Opinion
Nos. H14-CP06-008765-A, H14-CP06-008766-A, H14-CP06-008767-A
July 9, 2007
MEMORANDUM OF DECISION
INTRODUCTION AND DCF ALLEGATIONS:
These are neglect and uncared for cases.
The neglect and uncared for grounds alleged by the commissioner of the department of children and family services ("DCF"), the petitioner herein, in the petitions it filed with the court on August 25, 2006, were that each child was neglected because
(1) he or she was denied proper care and attention, physically, educationally, emotionally or morally ("denied proper care"); and
(2) he or she was permitted to live under conditions, circumstances or associations injurious to well being ("conditions injurious").
DCF also alleged that each child was uncared for because the mother's home could not provide the specialized care which the physical, emotional or mental condition of each such child required.
With respect to K. G. ("K") and C. G., ("C"), DCF alleged that
(1) the mother failed to ensure child's regular school attendance;
(2) the father's whereabouts were unknown, and he did not care for or support his children; and
(3) each child's mental health problems were not being adequately addressed. With respect to Cr. G. ("Cr."), DCF alleged that
(1) the mother had mental health problems that negatively impacted her ability to care for Cr.;
(2) the father's whereabouts were unknown, and he did not care for or support his children; and
(3) Cr.'s behaviors were beyond the mother's control.
In its summary of alleged facts, DCF generally alleged that:
1. Several older half-siblings had a delinquency history.
2. In February 2005, K. (who was then fourteen) was expelled from high school.
3. In February 2006, C. (who was then thirteen) was expelled from school.
4. Prior to such expulsion, C. had been suspended "multiple times during the 2005-2006 school year."
5. On August 9, 2006, K. was convicted of delinquency offenses and committed to the care, custody and guardianship of DCF.
6. During the 2005-2006 school year, the mother failed to ensure the regular school attendance of K. and C.
7. The mother failed adequately to supervise the children, to address their mental health problems, to provide their medications and to deal with C.'s substance abuse issues.
8. The mother had mental health issues that she did not address.
9. The children were beyond the mother's control.
10. The father's whereabouts were unknown and he did not care for or provide financial or emotional support for the children.
FACTS:
(A) The parties stipulated to the following facts concerning various delinquency proceedings:
Cr.:
1. On September 23, 2003, Cr. (who was then nine years old) was convicted of assault in the third degree.
2. On May 21, 2005, because of defiance of school rules, Cr. (who was then eleven years old) was determined to be a child from a family with service needs.
3. On April 10, 2007, Cr. (who was then thirteen years old) was convicted of creating a public disturbance and discharged with a warning.
C.:
1. On September 23, 2003, C. (who was then eleven years old) was convicted of assault in the third degree.
2. On December 14, 2006, C. (who was then fourteen years old) was convicted of two counts of breach of peace, and one count of disorderly conduct.
3. On May 23, 2007, C. (who was then fourteen years old) was convicted of two counts of making a false report of an incident in the first degree.
K.:
On August 9, 2006, K. (who was then fifteen years old) was convicted of delinquency offenses and committed to DCF for a period of up to eighteen months, with the possibility of an extension of such commitment through early 2009 ("the delinquency commitment").
(B) The court finds the following facts by a fair preponderance of the evidence:
1. Beginning in 1994 with other children, the mother had a history of involvement with DCF.
2. The mother left school after the ninth grade. (Social Study, exhibit 2, 3.)
3. On May 5, 2005, when K. (who was fourteen years old), C. (who was twelve years old) and Cr. (who was eleven years old) were home without adult supervision, Cr. called the police to report that C. had punched him in the face. ( Id., 6.)
4. On such day:
(A) K. was under house arrest and was wearing an ankle bracelet;
(B) C. and Cr. were on a five-day suspension from school;
(C) C. and Cr. fought, and C. punched Cr. in the nose;
(D) at some point Cr. was holding a knife;
(E) the mother reported that she was " `at the end of her rope' with all the children . . ."; and
(F) the mother admitted that she had difficulty with the children's behavior. ( Id., 6-7.)
5. DCF substantiated physical neglect of Cr. and C. based on lack of supervision and conditions injurious to well-being. ( Id., 7.)
6. On August 28, 2005, K. "began swearing at the mother and pulled the mother's shirt collar. The mother pulled K.'s shirt collar. K. began to leave the home and continued to swear at the mother. The mother threw a phone at K. The phone did not hit K. . . . The mother called the police because K. is on probation and [the mother] wanted the incident documented . . . The mother and K. were arrested for Disorderly Conduct . . ." ( Id.)
7. The mother and K. have had a tempestuous, argumentative relationship. (Testimony of current worker.) Prior to August 25, 2006, K. evidenced "aggressive delinquent behavior." ( Id.) She was oppositional, defiant of school rules, aggressive and profane. ( Id.) She was suspended from school for disorderly conduct and threatening staff and peers. ( Id.) Thereafter she was expelled from school. ( Id.) She tested positive for marijuana use. ( Id.)
K. was expelled from school "for threatening to kill a guidance counselor." The mother "felt helpless that K. would improve and [the mother] felt that a residential placement may be more appropriate." (Exhibit 4.)
8. Prior to August 9, 2006, K. had been missing for weeks. ( Id.)The mother did not contact the police to report her missing. ( Id.) During the time she was missing, she became pregnant by an older man. ( Id.)
9. On August 9, 2006, (when she was fifteen) K. was convicted of delinquency and committed to the care, custody and guardianship of DCF. She was placed by DCF at the D. M. residential treatment program ("D."). (Exhibit 2, 9.)
10. After it discovered that K. was pregnant, D. asked DCF to move her to a facility better able to provide medical treatment for pregnant teenagers. ( Id.)
11. Prior to August 25, 2006:
(A) on April 14, 2006, because of an incident with a security guard, and based on his history, C. was expelled for a school year from middle school (testimony of DCF worker);
(B) his behavior had deteriorated:
(i) he engaged in aggressive and oppositional behavior, including refusal to take prescribed medication (the mother left to C. the taking of his medication and did not supervise or watch him to make sure he took such medication) (testimony of DCF worker);
(ii) he was rude and aggressive to the doctor who prescribed his medication ( id.);
(iii) he destroyed an electronic monitor placed on him;
(iv) he spent months in a juvenile detention facility;
(v) he tested positive for marijuana use (exhibit 2, 10-11 and testimony of DCF worker);
and
(C) when he was not in the juvenile detention facility, the mother did not know where he was — he came home late or stayed out of the home overnight. Prior to the filing of the August 25, 2006 petitions C. had been missing for a week. (Testimony of DCF worker.)
12. Prior to August 25, 2006:
(A) Cr. had serious behavior issues, including aggressive, assaultive, violent and oppositional behavior and substance abuse (testimony of DCF worker);
(B) because of his continuing behavioral issues, he had been placed in a special regional school program (exhibit 2, 11-12); and
(C) on many occasions the mother did not know where he was — he came home late or stayed out of the home overnight. (Testimony of DCF worker.)
13. Prior to August 25, 2006, the mother reported to the worker that:
(A) she was tired of the behavior of the children and their problems at school;
(B) the children's continuing behavioral issues and the time and effort their special needs required were negatively affecting her work performance; and
(C) the mother did not believe in therapy and she was unwilling to share personal information with a therapist. (Testimony of DCF worker.)
14. Prior to August 25, 2006, the mother:
(A) did not cooperate with MST services;
(B) did not keep at least some of the children's medical, therapy and anger management program appointments;
(C) did not attend therapy for her own issues;
(D) inadequately supervised the children;
(E) failed to cooperate with the children's school teachers and administrators;
(F) physically disciplined the children;
(G) refused to accept responsibility for the children's behavior;
(H) refused to take medication that she was prescribed; and
(I) did not cooperate with DCF. (Testimony of DCF worker.)
15. Prior to August 25, 2006, a school social worker who knew and worked with each of the children described
(A) K.'s failure to obey in school and her threats against staff;
(B) her oppositional and defiant behavior;
(C) her refusal to perform her school work;
(D) her disruption of class;
(E) the mother's frustration and anger when he called her about each child's behavior;
(F) Cr.'s disruptive behavior at school;
(G) his threats to peers and staff;
(H) his aggressive and verbal posturing;
(I) his out of control, unmanageable behavior while at school;
(J) C.'s chronic refusal to obey; and
(K) his profane, sexualized behaviors, and racial and other remarks to other students, teachers and staff.
16. The director of pupil services for the school system also described many of the foregoing issues with each child and added the basis for C.'s expulsion from school, e.g., in addition to his continuing threats to other students, teachers and staff, C. threatened to "snuff out" a security guard. He described how when C. called his mother who was late for a meeting at school the mother stated that she was busy and had other things to take care of. After she arrived, the mother was angry and defiant toward the hearing officer and school staff.
17. Prior to filing the neglect and uncared for petitions and prior to the trial DCF made reasonable efforts to keep each child with the mother.
APPLICABLE LAW: 1. Definition of neglect:
A "child or youth may be found `neglected' who (A) has been abandoned, or (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the wellbeing of the child or youth, or (D) who has been abused . . ." C.G.S. § 46b-120(9).
" `Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a tern of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes.' (Internal quotation marks omitted.) The Honorable Thomas D. Gill, `The Legal Nature of Neglect' . . ." Randall v. Dunbar, No. CV 04 0525159 S, Superior Court, Judicial District of New Britain at New Britain (Murray, J., December 29, 2004) [38 Conn. L. Rptr. 468].
Neglect also has been generally defined as "the failure, whether intentional or not, of the person responsible for the child's care to provide and maintain adequate food, clothing, medical care, supervision and/or education." State of Connecticut DCF website, operational definitions. The following are set forth as "examples of physical neglect: 1. the failure to provide adequate food, shelter, and clothing appropriate to the climactic and environmental conditions[;] 2. the failure to provide, whether intentional or not, supervision or a reliable person(s) to provide child care[;] 3. leaving a child alone for an excessive period of time given the child's age and cognitive abilities[;] 4. holding the child responsible for the care of siblings or others where beyond the child's ability[;] 5. the person responsible for the child's care displays erratic or impaired behavior[;] 6. the person responsible for the child's care is unable to consistently perform the minimum of child-caring tasks[; and] 7. death." There are additional examples set forth in the DCF operational definitions of educational, emotional and moral neglect. See also In re Cameron W., F04-CP04-006236-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., December 28, 2006).
2. Definition of uncared for:
General Statutes § 46b-120 provides in part that ". . . (10) a child or youth may be found `uncared for' who is homeless or whose home cannot provide the specialized care that the physical, emotional or mental condition of the child requires . . ."
3. The nature of a neglect and uncared for proceeding:
A neglect petition has been described as sui generis, and as "not a typical civil action." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). The purpose of neglect and uncared for proceedings are to insure the child's safety and to secure a permanent placement for such child "as expeditiously as possible," whether such placement is with one or both parents, biological relatives, foster care or an institutional setting. Id. In In re Allison G., the primary issue was whether the trial court judge properly dismissed the neglect allegations of the DCF petition over the objection of DCF after the parents agreed to plead no contest to the uncared for allegations of such petition, and after the parents agreed to the relief sought by DCF, e.g., commitment of the child to the care, custody and guardianship of DCF. The Court set forth some "general observations":
In considering this issue, we begin with some general observations about the context in which this claim arises. A neglect petition and concomitant request for an order of commitment are not a typical civil action. "A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). In such proceedings, the petitioner acts not to vindicate her personal rights but, acting for the state as parens patriae, to ensure, first and foremost, the child's safety and, second, a permanent placement of the child as expeditiously as possible. In re Joshua S., 260 Conn. 182, 196-97 n. 15, 796 A.2d 1141 (2002); In re Jason C., 255 Conn. 565, 576-77, 767 A.2d 710 (2001); In re Jonathan M., 255 Conn. 208, 231-32, 764 A.2d 739 (2001). The petitioner [DCF] does not seek the monetary or equitable relief of a typical civil action, but, rather, actions by the court that will further the dual goals of safety and permanency. Accordingly, "relief" in this context takes on a somewhat different meaning, and the petitioner's interests in seeking an adjudication and disposition upon filing a neglect petition do not fit neatly within the aggrievement rubric. See In re David L., supra, 191-93 (distinguishing between significance of adjudication and disposition of neglect petition).
In re Allison G., supra, 276 Conn. at 158-59.
In In re Allison G., the Supreme Court recognized that "[t]he focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child." In re Allison G., supra, 276 Conn. at 164. Such court noted that the status of the child "is determined as a result of the adjudication, not the disposition of the petition." Id. Such court also noted:
An adjudication of neglect that results in an order of commitment necessarily implies that the neglect occurred due to some action or inaction on the part of the custodial parents. A finding to that effect does not serve merely a punitive purpose, as suggested by the trial court. Rather, the parents' willingness thereafter to accept responsibility reasonably may bear on whether reunification or termination of parental rights is in the child's best interest . . .
In re Allison G., supra, 276 Conn. at 164.
In In re Allison G., supra, 276 Conn. at 153 n. 4, the court ". . . underscore[d] the importance of an adjudication of both counts of the petition . . ." e. g., both the neglect and uncared for counts.
4. Neglect and uncared for trial standards:
Pursuant to C.G.S. § 46b-129, neglect trials are comprised of two parts, adjudication and disposition. In re Brianna C., 98 Conn.App. 797, 801 (2006). Conn. Practice Book § 35a-7 also provides:
(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . .
(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In this case, the court for the purpose of the adjudicatory phase has limited its review of the evidence to matters occurring on and before the August 25, 2006, filing of the neglect petitions.
In Brianna C., at 805, the Appellate Court explained this court's disposition options as follows:
After an adjudication of neglect, a court may
(1) commit the child to the commissioner,
(2) vest guardianship in a third party or
(3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129 (j) . . .
In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.) In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004). At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65.
C.G.S. § 46b-129(j) sets forth the court's authority to commit a child: . . .
(j) Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child's or youth's care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court. The court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent. The commissioner shall be the guardian of such child or youth for the duration of the commitment, provided the child or youth has not reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, provided such child or youth has not reached the age of twenty-one years, by consent of such youth, or until another guardian has been legally appointed, and in like manner, upon such vesting of the care of such child or youth, such other public or private agency or individual shall be the guardian of such child or youth until such child or youth has reached the age of eighteen years or, in the case of a child or youth in full-time attendance in a secondary school, a technical school, a college or a state-accredited job training program, until such child or youth has reached the age of twenty-one years or until another guardian has been legally appointed. The commissioner may place any child or youth so committed to the commissioner in a suitable foster home or in the home of a person related by blood to such child or youth or in a licensed child-caring institution or in the care and custody of any accredited, licensed or approved child-caring agency, within or without the state, provided a child shall not be placed outside the state except for good cause and unless the parents or guardian of such child are notified in advance of such placement and given an opportunity to be heard, or in a receiving home maintained and operated by the Commissioner of Children and Families . . .
If commitment is ordered, the court also orders specific steps for reunification:
We first note that the commitment in this case is not one of "permanency," such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129(j), the court to "order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent."8
In such footnote 8, the court noted that the trial court ordered many specific steps for reunification:
. . . the specific steps were many, including unannounced visits to the respondent and the child by department workers, attendance at parenting classes, individual and domestic counseling, and protective orders against the child's father to safeguard the child.
In re Brianna C., supra, 98 Conn.App. at 805.
If the court orders that a child be committed to the care, custody and guardianship of DCF, the court must also find that DCF made reasonable efforts to keep the children in the home, or that such efforts were not possible:
The respondent also claims that the court abused its discretion when it found that the department had made reasonable efforts to keep the child with the respondent before seeking custody of the child. The last sentence of § 46b-129(j) provides in relevant part: Upon the issuance of an order committing the child or youth to the [commissioner], or not later than sixty days after the issuance of such order, the court shall make a determination whether the [department] made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order . . .
In re Brianna C., supra, 98 Conn.App. at 806-07.
The full relevant language in § 46b-129(j) is as follows:
Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety.
In connection with determining the disposition of a case, the court looks at the full picture of the family circumstances, including the full history of each parent's parenting abilities, to determine each child's best interest:
The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999). In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. den. 263 Conn. 917, 821 A.2d 770 (2003). In a dissolution of marriage context this requirement has been expressed as follows: " `Nevertheless our Supreme Court has also held that "the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being.' Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981)." Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006).
As in any case involving the determination of custody, the touchstone for such dispositional decision is the court is the best interest of the child:
Generally, questions of custodial placement are resolved by a determination of "what is in the best interest of the child . . . as shown by a fair preponderance of the evidence." (Citations omitted.) In re Shyina B., 58 Conn.App. 159, 163, 752 A.2d 1139 (2000). "The trial court is vested with broad discretion in determining what is in the child's best interests." (Internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 209, 796 A.2d 1141 (2002).
In re Haley B., supra, 81 Conn.App. at 65.
As set forth above, and pursuant to Practice Book § 32a-3(a), the standard of proof applied in a neglect, uncared for or dependency proceeding is a fair preponderance of the evidence. In In re Brianna C., supra, 98 Conn.App. at 801, the Appellate Court confirmed that "[t]he burden of proof is on the petitioner to show by a fair preponderance of the evidence that removal of a child from his or her home is warranted. In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983)." Later in such decision, the Appellate Court reiterated:
The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); Practice Book § 32a-3(a).
In re Brianna C., supra, 98 Conn.App. at 802.
Specifically with respect to dispositional matters, the same burden of proof applies:
At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65. On appeal, we must determine whether there was sufficient evidence before the court so that it reasonably could find, by a fair preponderance of the evidence, that the best interest of the child was to commit custody of her to the commissioner, with eight hours daily of unsupervised visits with the respondent.
In re Brianna C., supra, 98 Conn.App. at 804-05.
5. The meaning of "fair preponderance of the evidence":
As set forth above, the standard of proof in a neglect case is the "fair preponderance of the evidence."
Such 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 had been satisfied with respect to a fact if all the evidence considered fairly and impartially evince[d] a reasonable belief that it [wa]s more probable than not that the fact [wa]s true." Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981); see also Konover Development Corp. v. Zeller, 228 Conn. 206, 230, 635 A.2d 798 (1994).
6. Best interests of the child:
As set forth above with respect to disposition after an adjudication that a child is neglected or uncared for, ". . . the court must decide which of the various custody alternatives are in the best interest of the child . . ." In re Brianna C., supra, 98 Conn.App. at 805. In doing so, ". . . the court uses its broad discretion to choose a place that will foster `the child's interest in sustained growth, development, well-being, and in the continuity and stability of its environment.' " In re Haley B., supra, 81 Conn.App. at 67; see also page 16, supra.
In deciding what is in the best interest of the child, the trial court "is vested with broad discretion." In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000). The Appellate Court explained the basis for such broad discretion in the trial court as follows:
. . . The trial court had the advantage of observing the parties and witnesses. [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference." (Internal quotation marks omitted.) Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Ignacio v. Montana-Ignacio, 57 Conn.App. 647, 648, 750 A.2d 491 (2000).
In re Alexander C., supra, 60 Conn.App. at 559-60; see also In re Haley B., supra, 81 Conn.App. at 65; page 16, supra.
C.G.S. § 46b-56(c) sets forth factors that the court may consider in determining the best interest of a child when entering a custody order, some of which factors may be applicable in a neglect and uncared for case. C.G.S. § 46b-56(c) is as follows:
"(c) In making or modifying any order as provided in subsections (a) and (b) of this section, the court shall consider the best interests of the child, and in doing so may consider, but shall not be limited to, one or more of the following factors:
(1) The temperament and developmental needs of the child;
(2) the capacity and the disposition of the parents to understand and meet the needs of the child;
(3) any relevant and material information obtained from the child, including the informed preferences of the child;
(4) the wishes of the child's parents as to custody;
(5) the past and current interaction and relationship of the child with each parent, the child's siblings and any other person who may significantly affect the best interests of the child;
(6) the willingness and ability of each parent to facilitate and encourage such continuing parent-child relationship between the child and the other parent as is appropriate, including compliance with any court orders;
(7) any manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute;
(8) the ability of each parent to be actively involved in the life of the child;
(9) the child's adjustment to his or her home, school and community environments;
(10) the length of time that the child has lived in a stable and satisfactory environment and the desirability of maintaining continuity in such environment, provided the court may consider favorably a parent who voluntarily leaves the child's family home pendente lite in order to alleviate stress in the household;
(11) the stability of the child's existing or proposed residences, or both;
(12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, shall not be determinative of custody unless the proposed custodial arrangement is not in the best interests of the child;
(13) the child's cultural background;
(14) the effect on the child of the actions of an abuser, if any domestic violence has occurred between the parents or between a parent and another individual or the child;
(15) whether the child or a sibling of the child has been abused or neglected, as defined respectively in section 46b-120; and
(16) whether the party satisfactorily completed participation in a parenting education program established pursuant to section 46b-69b. The court is not required to assign any weight to any of the factors that it considers."
7. Weight to be given to testimony from court-appointed psychologists:
In Davonta V., supra, 98 Conn.App. at 60 n. 3, Judge Schaller, dissenting, wrote:
" `The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987).' (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993)." (Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition:
"Psychological testimony from professionals is appropriately accorded great weight in termination proceedings." In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999). (Emphasis added.)
However, "[a]s in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed." Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002): " `[A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful.' Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981)."
8. The goal of family reunification:
In neglect and uncared for cases, even if a child is committed to the care, custody and guardianship of DCF, if it is in the best interest of the child, family reunification is an important consideration. In re Christina M., 90 Conn.App. 565, 570-71, 877 A.2d 941 (2005), affirmed 280 Conn. 474 (2006). In such decision former Chief Justice Peters wrote:
Family reunification is an important social objective. As our Supreme Court recently has reminded us: "[A]n important goal of the child protection statutes, in addition to protecting children from abuse and neglect, is to preserve family integrity by . . . teaching parents the skills they need to nurture and care for their children." Teresa T. v. Ragaglia, 272 Conn. 734, 754, 865 A.2d 428 (2005).
Id.
However, for the process to be successful, a parent has to be ready, willing and able to receive, absorb and to benefit from the skills that are taught by DCF and providers, and also to engage in and to benefit from services that enable him or her to overcome the matters and issues that are obstacles to his or her personal healthy functioning.
9. The balancing of the legitimate interests of the parents, children and the state of Connecticut:
In each child protection case, the court is faced with the competing interests of the child, parents and state:
The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children. The legitimate interests of parent, child and state require a balancing of the factors involved in those interests . . . In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle . . ." (Citations omitted.)
In re Shaquanna M., 61 Conn.App. 592, 598-99, 767 A.2d 155 (2001).
EACH CHILD IS ADJUDICATED NEGLECTED AND UNCARED FOR.
Based upon the facts and the law set forth above and applying the fair preponderance of the evidence standard, each child is adjudicated neglected because
(1) he or she was denied proper care and attention, physically, educationally, emotionally or morally; and
(2) he or she was permitted to live under conditions, circumstances or associations injurious to well being.
Each child also is adjudicated uncared for because the mother's home could not provide the specialized care which the physical, emotional or mental condition of each such child requires.
DISPOSITION:
DCF sought the commitment to it of each of the three children. The mother did not object to the commitment to DCF of K. She sought to have each boy remain with her under an order of protective supervision.
The guardian ad litem for each of the children, who testified and was subject to cross-examination, recommended to the court that
(1) K. should not be returned to the home;
(2) C. should remain in the home; and
(3) Cr. should be removed from the home.
One of the two very experienced psychologists conducted a court-ordered 2006 evaluation of K. and C. He testified that each child should be in a therapeutic milieu "consistent with what is provided in a residential facility." Such psychologist's full report is exhibit 8.
The other of the two psychologists conducted a court-ordered 2007 evaluation of C. and Cr. (although asked to do so, K. did not attend the evaluation). He testified that the mother "modeled" negative behaviors for the boys with her disruptive, oppositional behavior, threatening attitudes and over-aggressive actions. The mother's parenting approach was lax, unstructured and lacking in appropriate levels of supervision of the boys. Such psychologist testified that both boys had oppositional defiant disorder, engaged in repeated acts of aggression, had moderate to severe impairments in daily functioning, needed close supervision and support and were "very much in need of regular intensive counseling with a behavioral component." He stated that the mother did not have the strength to make the personal investment necessary for such intensive therapy. Such psychologist also concluded that the mother did not have the skills and understanding necessary to guide the children through adolescence. Such psychologist's report is exhibit 9.
After being informed of the multi-systemic therapy ("MST") goals as set forth by the MST worker who testified, such psychologist stated that any satisfaction of the MST goals did not change his opinion about the needs of each of the children and the deficiencies in the mother's parenting.
Such psychologist "strongly recommended" that C. and Cr. be placed in a "more restrictive setting with more strict behavioral management" than their home environment, e.g., a secure residential setting with very structured educational and behavioral components.
In the evaluation report, such psychologist set forth the following multiaxial diagnosis of Cr.:
DSM-IV-TR Multiaxial Diagnosis
Axis I: Oppositional Defiant Disorder; Attention Deficit Hyperactivity Disorder
Axis II: R/O Borderline Intellectual Functioning
Axis III: No known medical problems affecting psychological functioning
Axis IV: History of lax and inconsistent parenting; Siblings with significant psychological problems; Disruption of family due to a combination of child protection issues and siblings' mental health problems; History of aggressive and defiant conduct; Significant hyperactivity and inattention; Disruption of relationship with biological father; History of arrest and involvement with the juvenile justice system.
Axis V: 52
(Exhibit 9, 20-21.)
Such psychologist's diagnosis of C. was similar to his diagnosis of Cr.:
CT Page 11898
DSM-IV-TR Multiaxial Diagnosis
Axis I: Oppositional Defiant Disorder
Axis II: R/O Borderline Intellectual Functioning
Axis III: No known medical problems affecting psychological functioning
Axis IV: History of lax and inconsistent parenting; Siblings with significant psychological problems; Disruption of family due to a combination of child protection issues and siblings' mental health problems; History of aggressive and defiant conduct; Disruption of relationship with biological father; History of arrest and involvement with the juvenile justice system.
Axis V: 55
( Id., 21-22.)
Such psychologist set forth the following about the mother:
[The mother] did not have an opportunity to fully develop emotionally, as she was pregnant by age thirteen and married by fourteen. Her first husband, who was ten years older, forced her to drop out of school and was — by her account — controlling and physically abusive. She said her mother's reaction to learning she was pregnant was also abusive . . . A subsequent relationship with [the absent father] was reportedly adversely affected by his substance abuse. [The mother] has not had a model for effective, appropriate parenting that balances structure and nurturing. Nor does it seem that her current paramour is able to assist her in this regard, as all seem to agree he does not take on any such role in the family. She needs patient, in-depth instruction in effecting authoritative, balanced parenting. Even then, it is likely her children will resist her efforts, which will require continued support and reinforcement. Altering the children's behavior patterns now that they have entered adolescence will be difficult, and they also should be addressing these issues in therapy so as to adapt to any changes attempted by MST or whatever family therapy method is employed.
While certainly sympathetic to [the mother's] difficult life, this examiner feels compelled to point out that at least five of her six children have had problems with the law. At least four have been in jail or juvenile detention. In this examiner's opinion, changes in caretakers and households have impaired their ability to attach and develop emotionally, while their mother's parenting style (combining authoritarian and lax approaches) has fueled problems with conduct and, in Cr.'s case, attention deficit and hyperactivity problems. A family history of mental illness suggests that genetic factors may also be involved.
[The mother] said she has taken an antidepressant in the past, but was not taking any psychotropic medication at the time of the evaluation. She did not present as clinically depressed, although she has a resigned, helpless stance toward the chief difficulty in her life — her children's problematic behaviors. She opined that her children might be too old to change.
( Id., 23.)
Such psychological examiner concluded:
Unfortunately, due to [the mother's] lack of insight with regard to the fact that her children have consistently developed psychological problems (including suicidal ideation, criminal behavior, conduct problems, running away, defiance, oppositionality, hyperactivity, etc.) this examiner believes that the prognosis for children in her care — if things remain as they are — is poor, and that even with individual therapy on a weekly basis, they will continue to deteriorate in terms of their academic, social and psychological functioning. At this time, [the mother] does not possess the skills or understanding to guide these troubled children through adolescence given their existing psychological problems . . .
( Id., 24.)
The court has considered the testimony of the MST worker concerning the experience of the mother, C. and Cr. with the most recent MST program. The court concludes that while the family's recent experience with MST may have provided some benefits to them, there has not been the type of permanent improvement that would enable this court to grant protective supervision to the mother.
Taking into consideration the mental health histories of the mother, the older half-siblings and K.; the juvenile delinquency, adult criminal histories and behavioral issues of the half-siblings; and the juvenile delinquency histories and serious behavioral issues demonstrated by K., C. and Cr.; and the likelihood of more and increasingly dangerous anti-social behavior in the future if such intensive treatment as recommended by such psychologists is not provided, the court finds, by a fair preponderance of the evidence, that commitment to the care, custody and guardianship of the commissioner of DCF is in the current best interest of K., C. and Cr. The court further finds that it is not in the current best interest of K., C. or Cr. to remain in the parental home.
As set forth above, the court further finds, by a fair preponderance of the evidence, that DCF made reasonable efforts to prevent each child's removal from the home.
New specific steps are ordered initially to be suggested by DCF. If the parties cannot agree on such specific steps, a hearing shall be scheduled and held at the local court for child protection matters in accordance with the usual procedures pertaining thereto.
(A) The mother shall cooperate with DCF and shall comply with each specific step relating to K., C. and/or Cr. and/or to the mother and/or any other person that is in effect at any time during each such period of commitment, and the mother shall cooperate with and comply with each provider selected or agreed to by DCF to provide services to her or to K., C. and/or Cr. at any time during each such period of commitment;
(B) Failure or refusal by the mother to cooperate with DCF or to comply with each such specific step and each such provider may be punished by contempt or any other appropriate sanction.
Additionally, the mother, upon penalty of contempt and/or other appropriate sanction, is ordered to cooperate and comply with each of this court's orders set forth in this memorandum of decision, including but not limited to each order of commitment of K., C. and Cr. to the care, custody and guardianship of DCF.
The court anticipates that counsel for the mother will, inter alia, advise her about C.G.S. §§ 53a-97 and 98, inter alia:
53a-98: (a) A person is guilty of custodial interference in the first degree when he commits custodial interference in the second degree as provided in section 53a-98: (1) Under circumstances which expose the child or person taken or enticed from lawful custody or the child held after a request by the lawful custodian for his return to a risk that his safety will be endangered or his health materially impaired; or (2) by taking, enticing or detaining the child or person out of this state.
(b) Custodial interference in the first degree is a class D felony.
53a-97: (a) A person is guilty of custodial interference in the second degree when: (1) Being a relative of a child who is less than sixteen years old and intending to hold such child permanently or for a protracted period and knowing that he has no legal right to do so, he takes or entices such child from his lawful custodian; (2) knowing that he has no legal right to do so, he takes or entices from lawful custody any incompetent person or any person entrusted by authority of law to the custody of another person or institution; or (3) knowing that he has no legal right to do so, he holds, keeps or otherwise refuses to return a child who is less than sixteen years old to such child's lawful custodian after a request by such custodian for the return of such child.
(b) Custodial interference in the second degree is a class A misdemeanor.