephonically, on a fairly regular basis; in 1990, the mother cooperated with the social worker in the preparation and signing of a service agreement. During a time of particular turmoil in Janet A.'s domestic situation, she voluntarily placed the children. Respondent maintains that at the times she did not wish to disclose her address or telephone number, she could always be contacted through her attorney, and had so advised the social worker. The agency contends that respondent/mother was generally resistant to the efforts toward rehabilitation and reunification. It is stressed that the mother never acknowledged any mistreatment of Jessica, and that she was not diligent in attending the periodic administrative planning reviews for her daughter. FN30 Further, that on occasions, the agency was not made aware of the mother's address and telephone number, and also that at certain times, respondent refused to talk with the worker or to allow the worker to come to her home. FN31 It is the court's view, based on all of the evidence, that while the relationship between the social worker and the mother had become quite strained, this was not a case, like so many, where the parent's whereabouts were continually unknown for long periods, where contact could not usually be made with the mother, and where cooperation was virtually non-existent. The mother, in this case, did generally maintain contact with both the child and the agency, as well as with the foster mother, and did present a plan for Jessica T. when, following the unsuccessful return home of the child in 1991, it became evident that Jessica could not reside in her mother's home, given the problems with her brothers and other difficulties.
FN30. Respondent/mother has consistently maintained that she did not physically abuse or strike Jessica T. To premise a conclusion of non-cooperation, or a lack of resolve to work with DCYS, upon the mother's refusal to admit to something she maintains she did not do, particularly where criminal charges have been pending, does not seem entirely proper. With respect to the planning meetings, however, it has been reported that Janet A. attended only one administrative review in regard to the treatment plan for her daughter.
FN31. There were two occasions that were specifically referenced in the evidence. One was the August 5, 1991 incident when the mother refused to confer with the social worker, but told the foster mother, apparently in the presence of the worker, that she was undecided about signing a consent to terminate. On May 15, 1991, not long after the child was returned to foster care, and at a time when the mother's domestic situation was exceedingly unsettled, the worker met the mother at home and, as the respondent did not wish to discuss matters relating to Jessica in the house, she was asked to accompany the worker over to the adjacent bank parking lot. At the bank, the mother stated she was in a hurry, did not turn off the car engine, and said she did not wish to talk about future planning for her daughter at that time.
It does not appear that respondent/father has had any significant contact whatsoever with Jessica T. since she was approximately seven months of age; it was at that time Janet A. and Paul T. separated, the father intending to return to California. Although abode service was effected on the father at the time of the filing of the neglect petition, he did not appear in that proceeding and, when this termination petition was filed, publication was required since his whereabouts were unknown. During the duration of the commitment Paul T. has not contacted DCF regarding the child, has not communicated at all with his daughter, her foster parent, or the social worker, and has remained whereabouts unknown.
B. Factual Events Subsequent to the Filing of the Termination Petition.
*10 After the filing of the termination petition, respondent/mother visited with Jessica T., on a bi-weekly basis, well into calendar year 1992; recorded visitations took place on 12/12/91, 12/18/91, 1/2/92, 1/18/92, 2/6/92, 2/12/92, 3/1/92, 3/15/92, 4/5/92, and 5/9/92.
As far back as the June 22, 1989 evaluation by Dr. Mantell, the mother had mentioned the child's living in Alaska with maternal relatives. FN32 Around January 2, 1992, DCF received a letter from MS, a maternal great aunt of Jessica T., expressing an interest in either adopting or obtaining the legal guardianship of Jessica T. MS resides in Anchorage and is a native of Tyonek Village (Athabaskan Tribe); in her correspondence with the Department, MS stated she believed it was “important for Jessica to remain in the extended family [and] to get to know here culture and heritage.” Janet A. expressed her agreement in having the child placed with MS and requested that if the home of the maternal great aunt in Alaska was approved, guardianship of the child be transferred as soon as possible.
FN32. In 1989, respondent told Dr. Mantell that she yells at her children because they do not listen to her, but she does not hit them. The mother stated that the child (Jessica) accused her because the child does not want to admit that she herself was wrong and had simply fallen and hurt herself. When asked where she would choose to have Jessica placed if the child could not return home, Janet A. stated she “would prefer to see her daughter sent to Alaska to live with a foster family or with maternal relatives.” The mother said that under such circumstances, “maybe she'll learn her lesson ... because she won't see me and maybe she'll realize, but she'll never admit she's wrong.” Dr. Mantell, based on what respondent had stated to him, viewed the mother as preferring to see the child live in Alaska as a punitive measure; the psychologist was told by the mother, in substance, that her daughter was so stubborn,” even being sent to reside in Alaska was unlikely to have a constructive impact on her.”
On or about January 14, 1992, DCF requested the State of Alaska (Department of Health and Social Services) to conduct an investigation of the great aunt's home through the Interstate Compact. Jessica T. initially expressed some interest in moving to Alaska, and apparently had received some correspondence from her great aunt; however, never having been to Alaska, the child understandably questioned what her life there would be like and how it would compare to what she experienced (and was experiencing) in Connecticut. FN33 During the pendency of the interstate study, Jessica T. continued in therapy with Dr. Neems with the understanding that the therapist would be working with the child, the foster mother, and respondent to prepare Jessica for the anticipated move to Alaska. FN34 On or about May 6, 1992, an Interstate Compact transmittal was received by DCF stating that representatives of the Alaska child protection agency had been unsuccessful in contacting MS; FN35 thereafter, when the Cook Inlet Tribal Council social worker was contacted, it was indicated that the great aunt remained interested in taking Jessica.
FN33. According to the evidence, Jessica was concerned about the school she would attend in Alaska, who her friends and family would be there, and, generally, whether she would be happy living in that jurisdiction. The child, quite naturally, was very concerned about leaving her present school, her friends, and the foster family with which she had lived for some time, and to which she had developed a strong emotional attachment. She was also quite concerned about leaving her mother, possibly not seeing her again, and about missing her own family.
FN34. As previously indicated, respondent/mother had stopped treating with Dr. Neems about a year earlier, in late March 1991. However when it appeared that Jessica's placement in Alaska might be viable, there were a few additional sessions conducted with the therapist. In August 1992, Dr. Neems reported:
“The writer's recent contacts with [Janet A.] consisted of four sessions with Jessica and [the mother] conducted between April 2 and July 6, 1992. The focus of these sessions was on helping Jessica adjust to the idea of moving to Alaska to live with one of [Janet A.'s] aunts. [The mother] was fearful that Jessica would feel rejected that she was being sent away. She offered Jessica some information about Alaska, but still couldn't show Jessica the kind of positive attitude which might give her a real emotional lift.
FN35. An earlier letter from the Alaska agency related the following in regard to the efforts made to interview MS:
“... I have had no success in reaching [MS], the person you requested a home study on for possible placement of [Jessica T]. On March 6, 1992, I mailed a letter to [MS] requesting that she contact me. She did not respond for two weeks. I called her and arranged for a home visit on April 7, 1992. Although our visit was confirmed, [MS] was not at the house when I arrived there. I left my card with my phone number, requesting that she please call. I did not hear from [MS] for two more weeks. I called her home on April 24, 1992. She was not at home. I left a message for her to call me back. As of today, April 29, I have not heard from her.”
On or about July 27, 1992, DCF received the Interstate Study from Alaska; FN36 placement of Jessica in MS's home was not recommended by the Department of Health and Social Services, Division of Family and Youth Services, State of Alaska, based on MS's “apparent ambiguous feelings and [her companion's] refusal to be interviewed.” FN37
FN36. The Interstate report revealed that MS is a quiet, reserved woman; she has been employed for many years as an LPN. MS was divorced from her husband and raised their three children practically alone. MS's mother died when she was approximately eight years old; as her father was unable to care for MS and her sisters, they were placed in foster care. MS recalls, as a young child, picking berries with her sisters, her father hunting and fishing, and her mother canning vegetables and smoking fish. MS married in her twenties; she and her husband moved to Ketchikan, and eventually settled in Anchorage. Her husband was employed as a fisherman and a logger. MS, in raising her children, spent a great deal of time with them; she often took the children berry picking, sleigh riding, and ice skating. MS now has a very close relationship with her married daughter and with one adult son who resides in Tyonek; she is very supportive of her other adult son who lives in Anchorage, but not in his mother's home. MS and her companion own a mobile home located in a working class neighborhood of Anchorage; the residence has two bedrooms, so that had Jessica gone to Alaska, she would have had her own room. The residence was described as somewhat cluttered and slightly unkempt looking, but comfortable. MS related that because of Jessica T.'s age and past experience, she would not resort to spanking as a means of a discipline. MS enjoys fishing and camping and would have included Jessica in those activities; the great aunt believes that education is very important, and school work would have a high priority with MS.
FN37. The author of the report refers to ambiguous or unclear feelings on the part of MS and her companion regarding their receiving Jessica in their house; that observation is supported by material contained in the body of the report, which material would also show a degree of ambivalence on the part of MS in regard to accepting the caretaking responsibilities for this child. The social worker with the Alaska agency reported:
“[MS] has not demonstrated a strong interest in having Jessica live with her ... [MS] appears to have conflicting feelings around having Jessica placed in her home. She has never stated that she wants Jessica in her home.”
MS's companion, who lives in the house, refused to talk to the Alaska social worker. According to MS, he “strongly dislikes social workers.” The report indicates that he did not cooperate at all during the home study process.
Between June and October of 1992, respondent/mother visited with Jessica T. on three occasions. FN38 During this period, there was limited contact with DCYS and the mother's precise address was unknown to the agency. FN39 On August 4, 1992, the court, upon agreement of the parties, ordered a psychological update of mother and child (W/PC) to be performed by Dr. Mantell; the evaluation was scheduled for September 15, 1992, but mother did not appear for the appointment and never called to reschedule. FN40 After reviewing the documentation furnished (including the prior evaluation report), and interviewing the child and her foster mother, the psychologist concluded that a “seriously troubled relationship” existed between the mother and the child due to “both of their personalities and the distorted attachment process between them.” On the information presented, Dr. Mantell characterized the mother as a “self-perceived victim whose neglect of the child is probably a replay of her own unresolved family of origin difficulties and an unresolved sense of rejection by her own parents.” The evaluator felt that child had “multiple psychological parents,” but that with respect to the most appropriate of the various adults available “as potential guardians,” the child “should be placed with the foster parents.” Dr. Mantell, in his report, dated September 22, 1992, concluded as follows: “At this point, the appearance is that termination of parental rights [would] be in the child's best interests and that the child [would] continue to feel a need to see her mother, in which case an open adoption would be the preferable course.” Visitation by the mother with the child continued through November 1992 and into 1993. FN41
FN38. On June 6, 1992, the mother took Jessica home for a four hour visit; on that occasion, the child played outside with her brothers. On July 13, 1992, Janet A. had Jessica for five hours and took her shopping at a gift shop in Ledyard; following this visit, Jessica stated to the foster mother that BA was no longer residing with her mother. During a third visit, on or about October 3, 1992, respondent brought the child to visit MD, the paternal grandmother of Jessica's two brothers. According to DCF, this was the fourth visit Jessica T. had with MD during the three and one-half years she had been in foster care; prior to 10/3/92, the mother had taken the child to visit MD on two occasions, and the foster parent had brought her to MD's house once.
FN39. At this time, Jessica reported to the foster mother that Janet A. was living in Ledyard with a friend.
FN40. It is not entirely clear from the file whether notice of the 9/15/92 appointment was sent directly to the mother; as stated, there were times when her current address was not known to either DCF or the court. However, the notice and confirmation of the appointments with the psychologist went to the attorney who represented respondent/mother.
FN41. The visits of four hours in duration continued. Apparently there was no visitation in December 1992; the mother stated she called the foster mother in December to advise her that she had been ill and, additionally, that she was attending school in connection with her employment at the Foxwoods casino. According to respondent, the foster family visited Kentucky during the holidays, and did not return until a few days after Christmas.
*11 Respondent/mother testified that she had been told by Jessica that she wished to finish school and then “come home and live with her.” The mother is employed at Foxwoods and stated she had attended school, recently receiving certification as a card dealer at the casino. She has arranged to receive counseling from a therapist having background in, and familiarity with, the Native American culture and its family practices. FN42
FN42. The mother testified that the first appointment had been scheduled. She also testified that she had, for a period of time, worked at the casino daily on a 4:30 PM to 8:30 AM shift. At one point during the trial, her attorney advised the court that Janet A. had to leave in order to get to the casino by mid-afternoon, or was in danger of losing the employment there.
The DCF plan is to provide the child with permanency through the adoptive process. According to the social worker, the child has stated that she would like to remain in her current school through the 1993/94 school year and wishes to live with “a nice family,” visiting with her “mom once in a while.” The child has some understanding of adoption, as one of the children in the foster family is an adopted child. Jessica reportedly told the DCF worker that during a recent visit with her mother, she was asked where she wanted to live and responded she “did not know,” as she found it “difficult to answer that question to her mother.” Adoption by the foster parents is not viable. The child has been registered by the Department with the Adoption Resource Exchange; the agency has indicated that due to the child's Native American heritage, preference would be given to an Indian adoptive family. FN43
FN43. It has been reported that a Native American family has expressed a “strong desire” to adopt Jessica, and if an adoption was perfected, the family would allow the child to see her mother under a specific visitation arrangement. See: Brief of Child's Attorney, filed July 30, 1993, p. 10. No evidence, however, was presented of such development; petitioner merely established that if termination were granted, preference would be given to locating an Indian family.
C. Psychologists' Testimony
1) Dr. R.H. Neems
Dr. Neems testified that he is a psychologist licensed in the State of Connecticut. He received a Master's degree in psychology in 1974 from the University of South Carolina, and earned his Ph.D. in clinical psychology from St. Louis University in April, 1982. Dr. Neems has maintained his own professional practice since 1983, and has been associated with Hartford Hospital and the Institute of Living. He provides therapy to persons in all age ranges, but specializes in working with children who are in foster care, or who have been adopted. FN44 Dr. Neems has no educational background, training, or specialized knowledge in the area of Native American Indian heritage or culture; accordingly, he possess no particularized knowledge or information on the Alaskan Athabascan Tribe, or its prevailing child rearing practices.
FN44. Dr. Neems was qualified by the court as an expert witness in the field of clinical psychology with a specialty in the area of children that are in placement or adopted.
Dr. Neems began the weekly therapy sessions with Janet A., individually, in June 1989; after approximately six months, the weekly sessions continued with Jessica's joint participation. The psychologist was aware of the mother's Native American lineage from the beginning and knew that such ancestry might present an issue with respect to custody; however, it was not until some considerable time after the therapy with Janet A. was discontinued (actually, during the course of trial) that he consulted an article entitled “American Indians and Alaska Native Families: Emigrants In Their Own Homeland” (C. Attneave), which is included in a treatise entitled “Ethnicity and Family Therapy” (McGoldrich, Pearce, and Giordano).
*12 Dr. Neems saw Janet A. as having a distorted perception of her daughter, and responding to Jessica based upon that misperception, rather than upon a reasonable understanding of the child's actual and pressing needs. Janet A., according to the therapist, considers Jessica T. to be a “spoiled child”, motivated by a desire for material things, and therefore, as having purposely manipulated her placement in foster care by untruthfully stating that she had been hit by her mother with a riding crop. Dr. Neems testified: “Janet saw Jessica as being manipulative and throwing tantrums, lying about Janet's behavior towards her in order to achieve the ends that she wanted.” The mother's misperception of this child was addressed, at length, in the therapy sessions, the psychologist undertaking to help the mother understand that her daughter was a “scared, very needy” little girl who was “suffering from a lack of appropriate kinds of attention.” The mother's misperception was, in Dr. Neems' view, the result of her own problematic childhood and family background: that of a severely neglected child, with an alcoholic mother, a father who abandoned the family, and one left to grow up in extraordinarily difficult circumstances where she was basically responsible for raising herself. Dr. Neems testified.
“Janet has lacked the ability to understand what Jessica's needs are, and to understand what Jessica feels, and to respond appropriately. And in my ... view, that's most likely caused by her own very severe experiences of being neglected as a child ... Jessica has coped ... in a fashion a .. bit similar to Janet by finding other people who could supply some of her needs and she's formed attachments with a number of other people within her family, and then subsequently in foster care ... much of Jessica's behavior .. [is] attributable to the lack of Janet's ability to appropriately meet her needs in terms of appropriate discipline and understanding, and responding to Jessica's needs.”
In therapeutically addressing the problematical mother/daughter relationship, Dr. Neems stressed the need to praise the child; he testified:
“I felt that Janet's praising Jessica was critical to interrupt some of the negative spiral which occurred between them .. where Jessica would feel sad and neglected, and would act up some, and then Janet would respond by punishing her .. shouting at her .. and hitting her. And I felt like it was one thing to teach [the mother] appropriate discipline, but .. Jessica's needs, and the needs of the interaction between the two of them, dictated that Janet really needed to praise her daughter.”
The therapist felt respondent/mother, over the course of the therapy, made “very slight progress ... in terms of being able to praise” her daughter. During this period of time, however, Jessica's own emotional condition “improved greatly,” to some extent as a result of the therapy, but primarily due to the “high quality” foster placement which had provided an environment adequately meeting the child's emotional needs. Jessica T., over time, became far less depressed, and her self-esteem improved substantially.
*13 Dr. Neems agreed with Dr. Mantell that Jessica has a strong interest in maintaining a continuing relationship with her mother. FN45 While the child wants to maintain a relationship with her mother, and that is important to her, she has a reasonably clear sense, particularly after the 1990/91 four month experience, that it is unlikely she could reside, on a regular basis, with Janet A. FN46 With regard to a “psychological parent,” Dr. Neems observed that Jessica “always lived in an environment of multiple caretakers”; he testified:
FN45. The psychologist testified that Jessica T. expressed her strong attachment to her mother “numerous times in many different ways.” Once such instance was when it was determined Jessica would not be placed with her great aunt, MS, in Alaska. When so informed, the child was delighted, stating that she “never wanted to go [to Alaska] anyway because ... she was afraid she'd never see her mother again.”
FN46. Dr. Neems testified: “.. [Jessica] has a strong desire to maintain some degree of connection. [She] also knows that when she returned to live with her mother for four months, that it didn't work and she's still sad about that.”
“... her experience of living in foster care and being attached to her foster parents, while maintaining some wish to have a relationship with her mother, is kind of what her existence has been about ... Jessica does want to have a relationship with her mother, but she knows that it didn't work when she tried to live there and she knows that she can't count on it working in the future. In her own mind, if she could stay in foster care forever, she would be quite happy to do that.”
It is Dr. Neems' view that respondent/mother still is not in a position to be the child's primary caretaker, and he would not recommend that Jessica be returned to her mother's home: “I think that by continuing to blame the child for all the problems ... [Janet] shows her continued lack of empathy and understanding for her child's feelings and needs.” FN47 The psychologist stated that if the child were returned to her mother, he felt there would be “a very serious risk” of further emotional harm to Jessica. FN48 With respect to long term foster care versus termination of parental rights, Dr. Neems expressed the view that Jessica T.'s “primary need now is for permanency”, and therefore, “there's a very strong argument that the appropriate step is to terminate.” FN49 The psychologist spoke to Jessica about what adoption means and of finding a family in which she could grow up; the child clearly stated that she would be sad “if she could never see her mother, and expressed the preference to have a home situation where she could live permanently, comfortably and happily, but where she could also maintain a relationship with, and a connection to, her mother. Nevertheless, as between long term foster care and a termination of parental rights quite probably involving no future contact with respondent/mother, the psychologist testified he would still recommend the latter: “I agree .. [no future contact with biological mother] would be unfortunate, but permanency and security and stability are what Jessica dramatically needs.” FN50
FN47. The psychologist indicated: “I saw no evidence ... that [Janet] had stopped blaming Jessica for all the problems that had occurred. She was still stating things like, ‘if Jessica wants to get along with the boys and wants to be a part of the family, then I'll try to get her back;’ [t]hat continues to blame Jessica for the problems and continues to not understand her.”
FN48. He explained that Jessica had finally achieved a sense of self-confidence and of security which she would lose if returned to the mother; also, that the child quite likely would become depressed in her mother's care, which would impact on many areas of Jessica's life, including her performance in school.
FN49. Dr. Neems stated, as follows:
“I think long-term foster care prolongs [the] uncertainty of the situation, and would move Jessica another year, two, three years down the road into being an early teenager when she'll have to then confront all the crises of adolescence on top of still dealing with this uncertainty. It's far better to establish .. permanency for her now than to subject her to all the risks of allowing the situation to remain undecided.”
FN50. Dr. Neems went on to testify, however, as follows:
Q. ... obviously this child does love her mother in some fashion. Is that true?
A. The question of their real relationship versus their wished for relationship is relative to that point.
A. She wants to have a positive contact with her mother. In fact, they don't have a real positive contact.
Q. Is that important to her, to have a positive relationship with her mother?
Q. Is it very important to her?
A. Yes. It's also important to her to not continue to be blamed for things that aren't her fault. It's that kind of consideration that sways me to permanency versus long term foster care with some built in contact with mom.
In his November 1990 progress report, Dr. Neems referred to the “strong bond” between mother and daughter; and, in the August 1992 report, the therapist referred to Jessica's “wish to remain in close contact with her mother.” In 1992, it was the therapist's recommendation that the child retain a visiting relationship with the mother. In his reports and in his testimony, Dr. Neems has stressed the need for security and permanency, and has observed that Jessica has done well in foster care; the therapist stated: “[i]t is clear that she has fared better than most children in foster care.”
*14 Dr. Neems considers respondent/mother “to laid back in setting and maintaining limits”, and employing parenting methods that allow “too much freedom.” He acknowledged that he had not consulted the McGoldrich treatise until time of trial; after reviewing the relevant content of that work, the psychologist agreed that a “hands-off” parenting style is “culturally normative” among Native Americans:
“[Native American] parents have [a] norm of noninterference which means that there is a strong value placed on letting the child's innate individuality emerge. The parent may teach appropriate behavior but allows much more inappropriate behavior on the theory that natural consequences will modify behavior. Shaming and ridicule are also used.”
Dr. Neems believes that the Attneave article, contained in McGoldrich's “Ethnicity And Family Therapy ”, suggests that certain aspects of respondent/mother's parenting conduct” may be culturally normative.”
(2) Dr. D.M. Mantell
Dr. Mantell has testified as an expert on numerous occasions before this court and his outstanding qualifications as an experienced psychologist are well known in this jurisdiction. The witness received his Masters Degree in 1963, his Ph.D. in 1972, is a licensed psychologist in Connecticut, and has been practicing here for approximately twenty years. In this case, he was qualified by the court as an expert in the field of child and family psychology, with special emphasis in the area of child neglect and abuse. Dr. Mantell acknowledges that he is not an expert in Native American and/or Athabascan Indian culture, as such relates to therapy, although he has done extensive reading respecting the relationship between ethnicity and the effective provision of psychological therapy.
Dr. Mantell testified he is familiar with the McGoldrich book, “Ethnicity And Family Practice,” considers it a “very important textbook in the field,” and has “returned” to the treatise several times during the course of his practice in order to “read up” on specific cultures. FN51 With regard to Chapter Three of the treatise (Attneave's “American Indians and Native Alaska Families ...”), the psychologist testified that he read and studied it thoroughly on three occasions; however, each such occasion was in preparation for this trial, in connection with his testimony, and some time after his evaluations had been conducted. FN52
FN51. Dr. Mantell stated that “ “Ethnicity and Family Practice” is edited by McGoldrich and others; he indicated that he had known the lead editor, Ms. McGoldrich, as one of the senior members of the Philadelphia Child Guidance Clinic, which was a leading training and research institution for child psychiatrists and psychologists, and family therapists. Dr. Mantell testified that he had heard the McGoldrich name many times, had studied her research products, and was aware of her strong interest in ethnicity, its role in defining family culture, and in the training of family therapists to interact without being “overcome” by the specific cultural practices of particular clients. Dr. Mantell stated: “[this] work is very prominent in the family therapy field and ... is widely read because it is considered to be an excellent compendium of studies about different ethnic groups and .. cultural characteristics .. [which] can affect behavior and .. style of interaction.”
FN52. Dr. Mantell testified that he read Chapter Three twice before his testimony in this trial, and one other time, “about a month and a half” before. He described Chapter Three as “a discussion of some of the cultural characteristics of native American Indians, particularly from the Northwest Territories and Alaska .. and the extent to which these influence their presentation when .. seen for family .. and individual problems .... It contains a discussion of some of the cultural characteristics, how these affect their view of the world, their value structure, and their symptomatic presentation.”
In 1989, Dr. Mantell had recommended that Jessica T. remain in foster care, under commitment to DCYS, with the provision of appropriate mental health services to both mother and daughter; in 1992, the psychologist recommended, as he did at trial, that respondent's parental rights be terminated and the child be freed for adoption. He felt that the problems which had led to Jessica's initial placement had not been rectified, and that such circumstance did not result from any deficiency in the therapy provided by Dr. Neems, but from the mother's own inability to confront and effectively address her parenting inadequacies. The psychologist felt there should be an open adoption with continuing contact between mother and child, to the extent it was determined that such contact would not be harmful to the child. He viewed Jessica as “extremely vulnerable” to the formation of unrealistic wishes and beliefs in the relationship with her mother and, therefore, felt much caution and thought should go into the question of how any time between the child and the mother would be framed and supervised. If contact between mother and child was not closely monitored, the expert believed the child's behavior, particularly as she proceeds into the teenage years, might well become out of control, exaggerated, extreme, and exceedingly problematic. FN53 In recommending termination of parental rights, Dr. Mantell considered, in addition to the child's current best interests, the protracted time period respondent was actively involved in therapy with Dr. Neems (a period of almost two years) and respondent's lack of positive response to that. Dr. Mantell concluded, as did Dr. Neems, that it seems unlikely Janet A., within a reasonable time, will rehabilitate herself to the degree where she might parent, or serve as the primary caretaker for, Jessica T.
FN53. In the psychologist's view, a number of respondent/mother's difficulties in her relationship with Jessica T. stem from the mother's own deep-rooted characterological problems: she was a “profoundly neglected child” who felt her own mother did not love her, had no time for her, and psychologically abandoned her (at age sixteen, Janet A. was totally and permanently abandoned by her mother). Dr. Mantell testified that respondent's parenting deficiencies are “a by-product” of the experience she had as a child, which the mother is unable to overcome, and therefore, “she acts out with her daughter who is a representation of herself to herself.” Such characterological problems are, according to Dr. Mantell, less amenable to therapeutic assistance because “they are habitual forms of thinking and behavior.” In terms of any realistic expectation of a reunification with her daughter, respondent/mother would be required to find “a resource” within herself enabling her “to love herself even though she had not been loved” as a child, and in turn, use that “resource” to love and care for her own daughter. The mother would have to recognize that there is a connection between how she treats her child and how the child behaves, and that it is her own responsibility for creating those conditions for the type of behavior she would like to see exhibited by Jessica; Janet A., according to the psychologist's assessment, must come to realize that her daughter is not responsible for, or to blame for, the mother's reactive behavior, but rather, the mother must share some responsibility for the child's behavior. Dr. Mantell feels that respondent/mother must acknowledge that her forms of behaviorare unproductive and harmful, not only to the child, but also to herself and to the relationship with the child. The mother must become “highly motivated” to make the parenting of her daughter the first priority of her life. From his own evaluation(s), and after reviewing Dr. Neems reports, it is Dr. Mantell's conclusion that Janet A. is not so “highly motivated;” he testified: “I don't think she understands the task of parenting Jessica.”
*15 Dr. Mantell does not believe that Janet A.'s mental health and/or parenting problems are rooted in her Native American ancestry. The psychologist did not view the mother's parenting practices as “noninterference” in the same sense as that referred to in Chapter Three of the McGoldrich treatise; FN54 instead, he saw this mother's parenting style as having developed into a “nonrelationship”, that is, an “inability of the mother and child to relate to one another.” Such circumstance is not, according to this psychologist, explicable by any significant cultural identification, since the mother, by her own admission (1989 evaluation), had no knowledge of her Native American culture, and was raised in a home devoid of any such customs, and/or practices. Dr. Mantell, who is not an expert in Native American culture and/or parenting customs, does not believe that Janet A.'s inability to show significant progress in the therapy with Dr. Neems' was attributable to the latter's lack of expertise or knowledge of the Native Alaskan culture; Dr. Mantell testified: “I don't think it was relevant in any way, shape, or form ... [Janet A.] is [in the category of] those who no longer practice their Native American culture because they've been assimilated.” In the psychologist's opinion, nothing was uncovered which suggested that some different or special form of therapy should have been employed merely because the mother was of Native American descent.
FN54. As to noninterference, Dr. Mantell reads Chapter Three as disclosing not that it is characteristic of Native American parents to fail to interact with their children, but rather, that regarding specific instances of discipline, the Indian culture would promote “far less interference in the actual behavior of the child than is customary in the practices of the dominant American culture.” Examples given by the psychologist, based on his review of Chapter Three of McGoldrich, are: (1) in a Native American context, the parent would warn the child of the dangers of climbing a tree, but if the child persisted in doing so, the parent would not restrain the child, thereby allowing the child to learn by falling down; or, (2) after warning the child, the parent might not restrain the child from burning itself on a hot object-the parent would say, “if you touch that, you are going to burn yourself,” and if the child still touched it, the parent would let the child learn from the experience. In other words, as Mr. Mantell states it, the Native American parent is less likely to interfere punitively, and is more prone to offer verbal admonishments; when the admonishments fail to modify the child's behavior, the Native American parent is disposed to allow the child to gather its own experience.
When Dr. Mantell first saw respondent/mother, she did not think that she needed therapy, did not feel that she had been abusive or neglectful, and would not acknowledge that she had any personal problems which required professional attention; he testified: “I have no reason to think that there is some form of treatment that might be made available to [the mother] now that could so quickly rehabilitate her in the sense of being a parent to this child, that it ought to be tried and the child should be caused to wait to see how it works out.” In the psychologist's opinion, the most relevant treatment was tried in Dr. Neems' office and was not successful;” he testified:
“The only guide that I have currently is the report from Dr. Neems and I thought it was responsive ... and indicated that the mother was not able to overcome the deficiencies of her own personality and childhood [and] was not able to address the difficulties between herself and her daughter. I don't know of any other form of treatment [other] than the one that was tried that would be specific to the problem at hand.”
When asked if anything more could be done by the mother (in terms of counseling) to permit the return of the child to her care Dr. Mantell responded, “I don't know of anything.”
With respect to Jessica, this psychologist felt the child resorted to a degree of fantasy regarding her mother and other family figures. The child would suggest to the psychologist that there existed “a sense of primacy” in regard to the relationship between herself and her mother. The foster mother explained that Jessica would borrow from true experiences in foster care, and then claim that she had those same experiences with her mother. Dr. Mantell described this as a common pattern, referred to as “compensatory fantasy production,” seen in children having a history of neglect, but who retain a strong sense of internal attachment to the parent figure. Such children, Dr. Mantell stated, over-value the sporadic, positive contacts they have with the biological parent, and deny the negative contacts and disappointments; the children develop fantasy relationships with the natural parent(s) constructing their fantasies from their experiences, their desires, and their relationships with other persons. In the psychologist's view, such fantasizing is “inherently pathological” and, due to repeated disappointments and uncertainty, is emotionally damaging to Jessica. Since long term therapy has been generally ineffective, FN55 and the return of the child to the mother's care previously failed, the remaining alternative, consistent with the overall best interests of this child, is termination of the mother's parental rights and the placement of Jessica T. in a permanent adoptive home. As Dr. Mantell did not interview respondent during the 1992 evaluation, this recommendation is based, to “a substantial extent,” on the 1989 meeting with the mother, the progress reports of Dr. Neems, and the 1992 meeting with the child and her foster parent. When asked if the choice became that of long term foster placement, or no future contact by the child with her mother through a permanent plan, Dr. Mantell replied: “I think it would be more damaging for Jessica to be left in long term foster care.” FN56
FN55. Dr. Mantell considers Jessica T. to be a stabilized, more secure child now than when he first met with her in 1989; however, he attributes this to the “stability and the continuity” of her foster home care, not to any of her contacts with respondent/mother.
FN56. When asked the reason for that conclusion, the psychologist answered:
“Because that would essentially leave intact the situation that she has right now which is one that is very painful for her since she is being told very clearly that she should not become attached to the foster family ... as if it were to become her permanent family, and that she should get ready to leave this home, yet not know where she might go, and at the same time, be left to the unpredictable and painful contact and confusing contact that she has had with her mother. And that's an unsatisfactory set of circumstances for the child, which will continue to cause her to feel that there is no one place in the world where she will find a home where she is genuinely loved and valued and where she's not at the end of the list, where she's not an outsider.”
In Dr. Mantell's judgment, the child's emotional needs “outweigh her need to know more about her culture” at this point in time:
“I have not seen or heard of material that shows that this child will derive a special benefit from immersion in the cultural heritage of either of her natural parents or any of her grandparents at this point. But I think there's overwhelming information to show that this child requires a permanent home ...”
*16 General Statutes Section 17a-112(b) sets forth alternative grounds for termination of parental rights. In order to grant a petition to terminate, the court must determine that an alleged ground has been established by clear and convincing evidence. As stated previously, the “clear and convincing” burden of proof is constitutionally mandated. Santosky v. Kramer, supra. This evidentiary requirement necessitates a standard of proof that is between the standard required in an ordinary civil action and that required to find guilt; there must be “more than average certainty on the part of the fact finder.” In Re Juvenile Appeal (84-3), 189 Conn. 276, 297 (1983) ; Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37 (1976) ; In Re Juvenile Appeal, 1 Conn.App. 463, 467-68 (1984). To those aspects of the case to which the ICWA pertains, the burden of proof, resting on the petitioner, is proof beyond a reasonable doubt. Title 25 United States Code, Section 1912(f). As the BIA guidelines for the implementation of the federal Act indicate, it is insufficient to show merely that a parent is “unfit;” rather, for a termination it must be established, “beyond a reasonable doubt,” that failure to grant the petition will subject the child to serious danger. Vol. 44 Federal Register No. 228, 11/26/79, p. 67592-93. Under federal precedent, “proof beyond a reasonable doubt” has been described as “ ‘proof of such a convincing character that a reasonable person would not hesitate to rely and act upon it in the most important of his own affairs.’ ” United States v. Delibac, 925 F.2d 610, 614 (2d Cir.1991). The standard imposes a substantially greater burden than proof by “clear and convincing evidence,” FN57 although it does not require proof to an absolute certainty. FN58 cf. State v. Ryerson, 201 Conn. 333, 342-43, fn. 2 (1986) ; State v. Wright, 9 Conn.App. 275, 277-78 (1986) ; State v. Webb, 8 Conn.App. 620, 629-31 (1986).
FN57. The BIA guidelines state the following:
“Evidence that only shows the existence of community or family poverty, crowded or inadequate housing, alcohol abuse, or nonconforming social behavior does not constitute clear and convincing evidence that continued custody is likely to result in serious emotional or physical damage to the child. To be clear and convincing, the evidence must show the existence of particular conditions in the home that are likely to result in serious emotional or physical damage to the particular child who is the subject of the proceeding. The evidence must show the causal relationship between the conditions that exist and the damage that is likely to result.
Vol. 44 Federal Register, No. 228, 11/26/79 p. 67592-93.
FN58. In the context of criminal litigation, the term “reasonable doubt” is generally explained as a real doubt, an honest doubt, a doubt which has its foundation in the evidence or lack of evidence; it is not a doubt raised by one for the sake of raising a doubt; it is not a surmise or speculation, a conjecture, or an imaginary or captious doubt, nor is it a doubt unwarranted by the evidence, or a doubt prompted by sympathy. Rather, proof beyond a reasonable doubt requires the production of sufficient evidence to create in the mind of the trier, a strong and abiding conviction (regarding the element to be proved), and the proof must be wholly consistent with a conclusion (of that which the party having the evidentiary burden is undertaking to prove), and inconsistent with any other rational conclusion. See: State v. Ryerson, infra at p. 342-43, fn. 2.
As stated, this termination petition was filed November 18, 1991. The court's adjudicatory consideration is limited to those events preceding the filing date. In re Romance M., infra at p. 859. Circumstances subsequent to the filing date may be considered only with reference to an appropriate disposition, consistent with the best interests of the child, following an adjudication. Id. It has been observed that under existing Connecticut law, “the determination of the child's best interests comes into play only after [a] statutory [ground] for termination of parental rights [has] been established by clear and convincing evidence.” (Emphasis in original). In re Valerie D., 223 Conn. 492, 511 (1992) ; In re Kelly S., 29 Conn.App. 600, 617-18 (1992); also: In re Romance M., 30 Conn.App. 839 (1993).
A. Abandonment: Respondent/Father.
General Statutes Section 17a-112(b)(1) provides: “The superior court upon notice and hearing may grant ... [a termination] petition if it finds, upon clear and convincing evidence, that termination is in the best interests of the child and that ... with respect to any nonconsenting parent, over an extended period of time, which ... shall not be less than one year ... [t]he child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child ...”
*17 Statutory abandonment focuses on the parent's conduct; it is a question of fact to be resolved by the trial court, in the light of the relevant circumstances. The test for factually determining statutory abandonment is not limited to simply whether the parent has shown some minimal interest in the child. In Re Juvenile Appeal (Docket No. 9489), 183 Conn. 11, 14-15 (1981) ; In Re Rayna M., 13 Conn.App. 23, 36 (1987); In Re Adoption of Webb, 14 Wash. 651, 657 (1975). Statutory abandonment differs from the concept of abandonment in the common-law sense in that it does not require proof of an intention to abandon totally or permanently. In Re Shannon S., 41 Conn.Sup. 145, 151 (1989). “Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of ‘interest, concern or responsibility’ for the welfare of a child.” In Re Migdalia M., 6 Conn.App. 194, 208-09 (1986). In the In Re Migdalia M. decision, the Appellate court stated that statutory abandonment occurs where “a parent fails to visit a child, fails to display love and affection for the child, has no personal interaction with the child, and no concern for the child's welfare.” Id. at p. 209.
Section 17a-112(b)(1) refers to a parent's failure “to maintain” a reasonable degree of interest, concern or responsibility regarding the child's welfare. Thus, that statute does not contemplate a sporadic showing of the indicia of “interest, concern or responsibility for the welfare of the child,” but rather, the term “maintain implies a continuing, reasonable degree of concern.” In Re Rayna M., supra; In Re Migdalia M., supra. The standard respecting statutory abandonment is “not whether the parents have shown some interest in their children,” but rather, “[c]ommon sense dictates that a parent's obligations toward ... [a] child go further than a minimal interest.” (Emphasis in original). In Re Rayna M., supra. Furthermore, it is noted that “interest” alone is not the criterion for the determination of statutory abandonment; the statute refers to interest, concern or responsibility regarding the child's welfare.
Respondent/father has had no contact with Jessica T. since the child was approximately seven months old. His whereabouts have been unknown, he has never contacted DCF or the foster parent regarding his daughter, he has had no contact or communication whatsoever with the child during her years of placement, and he has not participated at all in this proceeding. With respect to the father, Paul T., petitioner has met a clear and convincing evidence burden (as well as a proof beyond a reasonable doubt burden) of establishing the ground of statutory abandonment.
The court hereby finds, applying a clear and convincing standard of proof (as well as proof beyond a reasonable doubt), that petitioner has established statutory abandonment as a ground for the termination of the parental rights of Paul T. to the child, Jessica T.; that is, that Jessica T. has been abandoned by respondent/father in that he has failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the said child. The court also finds, applying the same required standards of proof, that said ground has existed for a period of not less than one year preceding the filing date.
B. Failure to Rehabilitate: Respondent/Mother
*18 General Statutes Section 17a-112(b) provides as follows: “The superior court upon hearing and notice may grant [a termination] petition if it finds, upon clear and convincing evidence, that termination is in the best interests of the child and that with respect to a non-consenting parent, over an extended period of time, which ... shall not be less than one year ... the parents of a child who has been found by the superior court to have been neglected or uncared for in a prior proceeding have 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, they could assume a responsible position in the life of the child....”
The term “personal rehabilitation” refers to the restoration of a parent to his or her former constructive and useful role as a parent. In re Rayne M., 13 Conn.App. 23, 32 (1987) ; In re Migdalia M., 6 Conn.App. 194, 203 (1986). Under the statute, the court must “analyze the respondent's rehabilitative status as it relates to the needs of the particular child, and further, [determine] that such rehabilitation must be foreseeable ‘within a reasonable time.’ ” In re Luis C., 210 Conn. 157, 167 (1989) ; In re Joshua Z., 26 Conn.App. 58, 644 (1991). Under Section 17a-112(b)(2), the court is to consider the age and needs of the child with respect to whether the parent could, within a reasonable time, assume a responsible position in the life of the child. cf. In re Migdalia M., supra at p. 199. A “responsible position” in the life of the child is not necessarily equivalent to a full time caretaker; In re Migdalia M., supra at p. 206; and, it is not statutorily required that the parent become capable of assuming full responsibility for the child without provision of available support programs. Id. at p. 203. Our Appellate Court has stated that a trial court must consider the six factors enumerated in Section 17a-112(d) in determining whether a parent has failed to rehabilitate. In re Michael M, 29 Conn.App. 371, 377 (1989) ; In re Shavoughn K., 13 Conn.App. 91, 98 (1987).
Jessica T. was originally committed as a neglected child; although the actual abuse allegations were dismissed at the time of the adjudication, the neglect finding was premised on the child's having been subjected to inappropriate discipline. The expectations which were established at the dispositional hearing were formulated to address the circumstances which constituted the basis for the finding of neglect; that is, inappropriate physical discipline. The evidence established that Janet A. substantially complied with the court imposed expectations. While the level of cooperation with DCF was certainly not optimum, the mother generally stayed in contact with the worker and did what she was being asked to do: visit the child, attend counseling with Dr. Neems, meet with the parent-aide, etc. Although there were some periods where the agency was unaware of the mother's exact address, during most (if not, all) of the commitment preceding the TPR filing, the mother's whereabouts were in fact known; in 1990, there were overnight visitations, thereafter the visitations were expanded with agency approval to extended weekend visitations, and in April 1991, the child, still committed, was placed back in the mother's home. Following the child's return to foster care, there was communication regarding the mother's plan that the child reside with the maternal relative in Alaska. This is not a case where the mother's whereabouts were unknown to the agency for any protracted period prior to the filing; when the mother was, at one point, reluctant to disclose her address (around the time of an unrelated criminal investigation), she informed the agency (and the court) that she could be reached through her attorney. Furthermore, simply because the relationship between the worker and the parent became strained over time, and/or the mother, on isolated occasions, refused to discuss a plan or a consent termination with the agency representative, does not, in the light of all that occurred prior to the filing, amount to noncompliance with the cooperation expectation set by the court.
*19 With regard to the remaining expectations, there was, as stated, substantial compliance. As to visitation, the mother visited at the foster home, visits were expanded to overnight at the mother's home, and later to extended weekend visits; after the return of the child to foster care, respondent continued to visit and although there were missed visitations which were disappointing to Jessica, the strong bond between mother and child continued. Certainly, from the date of commitment to the date of TPR filing, there was, for the most part, compliance with the visitation expectation. Regarding counseling, respondent/mother participated regularly in the therapy with the psychologist provided by the State for twenty-one months. While the efficacy of the counseling with Dr. Neems proved questionable, such lack of success was not attributable to any failure on the part of the mother to regularly attend the counseling sessions. And, although cooperation with the parent-aide program was marginal, a relationship with the aide was developed, and that service provider reported progress. Clear and convincing evidence was not presented to indicate that the mother failed to cooperate in the child's therapy, or, that she resorted to inappropriate or corporal discipline practices during unsupervised visitations or when the child was returned home. In the court's view, the evidence would not support a failure to rehabilitate finding predicated on non-compliance with expectations.
Clearly, fulfilling the established expectations is most important and is to be accorded substantial weight; however, the meeting of the expectations is not, of itself, necessarily the dispositive consideration regarding a failure to rehabilitate ground. As stated by the court in In re Michael M., supra, the “ultimate question” is “whether the parent [is] more able to resume the responsibilities of parenting at the time of the filing of the termination petition than she was at the time of commitment.” 29 Conn.App. at p. 126. And, of course, any resolution of that issue in the petitioner's favor must be, under state law, supported by clear and convincing evidence. As stated, the degree of personal rehabilitation must be such as would encourage the belief that within a reasonable time, considering the age and needs of the child, the mother could assume a responsible position in the child's life; the issue of what is reasonable requires a factual determination based on the circumstances of the particular case.
This child was initially placed on the basis of a factual allegation of inappropriate, physical discipline: that the mother in 1989 struck her daughter with a riding crop. The mother has substantially complied with the expectations which were established upon the judicial finding of that neglectful conduct (inappropriate discipline). Following many months of therapy, extended visitation began in the mother's home and, eventually, the child was returned to Janet A.'s care for approximately four months. During the several home visitations (overnights, weekends, and extended weekends), and during the four months while Jessica was home in 1990/91, there was no indication of any corporal abuse or that the child was subjected to any inappropriate discipline. Thus, in terms of the original factual predicate underlying the commitment of the child to the care and custody of the agency, petitioner's evidence did not substantiate, applying a clear and convincing evidence standard, the failure to rehabilitate allegation; that is, the evidence did not prove, by the required standard, that this child would again be subjected to inappropriate physical discipline if returned to her mother's care. Under the ICWA, petitioner must prove, beyond a reasonable doubt, that the continued custody of the child by the parent would be likely to result in serious emotional or physical damage to the child. FN59 (Emphasis added). Title 25 United States Code, Section 1912(f). Petition has met neither a clear and convincing standard, nor a proof beyond a reasonable doubt standard, with regard to the likelihood of any future physical damage or danger to Jessica T.; as counsel for the child has stated: “It is apparent that although physical damage was once at issue, there is no proof that such abuse has recently occurred or would likely to be a problem in the future.” Brief of Attorney For Child, p. 5.
FN59. Petitioner is in agreement with the respondent that this provision of the federal Act, as well as other pertinent ICWA provisions, logically must be applied in the context of a “return” of Jessica T. to her mother's care, rather than the “continued custody” of the child by the mother, since Jessica has remained out of the mother's home since returned to foster care in April 1991. See: Petitioner's Trial Brief, filed November 18, 1993, at p. 7.
*20 Petitioner maintains that respondent/mother failed to rehabilitate in that her parenting attitudes remain generally unaltered notwithstanding twenty-one months of continuing therapy with Dr. Neems. The mother, in the view of the therapist and the evaluator, has not acknowledge abuse of the child, is “too laid-back” in her parenting style, exhibits an inability to praise her daughter, and places blame on Jessica for any incompatibility within the family unit. Petitioner (as well as counsel for the child) urges termination of the mother's parental rights, not on the basis of recurring physical abuse, but upon likely emotional damage to the child if returned to the mother's care, or if deprived of permanency in her home situation.
As stated heretofore, any current “best interests” determination “comes into play” under Connecticut law, only after a statutory ground for termination has been established by clear and convincing evidence. Notwithstanding the dispositional portions of the psychologists' testimony relating to the desirability of permanency, and the emotional consequences stemming from a deprivation thereof, the State is, nevertheless, required to establish, at the adjudicatory stage of the proceedings, the existence of a statutory ground for termination at the time of the filing; In re Valerie D., supra; In re Kelly S., supra; and, such ground must be established by the mandated burden of proof. Applying a clear and convincing standard, the court encounters difficulty in finding the failure to rehabilitate ground. Essentially, respondent did what was asked of her in that she regularly participated in therapy with the therapist provided by the State for the twenty-one month period preceding the return of the child to her home; the evidence was not clear and convincing that the mother failed to regularly attend the required therapy, did not cooperate with the therapist, or did not take the therapy seriously. When the child was returned home, there was, as stated, no evidence of physical abuse, and no clear and convincing evidence that Jessica was subjected to any emotional abuse. Rather, the evidence fairly showed that Jessica was unhappy in her mother's home, did not particularly like her new school, was lonesome regarding members of the foster family, was confronted with difficult problems in the home apparently caused by her younger brothers, and, in time, wished to return to the foster home; viewing the evidence under the required standard, it clearly did not indicate, or even suggest, that the child was emotionally abused by the mother while home for the four month period in 1990/91.
When in her mother's care, following (or toward the end of) respondent's regular therapy with Dr. Neems, Jessica T. was unhappy; she wished to be returned to her foster parent(s). However, the evidence indicated that there remained a strong and significant bond, “connection”, or relationship between mother and child (as of the adjudicatory date, and thereafter), which bond or relationship had existed prior to placement, and was maintained since 1989 (to the date of filing) by the mother's continued, albeit somewhat irregular, visitation and contact with Jessica T. The testimony of the psychologists reveals, most explicitly, that the mother/daughter relationship was (and is) a complex, exceedingly troubled one, but not a relationship devoid of mutual affection and emotional attachment. Quite clearly, mother and daughter, after twenty-one months of therapy with Dr. Neems, cannot reside happily and contently in the same household. However, the statutory ground for totally and forever severing all rights of the mother to and regarding her daughter, is not the existence of an exceedingly troubled mother/child relationship, but a failure to rehabilitate between the time of commitment and the filing of the TPR; here, the basis for the original placement was inappropriate physical discipline and, as stated, the evidence reflected no such disciplinary practices, or any emotional abuse, while the child was returned to the mother's home. The unfortunate circumstance that mother and child are unable to reside together happily, following extended psychotherapy, might be viewed as a failure to rehabilitate by respondent/mother, notwithstanding the absence of any further incidents of inappropriate discipline, and no showing of emotional abuse. Just as logically, however, that continuing familial incompatibility, and the mother's unmodified parenting attitudes or beliefs, might be viewed as directly attributable to the ineffectiveness, or a failure, of the state-provided therapy.
*21 Considering the inefficacy of the therapy (acknowledged by Dr Neems in his late 1990 progress), the age and needs of the child (permanency and certainty) as testified to by the psychologists, and the strong emotional bond that existed (and continues to exist) between parent and child, the mother's Native American lineage, and the State's failure to provide, or even seriously consider, at any point prior to filing, a therapist having training in, and familiarity with, the Native American culture and parenting practices, become highly relevant on the failure to rehabilitate ground. Such is particularly true given the State's burden of establishing the ground by clear and convincing evidence. The court did not, and could not, qualify Dr. Neems or Dr. Mantell as experts having specialized training or knowledge of Native American culture and/or practices, or as having any significant experience in the provision of psychotherapy to Indians. And, no other witness presented by petitioner, including the social worker, had any particularized knowledge, education, or experience respecting the delivery of social services to Native Americans.
As early as November 1990, it was reported that Dr. Neems' therapy was not effectuating the desired results in terms of a modification of the mother's parenting attitudes and beliefs; a that time, and long before, the mother's native heritage was known, but despite the inefficacy of the in place therapy, no effort was made to alter it in any manner, or to consult with any professionals knowledgeable and experienced in working with Indian families. The reason for the aforesaid was primarily the assessment of Dr. Mantell (not an expert in Native American parenting practices), in his 1989 evaluation, that respondent, having grown up in Hartford, in a home setting where Indian traditions and customs were not matters of practice, had been “assimilated” in the dominant culture FN60 and, accordingly, her parenting attitudes and/or deficiencies were not (and had not been) influenced by cultural heritage. The court does not disagree entirely with Dr. Mantell's assessment, recognizing that he is an extensively experienced psychologist. Rather, it becomes a question of whether the evidence satisfies the mandated, very high standard of proof: that of clear and convincing evidence. In such context, counsel for the respondent argues, persuasively, that Janet A. was reared exclusively by one parent, her mother (the maternal grandmother), who was a full blooded Alaskan Indian. FN61 The likely influence of such upbringing and heritage is, in the court's view, reinforced by evidence that much in the mother's parenting style, which the psychologist(s) considered so problematic, is described as “culturally normative” in the Attneave portion of the McGoldrich treatise; that is, what has been characterized in these proceedings as laid-back parenting, allowing too much freedom, insufficient setting and maintaining of limits, over-permissive, non-interference, resort to shame and ridicule, etc. In view of the respondent's ancestry, and the identification of parenting problems apparently recognized by experts as culturally characteristic of such heritage, it would seem to this court that serious consideration should have been given to consulting with, or affording therapy by, a professional informed and experience in counseling Native Americans; as stated, such would appear to have been especially appropriate in that the existing therapy had proved substantially ineffective, and since there existed such a strong attachment between mother and daughter.
FN60. Dr. Mantell testified that the mother, during the 1989 interview, showed basically no familiarity with Indian customs, and when he brought up the subject with her, she seemed dismayed and did not appear to know what he was talking about. He noted that according to Janet A., no Native American customs were present or practiced in either her home or that of her mother, she did not speak a language other than that of the dominant culture, she had never selected an Indian man as a spouse or as the father of her children, and she stated she had had no involvement with Native American ceremonial traditions, or related activities and/or practices.
FN61. Respondent appended to an earlier (pre-trial) memorandum of law a certified copy of the “Tribal Roll of Native Village of Tyonek, Alaska.” That document, part of the official court file in this case, indicates that the child's maternal grandmother was a full-blooded Native Alaskan Indian, apparently raised by two Indian parents.
*22 As indicated, respondent/mother achieved a degree of rehabilitation; there was no clear and convincing evidence presented showing any inappropriate physical discipline or emotional abuse during the four month period the child had been returned home. If, as petitioner contends, a failure to rehabilitate results from the absence of any rectification of the troubled relationship between parent and child, and their inability to reside tranquilly in the same household, then, as respondent's counsel maintains, the efficacy, sufficiency, and suitability of the therapy provided, in the light of the mother's known ancestry, is certainly open to serious question. The existence of a termination ground must be established as of the filing date; the evidence indicated that the child's needs are permanency and certainty, particularly in view of her age; juxtaposed to such needs is (as of filing, and thereafter) the significant, continuing bond between mother and child. Therapy has never been provided by one informed in the Native American culture or its “culturally normative” parenting practices, even when the in place therapy was not producing results in terms of an abatement of mother's assertedly inappropriate parenting attitudes and beliefs. The intervention by a psychologist trained and experienced in the delivery of therapeutic services to Indian families might well have enabled the mother to better assume a responsible position in the child's life within a reasonable time, particularly in view of the strong existing bond; as stated, a “responsible position” under the statute is not necessarily that of a full time caretaker, or the capacity to assume responsibility for the child's care without the provision of support programs. In re Migdalia M., supra. The court is unable to conclude that petitioner has established, by clear and convincing evidence, that Janet A. failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of her daughter, she could assume a responsible position in the child's life. FN62
FN62. Obviously, since the Section 17a-112(b)(2) termination ground has not been established by clear and convincing evidence, the ICWA's higher burden of proof beyond a reasonable doubt has not been met with respect to a failure to rehabilitate.
As indicated, the parties have stipulated that ICWA applies in this case; thus, even if the court found the failure to rehabilitate ground, under the state statute, proved by clear and convincing evidence, a further determination would be required as to whether petitioner had established, by proof beyond a reasonable doubt, compliance with the provisions of the federal Act.
Title 25 United States Code, Section 912(f) reads: “No termination of parental rights may be ordered ... in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the ... custody of the child by the parent ... is likely to result in serious emotional or physical damage to the child.” (Emphasis added). The BIA Guidelines for State Courts in Indian Child Custody Proceedings provide, as follows:
*23 “Removal of an Indian child from .. her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the [parent] ... is likely to result in serious physical or emotional damage to the child. Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:
(i) A member of the Indian child's tribe who is recognized by the tribal community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices.
(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.
(iii) A professional person having substantial education and experience in the area of his or her specialty.'
Vol. 44 Federal Register, No. 228, page 67592.
In this case, petitioner produced no witness having “substantial experience” in the delivery of services to Indian families, or having “extensive knowledge” of Native American culture and childrearing practices. However, petitioner did produce evidence as per (iii) above, the testimony of professional persons (psychologists and social worker) having “substantial education and experience.” Although Section 1912(f) does not expressly define “qualified expert witness”, courts representing the preferred view have gone beyond (iii) of the BIA Guidelines and have concluded that experts qualified under the ICWA must possess expertise in, and substantial knowledge of, Native American families and their child rearing practices. FN63 Matter of Welfare of M.S.S., 465 N.W.2d 412, 417 (Minn.App.1991) ; State Ex. Rel. Juv. Dept. v. Charles, 688 P.2d 1354 (Or.Ap.1984). In the M.S.S. case, the court stated: “The experts should also be conversant with Indian culture and child-rearing practices, lest ‘the problems Congress has tried to remedy may remain, despite the adoption of the [ICWA]:’ ” (Emphasis added). 465 N.W.2d at p. 417. And in the Charles decision, the Oregon Court, referring to the specific language of the BIA Guidelines, noted: “The ‘guidelines' are not rules and expressly state that they are not intended to have legislative effect [44 Fed.Reg. 67684 (1979) ] ... but we agree ... that an expert witness within the meaning of [the ICWA] must possess special knowledge of social and cultural aspects of Indian life.” 688 P.2d at p. 1359-60, fn. 3. This court accepts as perfectly sound that interpretation of the term “qualified expert witness” in Section 1912(f); as the BIA Commentary states:
FN63. This view, and the ICWA in general, is discussed in a most comprehensive and informative article entitled, “The Indian Child Welfare Act of 1978: A Petitioner's Perspective,” 62 North Dakota L.Rev. 487 (1986). This article, at page 492-93 fn. 32, sets forth a list of other articles and commentaries that have been written on the ICWA, its scope, purpose, and application. At pages 522 thru 526, the article explains, in detail, the different standards of proof which the federal enactment imposes on state courts conducting neglect and termination proceedings with respect to Indian children. In such regard, the author discusses Sections 1912(d) and (f) , and with respect (f), makes reference to the interpretation of “qualified expert witness” by the Oregon court in State Ex Rel. Juv. Dept. v. Charles, infra. See: 62 North Dakota L.Rev. at p. 525, fn. 238.
In commenting on the origin of the Act, and its purpose, the author alludes to a not infrequent “cultural bias,” and the difficulties which may erupt when experts, particularly caseworkers, are unfamiliar with Indian traditions and practices:
“Critics ... argue that the disproportionate number of Indian children being taken from their homes reflects a cultural bias ... Indian organizations criticize non-Indian caseworkers for their insensitivity to, or ignorance of, traditional Indian values. Because they are not familiar with Indian customs and communities, state social workers are often accused of misinterpreting family and child behavior.
Id. at p. 497.
As an example, the author of this article mentions “the concept of ‘extended family,’ a common Indian child rearing practice.” In the instant case, Dr. Mantell, who readily acknowledged he was not a trained expert in Indian customs, but whom this court recognizes as a highly experienced and exceeding well-informed psychologist, testified to a familiarity with the concept, and referred to respondent/mother's pattern of placing the care of her children with others, and to her doing so with a perceptible willingness and ease. Concerning this concept, the law review commentator states:
“An Indian's extended family includes ... often distant relatives who by custom, tradition, or necessity have definite responsibilities and duties in child rearing ... the nuclear family concept is frequently inapplicable to Indians. Yet it is the nuclear family standard by which many state courts determine that Indian children are neglected. This built-in bias against Indian child rearing practices [interference, laid-back parenting, etc.] is further compounded by state laws, laws that frequently make it easy to remove Indian children.” (Emphasis added).
To interpret and/or apply General Statutes Section 17a-112(b)(2) in such a manner that a continuing, troubled relationship between mother and child can serve as the predicate for a failure to rehabilitate, where psychotherapy was ineffective, but where such therapy was never provided by one trained and experienced in Native American culture and child rearing practices, is, in the court's view, to render “it [too] easy to remove Indian children” permanently from their biological parent[s].
“... knowledge of tribal culture and childrearing practices will frequently be very valuable to the court. Determining the likelihood of future harm frequently involves predicting future behavior-which is influenced to a large degree by culture. Specific behavior patterns will often need to be placed in the context of the total culture to determine whether they are likely to cause serious emotional harm.” Vol. 44 Federal Register, No. 228, p. 67593.*24 In this case, petitioner has not presented the testimony of experts qualified under the meaning and intent of the ICWA; for that reason, and for those reasons previously articulated herein with respect to the sufficiency of the proof under the Connecticut statute, petitioner has not proved, beyond a reasonable doubt, respondent/mother's failure to rehabilitate in terms of a likelihood of serious emotional or physical damage to the child. FN64
FN64. Counsel for the child concedes that the evidence does not establish that physical damage “is likely to be a problem in the future.” Trial Brief, at p. 5. With respect to emotional damage, the attorney states that “there would be some difficulty” to conclude that petitioner had met the highest standard of beyond a reasonable doubt but for what occurred when the child was returned to her mother for the four month period in 1990/91. Trial Brief at p. 8. The attorney argues that when the child was returned to her mother she “regressed rapidly into a severely depressed state which appeared in her moods, peer associations and schoolwork;” further, the attorney emphasized that upon Jessica's return to the foster parent(s), “she rebound and excelled.” Id. at p. 8. However, in this court's view, the evidence did not show, applying either of the demanding standards of proof, a “pattern of emotional abuse” during the period of the child's return home. There was evidence that Jessica's regression or unhappiness was because she missed her foster parent(s), missed her friends at her former school, did not like the new school she was attending, etc. This court cannot conclude that the evidence rose to a beyond a reasonable doubt level based on what was presented regarding the four month period in 1990/91.
Title 25 United States Code, section 1912(d) provides: “Any party seeking ... termination of parental rights to ... an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” Unlike Section 1912(f), this section does not specify the burden of proof resting on petitioner to establish provision of adequate rehabilitative services. However, a number of jurisdictions have concluded that Congress intended the greater standard (that of beyond a reasonable doubt ) to apply to both subsection (d) and (f) of Section 1912. See: e.g. Matter of Welfare of M.S.S., supra at p. 417-418; In Re Interest of D.S.P., 458 N.W.2d 823, 829 (Wis.App.1990) ; People In Interest of S.R., 323 N.W.2d 885, 887 (S.D.1982). In the M.S.S. decision, the Minnesota Court, in discussing Section 1912(d), stated the following:
“In enacting the ICWA, Congress indicated its intent to diminish the effect of having culturally biased government officials, who perceive the necessity of terminating parental rights of Indian citizens through quite different cultural lenses, decide whether to terminate an Indian's parental rights ...
Logically, [it] seems compelled: If termination of parental rights of Indian parents to their children can be ordered only upon a factual basis shown beyond a reasonable doubt (Sec. 1912(f)) , and if termination cannot be effected without a showing of active efforts to prevent the breakup of the Indian family and a failure thereof (Sec. 1912(d)), then the adequacy of efforts and futility of them, as predicates to termination, must likewise be established beyond a reasonable doubt. Therefore, we recognize the reasonable doubt standard as appropriate in determining whether the petitioning party has complied with Section 1912(d).” 465 N.W.2d supra at p. 418.
With respect to the instant case, this court accepts the foregoing construction of Section 1912, and the recited rationale supporting it.
Respondent/mother was raised, almost exclusively, by her own mother, who was a Native Alaskan Indian. Upon placement of Jessica T., remedial services were provided to the mother consisting of therapy with Dr. Neems and a parent-aide. No evidence was presented by petitioner that the therapy and/or services furnished by or through the Connecticut child protection agency were, in any way, designed to address, or take into consideration, the particular problems experience by Native American families. While the professionals involved were all well-educated and experienced in their fields, none had any real background in matters relating to the Native American culture and its child rearing customs. On the evidence, the court cannot conclude that petitioner proved, beyond a reasonable doubt, agency efforts to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family; that is, petitioner has not proved, by the ICWA standard, what is required under Title 25 United States Code, section 1912(d).
*25 The court finds that petitioner, upon an application of either of the standards of proof referred to herein (clear and convincing evidence or beyond a reasonable doubt), has not established the failure to rehabilitate ground under Connecticut General Statutes 17a-112(b)(2) and the statutory prerequisites for termination under the ICWA, Title 25 United States Code, Section 1912(d) and (f). FN65
FN65. The court has undertaken, applying the required standard(s) of proof, to consider carefully, and incorporate in the foregoing analysis, the six statutory factors delineated in General Statutes Section 17a-112(d). cf. In re Michael M., supra; In re Shavoughn K., supra.
As to 112(d)(2), the only applicable court order violated by a party was respondent/mother's failure to appear for the 1992 court ordered psychological evaluation. As stated, the mother substantially complied with court established expectations.
Respecting 112(d)(3), the child, as the court's prior findings and analysis indicate, has very strong feelings for, emotional ties with, and attachment to both her biological mother and her foster parent(s). Obviously, there exist no feelings for, or emotional ties with, the biological father as Paul T. has had no role whatsoever in Jessica T.'s life. And, in this regard, neither biological parent, under 112(d)(6), has been prevented from maintaining a meaningful relationship with the child by the unreasonable act of the other parent, of any other person, or by economic circumstances. As stated, the mother has maintained a strong relationship and bond with her daughter, but the relationship has been, and remains, an exceedingly troubled one; Paul T. has maintained no relationship whatsoever with the child.
With reference to 117(d)(4), the testimony of the psychologists was clear that the child's age was, and is, an especially important consideration; permanency, and certainty as to her future home situation, are particularly crucial as the child enters her adolescent years and must confront the many problems, distractions, and frustrations normally associated with that time of her life. The court has carefully weighted and considered the testimony of the professionals in this regard. In the context of an alleged failure to rehabilitate, and any complete, final legal severance of all of the mother's parental rights to her daughter, the court has also considered, and carefully weighed, the other material evidence presented, including the significant, long-standing bond and emotional attachment between the child and her natural mother.
C. Act of Commission or Omission: Respondent/Mother
General Statutes Section 17a-112(b)(3) states, as follows: “The superior court upon hearing and notice ... may grant ... [a termination] petition if it finds, upon clear and convincing evidence, that termination is in the best interest of the child and that ... with respect to a nonconsenting parent, over an extended period of time, which ... shall not be less than one year ... the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being.” FN66
FN66. The statute further provides that “[n]onaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights.” The statutory language concerning prima facie evidence shifts the burden from the petitioner to the parent to show why a child with clear evidence of physical injury that is unexplained should not be permanently removed from the parent's care. In re Sean H., 24 Conn.App. 135, 144 (1991).
“In the adjudicatory phase of termination proceedings, the court determines the validity of the grounds alleged in the petition, and therefore is limited to events preceding the filing date of the petition.” (Emphasis added). In re Romance M., supra. Thus, consideration of this alleged termination ground, as with the others, is limited to the factual events from the date of commitment to November 18, 1991. Section 17a-112(b)(3) authorizes termination where specific acts of parental commission or omission have caused serious physical or emotional injury to the child. In re Kelly S., 29 Conn.App. 600, 614 (1992). Jessica T. has been in continuous foster care since the original 1989 placement except for extended unsupervised home visitations and the four successive month period in 1990/91 when she was returned to her mother's care. While in foster care, the child could not have been denied, by reason of parental acts, the care, custody and control necessary for her physical, educational, moral or emotional well-being. cf. In re Kelly S., supra. And, regarding the four month period the child was returned to her mother's home (as well as during the extended home-visitations), there was presented no clear and convincing evidence of any physical or emotional abuse.
It is the conclusion of the court that, in these circumstances, petitioner has not established, by the mandated standard of proof, the alleged Section 17a-112(b)(3) ground for termination of parental rights.
General Statutes Section 17a-112(b) permits the court to grant a petition to terminate parental rights only upon a determination, based on clear and convincing proof, that to terminate would be in the best interests of the child. The best interest or dispositional decision is to be made upon the totality of the evidence (i.e., to last day of trial).
Petitioner has not established, by the required standards of proof, a statutory ground for termination of respondent/mother's parental rights. The petitioner has established, by either standard, a statutory ground as to the father, and that the said ground (abandonment ) existed for a period of not less than one year preceding the filing.
*26 On the totality of the evidence, it is clear that respondent/father has expressed no interest in this child, has apparently had no contact with her since she was approximately age seven months, has never contacted the foster parent or DCF regarding his daughter, and his whereabouts have remained unknown throughout this trial. However, the primary purpose of terminating a biological parent's parental rights is to permit the placement of the child in the home of adoptive parents. In re Juvenile Appeal (Docket No. 10718), 188 Conn. 259, 262 (1982) (“ ‘... petitions for termination are presumably seldom brought unless prospective adoptive parents are available ...’ ”); In re Juvenile Appeal (Anonymous), 177 Conn. 648, 673 (1979). Since a termination ground has not been established with regard to respondent/mother, and therefore an adoption of this child cannot be effected, the court is unable to conclude, on the evidence, and applying the required standards of proof, that a purpose entirely consistent with the child's best interests would be served by terminating the parental rights of Paul T. A permanent separation from both natural parents through the adoptive process would afford permanency, which the psychologists (no expertise in Indian culture, etc.) testified would be in Jessica T.'s best interests; however, since an adoption cannot be perfected, no legal impediment should be imposed regarding possible future relationships with any paternal family members from which the child might benefit. The court finds that although a ground for terminating the respondent/father's rights has existed for not less than one year, it has not been demonstrated that termination of Paul T.'s parental rights would not serve a purpose clearly consistent with the child's best interest.
For the reason stated, the petition to terminate parental rights to Jessica T. is Denied; and, the said petition may be, and hereby is, Dismissed. FN67
FN67. Respondent/mother had previously moved to dismiss this termination petition on the basis that the notices provided in regard to the 1989 neglect petition were inadequate under the requirements of the ICWA. See: Title 25 United States Code, Section 1912(a) ; 25 Code of Federal Regulations, Section 23.11. In view of the decision of the court, and the action taken, it is unnecessary to consider the notice claim raised by respondent's prior motion.
In re Jessica T.
Not Reported in A.2d, 1993 WL 566662