Opinion
No. L15-CP08-008515-A
October 28, 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 4, 2008, the Superior Court for Juvenile Matters ("the regional court") found that (1) Heather F. ("Heather") 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 Heather in the commissioner of the department of children and families ("DCF").
On September 9, 2008 at the regional court the father and the mother of Heather contested the court's ex parte findings and its determination that Heather's temporary care and custody should be vested in DCF. The regional court transferred the case to the Child Protection Session of the Superior Court to conduct the contested hearing. On September 15, 2008, the parents sought to waive the ten-day hearing requirement and an extension of time for the hearing (DCF and the child's attorney objected to such extension of time) and the CPS court accepted such waivers and granted such extension.
General Statutes § 46b-129(f) provides:
Upon request, or upon its own motion, the court shall schedule a hearing on the order for temporary custody or the order to show cause to be held not later than ten days after the date of the preliminary hearing. Such hearing shall be held on consecutive days except for compelling circumstances or at the request of the parent or guardian.
See also Practice Book § 33a-7.
On October 8, October 23 and October 24, 2008, this court conducted the contested hearing. On each day of the hearing DCF was present through its counsel and the social worker currently assigned to the family, who testified during the hearing. On each day of the hearing the father, who voluntarily testified during the hearing, was present and he was represented by private counsel. Also on each day of the hearing the mother was present and she was represented by counsel. The attorney for Heather was present on each day. All of such parties who were present participated in the contested hearing. The maternal grandmother with whom the parents are currently residing did not attend the hearing and was not offered as a witness by the mother or the father.
THE CONTESTED HEARING:
At the contested hearing DCF presented three witnesses and four full exhibits. The father presented two witnesses and thirteen full exhibits, and he also testified. The mother did not testify but she submitted five full exhibits into evidence. The child submitted two full exhibits into evidence.
The court advised each parent that it would not draw an adverse inference from either parent's decision not to testify. See In re Samantha C., 268 Conn. 614, 847 A.2d 883 (2004).
The evidence established the following, inter ala, by a fair preponderance of the evidence:
1. Heather was born on September 1, 2008 to the biological parents. Three days later, before Heather was released from the hospital, DCF sought and obtained from the Superior Court for Juvenile Matters ("SCJM" or "regional court") an ex parte order of temporary custody ("OTC").
2. Heather has an older biological sister, Mary F. ("Mary"), who was born in June 2007, and an older half-sister Ember M-B ("Ember") (Heather's mother is Ember's mother), who was born in March 2006. A contested matter involving Ember and Mary previously was heard and decided by this court, see In re Ember M-B. and Mary F., 2007 Ct.Sup. 17552, Nos. H14-CP06-008564-A, H14-CP07-009138-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., August 1, 2007). In such decision the court found the following facts by a fair preponderance of the evidence:
As set forth in In re Stephen M., 109 Conn.App. 644, 664-65 (2008), this court must accept the trial court findings made in prior proceedings:
On the basis of those same constitutional rights and public policy reasons, a trial court may not, in a subsequent proceeding, disregard and permit relitigation of, a factual or legal determination made or an issue decided in a prior proceeding. Such reconsideration is fundamentally inconsistent with the relevant statutory scheme and is unfair to the petitioner, who represents the state's parens patriae interest, as well as unfair to the respondent parents and the children . . .
On July 13, 2007, pursuant to a ninety-six hour hold provided for in General Statutes subsections 17a-101g(e) and (f), the commissioner of children and families (DCF) assumed temporary custody of Ember M-B. ("Ember") and Mary F. ("Mary").
On July 17, 2007, DCF filed a petition seeking that Mary be adjudicated neglected. DCF also filed ex parte motions for temporary custody of each of the children. On such date, (i) upon its finding pursuant to General Statutes § 46b-129(b) that each of the children was in immediate physical danger and that continuation in the mother's home was contrary to their welfare, the court granted such motion and awarded temporary custody of such children to DCF.
On July 27, 2007, at the preliminary hearing in the local court the custodial mother and the non-custodial father of Mary contested the ex parte orders of temporary custody and sought a contested hearing.
The father of Ember supported the order of temporary custody and DCF's motion to modify disposition. Such father was excused from attendance at the contested hearing.
The contested hearing was scheduled in this court on July 30, 2007. After settlement negotiations between DCF and the mother, the mother agreed to plead nolo contendere to the "conditions injurious" allegations of the DCF petition concerning Mary. DCF, the mother and the attorney and guardian ad litem for Mary agreed that it was appropriate for the court to order that Mary be placed under DCF protective supervision for six months. The court canvassed the custodial mother, found that the mother's nolo contendere plea was knowingly, voluntarily and intelligently made by her, and the court, subject to the non-custodial father's neglect trial request, accepted the plea and agreed disposition.
The non-custodial father of Mary contested the neglect adjudication, and requested a trial. Such trial was held in the afternoon of July 30, 2007.
The DCF worker who investigated the events leading to DCF's decision to invoke the statutory ninety-six-hour hold testified at the neglect trial. The "social worker affidavit" she prepared in support of DCF's ex parte motion for temporary custody of each of the children was admitted as a full exhibit. The affidavit contains detailed information about incidents of domestic violence, alcohol abuse and weapons in the home where the mother and each of the children reside. The mother's extended family has been involved with DCF since at least 1997. On July 13, 2007, such DCF investigator observed Ember to be "very dirty. Her clothing was dirty and had a foul odor, her face and hair were also dirty. Th[e] worker observed dirt under both her fingernails as well as her toenails. The worker also observed her ears to be caked with dirt." (Exhibit 1, 5.) Such worker observed the condition of the home as "deplorable" and the home environment as "chaotic."
The DCF investigator determined that the non-custodial father was not a viable resource for his daughter Mary. Id., 4-5. The father was not a participant in any of the events that preceded DCF's decision to invoke the ninety-six hour hold and to seek temporary custody of the children. Id., 1-5. Although the father and the mother may have been married on or about July 6, 2007, they were not living together during such events, e.g., the father was not living in the home of the mother's extended family with her or Mary, nor were they living elsewhere with him.
Id., 17552-53 (footnotes omitted). See also exhibit C-1.
3. Prior to March 4, 2008, other contested matters were heard at another regional court, and on March 4, 2008 the pending matters were decided by Judge Olear. In re Ember M-B and Mary F., Nos. H14-CP06-008564-A and H14-CP07-009138-A, Superior Court for Juvenile Matters, Judicial District of Hartford/New Britain at Hartford. Such court had before it a motion to vacate an order of temporary custody and a motion to modify a prior disposition of protective supervision to commitment. The court made the following findings of fact by a fair preponderance of the evidence:
See footnote 3, supra.
The "social worker affidavit" she prepared in support of DCF's ex parte motion for temporary custody of each of the children was admitted as a full exhibit. The affidavit contains detailed information about incidents of domestic violence, alcohol abuse and weapons in the home where the mother and each of the children reside. The mother's extended family has been involved with DCF since at least 1997.
This is a dispositional proceeding and the Court is mandated to consider the best interest of the children in coming to a decision. At the Court — at the outset the Court notes that the OTC issued on September 13, 2007, led to the third removal of Ember and the second removal of Mary. The Court does agree that everyone in this courtroom is here because they want what's best for Ember and Mary.
What the Court has before it today is a motion to vacate the OTC and a motion to modify from protective supervision to commitment.
The Court, by a fair preponderance of the evidence, makes the following factual findings: The Court first off finds credible the testimony of Officer St. Onge, Dr. Livingston and Dr. Derry. The Court has also considered the report and testimony of Dr. Mantell, but the Court expresses concern that the parents were perhaps less than forthcoming in their interview and meeting with Dr. Mantell.
Upon considering the totality of the evidence submitted, [t]he Court finds the following matters to have resulted in a change in circumstances since the date of August 3, 2007.
1. There remain unexplained serious physical injuries to Mary while she was, at the time, in the legal custody and care of mother. There is also evidence the parents have demonstrated poor judgment in continuing to use J D to babysit after having serious concerns with her, as the parents thought she may have harmed the children on an earlier occasion.
2. Unstable housing, unstable home life, and concern with the ability of the parents to keep the children safe; mother at the time of the petition was living in a motel with the children. Mother had previously hampered the efforts of DCF to assist her in locating suitable housing by limiting the area in which she would consider living. Father was at that time living with Uncle E M, also known as Uncle S, who, the evidence is clear, has previously molested father during father's childhood and early adolescence.
Mother, subsequent to the filing of the petition, lived with father with such uncle. This uncle had been prohibited from having contact with the children. According to Dr. Mantell, father F does not believe the uncle to be a threat to the children notwithstanding the previous sexual abuse of father by such Uncle S. There is evidence of a lack of understanding by mother and father of the danger to their children by their affiliation with Uncle S M.
There is also evidence that mother has been on at least one occasion prohibited from returning to the house at 23 E Street in P when she lived there — by her husband and by Uncle S. This is supported by the police report introduced as evidence, Exhibit D2. The fair preponderance of the evidence is that the Respondents [have] been unable to provide safe and stable housing for the children.
Ember's failure to thrive is the third concern. Dr. Livingston's SCAN consultation of August 28, 2007, Exhibit M, provides the — is also demonstrative of such concern. That SCAN consultation provides information that was provided to mother in writing with regard to the diet for Ember. At the follow up appointment . . . mother gave to Dr. Livingston a recounting of what she had fed Ember the previous day. Based on that the mother had continued, notwithstanding the written direction from Dr. Livingston, to provide inappropriate food to Ember.
There has also been evidence introduced that since the latest removal of the children in September that mother has been continuing to provide inappropriate food to Ember during visitation and that mother is in need of redirection in that regard. Mother presented to Dr. Mantell as not being relevant and helpful and as having a lack of insight in connection with the failure to thrive concern. Ember needs consistent, good nutrition to recover.
4. There's evidence of inappropriate displays of anger and yelling by father Finkle in the presence of the children. There was testimony that Mary herself has been "startled" by father Finkle's yelling.
CT Page 16843
5. The results of the psychological evaluations: The November 19, 2007, psychological report, which was Exhibit D, recommends that the children remain in stable foster care until such time as mother and father F can achieve sufficient rehabilitation of their deficits to provide responsible child care. Specifically mother [is] said to require parenting skills, child nutrition education, hands on supervised child care experience and life skills training, as well as dialectical behavior therapy. Dr. Derry stated mother cannot distinguish reality from fantasy or wish.
Father F [is] recommended by Dr. Derry to receive dialectical behavioral therapy and a psychopharmacological assessment to address his delusions. Dr. Derry stated father F's personality assessment subjective, projective and objective revealed a severely impaired psychological adjustment and that he exhibits few emotional controls.
Dr. Mantell's report, Exhibit 5, while not finding results of his evaluation of father F to be elevated to a finding of a frank, delusional disorder does note some persons with the profile shared by Mr. F may qualify for the diagnosis of a paranoid personality disorder or delusional disorder. Among the items endorsed by father F during his meeting with Dr. Mantell was the statement, If people had not had it in for me I would have been much more successful.
The parents require services before they can assume the role of a safe and nurturing parent. Individual, family and parenting counseling is warranted. Mother may have attended parenting counseling, but she needs to learn how to apply what she had learned.
There is testimony that the parents have been in compliance with the specific steps. There is also evidence that the parents have been refusing services since September 13, 2007. The psychological evaluation and the evidence presented confirm that mother has not benefited from the service provided to her prior to the September 13th OTC being issued. Dr. Mantell noted he found the parents to be open and available to services. This statement was made after the parents had listened to three days of testimony. The Court hopes, however, that it is true.
***
Mother and father Finkle have not demonstrated an ability to independently care and provide a safe and nurturing environment for their children. The children are of a young and tender age and in need of consistent, nurturing caretakers. The safety of the children and the strengthening of the family were not being achieved during the period of protective supervision.
Accordingly, the petitioner has by a fair preponderance of the evidence met its burden to show that the grounds for the commitment exist and modifying protective supervision to commitment is in the best interest of the children. The Court finds continuation in the home to be contrary to the welfare and safety of the children.
The children are found to be in immediate physical danger from their surroundings if they returned to the care and custody of the children, although with the finding of the commitment this is rendered, in effect, moot, as the children have been committed. The Court finds continuation in the home is contrary to the welfare and the safety of the children. It is so ordered . . .
(Exhibit 1, 2-7.)
The court agreed with Dr. Mantell that a psychosexual assessment of the father was not warranted as of March 4, 2008. Id., 8. However, the court suggested that the father should consider such an assessment to ". . . help erase these doubts about him . . ." Id.
4. Pursuant to General Statutes § 46b-129(b), on September 4, 2008, the regional court found that (1) Heather was "in immediate physical danger from surroundings . . ." that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . ." and such court issued an ex parte order vesting temporary custody of Heather in DCF.
5. The current DCF worker testified that in June 2008, the parents were evicted from their apartment.
6. The parents have moved in with the maternal grandmother who has a long history of contact with DCF, and who is currently under an order of protective supervision with respect to a younger sibling of the mother, which order as of October 24, 2008, was scheduled to expire in November 2008. The current DCF worker testified that DCF's concerns with such maternal grandmother, such home, and other people having access to the children including Heather if any of them were returned to the parents in such home because of the history of domestic violence, fighting, alcohol abuse, substance abuse, the past claims of sexual abuse and the lack of ability to keep the children clean and the home clean.
As set forth on page 4, above, the home in which the parents were residing prior to and on September 4, 2008, was the maternal grandmother's home. The maternal grandmother and other residents of the home (some of whom no longer live there) have been involved with DCF since 1997. See page 4, supra. On August 1, 2007, this court found inter alia, as set forth on page 4, supra:
Prior to the July 2007, events and proceedings, see pages 3-5, supra, the mother, Ember and Mary also resided at the maternal grandmother's home.
See, e. g., page 4, supra:
On July 13, 2007, such DCF investigator observed Ember to be "very dirty. Her clothing was dirty and had a foul odor, her face and hair were also dirty. Th[e] worker observed dirt under both her fingernails as well as her toenails. The worker also observed her ears to be caked with dirt." (Exhibit 1, 5.) Such worker observed the condition of the home as "deplorable" and the home environment as "chaotic."
7. Since March 4, 2008, the parents consistently have visited with Ember and Mary, and since September 1, 2008, they have consistently visited with Ember, Mary and Heather. Such worker and two other witnesses testified about parenting deficiencies relating to the safety of the children demonstrated by each parent during such visitation. By way of example, these deficiencies involving parenting issues and responsibilities, including the feeding of, directing and supervising the children, the cleanliness of the parental home, observed safety issues and the negative, distracting interactions between the parents in front of the children and without regard for their needs and safety are described in detail in the father's full exhibit F-4 and in the testimony of M H, who testified that matters did not improve over time despite his work and the work of a PEAS representative assigned to work with the family, who also testified about such parental deficiencies and child safety issues;
For several weeks one of the goals was that the mother would learn effectively to discipline Ember, but unfortunately that was unsuccessful.
M H — testified that he had provided "dozens" of instructions and modeling suggestions to the parents on taking care of the children and keeping them under control but that the parents did not internalize or use them after he did so. In his notes of the June 3, 2008, visit he described how the parents could not keep Ember in their yard and how their attempts to control, direct and discipline her were ineffectual. (Exhibit F-4.) He also noted that the mother shouted a lot and used profanity in front of the children. Id. She also called the father an "idiot" in front of him and the children. Id.
8. Since March 4, 2008, each parent has failed to demonstrate sufficient progress so that if Heather were placed with them or either of them, her health and safety would be assured. Each parent still lacks insight into and acceptance of her, his or their responsibility for any, some or all of the events that led to the removal of each of the children, to their placement and continuing residence in foster care, and each parent blames DCF and others for such removals and for the current situation where their contact with the children is through supervised visitation. See, e. exhibit F-4.
9. The mother has tried to comply with and benefit from services, but she has limited cognitive ability and thus has been unable to demonstrate that she could care for Heather while the father is out of the home at work or for other reasons. By way of example, in the mother's full exhibit A, page 2, the following is set forth by her former therapist who testified at the hearing:
The father stated that he works at two jobs approximately fifty-five hours each week. He is out of the home during those hours.
Attended 7 individual sessions from 6/5/08 to 8/19/08
Cooperative and cordial in treatment
Limited insight
***
The mother's diagnosis reported by such therapist was as follows:
Adjustment Disorder with Depression and Anxiety
Limited Intellectual
Pregnant . . .
Problems with primary support group, housing, occup. and legal (DCF)
GAF 50
10. Since March 4, 2008, at times the father has been frustrated by the mother's limitations and he has undermined her efforts to improve her parenting skills. See, e. g., exhibit F-4. At times after March 4, 2008, the mother has not followed the father's instructions to her with respect to the children and when both then start to argue the children are ignored, thus on occasion creating safety issues. By way of example, since March 4, 2008, M H, who has facilitated and supervised visitation, and who testified at the hearing, has witnessed the father on more than one occasion tell the mother to get Ember after she moved away from them, and when the mother has failed to do so, the father did not retrieve her. Id. While the father has recognized issues with the children more frequently than the mother, he has not acted to remedy them. Id.; testimony of M H. He has told the mother to take action instead of doing it himself. Id. The father's tone has been scolding rather than encouraging, and Ember, who is the more mobile child, does not listen to either parent but plays them to act against each other. Id.
11. Since March 4, 2008, the mother and the father have continued to have significant mental health and personal relationship issues that impede their parenting abilities. During the visits that have occurred after March 4, 2008, in front of the children the father and the mother have continued to argue with, to criticize each other, and to undermine each other's parenting efforts. Also, the father has continued to use poor judgment in maintaining a close relationship with his uncle who sexually molested him for approximately ten years, including contemplating purchasing a home with him. See the father's exhibit F-2, 10 and the father's testimony. M H testified and reported that the father did not seem to have any insight about why that might be a problem for his children. (Exhibit F-4, June 17, 2008, report and testimony of M H.)
12. B A, the PEAS worker, also testified about her efforts after March 4, 2008, to help the parents develop parenting skills, and her observations of the parents' reactions to the efforts of M H. She worked directly with the mother for three hours each week, and she worked with the father during supervised visitation sessions. She noted that the parents did not use age appropriate materials for play with a two-year-old child, including a cell phone and a printer. She said that the father believed that a two-year-old child could use a printer. She also described the lack of appropriate limits placed by the parents on the children, and the parents' absence from the children in circumstances implicating the children's safety, such as on playground equipment and near a pond. She noted that the parents do not "maintain" what they have been taught, so that they are able to parent the children without professional guidance and intervention. She confirmed that the parents believe that others are at fault for their continued involvement with DCF, and that they blame the foster parents for problems with the children. Although the parents made attempts to follow the guidance of and directions from M H, they were unable to do so. The parents did not use good judgment in what they discussed or mentioned in front of the children.
13. The father testified about his view of some of the issues raised in the testimony of the current DCF worker, M H and B A. He confirmed that he has two jobs and works approximately fifty-six hours each week. He denied that there was any current domestic violence or substance abuse. He stated that the family was not evicted in June 2008, for failure to pay rent, but instead because the landlord could not obtain refinancing of a mortgage.
He could not explain why Ember does not listen to him or to the mother. He thought that for the most part the visits went well. He said that there are sometimes differences between him, the mother and Ember, and lately there have been differences with Mary. He admitted that there was some arguing between him and the mother at visits. He also admitted that sometimes he demonstrated his frustration in front of the children. He also admitted that the mother does not always do the right things and that she has limited skills. He stated that his last criminal conviction was in 2004, and that he has no trouble at work.
Contrary to the testimony of M H and B A, he stated that he did not believe Ember was too close to the water before she was retrieved by him or the mother.
He stated that Ember's pediatrician did not mention anything to the mother or him about Ember's failure to thrive symptoms. He thought Dr. Livingston first diagnosed it in 2007. (See exhibit 4.)
He said that the last time the uncle sexually abused him was twenty-three years ago, and he denied that he and the mother had any plan to move in with the uncle. It has recently been recommended by A Y, who works at B Counseling Center, that he have sexual offender and mental health counseling.
14. The mother's therapist testified that the mother has mentioned several reasons why the children were removed from her, but that she does not take responsibility for the removal and blames the babysitter who was convicted of criminal offenses because of injuries to Mary. She testified that the mother had difficulties and issues in residing with the father, including disagreements over the dogs belonging to the uncle that the father brought into the home, the relationship with the uncle and other issues. The mother was trying to satisfy DCF but was limited in her ability to do so.
15. Based on the sad and difficult history of the parents with the parenting of Ember and Mary, who as of the last removals from the parents have been in foster care for approximately thirteen months, if she were returned to the mother and the father, the court finds by a fair preponderance of the evidence that Heather would be in immediate physical danger from her surroundings, and her safety would be endangered. See In re Michael D., 58 Conn.App. 119, 123-24 (2000).
In In re Michael D., supra, 58 Conn.App. at 123-24, the Appellate Court articulated "predictive neglect" as a basis for adjudicating a child neglected:
Our statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future. General Statutes § 17a-101(a) provides: "The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family." (Emphasis added.) By its terms, § 17a-101(a) connotes a responsibility on the state's behalf to act before the actual occurrence of injury or neglect has taken place.
In this case in the context of the current OTC proceeding involving an order that was issued before Heather left the hospital to go to the parents' current residence to be cared for by them, there is also an element of prediction as to Heather, based on the documented history of parenting deficiencies and concomitant safety issues, including physical injury to and/or elevated risk of physical injury to Ember and Mary.
Although before such OTC was issued Heather had not left the hospital to be cared for by the parents in their current residence, because of the history of the parents with DCF and the lack of lasting benefit to them from the services provided by DCF in connection with Ember and Mary, DCF and the regional court had a basis on which to act to eliminate the potential for harm or abuse to occur in the future with respect to Heather and to act before the actual occurrence of injury to or neglect of Heather as a result of any actions or omissions of either or both parents.
In sustaining the OTC in this case, the court necessarily determined, by a fair preponderance of the evidence, including the evidence relating to Ember and Mary, that if Heather had been in the care of the parents in their current residence at the time of the issuance of the ex parte OTC, there would have been immediate physical danger to Heather at such time, and Heather's safety would have been endangered at such time if she were in the parents' current residence under their care.
Based on the evidence currently in the record in the proceedings relating to Ember, Mary and Heather, it is not more likely or probable than not that either or both parents will be able to provide adequate unsupervised custodial care for any, some or all of the children at any time in the reasonable future.
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) Heather 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 Heather 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 required finding of the trial court after the contested hearing if an OTC is sustained:
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:
CT Page 16851
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 4, 2008, entry of the ex parte order of temporary custody, based on the evidence presented to the court in this contested hearing, it was more likely or probable than not that Heather would have been in immediate physical danger if she were allowed to reside in the home where the father and the mother were residing; that such ex parte order was necessary to ensure her 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 Heather with one or both of her parents:
(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, which it has been doing in this case to date with a caring and professional supervisor:
(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.
In summary, by a fair preponderance of the evidence, DCF has thus established that on September 4, 2008, Heather was
. . . in immediate physical danger from h[er] surroundings, and (2) that as a result of said conditions, h[er] safety [was] endangered and immediate removal from such surroundings [was] necessary to ensure h[er] 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 4, 2008, and/or any prior specific steps concerning Ember and Mary shall remain in effect until further order of the court.