Opinion
H12CP16016503A
08-31-2016
In re Mia M
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Mary-Margaret D. Burgdorff, J.
In accordance with General Statute Sections 46b-124 and Practice Book Section 32a-7, the records and papers of this case shall be open for inspection only to persons having a proper interest therein and only upon order of the Superior Court.
This contested Order of Temporary Custody (OTC) hearing was conducted pursuant to Practice Book § 33a-7 and General Statutes § § 46b-129(b) and (f). In reaching its determination in this matter, within the confines of the issues presented by Connecticut General Statutes § § 46b-129(b) and (f), the court has also taken into consideration the statutory presumption established by General Statutes § 46b-56b and the best interest of the child at issue. Pursuant to Practice Book § 33a-7, the OTC and the adjudicatory and dispositional phase of the underlying neglect petition have been consolidated by order of the court. The court shall determine the outcome of the OTC based upon whether or not the ex parte OTC should be sustained or vacated irrespective of its finding on whether there is sufficient evidence to support an adjudication of neglect. The disposition phase of the trial will be scheduled after the completion of the pending psychological evaluation and a case management conference.
The court takes judicial notice of the chronology of the case as well as the court memoranda. Specifically, the court takes judicial notice of the neglect petitions filed on March 24, 2016, and on June 3, 2016 on behalf of Mia M. which allege that the child is being denied proper care and attention physically, educationally, emotionally or morally and that she is being permitted to live under conditions, circumstances or associations injurious to her well-being.
This neglect petition was withdrawn by DCF on April 29, 2016.
The court also takes judicial notice of the OTC petition filed on behalf of the child on June 3, 2016, which alleges that the child is suffering from serious physical illness, that she is in immediate physical danger from her surroundings, that as a result of said conditions her safety is endangered, that her immediate removal from the home is necessary to ensure her safety, that continuation in the home is contrary to her welfare, and that the temporary care and custody of the child be vested in the Department of Children and Families (DCF). The ex parte OTC petition was granted by the court on June 3, 2016, and preliminary specific steps were ordered as to Mother and Father on June 3, 2016 (Dannehy, J.) Damian M., (Father), sustained the OTC by agreement on June 10, 2016 and stood silent as to the neglect allegations. Father is in support of the child's commitment to DCF and was excused by the court from the trial. Annia F., (Mother) contests the OTC as well as the neglect petition.
The court conducted a hearing on July 8, 2016, July 11, 2016 and July 20, 2016 as to Mother who is the biological Mother of Mia. Mother was present and represented by counsel. The child was represented by counsel. DCF was represented by an assistant attorney general.
There is no claim of an Indian Tribal Affiliation. The court finds that notice has been given in accordance with the General Statutes and the Practice Book. The court further finds that the parents were properly served and that it has jurisdiction in this matter. There are no other actions pending in any other court affecting the custody of Mia known to this court.
Sixteen exhibits were introduced as full exhibits. Testimony was heard from six witnesses. Mother did not testify. All counsel had a full opportunity to cross examine the witnesses.
Upon consideration of the relevant and credible evidence including the testimony and demeanor of the witnesses, the demeanor of Mother, the exhibits introduced, the relevant case law and statutes, and arguments of counsel, the court, by a fair preponderance of the evidence, makes the following findings.
Mia was born on December 21, 2011. She is medically complex. Shortly after her birth, Mia was diagnosed with propionic acidemia (PA), a rare and severe inborn error of metabolism affecting specific amino acids. Her medical history also includes seizures, developmental disability, G-tube feeding, obstructive sleep apnea, and moderate persistent asthma. Her care involves a combination of medications, a special prescribed metabolic formula and extremely close monitoring. Further, if Mia does not take her special formula and medications, a buildup of ammonia and acid in her brain may occur, resulting in irreversible brain damage or death. Her ongoing condition puts her at risk for seizures and breathing difficulties at night which requires her caretaker to closely monitor her during the night by sleeping in the same room. She is also at a very high risk of cardiac disorder including arrhythmia and myelopathy. Mia is wheelchair dependent, has gross developmental delays and she is nonverbal. She requires ongoing medications including Carnitine, Falgyll, Qvar, Keppra, and Albuterol as needed. She requires developmental therapies including physical therapy, orthopedic therapy and speech therapy. She requires periodic lab work to monitor her metabolic health, and weight checks to ensure that she is receiving her medication.
On February 17, 2016, DCF received a referral from a social worker at Yale-New Haven Hospital alleging medical and physical neglect of Mia by Mother. It was reported that Mother missed several appointments for Mia's asthma and failed to appear for a scheduled visit at the Yale Genetics Clinic as well as the Respiratory Clinic. Mother also failed to appear to change Mia's G-tube. Mother was reported missing by maternal grandmother who reported that Mother had been residing in Bloomfield, CT with maternal aunt in February 2016. The area resource nurse contacted Mia's genetics doctor, Dr. Manzone, who reported that Mother had missed many appointments and was concerned that Mother had not obtained critical medications for Mia's metabolic disorder and seizures. Dr. Manzone reported that it would be very difficult for Mia to survive without proper medications. Maternal grandmother also contacted Yale to inform them that she had not seen Mia for the past three weeks. A Silver Alert was issued by the Bloomfield Police Department due to the failure to locate Mia and Mother. Mother was subsequently located at the Super 8 motel in Hartford by the Hartford Police Department on February 18, 2016. Mother initially refused to have Mia seen at Connecticut Children's Medical Center (CCMC) for assessment but subsequently agreed. CCMC then transferred Mia to the Yale Children's Hospital on February 19, 2016.
At the time of her hospitalization on February 19, 2016, Mia presented as slightly dehydrated and under nourished. Her blood work indicated she was decompensating, that her weight had dropped and that she had hair loss. Test results also reflected a low carnitine level as well as metabolic acidosis due to insufficient nutritional intake. Mother reported that she had stopped Mia's anti-seizure medication, that she added blenderized solid foods to Mia's G-tube and had reduced her metabolic formula all without consulting with Mia's medical providers. Mother had difficulty understanding the medical implications of her actions including the potential of infections by using the G-tube to add food. She also expressed difficulty in understanding the necessity of Mia's prescribed metabolic formula.
Prior to Mia's admission at Yale-New Haven Hospital, Mother became acquainted with a woman, Paula S., in approximately September 2015. Paula S. identifies herself as a prophet or faith healer. Mother reported that Paula S. prayed for Mia and performed a healing of Mia which allowed Mother to take Mia off her seizure medications, reduce the amount of her prescribed metabolic formula and implement more natural foods into Mia's G-tube. Mother was encouraged to do this by Paula S. Mother admitted that she made these changes without consulting any of Mia's medical providers. Mother reported that she made these changes because she knew Mia had been healed by Paula S. Mother reported that Mia was thriving since Paula S. came into their lives and that she follows Paula S.'s guidance.
Dr. Mazone reports and testimony confirmed that the diet Mother was using did not meet Mia's metabolic needs, and if it continued; it would result in Mia's death. Dr. Manzone also reported that Mia's formula was needed to sustain her, that her G-tube care needed to be done in a sterile environment, that a motel environment did not provide a sterile environment and that such an environment is not safe for children with complex medicals need such as Mia's. Dr. Manzone testified that Mother stopped Mia's respiratory and anti-seizure medications without medical input. Prior to Mia's discharge on February 23, 2016, Dr. Manzone reported that Mia had elevated metabolic levels, loss of hair and weight loss, all of which demonstrated that her disease was not under control. When discussing her discharge, Dr. Manzone reported that she wanted Mia to demonstrate consistent weight gain prior to discharge. Mother was not receptive. However, she stated that she would follow the medical plan although she felt that she was being forced to do so.
Prior to Mia's discharge from the hospital on February 23, 2016, Mother entered into a Safety Plan with DCF on February 19, 2016. Due to Mia's medical care concerns, the plan provided that Mother was not to remove Mia from Yale-New Haven Hospital without approval by DCF, that Mother was to comply with recommendations made by hospital staff nurses, doctors and any authorized medical professionals regarding Mia's medical care and Mother was to participate in a safety planning meeting regarding Mia's discharge from the hospital. A Considered Removal meeting was held on February 22, 2016 at which Mother, a DCF facilitator and a DCF nurse were present. Mother agreed to comply with Mia's medical treatment, agreed to reside with Mia with maternal aunt at maternal aunt's home and agreed to follow all safety plans made by DCF. The plan also requested a mental health assessment of Mother, a referral for Mother by DCF to supportive housing, the filing of a neglect petition, and a visit to maternal aunt's home for an assessment after Mia's discharge from the hospital. Thereafter, a second safety plan was executed by Mother and DCF on February 23, 2016 at the time of Mia's discharge from the hospital wherein Mother agreed to comply with all medical and nutritional regimes set by medical professionals overseeing Mia's case management, to not allow Paula S. around Mia, and that Mother was not to follow any medical or nutritional recommendations made by Paula S. regarding Mia. DCF assisted Mother with transporting her belongings from the motel and transported her to maternal aunt's home.
As noted above, the first neglect petition was filed on March 24, 2016, alleging that Mia was being permitted to live under conditions injurious to her well-being and that she was being denied proper care and attention. Due to her housing issues, Mother advised the DCF social worker that they would return to New York to reside with maternal grandmother. Mother subsequently relocated there with Mia on April 1, 2016. Mother confirmed that she would return with Mia to Connecticut for Mia's scheduled appointment at Yale Genetics on April 6, 2016. Notably, Mother refused to provide to DCF the names of any of the doctors who would provide care to Mia in New York. DCF instructed maternal grandmother to contact DCF in the event Mother did not arrive at her residence and to call local police to issue a Silver Alert on Mia's behalf. DCF filed a report to New York's Administration for Children's Services (ACS) on April 12, 2016 that detailed Mia's special care needs, and the reasons for both DCF involvement and the filing of the neglect petition. On April 13, 2016, the New York ACF worker confirmed to DCF that she would make contact with Mother and Mia. In light of that confirmation, the neglect petition was withdrawn. Mother also executed another safety agreement with DCF wherein she agreed to meet Mia's medical needs including attending appointments and providing her formula and medicine as directed.
Mother and Mia attended the scheduled appointment at Yale Genetics on April 6, 2016. Mother stated that it was her plan to remain in New York and that she would transfer Mia's medical care to New York. Notably, at the time of Mia's appointment on April 6, 2016, it was determined that Mia sustained loss of weight and height which was attributed to malnutrition. Mother did schedule and attend visits with Mia on April 13, 2016 and May 1, 2016 with Dr. Paul Levy at the Center for Congenital Disorders at the Children's Hospital at Montefiore in New York. Dr. Levy had previously treated Mia shortly after her birth and for several years thereafter. Dr. Levy testified that Mother did not disclose her involvement with DCF in Connecticut nor the reasons for the involvement at the initial visit on April 13, 2016. He subsequently learned of DCF's involvement and addressed it with her at the next visit on May 1, 2016. He testified that he " gently chastised" Mother about taking Mia off of her formula. He further testified that severe consequences could result if Mia was taken off of her formula completely. Mother did not report to him that she had stopped Mia's anti-seizure medication. Mother failed to attend the next scheduled appointment in June 2016.
On June 1, 2016, DCF received a referral from a nurse alleging physical and medical neglect of Mia by Mother. The nurse was contacted by Yale-New Haven Hospital staff who reported that Mother had picked up Mia's medical records but was unable to provide information as to Mia's current physicians in New York. Mother was reported to be living in a motel in Connecticut contrary to the safety agreement previously entered into by Mother and DCF. Further, it was reported that Mother was not providing Mia with consistent and appropriate medical attention related to her diagnosis of Propionic Acidemia. Mother was reported to have stopped giving Mia her anti-seizure medication and reduced her prescribed metabolic formula without medical advice from Mia's physician. Mother was reported to be transient. DCF also received a report from the Yale Genetics nursing staff that Mia's formula was being delivered to the Super 8 motel in Hartford.
On June 1, 2016, DCF arrived at the Super 8 motel with a police escort. Paula S. was present in the motel room. Mother refused to cooperate with DCF during the investigation. Mother refused to disclose the names of Mia's medical providers in New York and refused to sign releases. She also refused to have Mia go to Yale-New Haven hospital to have Mia accessed. As a result, DCF implemented an administrative 96-hour-hold on behalf of Mia. Mia was then transported to Yale Children's Hospital emergency department. Mother refused to consent to Mia's blood work at the hospital and did not arrive at the hospital until the evening after DCF staff had left. Mia's ammonia levels were elevated, putting her at risk for brain damage. Mother continued to refuse to sign releases for Mia to be placed in a special care hospital. As noted above, the second neglect petition was filed on June 3, 2016, alleging that Mia was being denied proper care and attention physically, educationally, emotionally or morally; or that she is being permitted to live under conditions, circumstances, or associations injurious to her well-being.
Order of Temporary Custody
DCF has asked the court to sustain the OTC as to Mia pursuant to General Statutes § 46b-129(b). Connecticut law is clear that, in the context of a hearing for an order of temporary custody pursuant to General Statutes § 46b-129(b), a finding of immediate physical danger is a prerequisite to the court's entry of a temporary order vesting custody of a child in one other than the children's parents. In re Juvenile Appeal (83- CD), 189 Conn. 276, 290-91, 455 A.2d 1313 (1983). For a court to sustain an order of temporary custody, it must find that the petitioner has proved by a fair preponderance of the evidence that the child would be subjected to immediate physical danger if returned to the care and custody of the parent and that continued removal was necessary to ensure their safety. Such a finding may be made on the basis of predictive circumstances if, for example, the child is currently safe but would be exposed to such risks if released to the parent. In re Chronesca D., 126 Conn.App. 493, 13 A.3d 1106 (2011). " The doctrine of predictive neglect is grounded in the State's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred." In re T.K., 105 Conn.App. 502, 505-06, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). On a hearing for temporary custody, therefore, the court is to consider only whether the child is in such imminent physical danger that the state must step in to protect the child, or whether the child would be in such danger if returned to their parent or parents. As noted above, the court found that Mia was " in immediate physical danger from [her] surroundings . . ." and that " continuation in the home [was] contrary to the welfare of said [child]." The court issued an ex parte order vesting temporary custody of the children to DCF. Trial courts have consistently and logically reasoned that the principle of predictive neglect can readily be applied to orders of temporary custody as the order of temporary custody proceeding is a corollary of the neglect proceeding itself. Further, it is neither consistent with statutory law, nor is it reasonable to prevent a judge from protecting a child if harm is reasonably predictable. Although the DCF still bears the burden of proof, the inability of a court to consider predictive injury or neglect as a basis for sustaining an order of temporary custody creates an imbalance between family integrity and the safety and well-being of children. See In re Juvenile Appeal 83-CD, supra, which supports the proposition that the child's safety pending further proceeding is the primary concern for a temporary custody proceeding.
DCF has proven by a fair preponderance of the evidence that Mia would be subject to immediate physical danger if returned to the care and custody of the Mother and that continued removal is necessary to ensure her safety. As noted above, Mother's repeated significant deviation from the Mia's recommended medical care and regimen has placed Mia in a life threatening situation. Further, Mother's relationship with Paula S. and her undue influence over Mother has resulted in a destructive and life-threatening effect on Mia.
Accordingly, based upon a fair preponderance of the credible testimonial and documentary evidence presented to the court, it is more probable than not that Mia was in immediate physical danger while in the custody of Mother at the time of her removal and would be in immediate physical danger if returned to the care of Mother in light of Mother's questionable judgment and poor decision making with regard to Mia's medical care. Mother is clearly lacking in the parenting skills needed to protect to protect Mia and her actions have endangered Mia's life. The court further finds that Mia's immediate removal was necessary to ensure Mia's safety and finds that continuation of Mia in her Mother's care and custody under the circumstances as of the date of her removal and currently, is contrary to her safety, well-being and interest, in light of her young age and precarious physical health. The court further finds that reasonable efforts to prevent removal were not possible because to take the time to do so would have jeopardized Mia's safety. Accordingly, the order of temporary custody is sustained.
Neglect Petition
The court incorporates by reference here all of the factual findings that it has previously made in this memorandum of decision. As noted, DCF alleges that Mia is neglected in that she was not cared for and was permitted to live under conditions injurious to her well-being. DCF further alleges that the child is being denied proper care and attention physically, educationally, emotionally or morally. The court notes that " an adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding of fault is different from finding who is responsible for the child's condition of neglect. The adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the child is neglected." In re T.K., supra " Nothing in § 46b-129 requires that the respondent parent in a neglect proceeding have custody for the court to adjudicate a neglect petition." In re Jessica S., 51 Conn.App. 667, 672, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999).
In light of the court's factual findings as presented above, the court finds by a fair preponderance of the evidence that, as of the date of the neglect petition, Mia has been neglected in that she has been denied proper care and attention physically and has been permitted to live under conditions injurious to her well-being. Accordingly, the court finds by a fair preponderance of the evidence that DCF has proven neglect and therefore, an adjudication of neglect is entered on behalf of Mia.
Upon completion of the pending psychological evaluation, a case management conference as to disposition shall be scheduled.
It is so Ordered.