Opinion
Nos. M08-CP08-010693, M08-CP08-010694
October 27, 2011
MEMORANDUM OF DECISION RE MOTION FOR RELIEF FROM FAMILY THERAPY
For purposes of the matter before the court, the court takes judicial notice of the following facts which do not appear to be in dispute. The minor children, Kimberly and Nelson, are respectively fourteen and eleven years of age. Both of the children have special educational needs. Both are victims of sexual and physical abuse and neglect. On December 15, 2005, Kimberly and Nelson were taken into custody on an Order of Temporary Custody (OTC). The court (Taylor, J.) sustained the OTC following a contested hearing. On May 11, 2006, the children were committed to DCF. On October 12, 2006, commitment was revoked and the children were returned to the mother's care under an order of protective supervision. On April 12, 2007, the protective supervision was extended and on September 13, 2007, the protective supervision expired. On June 11, 2008, the children were removed from the mother pursuant to an OTC. The court (Wilson, J.) sustained the OTC following a contested hearing. On February 5, 2009, the children were committed to the care and custody of DCF. On April 28, 2010, the petitioner filed Termination of Parental Rights Petitions (TPR) on behalf of the children. The children have been in foster care for over three years. The minor children remain in the custody of DCF.
The trial concerning this Motion, in addition to other motions and objections filed by the parties, took place on April 12, 2011, April 29, 2011, May 6, 2011, May 17, 2011, June 7, 2011, June 28, 2011 and August 9, 2011.
The Petitioner, the Department of Children and Families, was represented by an assistant attorney general. The mother and father were each represented by their own attorneys. The minor child was represented by an attorney and a guardian ad litem was appointed for the minor children. The court finds it has jurisdiction in this matter. There is no other action pending in any other court affecting the custody of the minor children known to this court.
The court has reviewed the Petitioner's Motion for Relief, the objection thereto of the respondent parents, has considered the testimony of the witnesses produced at the trial and considered each full exhibit. The credible and relevant evidence submitted during the trial reveals that the following facts were proved by a fair preponderance of the evidence.
The Petitioner's Motion for Relief seeks relief from the recommendation for family therapy made by the court-ordered evaluator, Dr. Frazer. The Petitioner argues that Dr. Frazer's recommendation for family therapy was completed without the benefit of collateral contact with the children's therapist, Laura Renfo and Sharon Romero, the children's therapeutic visitation social worker.
The court does not find Dr. Frazer's position on family therapy credible in light of the other testimony and exhibits presented to the court. The court finds that Dr. Frazer was not aware of the depth and breadth of the repeated sexual abuse suffered by the minor children in the family home nor was he fully cognizant of the treatment by and positions of the treatment providers. Specifically, the court notes that family therapy was commenced with Dr. Mora who raised concerns about the respondent parent's ability to benefit from the family therapy in light of their cognitive limitations. Dr. Mora also testified that it would be detrimental to the children to continue to participate in the family therapy in light of Kimberly's desire to be adopted and Nelson's regression when the possibility of reunification is discussed. Ms. Renfro is also recommending against family therapy and testified that the children's individual therapy and the family therapy are in conflict with each other. The court further finds that the respondent parents have not fully acknowledged the physical and sexual abuse sustained by their children while within the family home, nor the physical abuse inflicted upon the respondent mother by the respondent father. They have not accepted their responsibility for their lack of supervision of the children while in the family home. Further, the court notes Kimberly's report that the respondent parents plan to provide housing to one of the sexual perpetrators once he is released from prison. The court finds that the parents have not adequately acknowledged the physical and sexual abuse sustained by their children all of which undermine respondent parents' ability to keep their children safe and which reflect on the respondent parents' limited cognitive skills. The court also credits the guardian ad litem's position that family therapy is not appropriate at this time.
Accordingly, the Petitioner's Motion for Relief is granted. The respondent parents' objection is overruled.
SO ORDERED.
MEMORANDUM OF DECISION RE MOTIONS FOR INCREASED AND UNSUPERVISED VISITATION
The respondent father filed a Motion for Unsupervised and Increased Visitation on November 23, 2010. The respondent mother filed a Motion for Visit to Increase and Be Unsupervised on January 13, 2011.
The petitioner, the Department of Children and Families, was represented by an assistant attorney general. The mother and father were each represented by their own attorneys. The minor children were represented by an attorney and a guardian ad litem was appointed for the minor children. The court finds it has jurisdiction in this matter. There is no other action pending in any other court affecting the custody of the minor children known to this court.
For purposes of the matter before the court, the court takes judicial notice of the following facts which do not appear to be in dispute. The minor children, Kimberly and Nelson, are respectively fourteen and eleven years of age. Both of the children have special educational needs. Both are victims of sexual and physical abuse and neglect. On December 15, 2005, Kimberly and Nelson were taken into custody on an Order of Temporary Custody (OTC). The court (Taylor, J.) sustained the OTC following a contested hearing. On May 11, 2006, the children were committed to DCF. On October 12, 2006, commitment was revoked and the children were returned to the mother's care under an order of protective supervision. On April 12, 2007, the protective supervision was extended and on September 13, 2007, the protective supervision expired. On June 11, 2008, the children were removed from the mother pursuant to an OTC. The court (Wilson, J.) sustained the OTC following a contested hearing. On February 5, 2009, the children were committed to the care and custody of DCF. On April 28, 2010, the petitioner filed Termination of Parental Rights Petitions (TPR) on behalf of the children. The children have been in foster care for over three years. The minor children remain in the custody of DCF.
The court has reviewed the respondents' motion, the objection thereto, considered the testimony of the witnesses produced at the trial and considered each full exhibit as well as the briefs of the parties. The credible and relevant evidence submitted during the trial reveals that the following facts were proved by a fair preponderance of the evidence.
The court heard testimony from three expert witnesses: Eric Frazer, Ph.D, the court-ordered evaluator; Raphael Mora, Ph.D., the family therapist retained by DCF and Laura Renfro, the childrens' therapist. In addition, Sharon Romero, the Community Residences Incorporated (CRI) visitation supervisor testified. These witnesses provided facts, and in the case of the experts, opinions on the issues before the court. The court notes that these witnesses conducted psychological evaluations, family therapy and ongoing therapy for the children. Specifically, the evidence presented at trial established that both children were victims of abuse and neglect. Pursuant to the testimony and exhibits of Dr. Mora, Laura Renfro and Stacey Falk, the children suffered repeated sexual abuse in the home from which their parents failed to protect them or acknowledge. Further, the parents have cognitive limitations which prevent them from fully understanding the depth and breadth of the abuse suffered by their children which the court finds directly affects their safety and well-being while with their parents. The credible evidence also showed that the respondent-mother had inappropriate conversations with the minor children with regard to the legal matters currently ongoing which they court finds were intended to unduly influence the minor children.
While Dr. Frazer has opined that unsupervised visitation should be allowed, the court does not find his opinion credible in light of his lack of information from the other providers as well as the dearth of information of the history of sexual abuse suffered by the minor children as reflected in his testimony and his reports. Both Dr. Mora and Ms. Renfro have presented credible evidence to the court that unsupervised visitation would not be appropriate at this time. The court also finds credible the guardian ad litem's position that unsupervised visits with the respondent parents in the home or in the community would be not be in the children's best interests at this time. The court has also considered the children's feelings of comfort, well-being and safety in their foster home as well as the daily activities which may be disrupted if visitation is increased at this time. Therefore, the credible evidence presented sufficiently apprised the court that the minor children would not benefit from unsupervised visitation with their parents nor would they benefit from increased visitation with their parents at this time.
Accordingly, the motions for unsupervised and increased visitation are denied. The objections to the motion are sustained.
SO ORDERED.
MEMORANDUM OF DECISION RE OBJECTION TO PERMANENCY PLAN
The Petitioner filed a permanency plan of Termination of Parental Rights and Adoption with regard to Kimberly P. and Nelson P. on December 10, 2010. The permanency plan was approved by the Court (Burgdorff, J.) on February 3, 2011. Counsel for the respondent mother was not present at the hearing and had submitted a position letter. Counsel for the respondent mother had erroneously believed that the permanency plan hearing was for a different child. Counsel for the respondent mother then filed a Motion to Re-Open Permanency Plan which was granted by this court on April 12, 2011. The matter for the court at this time is the respondent parents' objection to the permanency plan.
The petitioner, the Department of Children and Families, was represented by an assistant attorney general. The mother and father were each represented by their own attorneys. The minor child was represented by an attorney and a guardian ad litem was appointed for the minor children. The court finds it has jurisdiction in this matter. There is no other action pending in any other court affecting the custody of the minor children known to this court.
For purposes of the matter before the court, the court takes judicial notice of the following facts which do not appear to be in dispute. The minor children, Kimberly and Nelson, are respectively fourteen and eleven years of age. Both of the children have special educational needs. Both are victims of sexual and physical abuse and neglect. On December 15, 2005, Kimberly and Nelson were taken into custody on an Order of Temporary Custody (OTC). The court (Taylor, J.) sustained the OTC following a contested hearing. On May 11, 2006, the children were committed to DCF. On October 12, 2006, commitment was revoked and the children were returned to the mother's care under an order of protective supervision. On April 12, 2007, the protective supervision was extended and on September 13, 2007, the protective supervision expired. On June 11, 2008, the children were removed from the mother pursuant to an OTC. The court (Wilson, J.) sustained the OTC following a contested hearing. On February 5, 2009, the children were committed to the care and custody of DCF. On April 28, 2010, the petitioner filed Termination of Parental Rights Petitions (TPR) on behalf of the children. The children have been in foster care for over three years. The minor children remain in the custody of DCF.
The trial concerning this objection, in addition to other motions and objections filed by the parties, took place on April 12, 2011, April 29, 2011, May 6, 2011, May 17, 2011, June 7, 2011, June 28, 2011 and August 9, 2011.
Connecticut General Statute § 46b-129(k) governs the approval of a permanency plan and provides in pertinent part: "(2) . . . the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such a plan." Practice Book § 35a-14(d) provides in pertinent part: "At each hearing on a motion for review of permanency plan, the judicial authority shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner of the department of children and families has made reasonable efforts to achieve the permanency plan. The judicial authority shall also determine whether the proposed goal of the permanency plan as set forth in Connecticut General Statutes § 46b-129(k)(2) is in the best interests of the child or youth by a fair preponderance of the evidence, taking into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such a plan."
The court has reviewed the respondents' objection to the permanency plan, considered the testimony of the witnesses produced at the trial and considered each full exhibit as well as the briefs of the parties. The credible and relevant evidence submitted during the trial reveals that the following facts were proved by a fair preponderance of the evidence.
The court heard testimony from three expert witnesses: Eric Frazer, Ph.D, the court-ordered evaluator; Raphael Mora, Ph.D., the family therapist retained by DCF and Laura Renfro, the childrens' therapist. In addition, Sharon Romero, the Community Residences Incorporated (CRI) visitation supervisor testified. These witnesses provided facts, and in the case of the experts, opinions on the issues before the court. The court notes that Dr. Mora and Ms. Renfro conducted psychological evaluations, family therapy and ongoing therapy for the children. Specifically, the evidence presented at trial established that both children were victims of abuse and neglect. Pursuant to the testimony of Dr. Mora, Laura Renfro and Stacey Falk, as well as the exhibits submitted to the court, the children suffered repeated sexual and physical abuse from which their parents failed to protect them or acknowledge. The evidence clearly reflects that the respondent parents have not adequately acknowledged the sexual and physical abuse of their children while in their home and that the respondent parents have not been able to effectively parent their children nor keep them safe. They have also failed to acknowledge and address their own cognitive limitations. Likewise, the respondent parents have failed to adequately acknowledge the special needs of Kimberly and Nelson, specifically their educational and emotional needs although they have been given ample time and services to do so. Foremost, the parents have failed to acknowledge and comprehend the childrens' need for safety. Further, the court notes that Kimberly has expressed her desire to be adopted. The court also credits the testimony of Attorney Grady, as guardian ad litem of the children, and finds that the minor children have been in their foster home for over three years and have a sense of well-being, safety and comfort there. As such, the permanency plan of termination of parental rights and adoption is in the best interests of Kimberly and Nelson. The court does not credit the testimony of Dr. Frazer wherein he recommends reunification with the parents. Dr. Frazer did not do adequate psychological testing of the children, nor did he adequately address the repeated sexual abuse and physical violence against the minor children. The court also notes that Dr. Frazer had minimal contact with or information from the children's clinician or Dr. Mora, specifically with regard to the respondent parents' long denial of the problems existing in their home, the sexual abuse of Kimberly and Nelson in their home as well as the cognitive limitations of the respondent parents.
Accordingly, the court finds by a fair preponderance of the evidence that the permanency plan of termination of parental rights and adoption as to Kimberly and Nelson is in their best interests. The court hereby overrules the respondent parents' objection to the permanency plan and approves the plan of termination of parental rights and adoption. The court also finds that the Department of Children and Families has made reasonable efforts to achieve the identified permanency plan.
SO ORDERED.
MEMORANDUM OF DECISION RE MOTION TO PERMIT MINOR CHILDREN'S TESTIMONY
The respondent mother filed a Motion for Child Witness on June 28, 2011 seeking the court to allow the testimony of the minor children involved in this matter. Specifically, the respondent mother seeks the minor children's testimony to give their opinion as to where they would like to live and if they want future contact with their parents. The respondent father concurred with the respondent mother's position on this motion.
The petitioner, the Department of Children and Families, was represented by an assistant attorney general. The mother and father were each represented by their own attorneys. The minor child was represented by an attorney and a guardian ad litem was appointed for the minor children. The court finds it has jurisdiction in this matter. There is no other action pending in any other court affecting the custody of the minor children known to this court.
For purpose of the matter before the court, the court takes judicial notice of the following facts which do not appear to be in dispute. The minor children, Kimberly and Nelson, are respectively fourteen and eleven years of age. Both of the children have special educational needs. Both are victims of sexual and physical abuse and neglect. On December 15, 2005, Kimberly and Nelson were taken into custody on an Order of Temporary Custody (OTC). The court (Taylor, J.) sustained the OTC following a contested hearing. On May 11, 2006, the children were committed to DCF. On October 12, 2006, commitment was revoked and the children were returned to the mother's care under an order of protective supervision. On April 12, 2007, the protective supervision was extended and on September 13, 2007, the protective supervision expired. On June 11, 2008, the children were removed from the mother pursuant to an OTC. The court (Wilson, J.) sustained the OTC following a contested hearing. On February 5, 2009, the children were committed to the care and custody of DCF. On April 28, 2010, the petitioner filed Termination of Parental Rights Petitions (TPR) on behalf of the children. The children have been in foster care for over three years. The minor children remain in the custody of DCF.
Connecticut Practice Book Section 32a-4(b) deals with child witnesses and states in pertinent part: "Any party who intends to call a child or youth as a witness shall first file a motion seeking permission of the judicial authority." Permission of the court to call a child or youth as a witness is required because "cases involving the testimony of abused children requires special consideration." In re Brandon W., 56 Conn.App. at 426, citing In re Noel M., CT Page 23078 23 Conn.App. 410, 421 (1990). Parents in child protection cases may be precluded from calling their children as witnesses where there is competent evidence that testifying would be harmful to the children. See In re Tayler F., 296 Conn. 524, 551 (2010).
With regard to respondents' motion to permit children's testimony, the court notes that the record reflects that the respondents did not file a witness list prior to the commencement of the trial on April 12, 2011 regarding the respondents' Motion for Unsupervised Visits, Motion for Family Therapy, Objection to the Permanency Plan of Termination of Parental Rights and Adoption, and Motion for Relief from the recommendations of the court-ordered psychological evaluation. The trial regarding these filings took place on April 12, 2011, April 29, 2011, May 6, 2011, May 17, 2011, June 7, 2011, June 28, 2011 and August 9, 2011. The respondents did not file their witness list until June 28, 2011 after they had rested their case. Therefore, as a procedural matter, the respondents' motions are untimely. However, the court will rule on the motion on substantive grounds.
Although the trial court is vested with discretion in making such decisions, that discretion is limited. Children are statutorily presumed to be competent witnesses. See C.G.S. § 54-86h. Furthermore, trial courts may determine that a child is "psychologically unavailable" to testify at trial only if there is "competent evidence that the child will suffer psychological harm from testifying." In re Tayler F., 296 Conn. 5524, 545 (2010). "The court's determination must be based, however, on evidence specific to the child and the circumstances, and not a generalized presumption that testifying is harmful." Id. "Proof of psychological harm must be adduced at an evidentiary hearing, either from an expert, or other uninterested witness." In re Tayler F., p. 547.
The court's refusal to allow parents to call their children as witnesses does not violate their right to confrontation under the due process clauses of the federal and state constitutions and Connecticut General Statute § 46b-135(b) given the traumatic and negative effect that testifying would have on the children. In re Brandon W., 56 Conn.App. 418, 426-27 (2000). The discretion not to require the child testify is supported by case law. The right to confrontation and cross-examination in a child protection case is statutory, not constitutional. In re Noel M., 23 Conn.App. 410, 421 (1990); In re Lauren R., 49 Conn.App. 763 (1998); In re Brandon W., 56 Conn.App. 418 (2000). The court, in its discretion, determines whether or not it is in the best interests of the minor child to testify at a trial. Connecticut Practice Book, Official Commentary, 2010. "The court must evaluate the unique factors in each case to assess whether a child's testimony is appropriate and right and equitable under the circumstances and the law." (Internal quotation marks omitted.) In re Connor E., 2009 Ct.Sup. 5269 (Wolven, J.) (March 19, 2009), citing In re Lauren R., op. cit.
A trial judge may preclude a child from testifying should circumstances warrant — e.g., a child with mental health issues. The court's obligation is to act in parens patriae. See, e.g., In re Taylor F., 111 Conn.App. 28, 49 n. (2008) ("[W]e are mindful of the public policy to prevent children from being the fulcrum of custody disputes and child protection cases"). Further, the testimony of the children must be relevant. See In re Brandon W., 56 Conn.App. 426-27 (2000). Relevant evidence is probative and material to the determination of the proceedings. Conn. Code of Evidence, Sec. 4-1; State v. Marra, 222 Conn. 506, 521 (1992). What is material depends on what is at issue. See Williams Ford v. Hartford Courant Co., 232 Conn. 559, 570 (1995).
The court has reviewed the respondents' motion, the objection thereto, considered the testimony of the witnesses produced at the trial and considered each full exhibit as well as the briefs of the parties. The credible and relevant evidence submitted during the trial reveals that the following facts were proved by a fair preponderance of the evidence.
The court heard testimony from three expert witnesses: Eric Frazer, Ph.D, the court ordered evaluator; Raphael Mora, Ph.D., the family therapist retained by DCF and Laura Renfro, the childrens' therapist. In addition, Sharon Romero, the Community Residences Incorporated (CRI) visitation supervisor testified. These witnesses provided facts, and in the case of the experts, opinions on the issues before the court. The court notes that these witnesses conducted psychological evaluations, family therapy and ongoing therapy for the children. Sufficient and credible evidence was presented to the court to find that testifying would be psychologically harmful to the children. Specifically, the evidence presented at trial established that both children were victims of abuse and neglect. Pursuant to the testimony and exhibits of Dr. Mora, Laura Renfro and Stacey Falk, the children suffered sexual abuse from which their parents failed to protect them or acknowledge. The court finds that Nelson would suffer from serious emotional or mental harm if he is forced to testify. Both Dr. Nelson and Ms. Renfro testified as to Nelson's fragile emotional state and opined that forcing him to testify would cause him to "decompensate" to the point of "[being incapable] of finding words." With regard to Kimberly, Ms. Renfro opined that she would be psychologically damaged by the experience of testifying and that testifying would have an adverse impact on her therapy. Ms. Renfro also testified that both Kimberly and Nelson would be "re-traumatized" by testifying and would "regress." The court also credits the testimony of Attorney Grady and infers from it that the children could find it confusing and unsettling to be questioned by their parents and the lawyers during direct and cross examination.
These witnesses' testimony sufficiently apprised the court of the childrens' opinions with regard to the issues pending before this court. The proposed testimony sought from the minor children by the respondents would, therefore, be cumulative.
The respondents have not satisfactorily demonstrated to the court that there is a compelling reason for the children to testify, or that the evidence sought by the respondents could not be obtained by some other means.
Accordingly, based upon the evidence presented, the court finds that psychological harm would be done to the children if they are required to testify. See Giordano-Little v. Dept. of Children and Families, 2008 WL 366753 at *2 (Conn.Super. 2008). The respondents' motion dated June 28, 2011 is denied. The objection to the motion is sustained.
SO ORDERED.