Opinion
No. L15-CP08-008519-A
September 29, 2008
MEMORANDUM OF DECISION
INTRODUCTION:
This is a contested hearing on whether to sustain or vacate an order of temporary custody.
Pursuant to General Statutes § 46b-129(b), which provides in part that
. . . If it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . .
On September 9, 2008, the Superior Court for Juvenile Matters ("the regional court") found that (1) Brian B., Jr. ("Brian") was "in immediate physical danger from surroundings . . .;" that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . .;" and the court issued an ex parte order vesting temporary custody of Brian in the commissioner of the department of children and families ("DCF").
At the regional court the father and the mother of Brian (who did not have physical custody of Brian on September 9, 2008) contested the court's ex parte findings and its determination that Brian's temporary care and custody should be vested in DCF. On September 25, 2008, this court conducted the contested hearing. DCF appeared through its counsel and the social worker who investigated the July 22, 2008 referral from an officer in the T Police Department. The father appeared and he was represented by counsel. The mother appeared and she was represented by counsel. The attorney for Brian appeared. All of such parties who were present participated in the contested hearing. The paternal grandmother and the maternal grandparents also were present in court during such hearing.
THE CONTESTED HEARING:
At the contested hearing DCF presented three witnesses and twenty exhibits. The father presented four witnesses, including his mother, the paternal grandmother, six exhibits and he also testified.
The evidence established the following, inter alia, by a fair preponderance of the evidence:
1. Brian was born in December 2005.
2. Thereafter, the mother and the father continued to live together but at some point prior to April 2007, the mother began a relationship with a woman named S ("her, the or such partner").
3. On or about April 30, 2007, DCF received a referral from a family relations officer. (Exhibit 18, 5.) The officer stated that the mother, her partner and the father were living in his home. Id. Brian was also living in the home. On April 28, 2007, the mother and her partner had a verbal and physical fight. Id. The maternal grandmother, who was outside the apartment, heard the fight. Id. She tried to intervene but she was unable to separate them. Id. She witnessed the partner biting the mother. Id. The partner also knocked a door off of its hinges and put holes in a wall. Id. The maternal grandmother called the police and both the mother and her partner were arrested. Id.
4. The above fight was one of many episodes of continuing serious domestic violence between the mother and her partner between at least April 2007, through September 9, 2008. See, e. g., exhibits 2, 3, 6, 7, 8, 10, 11 and 12. Because many of the incidents occurred at the home in which Brian lived, he was repeatedly exposed to such domestic violence and perhaps other inappropriate behavior. See, e. g., pages 6-7 infra. The mother also had unsupervised visits with Brian and she involved her violent partner with him.
5. On January 28, 2008, a licensed clinical social worker who had been treating the father reported to a family relations officer that the father had made progress in treatment for stress from his relationship with the mother:
[The father] began outpatient treatment here in April 2007. [The father] was under significant stress at that time as he was attempting to extricate himself from a very problematic relationship with the mother of his son . . .
(Exhibit E.)
Because the mother and her partner had moved out of the father's home, in January 2008, the father was "stable." Id.
6. The father, however, hoped to separate the mother from her partner and to reestablish a relationship with her. See, e. g., exhibit 20, 10, 11; father's testimony. He allowed the mother to return to his home on July 2, 2008. Her partner also visited such home when she decided to do so without permission from the father. See, e. g., exhibits 10 and 11 and testimony of paternal grandmother. The father thus created and permitted a home environment where Brian was exposed to domestic violence and perhaps other activities inappropriate for a two-year-old (or any) child. Testimony of paternal grandmother. By doing so the father failed to act to make the health, welfare and safety of his son his paramount responsibility.
7. The mother and her partner have repeatedly lied to the police, to DCF and to others, including the father, about their relationship and about the extent of their domestic violence. See, e.g., exhibits 2, 3, 6, 7, 8, 10 and 11; testimony of the father. Neither the mother nor her partner have obeyed the protective orders that have been entered against them. See, e.g., exhibits 2, 3 and 12; testimony of the father and the paternal grandmother.
8. The father has also engaged in acts of domestic violence at his home while Brian was in the home, including one incident where he seriously injured his father, the paternal grandfather, and struck his roommate. Exhibit 9. In connection with that incident, which occurred on May 25, 2008, in the evening, when the police arrived, a police officer who testified at trial
noticed blood everywhere on the floor, walls, and refrigerator. There were blood drops, smears, and spatter in the entire kitchen area . . . Around the corner to the right where the kitchen meets the bathroom was a white male . . . laying in a pool of blood mumbling on the ground. I immediately cleared ambulance personnel to enter the house and they began treating [the paternal grandfather] for evident injuries to his face and head. [The paternal grandfather] was actively bleeding from the head and complaining of difficulty breathing . . .
(Exhibit 9, 1.)
Another witness to the incident stated that he observed the following:
[The paternal grandfather] was highly intoxicated, and [the father] was drinking, but not visibly intoxicated like his father. [The father] and [the paternal grandfather] started talking about the past and the conversation began to get heated. I went into the house and into the kitchen. [The father] followed me and his father followed him. [The father] was in the hallway and his father head butted him on his head. A lot of blood began to flow from [the father's] head and [the father] went into the bathroom. I think that there may have been blood falling from [the paternal grandfather's] head too. [The paternal grandfather] followed him into the bathroom and I heard a slap. I looked to see that [the paternal grandfather] was lying on the floor and [the father] was above him stomping on the right side of his father's head. I observed [the father] stomp on his father three or four times. [The father] exited the bathroom and approached his roommate . . . and asked him if he had a problem too. [The father] lunged forward at [the roommate] and then walked back to the kitchen. [The father's then girlfriend's] three or four year old son was entering the kitchen and was saying [the father's] name. I took the boy outside because I did not want him to witness what was going on . . .
Id., 3.
The first police officer who testified at the hearing reported that the paternal grandfather suffered numerous injuries including
5 broken ribs on his left side, a tear in his lung wall requiring a "chest tube" . . . a deep laceration on his left eye, a laceration on his right arm, and numerous abrasions and cuts over his legs and arms . . .
Id., 3.
The father was charged with the offenses of assault in the second degree, a class D felony, and assault in the third degree, a class A misdemeanor, which charges were pending as of September 23, 2008. Exhibit 1.
The father admitted that he struck such roommate during such altercation. Id., 2.
9. The father entered into written service agreements with DCF and he made oral agreements with DCF concerning the safety and protection of Brian, but he failed to keep such agreements to the detriment of Brian. Testimony of investigative social worker. On August 20, 2008, while neither the father nor the paternal grandmother were present in the home, the mother spilled hot liquid on Brian, causing him to have first and second degree burns on parts of his body. Id. Brian had to be transported from the local hospital to the burn unit at Bridgeport Hospital.
10. The paternal grandmother's testimony included the following:
A. the mother moved back into the home on July 2, 2008;
B. she and the father decided that the mother could stay a few weeks until she found an apartment;
C. the mother's partner came to the home to visit the mother, but she did not stay overnight;
D. On Sunday, July 20, 2008, at approximately noon, when she and Brian were in the house, Brian walked in on and she discovered the mother and her partner arguing while the partner was holding the mother down on a bed and they were having "violent sex;"
E. when she realized what was going on, she took Brian from the home;
F. she told the police about it on July 22, 2008, except that she did not tell the police that they were having "violent sex" because she was too embarrassed to say that;
G. On July 22, 2008, the mother and her partner were in the home having an argument over food and a computer, and when she realized that was happening she removed Brian from the apartment;
H. the mother's partner visited the mother four to six times that she knew of between July 2 and September 8, 2008, when the mother moved out;
I. she believed that the mother was not able adequately to care for Brian;
J. in 2007 the father was unable to stop parties and drinking by others in the back yard of the home;
K. the mother's partner is a violent person, and she was afraid of her;
L. she testified that on Sunday, July 20, 2008, she saw them taking their clothes off; she saw the mother's partner on top of the mother holding down the mother and "smacking her around," so she thought they were behaving sexually and she believed they had "violent sex in the past" in the home; and
M. also on July 20, 2008, she heard the mother saying to her partner, "stop, you're hurting me, ouch, ouch" and "let go of me, get your hands off of me," and on July 20 she saw bruises that the mother lied about to the police on July 22.
11. Because of the behavior and actions of some of the persons he has allowed in his home and on his property, including the behavior of the mother, her partner and at times because of his behavior, the father has been unable to provide a safe, secure, stable home environment for Brian. Such child and other children should not have had to be removed from the home because of domestic violence or other inappropriate behavior as happened several times in this matter.
APPLICABLE LAW:
Pursuant to General Statutes § 46b-129(b), which provides in part that
If it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . .
On September 9, 2008, the court found that (1) Brian was "in immediate physical danger from surroundings . . ." and that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . ." and the court issued an ex parte order vesting temporary custody of Brian in DCF.
A contested hearing is defined in Connecticut Practice Book § 26a-1(f)(2) as follows:
(f) "Hearing" means an activity of the court on the record in the presence of a judicial authority . . .
(2) "Contested hearing on an order of temporary custody" means a hearing on an ex parte order of temporary custody or an order to show cause which is held within ten days from the day of a preliminary hearing on such orders. Contested hearings shall be held on consecutive days except for compelling circumstances or at the request of the parent or guardian . . .
In In re Nashiah C., 87 Conn.App. 210, 221, 866 A.2d 669 (2005), cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005), the Appellate Court set forth the relation between the ex parte order of temporary custody and the subsequent contested hearing:
We turn now to the respondent's second argument. We initially set forth the applicable law and our standard of review. Pursuant to § 46b-129(b), the court may issue "an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody" if it appears, on the basis of the petition and supporting affidavits, that there is reasonable cause to believe that "(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety . . ."
"At a subsequent hearing on an order of temporary custody, the proper standard of proof . . . is the normal civil standard of a fair preponderance of the evidence." (Internal quotation marks omitted.) In re Kaurice B., 83 Conn.App. 519, 522, 850 A.2d 223 (2004).
See also Connecticut Practice Book § 32a-3.
Such fair preponderance of the evidence standard has been defined as follows:
"Fair preponderance of the evidence" was properly defined as "the better evidence, the evidence having the greater weight, the more convincing force in your mind." The court charged that the standard has been satisfied with respect to a fact if all the evidence considered fairly and impartially evinces a reasonable belief that it is more probable than not that the fact is true.
In In re Kaurice B., supra, 83 Conn.App. at 522-23, the Appellate Court explained DCF's responsibility in a contested OTC hearing:
The party seeking a change in custody, in this case the [petitioner], must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in § 46b-129(b). (Citation omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983).
In In re Kaurice B., supra, 83 Conn.App. at 525-26, the Appellate Court described the finding of the trial court after the contested hearing:
On the basis of the evidence admitted at the hearing, the court concluded that K would be subject to immediate physical danger from her family surroundings if she was returned to the care and custody of her father and stepmother. Accordingly, the court sustained the order of temporary custody.Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981).
In Fish v. Fish, 285 Conn. 24, 73-74 (2008), the Supreme Court set forth the constitutional authority for use of the fair preponderance standard in a temporary custody context:
Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).
CONCLUSION AND ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY:
This is a case where, as of the September 9, 2008, entry of the ex parte order of temporary custody, based on the evidence presented to the court, it was more likely or probable than not that Brian would have been in immediate physical danger if he were allowed to remain in the home where the father and the paternal grandmother were residing; that such ex parte order was necessary to ensure his safety which was endangered; and thus the order of temporary custody is sustained.
However, at this point in the case, and until this court orders otherwise, DCF has to perform its statutory duty to make efforts to reunify Brian with one or both of his parents (the mother, however, did not have physical custody of Brian on September 9, 2008, and has been in a violent relationship with her partner since early 2007, and on May 25, 2008, the father engaged in serious domestic violence that seriously injured his father):
(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.
General Statutes § 17a-111b.
Also, DCF has a statutory duty to provide visitation to each parent:
(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship . . .
General Statutes § 17a-10a.
There are pending orders from the Superior Court for Family Matters providing for the father to have sole physical custody of Brian and for the mother to have visitation. Each portion relating to custody and visitation only of such pending orders are suspended by this order of temporary custody and by the application of General Statutes § 17a-10a.
In summary, by a fair preponderance of the evidence, DCF has thus established that on September 9, 2008, Brian was
in immediate physical danger from his surroundings, and (2) that as a result of said conditions, his safety [was] endangered and immediate removal from such surroundings [was] necessary to ensure his safety . . .
Such temporary custody order thus is sustained and shall remain in effect unless and until vacated, terminated or otherwise modified by the court. The specific steps entered on September 9, 2008, shall remain in effect until further order of the court.