Opinion
No. H14-CP08-009486-A
July 8, 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 June 20, 2008, the Superior Court for Juvenile Matters ("the regional court") found that (1) Jaylen S. ("Jaylen") 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 Jaylen in the commissioner of the department of children and families ("DCF").
At the regional court the mother of Jaylen contested the court's findings and its determination that Jaylen's temporary care and custody should be vested in DCF. On July 3, 2008, this court conducted the contested hearing. DCF appeared through its counsel and the social worker who is currently assigned to the family (Jaylen has three older half-siblings who are not in the mother's care). The father has not been identified by the mother, so he did not appear and he was not represented by counsel. The mother appeared and was represented by counsel. The attorney for Jaylen appeared. All of such parties who were present participated in the contested hearing.
THE CONTESTED HEARING:
At the contested hearing DCF presented four witnesses and three exhibits. The mother testified and called her sister as a witness.
The following facts were established by a fair preponderance of the evidence:
1. Jaylen was born on June 18, 2008, in a hospital.
2. In May 2008, while she was pregnant, the mother had tested positive for marijuana use.
3. A social worker at such hospital who testified at the contested hearing stated that she was a mandated reporter and because the mother had tested positive for marijuana use during her pregnancy such worker had to make a referral to DCF after Jaylen was born. Such worker was also aware that the mother had an open case with DCF on the date of Jaylen's birth. Such referral was made on June 18, 2008.
4. The DCF investigator who was assigned to investigate the referral testified that the DCF history of the mother reflected that the mother had untreated mental health issues, substance abuse issues and three older children who were not in her care. Such investigator stated that the mother refused her access to her sister and her sister's home where the mother allegedly had been residing for approximately six months. Such investigator was thus unable to determine where the mother was actually living and if the mother had resources sufficient to provide for Jaylen. A redacted copy of such investigator's investigation protocol was admitted as a full exhibit. (Exhibit 1.)
5. Such investigator recommended that DCF seek an order of temporary custody. On June 20, 2008, the regional court found that (1) Jaylen was "in immediate physical danger from surroundings . . .;" that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . .;" and the regional court issued an ex parte order vesting temporary custody of Jaylen in DCF.
6. The current DCF worker assigned to the family testified. She is a social worker in the permanency unit. The case was assigned to such unit because DCF had filed a pending termination of parental rights petition relating to Jaylen's older half-brother Jaiden. Such worker testified that DCF's involvement with the family had begun in 1998.
7. In October 2006, the mother was arrested and Jaiden was removed from her. Because there were no relatives who could be appropriate caretakers Jaiden was placed in a non-relative foster home.
8. On April 11, 2007, Jaiden was adjudicated neglected and committed to the care, custody and guardianship of DCF. The court ordered specific steps for the mother relating to reunification with Jaiden, including her participation in individual counseling and making progress toward identified treatment goals. (Exhibit 2.) The mother did not do this.
9. Such permanency worker testified that the mother has unaddressed mental health issues, impulsive behaviors and questionable judgment. She stated that Jaiden was removed because he had been injured while in the mother's care and while she was violating a protective order. She relied on Dr. Humphrey's statement that it was irresponsible for DCF to place any child with the mother because of her mental health issues that had not been addressed beginning in her childhood. She stated that the mother also had substance abuse issues and had violated criminal orders entered to protect Jaiden's father.
Dr. Humphrey, a licensed clinical psychologist, performed a court-ordered evaluation of the mother (exhibit 3) and testified at the hearing.
She further testified that the mother had housing issues, a history of transient living and a lack of steady employment that had existed for the past eighteen months. She had been denied access to the sister's residence where the mother claimed to be residing and thus could not assess whether it was safe for Jaylen.
She also testified that the mother had a history and approach of minimizing her issues and service needs. She explained this by describing the mother's approach to service providers of "DCF sent me" instead of "I have these issues that I need to work on."
10. Dr. Humphrey was qualified as an expert in predicting a parent's ability to parent and in assessing parenting ability.
He reported the mother's history of victimization by early childhood physical and sexual abuse. He also reported the mother's impulsivity; reckless and irrational behavior; and denial and defensive behavior.
When he performed the December 2007, evaluation, he concluded that it would be irresponsible for DCF to place approximately one-year-old Jaiden in the mother's care. He stated that would create a great risk of harm to him. He stated that there was an increased risk of harm to Jaylen because he was younger and more dependent and vulnerable than Jaiden was when he assessed Jaiden. He also stated that it was very difficult for the mother to remediate the kind of problems he found with her. She has a need for mental health treatment directed at her stress and anxiety, at the conditions that cause such stress, and at her childhood trauma and PTSD.
Dr. Humphrey stated that whether the mother can function independently is a key to whether she could adequately parent Jaylen or Jaiden. He found that she cannot function independently. She lives with others and is dependent on them. She also used marijuana during her pregnancy with Jaylen, which is additional evidence of her dependency.
11. The mother is, and has been, quite angry with DCF and she blames DCF for her problems. She is, and has been, unwilling to cooperate with DCF. Dr. Humphrey wrote that the mother has
. . . a pervasive problem with externalizing blame for her difficulties. Without extensive psychotherapy, she is unlikely to alter this pattern. To place a child in her care would be irresponsible, as it would likely subject the child to living in her chaotic world.
(Exhibit 3, 28 (?) (page number missing).)
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 June 20, 2008, the court found that (1) Jaylen 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 Jaylen in DCF.
Despite the "continuation in the home" language of the form order, in this case after his birth Jaylen had not left the hospital and he had never been in the home where the mother was allegedly residing. There had not been any "immediate removal from such surroundings."
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 11485 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.
In In re Kaurice B., supra, 83 Conn.App. at 522-23, the Appellate Court explained DCF's burden of proof 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).
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.
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 CT Page 11487
This is a case where, as of the June 20, 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 Jaylen would be in immediate physical danger if he were allowed to leave the hospital to live in the home where the mother was allegedly residing if she were his primary caretaker; that such ex parte order was necessary to ensure his safety; and thus the order of temporary custody is sustained.However, DCF has a statutory duty to make efforts to reunify Jaylen with one or both of his parents (the mother, however, is unable or unwilling to disclose the name of the 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. If the mother continues her history of avoiding necessary psychotherapy for her long-standing mental health issues and externalizes blame for her circumstances and issues by continuing to be angry with and refusing to cooperate with DCF, she most likely will undercut her chances for reunification.
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 11487 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, as of June 20, 2008, when the ex parte order of temporary custody was issued by the court, if he were removed from the hospital and placed in the home where the mother was allegedly residing with the mother as his primary caretaker, because of his needs and dependence as a newborn, Jaylen would have been in immediate physical danger and his health and safety would have been endangered.
On June 20, 2008, because of his needs and dependence as a newborn, it would have been contrary to Jaylen's welfare and best interest to have been allowed to leave the hospital in the care of his mother.
By a fair preponderance of the evidence, DCF has thus established that on June 20, 2008, Jaylen 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.