Opinion
No. U06-CP06-005881-A
October 24, 2006
MEMORANDUM OF DECISION
FACTS
In this contested hearing concerning whether to sustain or vacate the court's ex parte order of temporary custody, having heard the testimony and reviewed and considered the full exhibits, the court makes the following findings by a fair preponderance of the evidence:
1. On October 6, 2006, at 12:45 a.m., pursuant to Connecticut General Statutes ("C.G.S.") § 17a-101g, the commissioner of the department of children and families ("DCF") placed Jaelin P. ("Jaelin") in her custody under a "ninety-six hour hold."
2. On October 6, 2006, the court found that Jaelin was in immediate physical danger from surroundings, that continuation in her home was contrary to her welfare, and the court then entered an ex parte order vesting her temporary care and custody in DCF.
3. On October 13, 2006, the respondent parents appeared in the local superior court for juvenile matters where they were advised of their rights and they elected to contest the order of temporary custody.
4. On October 20, 2006, this court conducted the contested hearing.
5. On October 6, 2006, Jaelin was approximately eighteen months old.
6. On October 6, 2006, the father was twenty years old and the mother was nineteen years old. 7. On October 5, 2006, Jaelin's brother Joseph, who was approximately seven months old, died while he was at home in the care and custody of his parents, both of whom were home when he died. The father most likely was in the same bedroom as Joseph when he died.
8. Jaelin's paternal grandparents were also in the home when Joseph died.
9. Prior to Joseph's birth, the parents and Jaelin lived in North Carolina with the maternal grandparents.
10. After Joseph's birth, the parents, Jaelin and Joseph moved to the paternal grandparents' home.
11. On October 5, 2006, the parents, Jaelin and Joseph lived in one room in the paternal grandparents' home, but they had access to the remainder of the home, including the kitchen.
12. On October 5, 2006, at 8:21 p.m., the local police were dispatched to the home "on a medical assist complaint." (Exhibit 1, 2.)
13. The mother had called 911 and she had stated that "her baby . . . was not breathing." Id.
14. When the police arrived at the home they observed the father performing CPR on Joseph. Id.
15. The police continued to perform CPR on Joseph, "who appeared to be pale, unresponsive and not breathing." Id.
16. At approximately 8:32 p.m., an ambulance and EMS personnel arrived, "continued medical treatment and quickly rushed Joseph" to a local hospital. Id.
17. One of the responding police officers spoke to the mother "who stated that she placed Joseph in the bas[s]inet to sleep, but picked him up five to ten minutes later to give him a bath." Id. This statement was untrue as to the elapsed amount of time between Joseph being put in the bassinet and being picked up by the mother.
18. The mother stated to such police officer that "when she picked Joseph up she noticed th[at] he was unresponsive. [The mother] then attempted to wake Joseph up but was unable to. At that point she dialed 911 for assistance." Id.
19. Another officer spoke to the father who stated that "as far as he knew that Joseph had been asleep since 1400 hours." Id.
20. At 8:54 p.m., Joseph was pronounced dead by an emergency room physician. Id.
21. Another police officer, a witness in the hearing, contacted DCF and spoke with a worker "who took the suspected child abuse and neglect report." (Exhibit 3.)
22. On October 6, 2006, at 3:15 a.m., the father provided a written statement to the police, that included the following:
A. He had been married for two years to the mother, who is nineteen years old.
B. In April 2006, the family moved to his parents' home.
C. He, the mother, Jaelin and Joseph shared a bedroom in his parents' home.
D. The mother doesn't work so she watches the children while he works.
E. On October 5, 2006, the father "was off from work so [he] spent most of the day in [their] bedroom, . . . catching up on sleep and rest."
F. During October 5, 2006, on occasion Jaelin was in other rooms in the home but Joseph did not leave the bedroom.
G. During October 5, 2006, he and the mother watched Joseph and Jaelin; the paternal grandparents, who were in the home, did not do so.
H. The father voluntarily admitted the following to the police:" When Joseph is in his bed we usually put a pacifier in his mouth and keep it there with a baby towel. We use the baby towel to wrap round the pacifier and his head to hold the pacifier in place. Today at around 2:30-3:30 [p.m.] Joseph was crying while I was laying down on the bed. I got up and put the pacifier in his mouth, [the mother] tried to come into the bedroom when she heard Joseph crying but I told her I was all set with the baby. After I got the pacifier in Joseph's mouth [the mother] came into the bedroom. This was the last time I saw Joseph awake or heard him. I didn't check on Joseph the rest of the afternoon." Id.
23. On October 6, 2006, at 5:16 a.m., the mother provided a written statement to the police that included the following:
A. Joseph was born in March 2006.
B. In April 2006, the family moved to Connecticut to stay with the paternal grandparents.
C. On October 5, 2006, at approximately 8 a.m., "Joseph woke up and I changed his diaper and gave him a bottle. I laid him in his bed with a blanket under his head so he could hold his bottle to eat. After he ate I burped him and laid him back down in his bed and I laid back down. [The father] and Jaelin were back in our room and Jaelin was in her crib and [the father] was laying down on the bed with me. I fell asleep until about 11:00 a.m. when I heard Jaelin messing around in the bed jumping up and down. I went into the kitchen to get a drink and came back in the room and me and Jaelin ate some chips . . . At about 12:00 or 12:30 Joseph woke up again. I changed his diaper and gave him another bottle. I played with him for a little bit and rocked him. Then [the paternal grandmother's] aide came over so I laid Joseph in his bed and went to the kitchen. It was about 1:45 p.m. when I went to the kitchen. [The paternal grandmother] and the aide asked me if I wanted to play . . . a game. When we were done playing the game, around 2:30 p.m. I went to bring the game to [the father]. I heard Joseph starting to cry when I was leaving the kitchen. I got to the bedroom door and I could hear Joseph crying more. I opened the door and saw Mike putting Joseph's pacifier into his mouth. Joseph was laying on his stomach and his back was toward me. Joseph stopped crying when Mike put the pacifier in his mouth. Mike lifted Joseph's face up to get the pacifier in his mouth and wrapped a receiving blanket around the back of his head to keep it in place in his mouth. I asked [the father] if he wanted me to take Joseph and [the father] said `I got it.' I handed [the father] the game and went back out to the kitchen. I played [another game] with [the paternal grandmother] and the aide until about 3:00 p.m. After that the aide left and [the paternal grandmother's] friend came over. Then I went back into our room. When I walked in the room Joseph was in his bed and he was on his stomach the way he was when [the father] put the pacifier in his mouth earlier. Jaelin was in her bed sleeping. [The father] was awake watching TV . . . [Later] I went to pick up Joseph . . . and noticed that he was purple in the face and he was cold . . . [The father] and I were the only people who were taking care of Joseph on Thursday, 10/5/06." (Exhibit 2.)
On October 11, 2006, the mother confirmed to one of the investigative workers that she in fact wrapped the blanket around the pacifier and Joseph's head, "but not tightly."
24. When he reached the hospital, Joseph was cold, blue, in cardio-pulmonary failure and he was not breathing on his own.
25. The stiffness in his extremities, jaw muscles and neck was due to rigor mortis.
26. Joseph's body exhibited lividity, e.g., a pooling of blood after death in "dependent areas."
27. Such lividity begins to occur one to two hours after death.
28. Joseph also exhibited a mottling of his skin, also an indication that he had been dead for some time before he reached the hospital.
29. His diaper was noted to be full of stool and urine, an indication that he had not been changed by the parents although he had multiple bowel movements.
30. The emergency room physician who testified opined, and the court finds, that before he reached the hospital, Joseph had been dead "for longer than a few hours."
31. Another physician opined to the police, and the court finds this to be plausible, that Joseph had been dead between four and six hours before he reached the emergency room. (Exhibit A.)
32. The mother claimed to one or more of the doctors that Joseph was moving in bed between 7:00 and 7:30 p.m. "or so." Id. When she went to wake him around 8:00 p.m. she noticed that he was not breathing. Id. Her statement concerning Joseph's alleged movement between 7:00 and 7:30 p.m. was untrue.
33. The parents had previously wrapped a blanket around Jaelin's head when she used a pacifier. The parents claimed to one or more DCF investigators that Jaelin no longer used a pacifier.
34. The parents admitted to an investigative social worker who testified that they did not see anything wrong with securing the pacifier with a blanket wrapped around the child's head. An emergency room nurse testified, and the court finds, that such method of securing the pacifier in Joseph's mouth was not a safe parenting practice.
35. Such emergency room nurse also testified, and the court finds, that because of the small distance between Joseph's mouth and nose, there was a great risk and danger of suffocation from the parents' blanket-wrapping practice. There was also a great risk and danger of suffocation if Joseph's small nasal passages became blocked in the event he became congested.
36. One of the two DCF investigative workers testified that DCF's risk assessment for Jaelin was high because of (a) her young age of approximately eighteen months, (b) her lack of visibility in the community, (c) her lack of ability independently to communicate verbally to others to express what is or was happening, or not happening, in the home, (d) the parents' poor, and probably grossly neglectful, parenting practices and judgment demonstrated, inter alia, by using the blanket-wrapping practice and by not checking on Joseph for long periods of time, and the court finds that such DCF risk assessment was reasonable under the circumstances existing on October 5 and 6, 2006, and at present.
37. The police are continuing their investigation, and they are, inter alia, awaiting the results of an autopsy of Joseph to be performed by the office of the chief medical examiner. 38. Based on the currently available evidence presented to the court, Joseph's cause of death most likely is by asphyxiation caused by the wrapping of the blanket around his head to secure the pacifier in his mouth at approximately 2:00-3:00 p.m. on October 5, 2006.
39. DCF has proved by a fair preponderance of the evidence that Jaelin would be in immediate physical danger if she were returned to the care and custody of the parents.
APPLICABLE LAW:
Pursuant to C.G.S. § 17a-101g(e), which provides in part that if DCF "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety . . .," on October 5, 2006, DCF removed Jaelin from the parents.
"The remedies provided in §§ 46b-129(b) and 17a-101g(c) are available only upon a finding that there is probable cause to believe that the child is in unsafe surroundings and that immediate removal is necessary to protect the child from harm." Teresa T. v. Ragaglia, 272 Conn. 734, 749-50, 865 A.2d 428 (2005). (Footnotes omitted.) Pursuant to Public Act 05-35, subsection (c) of C.G.S. § 17a-101 became subsection (e).
Pursuant to C.G.S. § 46b-129(b), which provides in part that "[i]f 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 of 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 October 6, 2006, the court found that Jaelin was "in immediate physical danger from surroundings . . ." and that "[c]ontinuation in the home is contrary to the welfare of said child . . ." and the court issued an ex parte order of temporary custody vesting custody of Jaelin in DCF.
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six hour hold and the issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Teresa T. v. Ragaglia, 272 Conn. 734, 749 n. 9: "The reasonable cause determination in § 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is immediate physical danger,' whereas the probable cause determination in § 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' `impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . ."
In In re Nashiah C., 87 Conn.App. 210, 221, 866 A.2d 669 (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)."
This is a case where, as of the October 6, 2006, date of the ex parte order of temporary custody and at present, and based on the evidence presented to the court, it is more likely or probable than not that Jaelin would be in immediate physical danger if returned home, and Jaelin's immediate removal was and is necessary to ensure her safety. However, despite the nature of the facts in this case, as they were known on the October 20, 2006, date of the contested hearing, DCF has a statutory duty to make efforts to reunify Jaelin with 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, as amended by this act or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129, as amended by this act." C.G.S. section 17a-111b, as amended by Public Act 06-102, effective October 1, 2006.
Also despite the nature of the facts in this case, DCF has a statutory duty to provide visitation to the parents "unless otherwise ordered by the court":
"(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 . . ." C.G.S. section 17a-10a.
DCF and the attorney for Jaelin argued during and at the end of the hearing that with respect to Joseph the parents demonstrated "gross negligence" and/or "gross neglect," and that because Jaelin was "similarly situated," although she had no signs of any physical injury, she was in physical danger when she lived with the parents and she would continue to be in physical danger if she were returned to them. The court does not have to wait for an injury to occur to a child before taking action in the child's best interest to protect such child:
"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.
"General Statutes § 46b-120(8) provides that `a child or youth may be found `neglected' who . . . (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being . . .' The department, pursuant to the statute, need not wait until a child is actually harmed before intervening to protect that child. General Statutes § 46b-129(b) permits the removal of a child from the home by the department when `there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from his 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 . . .' This statute clearly contemplates a situation where harm could occur but has not actually occurred.
"Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected . . . An adjudication of neglect may be based on a potential risk of harm and not just actual harm. See In re Kelly S., 29 Conn.App. 600, 612, 616 A.2d 1161 (1992)." In re Michael D., 58 Conn.App. 119, 123-25, 752 A.2d 1135 (2000). See also In re Jermaine S., 86 Conn.App. 819, 830-31, 863 A.2d 720 (2005), cert. denied, 273 Conn. 938, 875 A.2d 43 (2005).
Neither DCF nor the court must wait until actual physical injury to Jaelin has occurred before acting in her best interest by taking action to protect her.
CONCLUSION AND ORDER
By a fair preponderance of the evidence, DCF has established that on October 6, 2006, on October 20, 2006, and at present, Jaelin was and "is . . . in immediate physical danger from [her] surroundings, and (2) that as a result of said conditions, [her] safety [was and] is endangered and immediate removal from such surroundings [was and] is necessary to ensure [her] safety . . ." The order of temporary custody is sustained.
The court and the parties are aware that the police and chief medical examiner's office investigation of Joseph's death continues and that there will be new and/or additional information relating to this case.