Opinion
No. N05-CP04-004754-D, N05-CP04-004755-D
December 9, 2008.
MEMORANDUM OF DECISION
This is a visitation matter arising out of an emergency motion for modification of visitation filed by the commissioner of children and families ("DCF") on July 25, 2008.
This case has a long history. Prior to August 12, 2004, DCF became involved with the family. On August 12, 2004, DCF filed a neglect petition relating to Justin F. ("Justin") and a petition alleging that Hailee L. ("Hailee") was neglected and uncared-for. Such children are half-siblings because they have different fathers. Through much of 2005, the parents were represented by counsel. The children were also represented by counsel. Prior to December 1, 2005, the parents became and have remained self-represented litigants.
In its decision of January 23, 2006, 2006 Ct.Sup. 678, this court set forth the following:
With respect to such counsel, on August 1, 2005, the parents, inter alia, were ordered by the court as follows:
(1) the parents "will not communicate with counsel except by mail addressed to their business address only . . . [and] "will not attempt to communicate with counsel on any phone except their business phone . . .;"
(2) the parents shall "stay at least 1/2 mile away from the private homes of counsel . . . [and shall] make no efforts to follow counsel . . ."
On December 1, 2005, this court adjudicated Justin neglected pursuant to the denied proper care and conditions injurious allegations of the petitions. General Statutes § 46b-120(9). Hailee was also adjudicated as uncared for pursuant to the specialized needs allegation of the petition relating to her. General Statutes § 46b-120(10). In re Justin F., 2005 Ct.Sup. 15280, 15280-81, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown, (Bear, J., December 1, 2005). In such decision this court found the following facts by a fair preponderance of the evidence:
On September 23, 2004, after the parents and children had arrived at the Bristol Hospital Emergency Department, at approximately 3 a.m., as set forth in more detail below, Bristol Hospital placed a ninety-six-hour hold on Justin and Hailee. Bristol Hospital then made a DCF hotline report. DCF investigated, and on September 23, 2004, pursuant to Connecticut General Statutes Section 17a-101g(c), DCF invoked a ninety-six-hour hold on both children.
CT Page 19595
On September 27, 2004, the court granted DCF's applications for ex parte orders of temporary custody. On September 30, 2004, the orders of temporary custody were sustained by the court upon the agreement of the mother and the father (although referred to herein as "the father," such person is actually the father of Hailee and the stepfather of Justin).
On October 21, November 1, November 23, and December 3, 2004, a psychologist, who is a Diplomate, American Board of Psychological Services, and Fellow, American College of Forensic Examiners, conducted court-ordered psychological and interactional evaluations of Justin, the mother and the father. On December 12, 2004, the psychologist prepared four written reports. On December 31, 2004, the psychologist prepared an addendum, in which he responded specifically to the questions submitted on behalf of the court. Exhibits 11-15.
On November 22 and November 29, 2004, a board certified child, adolescent, and adult psychiatrist conducted a psychiatric evaluation of Justin, the mother and the father. On January 3, 2005, he prepared his written evaluation and report. Exhibit 10.
The court also found the following facts:
The Bristol Hospital Incidents
At approximately 3 a.m. on September 23, 2004, the parents and the children arrived at the Bristol Hospital Emergency Department. The parents were concerned about the alleged sexual abuse of Justin. According to the affidavit of the emergency department physician who was on duty, "[s]pecifically, the couple was concerned that a DCF worker and the GAL had been conspiring with members of the mother's family to expose Justin to a person who had sexually assaulted Justin in the past and that they had together been showing him explicit movies and dancing naked with him. Justin's mother said that the last time this may have occurred was one month ago . . . During the course of the interview, the parents appeared agitated and confused and displayed poor impulse control," Exhibit 3.
The emergency department physician consulted with a child abuse expert who suggested that Justin ". . . be placed on a 96 hour hold because of the bizarre nature of the story and concern that the parents might attempt invasive examination of the child's rectum." Id.
An experienced Staff Registered Emergency Nurse who was on duty was also consulted and became involved with the family. He was concerned about the one-month delay from the date of the alleged sexual abuse before the family sought help. Exhibit 5. The mother would not accept the emergency department physician's assurance that he saw no abnormalities or injuries on his examination of or from her photographs of the child's anal area. Id. She requested an anoscope examination. Id. This is an invasive, penetrating examination. Id. In his affidavit, the emergency nurse also stated: "I was convinced that mom would continue to examine Justin herself and seek other venues for this 'til her fears were validated. I was worried that this would lead to eventual repetitive injury or accidental trauma to Justin . . . My concern . . . was that Justin was being 'shopped around' to uncoordinated caregivers in an exploitive way to document mom's concerns and reach mom's desired outcomes . . . That when it became clear that we were going to seek more detailed and formal evaluation of Justin from a sexual assault focus by referring him to the regional pediatric sexual assault center . . . the tone of our interactions changed dramatically from a traditional caregiver/careseeker one to an adversarial one in which all parties except the infant child, including Justin[,] now began to pace the room, make cell phone calls, pray repeatedly, and recite scripture and religious references, as well as references to US constitutional law as they perceived it . . ." Id.
The family also was seen by an on-duty crisis worker. She noted that Justin hid under his jacket when the mother spoke, and that the mother's and father's "irrationality pose[d] risk to [Justin and] sibling[.]" Exhibit 5. She also noted that Justin was alert, and mirrored his parents' behaviors and statements as the parents escalated their behavior. Justin made "excessive religious statements, and he called the emergency department staff "devil worshipers." Id.
Her diagnostic impression was that Justin was emotionally abused, and at risk for further abuse. Id. In a conversation with the mother, the mother told her that an alleged perpetrator "had abused Justin sexually again during visits arranged by her family [with] DCF collusion." Id. The crisis worker reported that the mother "could not tolerate any questions." The mother stated that the crisis worker "was trying reverse psychology!" Id.
On September 23, 2004, the crisis worker concluded that there was "sufficient level of suspicion of risk to both children to warrant a report to DCF. Mother presents as very unreasonable [and] unable to put the needs/welfare of her children above her own emotional agenda . . ." Id.
When DCF determined to invoke a ninety-six-hour hold, it requested the assistance of the Bristol police department. Exhibit 16. Officers were dispatched to the hospital. Id. One officer stated in his incident report: "When [the DCF social worker] attempted to serve the order [for a ninety-six-hour hold] on [the mother and the father] they became uncooperative and told Justin to resist so they could claim police abuse and [the mother] told Justin to resist by kicking the officers." Id. Also, "[a]t the time of removal father told Justin not to speak and that he is the Lord." Exhibit 7, page 9.
None of the persons at the Bristol Hospital Emergency Department previously had met, known or had any contact with the mother, the father or the children before they arrived at the hospital at approximately 3 a.m. on September 23, 2004.
Approximately six weeks earlier, the parents had taken Justin to another emergency room, and they had made conspiracy allegations against relatives of the mother. Exhibit 9.
The psychiatrist's testimony and report
In his January 3, 2005, report, the psychiatrist commented: ". . . on multiple occasions during the interview, both the mother and father appeared to have abnormal thought content which crossed from reality into delusion . . . During multiple occasions in the interview, both alone and in the presence of her husband, [the mother] insisted that an elaborate conspiracy existed to further abuse her child [Justin] and to discredit her and her husband. She felt that the New Haven police department not pursuing the case . . . and Justin's GAL [appointed in the criminal case] making a report about educational neglect to DCF were proof of these malevolent conspiratorial practices. During her various narratives, the mother felt that there were multiple parties involved in the conspiracy to include the police department, court system, her own sisters and cousin, as well as various attorneys and other officials. She implied that [the alleged perpetrator] wielded some unknown political influence through the police and court systems and that various medical personnel who had been involved at different times in evaluating her son had bowed to DCF pressure in making reports or failing to make reports. She also described [alleged] malevolent behavior by the foster family in [allegedly] giving sedatives to Hailee as the most likely explanation for Hailee's change in behavior following the removal. Even during repeated confrontation by the examiner, [the mother] clung rigidly to this belief system about an elaborate conspiracy . . . The father, when interviewed independently, confirmed a similar set of conspiratorial allegations even going so far as to allege an elaborate and secret child sex abuse ring involving attorneys, DCF workers, police, and other state officials." Exhibit 10, page 19.
The psychiatrist determined that the mother had a delusional disorder, persecutory type, and that the father shared that delusional disorder. Id., 20. He determined that Justin had posttraumatic stress disorder, rule out psychotic disorder not otherwise specified, reading disorder, disorder of written expression, and developmental coordination disorder (fine motor). Id.
He found that "[Justin] presents with noticeable levels of anxiety and developmental delay. He endorses a history of bizarre perpetual phenomenon, of almost hallucinatory intensity, which seems to have abated somewhat . . ." Id., 21.
He also found that "[t]he parents present as traumatized and delusional. What might have started as a normal reaction to learning of their child's sexual trauma has developed into an elaborate, shared, delusional belief system involving a host of government agencies and independent attorneys. This clearly goes beyond simple mistrust of DCF and the police department for mishandling (possibly) the original sexual abuse investigation from a criminal perspective; rather, it represents a rigid belief system of incredible proportions. In fact, the allegations of a pedophilic sex ring are completely unbelievable, as members of such a ring would not perform sexual acts in each other's presence and would ordinarily take considerable measures to maintain anonymity and privacy. The idea that family members, lawyers, police, emergency room doctors, office-based pediatricians, hotel managers, DCF workers, criminal investigators, and other state officials could all be part of this conspiracy is preposterous. This leaves no alternative but to conclude that both parents are suffering from a delusional belief system . . ." Id.
He reported that their "delusional thought patterns have interfered with their judgment and behavior in dealing with outside agencies for their children." Id., 22. He concluded: "Because both parents are actively delusional and admit no need for treatment or support services, neither parent can be considered as a placement resource at this time. Because neither of the parents could identify an alternative intrafamilial placement, there is no choice but to leave the children in the care of DCF." Id. He also concluded that the "psychiatric condition of both parents is much too acute to predict a potential time frame for reunification." Id., 23. He continued: "The parents should each be receiving individual counseling to address their major psychiatric issues. The complexity of their delusional belief systems will require a doctoral level therapist . . . Delusional disorders are notoriously difficult to treat with psychotherapy . . . The rehabilitation potential of both parents will depend in large part on the degree to which their current shared delusional belief system is 'post traumatic' in nature . . ." Id.
The psychiatrist found that the mother was Justin's psychological parent, and that Justin had a strong attachment to his mother and stepfather. Id., 22.
The psychologist's testimony and reports
The psychologist stated that the mother had a well organized belief about a system-wide threat to the integrity of her children. The father and the mother have shared beliefs. Neither parent believed that they or the children needed services. All problems were caused by "the system." The parents have very set views of what happened, and who is at fault. They do not accept any responsibility. There is no "ownership" of their roles leading to the removal of the children from them. They believe that the problems have been caused solely by others.
The parents believe that there was a conspiracy to allow Justin to be sexually abused. They also believe that Hailee was drugged in foster care.
The psychologist stated that the parents have egosyntonic views. This limits their motivation to change. It is unlikely that the parents would take advantage of any therapeutic intervention. Because in their minds they are not the source of any of the problems, there is little likelihood they will change their beliefs, attitudes and behavior. The psychologist did not doubt that the parents loved the children. However, this love is not enough to cause or motivate the parents to change their beliefs, attitude and behavior. The parents do not see each of the children's needs. The psychologist saw evidence of delusional and paranoid behavior by the parents.
After this report, on or about March 1, 2005, the father went to be evaluated for counseling in a domestic violence treatment program. Exhibit 29. The evaluating counselor reported: "When asked to view the violent, abuse and controlling behaviors checklist and to check any behaviors he may have done in any adult intimate relationship, he failed to check any. This is unusual. Most of our clients we interview may check at least one or two behaviors on the list. This leads me to believe that [the father] is not being honest . . . In our session he . . . consistently denied any problem or even the possibility of having a problem. This will make it unlikely he will respond to treatment for the issues he may have . . ." Id.
The psychologist believed that the children were neglected. As an example, each child was behind the average level of development for his or her age. The parents' failure to recognize and address each child's needs was neglectful.
The psychologist's recommendation was that the children not be returned to the parents' care. He opined that it would neither be safe nor appropriate to return the children to either parent. The parents' shared belief in a conspiracy put the children at risk.
These findings are preclusive and should have been applied in all post-neglect matters including whether the parents were fit to have unsupervised and overnight visitation when the court heard and ruled on such issues. See In re Stephen M., 109 Conn.App. 644, 657-58 n. 21, 665-67 (2008) (officially released August 12, 2008, after the filing of the July 25, 2008, emergency motion). In footnote 21, the Appellate Court discussed claim preclusion and issue preclusion:
"The applicability of the doctrines of collateral estoppel or res judicata presents a question of law that we review de novo." Powell v. Infinity Ins. Co., 282 Conn. 594, 601, 922 A.2d 1073 (2007). "Claim preclusion (res judicata) and issue preclusion (collateral estoppel) have been described as related ideas on a continuum." (Internal quotation marks omitted.) Bouchard v. Sundberg, 80 Conn.App. 180, 186, 834 A.2d 744 (2003).
"The common-law doctrine of collateral estoppel, or issue preclusion, embodies a judicial policy in favor of judicial economy, the stability of former judgments and finality . . . Collateral estoppel, or issue preclusion, is that aspect of res judicata which prohibits the relitigation of an issue when that issue was actually litigated and necessarily determined in a prior action between the same parties upon a different claim . . . For an issue to be subject to collateral estoppel, it must have been fully and fairly litigated in the first action. It also must have been actually decided and the decision must have been necessary to the judgment." (Citations omitted; internal quotation marks omitted.) Lafayette v. General Dynamics Corp., 255 Conn. 762, 772, 770 A.2d 1 (2001); see also In re Juvenile Appeal (83-DE), supra, 190 Conn. 316.
In its December 1, 2005, decision, as set forth above, the court found credible the experts' findings that the parents shared a delusional belief system and had delusional thought patterns, and it also set forth the debilitating effect of such system and patterns on the parents' ability to function including their ability to protect the health, safety and welfare of the children. Similar debilitating shared delusions have been described in other decisions. See In re Emmanuel M., 43 Conn.Sup. 108, 123-24, 648 A.2d 904 (1993):
Finally the Court heard testimony from Nelken, a psychiatrist specializing in work with children and families, who conducted a psychiatric evaluation of the mother. Regarding the mother's mental status, Nelken's written evaluation states in part: "Affects are severely and rigidly controlled to mimic conventional appearance. Intelligence is within the normal range. Insight is lacking and her delusions reign unquestioned. Judgment is impulsive and driven." Nelken diagnosed the mother as suffering "from schizotypical and dependent personality disorders." He testified that she makes decisions without thought and in a harried fashion. She does not weight alternatives or make prudent judgments. He characterized the mother as a "frightened individual" with a "friendless way of life" who has strange ideas about the powers of others and the occult.
Nelken depicted the mother as a dependent person, one who is highly reliant on others and, therefore, places herself under the control of another as to what to think or do. He referred to the home environment consisting of the mother, the father and Flowers, as the "folie a trois" — shared craziness, — existing within the "malignant psychology of the home." Nelken explained this concept as one in which people have convinced themselves that "we live in a world of witches and goblins" and this outlook contaminates the rest of their lives.
Nelken felt that even though the mother's continued therapy was important, "the prospect that [such therapy] would provide a fundamental change in the mother is vanishingly small in this case, akin to 'impossible.'" He concluded that termination of the mother's parental rights was in the child's best interest. He did not feel that the break-up of the "folie a trois" would allow either parent to resume a parenting role since each individually would retain his or her beliefs. As to the mother, Nelken testified, "her own neediness is such an appalling problem for her . . . she can't focus on anything beyond that."
In such case, the father conceded that he was ". . . suffering from a shared delusional paranoid disorder . . ." Id., 126.
See also Matter of Wilbur v. Christina, 220 A.D.2d 842, 846, 632 N.Y.S.2d 259 (3d Dept 1995):
It was further revealed that through the encouragement of both Christina and Allan, coupled with his awareness of Christina's recollections of satanic abuse, William began to have his own remembrances to validate his mother's emotional state. With this fertile ground in place, Vogel reported that Jessica began to have flashbacks as well. The result, as noted by Vogel, was as follows: "[T]here is a fair amount of psychotic-like delusion operating on the part of the mother and there is a shared delusion on the part of the children in support of their mother which is known as a Folie a Deux. * * * '[T]his disorder is a delusional system that develops in a second person as a result of a close relationship with another person (the primary case) who already has a psychotic disorder with a problem in delusions. The same delusions are at least partly shared by both persons * * * if the relationship with the primary person who has the psychotic disorder is interrupted, usually the delusional beliefs in the second person will diminish or disappear" (citation omitted).
Vogel opined that the children were residing in a psychologically unsafe environment which was tampering with their entire perception of reality. Additional documentary and testimonial evidence showed that the children were under a great deal of psychological stress, clearly detrimental to their emotional well-being, due to Christina's emotional state. Based upon the evidence presented, including the interviews of the children by the Family Court, we find that the record amply supports a finding that the mental and emotional health of these children were impaired as a result of the conduct of Christina and Allan.
See also Murphy v. Murphy, 164 Cal.App.4th 376, 387, 78 Cal.Rptr.3d 784 (2008); People v. Peterson, 306 Ill.App.3d 1091, 1099, 715 N.E.2d 1221 (1999); Commonwealth v. Nassar, 380 Mass. 908, 910, 406 N.E.2d 1286 (1980).
On December 1, 2005, Justin's and Hailee's care, custody and guardianship was committed to the commissioner of the department of children and families, where it remained through the date of this decision.
On April 18, 2007, after a lengthy trial at the SCJM CPS in Danbury, the court denied DCF's petition to terminate the mother's parental rights to Justin ("TPR") and the mother's and the father's parental rights to Hailee. DCF initially appealed such denials, but on December 3, 2007, DCF withdrew such appeals. On July 2, 2007, a DCF hearing officer found that the mother "poses a risk to children and is placed on the Department's confidential Central Registry." July 2, 2007, Substantiation Hearing Final Decision, 2.
On May 12, 2008, after four days of hearing the court decided the post-denial motions then pending before it, including a motion by the respondents for an increase in visitation. The trial judge issued her decision from the bench and it included the following:
We've had substantial delays caused in this case caused by the intransigence of the [mother and father/stepfather]. And by that I mean, basically, stubbornness. It's a fancy word that means stubborn. This is a case where the [mother and father/stepfather] would've benefited greatly by having some legal assistance from competent attorneys, in which case this hearing probably would've been concluded several months ago, and some progress might have been made towards reunification as a result.
Because, however, they have repeatedly refused to accept legal assistance. They have caused substantial delay in making progress towards reunification. In addition to that, the [mother and father/stepfather] have refused to follow the specific steps that were set forward by the Court, which also would have advanced, considerably, progress towards reunification . . .
. . . So, I'm profoundly disappointed that DCF has not understood that it's obligation in this case is a plan for reunification, and that that plan for reunification is intended to reunify not to find evidence as to why the [mother and father/stepfather] should not be allowed to reunify. I see no conceivable reason at this time why supervised visitation is required . . .
Beginning Tuesday, tomorrow, May 13, visits with Hailee and Justin will be with the [mother and father/stepfather] in their home in New Haven. The children are to be transported to that home by the Department of Children and Families. And the visits — the children will be delivered at 3:30, and they will be picked up at 6:30 by DCF. The [mother and father/stepfather] may have anyone present during the visits that they choose, or not have anyone present during the visits that they may choose . . .
If the [mother and father/stepfather] prefer or wish to take the child thereafter to [the paternal grandmother's] home in Stratford, they can do that. But since DCF is going to be doing the transporting on Tuesday at this point, the children will have to be back at the home in New Haven for DCF to pick them up at 6:30.
Beginning Sunday June 8, we will add a Sunday visit 9:30 a.m. until 6 p.m. I am aware that DCF may not be available to transport the children, so the question is whether DCF wants the [mother and father/stepfather] to pick the children up at 9:30 on Sunday at the foster homes, or whether they would prefer that the children be picked up at a more neutral spot. That is essentially your call . . .
Then beginning July 4th, Friday, visits will be Friday from 4:30 p.m. to Sunday at 6 p.m . . .
The visits may not be less time than I have just indicated. At the discretion of DCF they may be longer or expanded . . .
This case took — was transferred here solely for purposes of the trial, and then later for purposes of economy, if' you can call it that. Further motions were heard here regarding implementations of the post judgment rulings of the Court. It was my feeling that the motions that were filed regarding revised visitation, regarding a permanency plan, and so forth, related inextricably to the trial and the evidence that was adduced at trial. And therefore, further orders were necessary in relation to the findings that were made at trial and the orders that — and the decision that the trial brought about.
That chapter is concluded, however. A permanency plan is in place, and the orders were addressed with regard to revocation of commitment . . . The orders . . . on both sides with regard to modification of visitation have been addressed. And those are motions from August 16, together with the objection to that motion; the motion from October 1 of '07, together with the objection to that motion, . . . which was December 26, 2007. So those are the motions . . . and the objections that have been addressed by this ruling today.
Just as I have urged the Department of Children and Families to consider transferring the case to New Haven, so also I urge the [mother and father/stepfather] in a heartfelt manner to get legal advice and to use competent legal advice in any further proceedings. It is a tremendous disappointment to the Court that the children in this case have had to suffer such extreme delay in making progress in reunification because of the intransigence, as I said the stubbornness, of the [mother and father/stepfather]. And frankly, to a certain extent, a rather linear point of view, from DCF as well, which has not really been committed to reunification in my opinion, but which, unfortunately, this has caused delay.
And I — and I said there were two reasons for problems in this case, and those two reasons are on both sides. I don't want anybody feeling that they have in any way vindicated themselves through these proceedings because there's plenty of blame to pass around. Perhaps some of it lying here as well. I don't know.
But [mother and father/stepfather], you're going to another court now, and you really need to commit yourselves towards doing what is necessary for your children to understand their needs and the difficulty they're in. You know better than anybody the wrenching hurt that they suffered when they were originally taken away from you. Now, they have ties, important ties, to their community, to their school friends, to their homes that they've lived in for many years. It's going to be a wrenching change for them. And until and unless you realize that and are willing to work on it, you're doing harm to those children.
You may get them back, but they're going to be damaged goods unless you understand that you have techniques that you can follow and advice that you can take that will help you ease their transition. Take advantage of some of those helps that are available. I refer in particular to Dr. Martinez, with whom you really urgently ought to be in touch, regarding what needs to be done with the transition.
As to DCF, I don't have anything more to say about DCF. We're adjourned.
(May 12, 2008 transcript, pages 2-15.)
General Statutes § 17a-10a:
In its May 12, 2008, decision, the court did not refer to or seemingly apply General Statutes § 17a-10a, passed as a new statute by the General Assembly in 2003 as Public Act 03-243, § 5 (effective October 1, 2003) and entitled:
Visitation with child in care and custody of commissioner.
Visitation of child with sibling.
Such statute provides for initial court involvement with visitation issues relating to children in the temporary custody of or committed to DCF only if suspension or termination of visitation is sought by DCF or other interested party. Such statute provides in full:
(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) If such child has an existing relationship with a sibling and is separated from such sibling as a result of intervention by the commissioner including, but not limited to, placement in a foster home or in the home of a relative, the commissioner shall, based upon consideration of the best interests of the child, ensure that such child has access to and visitation rights with such sibling throughout the duration of such placement. In determining the number, frequency and duration of such visits, the commissioner shall consider the best interests of each sibling, given each child's age and developmental level and the continuation of the sibling relationship.
(d) The commissioner shall include in each child's plan of treatment information relating to the factors considered in making visitation determinations pursuant to this section. If the commissioner determines that such visits are not in the best interests of the child or that the number, frequency or duration of the visits requested by the child's attorney or guardian ad litem is not in the best interests of the child, the commissioner shall include the reasons for such determination in the child's plan of treatment.
(Emphasis supplied.)
The sole legislative history reference to Public Act 03-243, § 5, seems to be as follows:
In addition, it clarifies the procedure for visitation schedules for parents and siblings of such children who have been removed from their home.
46 S. Proc., Pt. 11, 2003 Sess., p. 3269. Justin and Hailee were "removed from their home" more than four years ago.
As set forth below, prior to the October 1, 2003, effective date of Public Act 03-243, § 5, at times DCF set visitation without court involvement. At other times DCF unilaterally suspended visitation. On other occasions the court ordered DCF to provide specific visitation, sometimes over DCF's objection to such visitation. At other times the court delegated the responsibility for visitation to DCF. See, e.g., In re Candace H., 259 Conn. 523, 790 A.2d 1164 (2002), dismissing as moot, because the mother had consented to the termination of her parental rights after the certified question was accepted by the Supreme Court, the review sought by DCF arising from the Appellate Court's decision at 63 Conn.App. 493, 502, 776 A.2d 1180 (2001), wherein the Appellate Court had determined that the trial court lacked authority to delegate to DCF ". . . the responsibility of determining, in the future, whether visitation by the respondent mother [was] in the best interests of the child." In re Candace H., 259 Conn. 523, 790 A.2d 1164 (2002). The certified question was as follows:
Did the Appellate Court properly conclude that the trial court impermissibly delegated to the department of children and families the responsibility of determining, in the future, whether visitation by the respondent mother is in the best interests of the child?Public Act 03-243, § 5, for children who were in DCF's temporary custody or who were committed to DCF, gave DCF the authority to determine whether visitation by a parent or sibling is in the best interest of the child, and if so, the authority to set the parameters of such visitation.
The history of visitation involving children in the custody of or committed to DCF prior to the passage of Public Act 03-243, § 5, illustrates the unpredictable and multiple approaches in effect prior to such Public Act. Prior to October 1, 2003, the effective date of Public Act 03-243, § 5, on occasion the SCJM heard matters involving visitation disputes and ordered DCF to provide visitation as determined by such court. See, e. g., In the Interests of Alex L., 2004 Ct.Sup. 6226, 6228, No. U06-CP02-003996-A, Superior Court, Judicial District of Waterbury at Waterbury (Taylor, J., March 30, 2004) ("On 3/28/01, the court (Dewey, J.), at an ICR, ordered that DCF provide additional visitation for the respondent parents until daycare was provided, over the objection of the State and DCF. Judge Dewey also indicated that the permanency plan would not be approved until daycare was provided for the parents"); In re Christopher A., 2002 Ct.Sup. 10406, 10410, Superior Court, Child Protection Session at Middletown (Levin, J., August 20, 2002) (". . . Here, the evidence requires the court to go further. Pursuant to General Statutes § 46b-121(b), DCF is ordered to resume sibling visits as soon as such visits are not therapeutically contraindicated . . ."); and In re Jennifer M., 2002 Ct.Sup. 4217, 4218, Superior Court, Juvenile Matters at New Haven (Conway, J., April 5, 2002) (". . . Judge Levin ordered that "DCF shall continue to afford the respondent supervised visitation if she exercises that visitation with reasonable consistency and is appropriate and alcohol-free during visits . . .").
Also, DCF's past practice of unilaterally suspending visitation without court approval is referred to in certain Appellate Court decisions such as In re Shaquanna M., 61 Conn.App. 592, 597, 767 A.2d 155 (2001) ("In May 1997, the department suspended the respondent's visitation rights with all of her sons . . ."); In re Stanley D., 61 Conn.App. 224, 227, 763 A.2d 83 (2000) ("Thereafter, the department suspended all unsupervised visits with S at the respondent's home . . ."); and In re Antony B., 54 Conn.App. 463, 467, 735 A.2d 893 (1999) ("The commissioner suspended visitation rights until the respondent obtained a note from a physician stating that she was able to continue with visitation . . .").
DCF continued unilaterally to suspend visitation without court order through at least November 4, 2003, after Public Act 03-243 § 5 became effective as referred to in certain trial court decisions such as In re Noah B., 2005 Ct.Sup. 2666, 2709, No. CP00-013544-A, Superior Court, Judicial District of Middlesex Child Protection Session at Middletown (Rubinow, J., February 16, 2005) ("DCF suspended visits on November 4, 2003. This suspension of visitation was ratified by the court after hearing (Lopez, J.) through orders issued on January 20, 2004 . . .") (exhibit reference omitted); In the Interests of Alex L., 2004 Ct.Sup. 6226, No. U06-CP02-003996-A, Superior Court, Judicial District of Waterbury at Waterbury, (Taylor, J., March 30, 2004) ("Subsequent to the writing of the COTERM social study, which was filed in SCJM on 7/30/03, DCF suspended Michelle's visitation due to her erratic, violent outbursts, her refusal to undertake mental health treatment and her refusal to allow DCF to review her mental health issues with her service provider . . ."); and In re DeM, 2004 Ct.Sup. 5261, 5266, Nos. CP00-07478-A, CP00-07479-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Rubinow, J., April 5, 2004) ("On August 23, 2002, TaM was involved in a domestic altercation with PaM. TaM was arrested and charged with Disorderly Conduct, Threatening in the Second Degree, Criminal Mischief in the Third Degree and Reckless Endangerment in the Third Degree. In reliance upon the recommendation of the children's therapist and in response to this incident, DCF suspended TaM's visits until she had achieved psychiatric stability . . .") (footnotes and exhibit references omitted).
After July 6, 2004, DCF at least in some cases was complying with General Statutes § 17a-10a, as referred to in decisions such as In re Taibah S., 2004 Ct.Sup. 16044, 16045, Nos. W10-CP02-014132-A, W10-CP02-014133-A, W10-CP02-014134-A, W10-CP02-014135-A, W10-CP02-014136-A, W10-CP02-014137-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Taylor, J., October 28, 2004) ("On July 6, 2004, DCF filed a motion to suspend visitation between Amatillah and the respondent parents . . ."); and In re Brittany J., 2006 Ct.Sup. 1680, 1686, Nos. K09-CP02-008710-A, K09-CP02-008711-A, K09-CP02-008712-A, K09-CP02-008713-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Taylor, J., January 20, 2006) ("On 2/3/05, in SCJM, DCF filed a Motion To Suspend Visitation . . ."), but in other cases DCF continued unilaterally without prior court approval to suspend visitation. See, e.g., In re Aniya C., 2006 Ct.Sup. 10882, 10903, No. H12-CP04-009643-C, Superior Court, Judicial District of Hartford, Juvenile Matters at Hartford (Wollenberg, J., June 12, 2006) ("The therapist has provided DCF with letters on three separate occasions (9/13/05, 12/12/05 and 2/27/06) discussing her clinical impressions and offering her recommendations. As a result, DCF has suspended all visits and contact with Father . . .")
General Statutes § 17a-10a was promulgated to eliminate, when DCF had temporary custody of a child or when a child was committed to the care, custody and guardianship of DCF, the multiple and unpredictable approaches by the court and by DCF to visitation by placing direct responsibility in DCF to determine appropriate visitation in the best interest of such child(ren), and a fair reading of such statute is that the General Assembly intended to eliminate all of the other approaches to establishing or suspending visitation set forth earlier in this decision.
Removing the issue of visitation from the purview of the court when DCF has custody and/or guardianship of children also serves the purpose of judicial economy. The previous hearing on visitation consumed four trial days and required 740 transcript pages. The current hearing has consumed four days where the matter proceeded and two days where the respondents requested continuances after the hearing dates were calendared.
Also, as set forth herein, General Statutes § 17a-10a is the applicable statute in such circumstances and more general or other statutes such as General Statutes § 46b-56 are not applicable in child protection matters. See In re Cameron C., 103 Conn.App. 746, 753-54, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906 (2008). Compare DCF memorandum.
Pursuant to General Statutes § 17a-10a, DCF cannot unilaterally suspend a parent's visitation with her or his child without a prior court order, and until it obtains such an order it must ". . . 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 . . ." Unfortunately during the pendency of this matter the parents refused to cooperate with DCF to enable DCF to be able to perform its statutory duty, although DCF had arranged for supervised visitation to take place at least with Justin in the city in which the parents are currently residing instead of in Waterbury where such visitation had previously taken place while the parents lived in that area.
Also pursuant to General Statutes § 17a-10a, DCF has the duty to ". . . 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 . . ." The parents did not suggest to DCF any alternative to the prior DCF office visitation location, and they have alleged in numerous pleadings that in fact on August 12, 2008, the paternal grandmother was informed by police officers in the city where such office is located that they ". . . are no longer permitted on the property of the DCF . . ." and "[w]e told the court that the Waterbury DCF is not permitting us on DCF's property."
Such parents also have written in several pleadings that DCF has no factual and legal basis to use the best interest of the child standard specifically set forth in General Statutes § 17a-10a in connection with their visitation, and that such statute is unconstitutional.
On July 25, 2008, DCF filed in the SCJM in New Haven an ex parte motion for emergency relief to modify visitation. The relief sought was to permit DCF to cease all visits between Hailee and her parents and to maintain two-hour supervised visits between the mother, the stepfather and Justin. DCF sought such relief initially on an ex parte basis, pending a hearing. Judge Brown denied immediate relief, but he ordered that Justin and Hailee were not to be forcibly removed from their foster parents in order to attend parental visitation, and he further ordered that DCF's motion be scheduled for a hearing. He referred such motion to CPS for such hearing, and this court scheduled such motion for a hearing commencing on August 13, 2008. On August 4, 2008, the parents moved for a continuance of the hearing, which motion was granted, and the hearing actually commenced on August 22, 2008. See footnote 3.
None of the CPS judges assign or participate in the assignment of cases. Such assignments are made through one of the CPS court services officers or other staff assigned to CPS who are responsible for assigning cases to CPS judges based on their availability and similar factors.
In cases involving children in the temporary custody of or committed to DCF, this court has consistently referred to and applied General Statutes § 17a-10a. See In re Heather F., 2008 Ct.Sup. 16837, 16852, No. L15-CP08-008515-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., October 28, 2008); In re Brian B., Jr., 2008 Ct.Sup. 15692, 15701, No. L15-CP08-008519-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., September 29, 2008); In re Jaylen S., 2008 Ct.Sup. 11481, 11488, No. H14-CP08-009486-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., July 8, 2008); In re Selena O., 2008 Ct.Sup. 11684, 11696, No. H12-CP04-011822-B, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., July 7, 2008); In re Daniel F., 2008 Ct.Sup. 2713, 2722, No. F04-CP08-07766-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., February 19, 2008); In re Danial C., CT Page 19611 2007 Ct.Sup. 17788, 17798, No. T11-CP 06-012681-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., October 24, 2007); In re Selena O., 2007 Ct.Sup. 17391, 17393, No. T11-CP04-011822-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., October 18, 2007); In re Ahjanae W., 2007 Ct.Sup. 8722, 8731, No. H12-CP07-011225-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., May 23, 2007); In re Amanda B., 2006 Ct.Sup. 5125, 5131, No. W10-CP07-015200-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., April 12, 2007); In re Melody L., 2007 Ct.Sup. 4232, 4236-37, 43 CLR 136, No. H12-CP02-008534-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., March 30, 2007); In re Jaiden S., 2006 Ct.Sup. 21364, 21370-71, No. L15-CP06-008245-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., November 17, 2006); and In re Jaelin P., 2006 Ct. Sup. 19570, 19577-78, No. U06-CP06-005881-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., October 24, 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'").
As a basis for temporary orders while it conducted the hearing on DCF's emergency motion, this court determined that General Statutes § 17a-10a should be applied to require DCF to act in accordance with the duties and responsibilities set forth therein, but as set forth herein the parents have refused to cooperate with DCF's efforts to arrange visitation with Justin.
In Sullivan v. State, 189 Conn. 550, 553-54, 457 A.2d 304 (1983), the Supreme Court discussed the need for a party to pursue adequate administrative remedies of the kind provided for in General Statutes §§ 17a-10a and 17a-15:
It is a cardinal principle of judicial review "that when an adequate administrative remedy is provided by law, it should be exhausted." . . . Claims of constitutional violations are no exception to this general rule. See Florentine v. Darien, 142 Conn. 415, 426-27, 115 A.2d 328 (1955). Application of this principle, however, is limited to those situations where the pursuit of administrative remedies is not necessarily futile . . . and id., 555-56 n. 7:
The legislature is presumed to have acted in light of existing relevant statutes and with the intent to enact a consistent body of law. McKinley v. Musshorn, supra, 623; Rudkofsky v. Commissioner of Motor Vehicles, 177 Conn. 588, 592, 419 A.2d 333 (1979). "[A]bsent manifest intent to repeal an earlier statute, when general and specific statutes conflict they should be harmoniously construed so the more specific statute controls." McKinley v. Musshorn, supra, 624; Edmundson v. Bivera, 169 Conn. 630, 635, 363 A.2d 1031 (1975).
See also State v. Cote, 286 Conn. 603, 619, 945 A.2d 412 (2008), Keramidas v. Daigle, 282 Conn. 418, 430-31, 922 A.2d 1056 (2007), and Skindzier v. Commissioner of Social Services, 258 Conn. 642, 654, 784 A.2d 323 (2001). Compare In re Christopher M., 2007 Ct.Sup. 446, 447-48, 44 CLR 782, No. H14-CP07-009032-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., January 4, 2008) (under the doctrine of primary jurisdiction General Statutes § 46b-121 provides this court with coordinate power to enter specific visitation orders although DCF has temporary custody or commitment of a child, despite the specific and detailed language in General Statutes § 17a-10a setting forth DCF's responsibilities), cited by DCF in its memorandum.
The court is required to ascertain and give effect to the apparent intent of the legislature in determining the meaning of statutory language in the context of the facts of the case before it:
"The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply . . . When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." (Citation omitted; internal quotation marks omitted.) Alvord Investment, LLC v. Zoning Board of Appeals, 282 Conn. 393, 401-02, 920 A.2d 1000 (2007).
State v. Custer, 110 Conn.App. 836, 840-41 (2008).
In the context of visitation with children in the temporary custody of or committed to the care, custody and guardianship of DCF, General Statutes § 17a-10a with its plain and unambiguous text is the specific controlling statute since it was enacted in 2003 many years after the 1949 enactment of General Statutes § 46b-121, as subsequently amended, and General Statutes § 46b-121, which provides as follows for the civil session of the SCJM, does not contain any specific reference to visitation although there is some language that might be read to include the general power to order visitation (there are cases in the SCJM where DCF is not directly involved and where visitation can be at issue):
Juvenile matters defined. Authority of court.
(a) Juvenile matters in the civil session include all proceedings concerning uncared-for, neglected or dependent children and youths within this state, termination of parental rights of children committed to a state agency, matters concerning families with service needs, contested matters involving termination of parental rights or removal of guardian transferred from the Probate Court, the emancipation of minors and youths in crisis, but does not include matters of guardianship and adoption or matters affecting property rights of any child, youth or youth in crisis over which the Probate Court has jurisdiction, provided appeals from probate concerning adoption, termination of parental rights and removal of a parent as guardian shall be included . . .
(b) In juvenile matters, the Superior Court shall have authority to make and enforce such orders directed to parents, including any person who acknowledges before said court paternity of a child born out of wedlock, guardians, custodians or other adult persons owing some legal duty to a child, youth or youth in crisis therein, as it deems necessary or appropriate to secure the welfare, protection, proper care and suitable support of a child, youth or youth in crisis subject to its jurisdiction or otherwise committed to or in the custody of the Commissioner of Children and Families . . . Any judge hearing a juvenile matter may make any other order in connection therewith that a judge of the Superior Court is authorized to grant and such order shall have the same force and effect as any other order of the Superior Court. In the enforcement of its orders, in connection with any juvenile matter, the court may issue process for the arrest of any person, compel attendance of witnesses and punish for contempt by a fine not exceeding one hundred dollars or imprisonment not exceeding six months.
On November 20, 2008, the court asked each of the parties to file memoranda concerning the applicability of General Statutes § 17a-10a to the current proceedings. Because the next hearing date was scheduled on December 12, the court after consultation with the parties ordered December 8 as the filing date, and the court informed all parties that it would rule before the December 12 hearing date on the future scope of such hearing. Both DCF and the children, through their counsel, filed such memoranda in a timely fashion. The parents did not file a memorandum.
The children believe that the issues before this court of unsupervised and overnight visitation were not previously litigated before Judge Winslow ". . . as the parties were not put on notice that the court was considering [such issues]. The issue of unsupervised visitation was not raised in either the Motion of the parents or the Motion of [DCF]." (Children's brief, 3.) The children also assert that Judge Winslow did not apply General Statutes § 17a-10a to the motions before her. Id., 5-6. The children are requesting that the court apply General Statutes § 17a-10a to the currently pending DCF motion and parent's objection.
DCF believes that the court's prior May 12, 2008, orders were issued " sua sponte, with no notice to the parties that the court was contemplating issuing relief that the parents never requested." (DCF brief, 5.) DCF also believes that this court can apply General Statutes § 17a-10a to the pending matter. Id., 9. If the court does so, pursuant to General Statutes §§ 17a-15 and 4-168 et seq. the parents would have administrative rights to pursue redress with respect to any dispute over or objection to DCF visitation decisions. Id., 7.
Although the parents did not file a memorandum, they have made it clear in several previous filings that they believe that General Statutes § 17a-10a is unconstitutional and that they disagree with the best interests standard set forth in such statute.
The law of the case doctrine:
Whenever a judge seemingly revisits an issue previously ruled upon by another coordinate judge (although in this matter a new emergency motion to modify visitation, filed on July 25, 2008, is before the court relating to events occurring after the court's May 12, 2008, decision), the "law of the case" doctrine may come into play. The law of the case doctrine recently has been explained by the Supreme Court as follows:
Because application of the law of the case doctrine involves a question of law, our review is plenary. See Detar v. Coast Venture XXVX, Inc., 91 Conn.App. 263, 266, 880 A.2d 180 (2005).
We begin our analysis of the plaintiffs' claim with a review of the law of the case doctrine. "In essence [the doctrine] expresses the practice of judges generally to refuse to reopen what [already] has been decided . . . New pleadings intended to raise again a question of law which has been already presented on the record and determined adversely to the pleader are not to be favored . . . Where a matter has previously been ruled upon interlocutorily, the court in a subsequent proceeding in the case may treat that decision as the law of the case, if it is of the opinion that the issue was correctly decided, in the absence of some new or overriding circumstance." (Citations omitted; internal quotation marks omitted.) Breen v. Phelps, 186 Conn. 86, 99, 439 A.2d 1066 (1982).
"A judge is not bound to follow the decisions of another judge made at an earlier stage of the proceedings, and if the same point is again raised he has the same right to reconsider the question as if he had himself made the original decision . . . This principle has been frequently applied to an earlier ruling during the pleading stage of a case . . . According to the generally accepted view, one judge may, in a proper case, vacate, modify, or depart from an interlocutory order or ruling of another judge in the same case, upon a question of law." (Citations omitted; internal quotation marks omitted.) Id., 98-99.
This court has determined that although a judge should be hesitant to rule contrary to another judge's ruling, he or she may do so "[n]evertheless, if the case comes before him [or her] regularly and [the judge] becomes convinced that the view of the law previously applied by [a] coordinate predecessor was clearly erroneous and would work a manifest injustice if followed . . ." Id., 100. By way of example, this court has noted that "[t]he adoption of a different view of the law by a judge in acting upon a motion for summary judgment than that of his [or her] predecessor . . . is a common illustration of this principle . . . From the vantage point of an appellate court it would hardly be sensible to reverse a correct ruling by a second judge on the simplistic ground that it departed from the law of the case established by an earlier ruling." (Citations omitted.) Id.
Johnson v. Atkinson, 283 Conn. 243, 249-50, 926 A.2d 656 (2007). See also Brown Brown, Inc. v. Blumenthal, 288 Conn. 646, 654-58 (2008) and Testa v. Geressy, 286 Conn. 291, 943 A.2d 1075 (2008).
Visitation is subject to modification based on the best interest of the child. See, e.g., General Statutes § 46b-56 and Berglass v. Berglass, 71 Conn.App. 771, 782-83, 804 A.2d 889 (2002):
We conclude that the court improperly modified the parties' evening visitation when it increased the time that Laura spends with the defendant during the week. The record makes clear that the court modified weekly visitation without a hearing and without consideration of the best interest of the child. We are not persuaded that the modifications were ordered properly under the broad equitable powers of the court or that such changes are "so minimal" as not to require the taking of evidence, a finding of a material change in circumstances or a determination of the best interest of the child. We conclude that the increased evening visitation changes were not minimal in light of the parties' contentious relationship and, particularly, the plaintiff's long-standing concerns about the defendant's mental health as it relates to visitation. The change in visitation constituted a modification of the previous visitation order. The court therefore should not have modified weekly visitation without having held an evidentiary hearing to determine whether modification was in the best interest of the child. See Kelly v. Kelly, supra, 54 Conn.App. 57-58. As neither party sought to modify the provision of the parenting agreement to increase evening visitation and no evidence was heard on the subject, we conclude that the court abused its discretion. Changes made to the parties' visitation schedule, with the exception of overnight visitation, therefore are improper.
As set forth in Berglass, the sole standard to be applied in determining whether to modify visitation is the best interest of the children. (Compare, as to modification of custody, Payton v. Payton, 103 Conn.App. 825, 834, 930 A.2d 802 (2007) ("'. . . Before a court may modify a custody order, it must find that there has been a material change in circumstance since the prior order of the court, but the ultimate test is the best interests of the child . . .'").) See also McGinty v. McGinty, 66 Conn.App. 35, 40, 783 A.2d 1170 (2001), also applying the law as to visitation in a dissolution context:
"When a court rules on a motion to modify visitation, it is statutorily incumbent on the court that its order be guided by the best interest of the child standard, as set forth in General Statutes § 46b-56 (b). Ireland v. Ireland, 246 Conn. 413, 452, 717 A.2d 676 (1998) . . ."
(Citations omitted; internal quotation marks omitted.) Szczerkowski v. Karmelowicz, 60 Conn.App. 429, 432-33, 759 A.2d 1050 (2000).
In the context of the pending matter the General Assembly has directed that children in the care, custody and guardianship of DCF such as Justin and Hailee shall have General Statutes § 17a-10a be applied by the court in determining their best interest with respect to visitation. Instead of it being "statutorily incumbent" on the court as in family cases to determine the child's best interest as to visitation, with respect to a committed child pursuant to General Statutes § 17a-10a it is "statutorily incumbent" on DCF to determine a child's best interest as to visitation. Thus, unlike the involvement of the court in visitation in family cases, in child protection cases, through the application of General Statutes § CT Page 19618 17a-10a, the legislature has specifically placed on DCF the burden, duty and responsibility of setting visitation in the best interest of the child. Any parent who is aggrieved by a decision of DCF concerning visitation has the right to an administrative review of and appeal from DCF's determination. See General Statutes §§ 17a-10a(d), 17a-15(e) and 4-168.
The pending emergency motion to modify visitation applied to Hallee and Justin:
With respect to the pending motion seeking cessation of the parents' visitation with Hailee and supervised visitation between the parents and Justin, General Statutes § 17a-10a is the governing statute. Pursuant to such statute, this court must determine whether DCF's requested relief that the visitation between Hailee and her parents should cease is in Hailee's best interest and that has been proved by a fair preponderance of the evidence. As set forth in General Statutes § 17a-10a(d), with respect to Hailee,
This is a case where the children were removed from the custody of the parents in 2004, where they have been adjudicated neglected and where they have been committed to the care, custody and guardianship of DCF, so the family has not been an intact family for several years. The parents thus do not have the benefit of any presumption that they are fit to care for such children. Compare Roth v. Weston, 259 Conn. 202, 216, 789 A.2d 431 (2002). See also Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 378 n. 11 (2008):
As we noted in Roth, "[t]here are . . . limitations on these parental rights. Some of these limitations arise out of an appreciation of the state's long recognized interests as parens patriae. See Reno v. Flores, 507 U.S. 292, 303-04, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Santosky v. Kramer, 455 U.S. 745, 766, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); see also General Statutes § 10-204a (requiring parents to immunize children prior to school enrollment); General Statutes §§ 14-100a, 14-272a (requiring child restraint in vehicles); General Statutes § 17a-81 (authorizing emergency medical treatment where parent withholds consent); General Statutes §§ 31-23, 31-24 (restricting child labor from certain occupations or workplaces); General Statutes § 53-21a (prohibiting parents from leaving child unsupervised in public accommodation or vehicle). Furthermore, it is unquestionable that in the face of allegations that parents are unfit, the state may intrude upon a family's integrity. Parham v. J.R., supra, 603; see General Statutes § 17a-101g (removal of child where imminent risk of harm); General Statutes §§ 17a-112(j), 45a-717 (termination of parental rights)." Roth v. Weston, supra, 259 Conn. 224.
. . . If the commissioner determines that such visits are not in the best interests of the child or that the number, frequency or duration of the visits requested by the child's attorney or guardian ad litem is not in the best interests of the child, the commissioner shall include the reasons for such determination in the child's plan of treatment.
Pursuant to General Statutes § 17a-10a(a), DCF has moved this court to order the cessation of visitation between Hailee and her parents. The touchstone for this court's decision is whether it is in Hailee's best interest for such visitation to be suspended, as it has been in other cases when such visitation has become problematic for a child. See, e. g., General Statutes § 46b-56(c); see also, e.g., In re Devaun J., 109 Conn.App. 832, 836 (2008):
. . . The court further found that in October 2003, and April 2004, the child's therapist recommended that all visitations with the respondent cease because they caused instability and deterioration of the child's condition. The child saw the visits as a threat to his security and a risk of disruption of the permanency of his placement with Fanny J. Accordingly, the court suspended visitation on April 15, 2004, until June 3, 2004, when it reinstated visitation at the department's discretion.
The Devaun set of facts is quite similar to Hailee's circumstances as described by the foster mother and by the current social worker. See also In re Selena O., 104 Conn.App. 635, 638, 934 A.2d 860 (2007):
On July 19, 2005, the petitioner filed an ex parte motion for emergency relief to suspend the respondent's visitation with the child because she was under the influence of a substance that rendered her barely able to stand when she visited with the child on July 15, 2005. Judge Graziani granted the motion.
And see In re Rachel J., 97 Conn.App. 748, 762, 905 A.2d 1271 (2006): Ultimately, R's therapist recommended that visitation be suspended due to the detrimental effect it had on R and R's own expressed desire not to visit because the respondent "made her feel bad." . . .
Pursuant to General Statutes § 17a-10a, DCF has the responsibility and duty to determine the visitation between Justin and his parents that is in his best interest.
The parents' claim that General Statutes § 17a-10a violates their constitutional rights:
The parents have claimed that General Statutes § 17a-10a violates their constitutional rights, and that they have an absolute and unfettered right to visit with Justin and Hailee despite their history of negative and uncooperative behavior with respect to visitation and despite the negative impact on such children, neither of which they seemingly recognize as relevant to the issues before the court.
In support of their claims, the parents have cited the court to such cases as Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944); Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) and Parham v. J.R., 442 U.S. 584, 605, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979).
In Parham, the United States Supreme Court recognized that parents, who have traditional interests in and responsibility for the upbringing of their child, retain a substantial, if not the dominant, role in decisions for their child(ren), absent a finding of neglect or abuse as has occurred in this case:
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is "the mere creature of the State" and, on the contrary, asserted that parents generally "have the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). See also Wisconsin v. Yoder, 406 U.S. 205, 213 (1972); Prince v. Massachusetts, 321 U.S. 158, 166 (1944); Meyer v. Nebraska, 262 U.S. 390, 400 (1923). Surely, this includes a "high duty" to recognize symptoms of illness and to seek and follow medical advice. The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children. 1 W. Blackstone, Commentaries *447; 2 J. Kent, Commentaries on American Law *190.
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attests to this. That some parents "may at times be acting against the interests of their children" as was stated in Bartley v. Kremens, 402 F.Sup. 1039, 1047-48 (ED Pa. 1975), vacated and remanded, 431 U.S. 119 (1977), creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests. See Rolfe MacClintock 348-49. The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repuguant to American tradition.
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra, at 230; Prince v. Massachusetts, supra, at 166 . . .
Parham v. J.R., supra, 442 U.S. at 602-03.
In his concurring opinion, Justice Stewart rejected the idea that all parents act in the best interests of their children and that all parents are fit parents:
To be sure, the presumption that a parent is acting in the best interests of his child must be a rebuttable one, since certainly not all parents are actuated by the unselfish motive the law presumes. Some parents are simply unfit parents. But Georgia clearly provides that an unfit parent can be stripped of his parental authority under laws dealing with neglect and abuse of children.fn7
Id., 624 (Stewart, J., concurring).
In footnote 7, Justice Stewart referred to Justice Brennan's dissenting opinion which contained the following:
In our society, parental rights are limited by the legitimate rights and interests of their children. "Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves." Prince v. Massachusetts, 321 U.S. 158, 170 (1944). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children and that, inter alia, curtail parental authority to alienate their children's property, to withhold necessary medical treatment, and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children . . .
Id., 630-31 (Brennan, J., concurring in part and dissenting in part).
Connecticut also balances the constitutional rights of parents against the duty and responsibility of the state to insure the health, safety and welfare of children. See, e. g., In re Stephen M., 109 Conn.App. 644, 646 (2008):
To facilitate the state's parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents' inability or failure to provide for their well-being. See General Statutes § 17a-101; In re T. K., 105 Conn.App. 502, 503-04, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that "[p]arents have a constitutionally protected right to raise and care for their own children." In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983) . . .
and In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983):
Parents have a constitutionally protected right to raise and care for their own children. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). This right is not free from intervention by the state, however, when the continuing parens patriac interest of the state in the well being of children is deemed by law to supercede parental interests. See General Statutes 17-43a, 46b-129(e); In re Juvenile Appeal (83-BC), 189 Conn. 66, 77, 454 A.2d 1262 (1983); Anonymous v. Norton, 168 Conn. 421, 430, 362 A.2d 532, cert. denied, 423 U.S. 935, 96 S.Ct. 294, 46 L.Ed.2d 268 (1975).
In an earlier decision, In re Juvenile Appeal (83-CD), 189 Conn. 276, 282-84, 293, 455 A.2d 1313 (1983), the Supreme Court rejected a respondent parent's argument that General Statutes § 46b-129(b) was unconstitutional because it was an impermissible infringement on such parent's right to family integrity. Recently in Fish v. Fish, 285 Conn. 24, 73-74, 939 A.2d 1040 (2008), the Supreme Court balanced parents' constitutional liberty interests against a child's welfare and safety to apply the regular civil fair preponderance standard of proof in third-party custody proceedings:
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).
Accordingly, although we agree with the concurrence that the interest of the parent is extremely significant and may require additional protection by imposing a heightened standard of proof in other circumstances, there is well established precedent for applying the fair preponderance standard in third party custody proceedings.
As set forth above (see fn 5, supra), the family has not been an intact family for in excess of four years and during that period of time no judge who has heard any matter in this case has determined that there is a basis for immediate reunification and that such children should be returned to the parents. Having DCF determine, pursuant to General Statutes § 17a-10a, the requirements of the amount, type and location of visitation that is in the best interest of Justin and Hailee when DCF has the benefit of its workers' observations, school reports and the input of the children's therapist does not violate the constitutional rights of the parents.
Conclusion:
Because DCF has sought to suspend the parents' visitation with Hailee, pursuant to General Statutes § 17a-10a, the court will continue the hearing on December 12, 2008, only with respect to whether or not such visitation should be suspended. Pursuant to such statute, this court must determine whether DCF's requested relief that the visitation between Hailee and her parents should be suspended is in Hailee's best interest and that has been proved by DCF by a fair preponderance of the evidence.
Because General Statutes § 17a-10a is applicable to any visitation between Justin and his mother, DCF is expected to act in accordance with its duties and responsibilities under such statute, and there is no need or basis to continue the hearing with respect to the mother's visitation with Justin.
As previously set forth, the court has been informed that the mother to date has not cooperated with DCF to set any such visitation.