Opinion
HP14CP15011395A
06-21-2016
In re Nyaisha C. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
STEPHEN F. FRAZZINI, JUDGE
On March 18, 2015, the Commissioner of Children and Families (Commissioner) filed a petition pursuant to General Statutes § 46b-129 alleging that the minor child named above was neglected, within the meaning of General Statutes § 46b-120(6), by being denied proper care and attention and permitted to live under conditions injurious to her well-being. Both respondent parents thereafter appeared for the initial hearing on the petition, were advised of their rights, and appointed counsel. They both also entered denials to the allegations of neglect. As explained below, after trial on the petition, the child is found to have been neglected and is committed to the Commissioner.
Section 46b-129 provides in relevant part: " (a) [T]he Commissioner of Children and Families . . . may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as bring the child or youth within the jurisdiction of the court as neglected . . . within the meaning of section 46b-120 . . ."
I
INTRODUCTION
The gravamen of the petitioner's claims, as summarized in an addendum incorporated by reference into the petition and in a summary of facts incorporated by reference into the petition pursuant to Practice Book § 33a-1, was that the respondent mother had " unaddressed mental health needs, " the financial resources of the respondent parents were " limited and not sufficient to meet the [child's] basic needs, " both respondent parents had " been transient and their current living situation is unstable, " and there was a history of domestic violence between the respondent parents that posed " a risk to their newborn" child. The concluding paragraphs of the Summary of Facts alleged that, " in view of' the respondent mother's " unaddressed mental health needs" and the respondent father's " limited resources and inability to control his anger, " they were both " unable and capable of providing for the care" of the child. The summary of facts also incorporated the doctrine of " predictive neglect" by alleging that the child " will be neglected if allowed to remain in the care of her mother or her father or both."
Practice Book § 33a-1 provides in relevant part: " (b) A summary of the facts substantiating the allegations of the petition shall be attached thereto and shall be incorporated by reference."
Our Supreme Court has explained the doctrine of predictive neglect as follows: " [t]he [petitioner in a neglect proceeding], pursuant to [§ 46b-120], need not wait until a child is actually harmed before intervening to protect that child . . . This statute clearly contemplates a situation where harm could occur but has not actually occurred. Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected . . . 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 . . . Thus, [a] finding of neglect is not necessarily predicated on actual harm, but can exist when there is a potential risk of neglect." (Emphasis omitted.) In re Joseph W., 305 Conn. 633, 644-45, 46 A.3d 59 (2012), quoting In re Kamari C-L, 122 Conn.App. 815, 825, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010). In such a case, the petitioner must prove " that it is more likely than not that, if the child remained in the current situation, the child would be 'denied proper care and attention, physically, educationally, emotionally or morally'; . . . or would be 'permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . .' [I]n neglect proceedings involving the doctrine of predictive neglect, the petitioner is required to meet this standard with respect to each parent who has contested the neglect petition and who has expressed a desire, or at least a willingness, to care for the child independently of the other parent." (Citations omitted; emphasis omitted; internal quotation marks omitted.) In re Joseph W., supra, 305 Conn. 646.
After filing of the petition, the Commissioner sought and obtained an ex parte order of temporary custody (OTC) on January 8, 2016. At the preliminary hearing on the OTC, both respondent parents appeared and asserted their right to an evidentiary hearing contesting the OTC. By agreement of the parties, trial on the OTC and neglect petition was consolidated and began on January 25, 2016. After additional days of trial on January 26 and February 8, the case was continued for two additional dates: (1) until March 31, 2016, for the respondent mother's attorney to inform the other parties whether the respondent mother intended to present expert testimony and for the court to notify the respondent father of its decision regarding the state's request that the court draw an adverse inference against him if he did not testify; and (2) until April 7 for resumption of testimony. All parties were present with counsel for the first three days of trial, including the scheduling of those two dates, but the respondent mother did not appear on March 31. The respondent mother was informed by the court on February 8 that she should attend the March 31 hearing. The court file also reflects that the court clerk sent written notice to the respondent mother of both that date and April 7, the next date scheduled for evidence to be presented. Both respondent parents had previously been advised that they might be defaulted if they failed to appear for trial or a court hearing, and the court granted the state's motion that the respondent mother be defaulted. Trial resumed on April 7, 2016, at which time the respondent mother was again not present. At the request of the Commissioner's counsel, trial continued in absentia regarding the respondent mother and ended on that day.
During the trial of this case, the court heard testimony from numerous witnesses, including the following:
Officers Blain Rogozinski and Luis Alvarez, New Britain Police Department, Officer Edgar Rodriguez, Hartford Police Department, and Officer Richard Hill, East Hartford Police Department, regarding various reports of criminal conduct to which the police had responded;
Tammy Covington, the child's paternal grandmother;
Melissa Roberson, a social worker employed by the Department of Children and Families (DCF), who has been assigned to the investigation of the neglect allegations regarding the respondent mother since September 2014;
Dr. Logan Green, Ph.D., a licensed clinical psychologist who conducted court-ordered evaluations of the respondent mother and respondent father, and was qualified without objection as an expert on forensic psychology in child protection matters;
Shanice Williams, an intensive family preservation therapist employed by Klingberg Family Centers; and
Joseph C., the respondent father.
In addition, the Petitioner introduced various exhibits into evidence, including: an affidavit from social worker Melissa Roberson dated January 8, 2016, that was submitted in support of the ex parte OTC (Exhibit [Ex.] 1); numerous police reports regarding incidents between June 2014 and December 2015 involving the respondent parents, or involving the respondent mother and paternal grandmother (Exs. 2-10); the psychological report of Dr. Green, dated September 25, 2015, that he prepared concerning the court-ordered psychological evaluations (Ex. 13); an " Incident Analysis Report" prepared by the East Hartford Police Department, showing occasions between March 2015 and January 2016 when police officers responded to the paternal grandmother's residence regarding incidents involving either the respondent mother or the respondent father (Ex. 14); the mandated DCF social study dated April 13, 2015 (Ex. 15), and a redacted addendum dated September 2, 2015 (Ex. 16); redacted copies of the Connecticut criminal conviction histories of the respondent parents (Exs. 17 and 18); and a " Discharge Summary" dated September 11, 2015, and signed by Shanice Williams, regarding the Intensive Family Preservation services provided to the respondent mother between June and September of 2015 (Ex. 19). The court also has the benefit of reviewing the January 26, 2016, transcript of Dr. Green's testimony in this proceeding (Trial Tr.).
Trial on a neglect petition has two stages: adjudication and disposition. The burden of proof in both phases is a fair preponderance of the evidence. During the adjudicatory phase, the court determines whether the petitioner has proven by a fair preponderance of the evidence that the child was neglected as of the date that the petition, or the latest amendment thereto, was filed. Practice Book § 35a-7(a). In the dispositional phase, the court must determine the disposition that is in the child's best interest, and Practice Book § 35a-9 provides that, when determining issues related to disposition, the court may properly consider circumstances and " events occurring through the close of the evidentiary hearing." In this proceeding, evidence on the two stages was consolidated, as permitted by Practice Book § 35a-7(b), which specifies, however, that where adjudication and disposition are " heard in a nonbifurcated hearing . . . disposition may not be considered until the adjudicatory phase has concluded." There were no amendments to the neglect petition after its filing, and the petition filing date is therefore the adjudicatory date for purposes of determining whether neglect was proven.
Practice Book § 35a-7 provides in relevant part: " (a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . ."
Practice Book § 35a-9 provides in relevant part: " The judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing . . ."
II
ADJUDICATION
The evidence proves by a fair preponderance of the evidence that the child was neglected on the date the petition was filed and that it was then more likely than not that, if the child remained in the care of the respondent mother, the respondent father, or both of them, or in the current situation, the child would be " denied proper care and attention, physically, educationally, emotionally or morally" and would be " permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth."
For much of the preceding year, the respondent mother had been either homeless or transient. Before the child's birth, DCF had been involved with the respondent mother regarding an older child, Josiah, who had been removed from her custody on an ex parte OTC in May 2014 because of her mental health issues and lack of suitable housing for Josiah. At one point, the respondent mother told DCF social worker Roberson (Roberson) that the respondent father and she lived in a stairwell from October 2014 until the respondent mother entered Coventry House in mid-December 2014. The respondent mother has income of approximately $700 per month from the Social Security Administration, but she was having difficulty budgeting her money and meeting all her expenses and sometimes ran out of money before month's end. She told DCF that she didn't have any clothing, and Roberson saw her several times wearing pajama bottoms. After Roberson began working with the respondent mother in September 2014, she referred the respondent mother to various shelters and housing services. The respondent mother's felony conviction, however, was an obstacle to getting housing assistance. The respondent mother refused one housing referral made by DCF--to Judah House--because she did not want to pay the $500 monthly rent, or follow Judah House's rules.
In mid-December 2014, while pregnant with the child, the respondent mother did begin living at Covenant House, an inpatient substance abuse treatment facility. Historically, the respondent mother had not presented with issues of drug or alcohol abuse, but she told Roberson that she was afraid that she would lose custody when the child was born, and thus lied at the Covenant House intake by falsely stating that she had recently used marijuana. She left Covenant House in early March 2015, just after the child was born, without successfully completing its services. She told Roberson that she was moving into the East Hartford home of the paternal grandmother, where the respondent father was also residing.
At the time the petition was filed, both respondent parents were residing in the paternal grandmother's home. This living arrangement, however, was in violation of a criminal protective order against the respondent mother that prohibited her from living with the respondent father. There was also an active protective order against the respondent father protecting the respondent mother, but the evidence did not show whether it was a full or partial order. There had been various incidents of domestic violence between the respondent parents in the past, even when protective orders were in effect. Those previous orders had not been effective in preventing further acts of domestic violence by one of the respondent parents against the other one. On October 31, 2014, for example, there were active protective orders in effect against each respondent parent protecting the other respondent parent as a result of their both having been recently arrested for a domestic violence offense. On that date, when the respondent mother was six months pregnant with the child, the respondent father punched the respondent mother in the face with a closed fist, and took her phone from her while she was trying to call the police. DCF social worker Roberson told the respondent mother, before she moved into the paternal grandmother's home, that DCF was concerned about the history of conflict and domestic violence between the respondent parents. But the respondent mother, whenever DCF mentioned this concern, would typically minimize any present concern.
Twice since Josiah's birth, DCF had received referrals that the respondent mother had mental health issues affecting her ability to take care of a young child. According to Dr. Green, she " has developmental delays and has been tested in the past and her IQ qualifies her as mentally disabled." Ex. 13, p. 7. In his evaluation, Dr. Green found that her " immediate memory, capacity for mental manipulation, and working memory were all impaired . . . [H]er remote memory is somewhat impaired. Her ability to perform simple manipulations of information without writing it down was extremely poor, and her ability to make adequate generalizations in the verbal spheres was within the Borderline-to-Low Average range." Id., 11. In November 2014, DCF referred the respondent mother for a mental health evaluation at Wheeler Clinic (Wheeler), which found her in need of " treatment for her dysthymia and pattern of angry, impulsive outbursts." Id., 10. Wheeler recommended that she participate in a weekly " Women's Anger Management Group" and " participate in individual counseling once a month as needed." Id. Wheeler also recommended that she " meet individually with a clinician to create a treatment plan . . ." Id. The respondent mother did begin the recommended anger management group, but she was later discharged for poor attendance. DCF had also referred her for parenting education at Wheeler, which she began, but after leaving Coventry House, she did not resume those services at Wheeler.
When DCF learned that the respondent mother was identifying the respondent father as the child's father, Roberson also met with him before the child was born. Roberson thereafter recommended that the respondent father participate in a mental health evaluation and domestic violence counseling based on DCF's concerns in a case involving a different child of his in which he had not completed domestic violence services that had been recommended. The respondent father refused to sign releases, undergo a mental health evaluation, or participate in domestic violence counseling.
Under these circumstances and the other proven at trial, it was proven by a fair preponderance of the evidence that, when the petition was filed, the child was neglected and would be neglected by remaining in the care of either or both of the parents. The incidents of domestic violence clearly posed a threat to the child, which both respondent parents minimized when talking with DCF. Protective orders had been ineffective in stopping the ongoing domestic violence. The respondent mother had not completed the anger management services to which DCF had referred her. The respondent father had anger control issues that would erupt into violence with the respondent mother, but he too was refusing any services to address that problem. The ongoing nature of domestic violence incidents, the respondent parents' repeated minimization of any risk to the child, and their unwillingness to participate in services or to follow protective orders that could keep them and the child safe made it likely, if the respondent parents continued to live together, that more such violence would occur. The respondent mother had unaddressed mental health needs and was unable to support the child adequately. Her financial straits were leading her to make decisions risky with regards to the child. In just one example, although the child was not gaining as much weight after birth as her doctors desired, the respondent mother was diluting the formula, and even feeding the child with juice and water when she would run out of formula.
There are numerous instances in which children have been judicially found neglected because they had been exposed to domestic violence between their parents. See, e.g., In re Zachariah M., Superior Court, judicial district of Fairfield, Docket number CP-12-009556-A (August 6, 2012, Stevens, J.) (54 Conn.L.Rptr. 442, 443, ) (" [a] finding of neglect can be established by evidence proving that a parent has failed to prevent a child from being exposed to domestic violence").
III
DISPOSITION
" 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." In re Brianna C., 98 Conn.App. 797, 804, 912 A.2d 505 (2006). Since October 1, 2012, an award of permanent legal guardianship to a suitable and worthy person is also a permitted disposition in certain circumstances not applicable here. " 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. In determining 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 Ja-lyn R., 132 Conn.App. 314, 323-24, 31 A.3d 441 (2011). As this court has noted many times, the best interest standard governing dispositions in child protection proceedings is inherently flexible and fact-specific to each child, giving the court broad discretion to consider all the different and individualized factors that might affect a specific child's welfare.
The respondent mother had always been the child's principal caretaker until her arrest and incarceration in mid-December 2015 after threatening to stab the paternal grandmother and the grandmother's adult daughter. The police left the child in the custody of the respondent father, who assured DCF social worker Roberson that he would provide care for the child at the paternal grandmother's home, where the child had been living for the past several months with the respondent mother. By then, DCF had received Dr. Green's report and had an opportunity to review his recommendations that neither respondent parent have custody of the child. The department's decision then not to seek an immediate OTC but instead leave the child with the respondent father suggests that the department initially believed that it did not then have a sufficient basis for an order of temporary custody, which requires an active threat to a child's physical health or safety. The standard governing disposition for a child found neglected, however, no longer requires proof of physical harm or risk to safety, but is more generally focused on determining the placement that is in the child's best interest.
The respondent mother was detained in lieu of bond after that arrest for approximately two weeks. A protective order prevented her from returning to the paternal grandmother's home. She later told DOF social worker Roberson that the respondent father bailed her out of jail. As noted in the text, the father had agreed to care for the child at the paternal grandmother's home. During a home visit to those premises, however, Roberson became concerned that he and the child were not actually living there, and the mother then " admitted that he [the respondent father] and Nyaisha [had] been staying with her at her brother's residence." Ex. 1, p. 2. Roberson testified at trial that the department did not believe the brother's home was a suitable place for the child to live. DCF then sought and obtained the ex parte order of temporary custody.
General Statutes § 46b-129 provides in relevant part: " (b) If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency pending disposition of the petition, or (B) issue an order ex parte vesting the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency." (Emphasis added.)
By the end of trial, the respondent mother was not an available custodial resource for the child, as she had left the state and apparently gone to Florida. She had missed several court hearings, been defaulted on neglect and termination of parental rights petitions regarding Josiah, and been defaulted in this case as well. In March of this year, the respondent mother told Roberson that she had three outstanding warrants for her arrest and was leaving the state without any intention of following DCF's treatment and service recommendations. During one of the respondent father's visits with the child, the respondent mother also called the DCF social worker and said she was planning to go to Florida, did not intend to return because of those warrants, and wanted the child placed with the respondent father. It has long been a rule of evidence that a statement of a present intention to do a particular act in the immediate future is admissible and relevant to prove both that person's intention and that such an act was in fact performed. The court thus infers and finds that the respondent mother has gone to Florida and does not intend to return to this jurisdiction. It was thus proven, by the fact of her unavailability, that she cannot assume a custodial or placement role for the child at this time.
The most famous such case is Mutual Life Insurance Co. of New York v. Hillmon, 145 U.S. 285, 294, 12 S.Ct. 909, 36 L.Ed. 706 (1892), involving an action to recover the proceeds of a insurance policy on the life of one John Hillmon. The central issue in dispute was whether a particular dead body found at a certain location in Colorado was that of the insured or of another person named Walters. Evidence that Walters had recently written his sister and fiancé that he intended to travel to that location was held to be admissible to show that Walters in fact had gone there, thereby supporting the inference that it was his body that had been found, rather than that of the insured.
Moreover, Dr. Green's findings, conclusions, and opinions regarding the respondent mother's present unsuitability as a custodial placement resource are also found credible and proven to be true, but they are not further recited herein in view of the mother's unavailability to serve in such a role.
After the respondent mother's departure for Florida, the respondent father testified on the last day of trial in early April that he was ready and prepared to take custody of the child. He said he would live at the home of his mother, the child's grandmother, in East Hartford, where the child lived for many months last year with the respondent mother. The respondent father's sister and her elementary school age child also live there. For the first time, he also indicated his willingness to participate in services recommended by DCF.
The court-appointed psychologist, Dr. Green, however, concluded that neither respondent parent has a good understanding of the child's needs or is capable of caring for the child in a minimally adequate way either now or within a reasonable period of time. Dr. Green strongly recommended that the child not be returned to either respondent parent at the present time. Supporting such a conclusion with regard to the respondent father are his long denial of any problems, his history of criminal activity and domestic violence and his repeated refusal in the past to accept referrals for assessments or to engage in any services recommended by DCF. In addition, during the psychological evaluation, the respondent father showed little understanding of the child's needs, and Dr. Green found that " [h]is parenting skills and understanding of parenting are both poor." Ex. 13, p. 38. Dr. Green also concluded that it was likely that the respondent father would engage in practices that could be emotionally disturbing to the child and that the respondent father's difficulty managing his own behavior and caring for his own day-to-day and long-term needs would " prevent adequate socialization" of the child; id., 41; and cause him difficulty in caring for the child's needs.
Dr. Green's findings and opinions in this regard applied to both parents, and are more fully stated in his report as follows: " Given the presentation of both parents, currently, it is unlikely that they would be able to resume or assume a responsible position in [the child's] life within a reasonable time--in part due to the likelihood of their commitment to change . . . They are lacking in insight, both with regard to their own needs and with regard to their limitations in parenting skills. Their difficulties in behavior management will prevent adequate socialization of the [child]. They have difficulty in caring for their day-to-day and long-term needs and can be expected to have difficulty in caring for these needs with regard to their [child]. Both parents also would seem to have some difficulty putting their children's needs before their own. I also felt that neither parent was receptive to ideas and advice regarding behavior changes and attitude change relative to parenting. Their nurturing skills and their teaching skills will take quite a while to develop and are rather dependent on their own progress in meeting their own needs." Ex. 13, p. 43.
The respondent father's defensiveness and attempt to portray himself in a positive manner during the psychological evaluation hindered Dr. Green's ability to provide definitive conclusions about his personality, but Dr. Green did conclude that the respondent father exhibited various aspects of a personality disorder, including elements of paranoia, hostility and negativity. Dr. Green thus recommended that the respondent father participate in individual psychotherapy, first to get a fuller and more accurate diagnosis, and then to receive actual treatment. Dr. Green stated that such treatment " should center on [his] anger and over controlled hostility, " and the respondent father's therapeutic " goals should involve an appreciation . . . of his anxiety, rigidity, and anger . . ." Ex. 13, p. 40.
In January 2016, the respondent father completed an ABH evaluation upon DCF's referral, but no treatment recommendations were made. In view of Dr. Green's strong recommendations and his report about the respondent father's defensiveness and unwillingness to be forthcoming during the court-ordered evaluation, the court infers that the recommendation from ABH for no treatment services may result from a similar lack of disclosure on the respondent father's part. Dr. Green had concluded that presently, the respondent father sees no " need to change . . . in terms of--his personality characteristics and of his parenting." Trial Tr., p. 18. But Dr. Green had recommended what he called " motivational interviewing, " which he described as a " very guided form of therapy in which the person actually develops a sense of agency in his or her own life [and] sense of, yes, there is something wrong here that I can really change, then psychotherapy comes into play." Id. Its purpose is to help a person become " able to recognize their own need" and " how therapy can help him change in some ways." Id., 53. It would be " a prelude to real psychotherapy . . . to have [him] understand and appreciate the need for changing the ways in which [he] perceives the world." Id., 62. It would then be followed by individual psychotherapy in which the respondent father could work on addressing his psychological issues. By the close of evidence, the respondent father had begun motivational interviewing upon referral by DCF.
Dr. Green actually gave this testimony in his description of the role and value of motivational interviewing for the respondent mother, but it is also pertinent to the respondent father.
Dr. Green had also recommended that the respondent parents participate in joint parenting education, but, after the respondent mother fled the jurisdiction, she was no longer available to participate in any joint sessions. Thus, DCF decided instead to refer the respondent father to one-on-one parenting instruction, and he testified that he was willing to participate in that service. He refused, however, to agree with DCF's request that he also participate in a " fatherhood program" in addition to the parenting sessions. The court finds DCF's recommendation a reasonable one, as there is no evidence that the respondent father has ever been primarily responsible for a child, and such a program could be beneficial to the respondent father to help him gain insight into how he could best meet the needs of the child.
On balance, the court finds that it was proven by a fair preponderance of the evidence that neither respondent parent is an appropriate placement for the child at the present time and that it is instead in the child's best interest to be committed to the Commissioner. In making this finding, the court has considered all of the evidence offered, but places special weight on the testimony, report, and conclusions of the court-appointed psychologist, Dr. Green. The testimony of an expert witness is never binding on the trier of fact. Instead, the court must carefully consider that testimony and weigh it in light of all the other evidence, which the court has done so here. See State v. Jarzbek, 204 Conn. 683, 706, 529 A.2d 1245 (1987), cert. denied, Connecticut v. Jarzbek, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988) (" [i]t is in the sole province of the trier of fact to evaluate expert testimony, to assess its credibility, and to assign it a proper weight"); Tartaglino v. Dept. of Correction, 55 Conn.App. 190, 195, 737 A.2d 993, cert. denied, 251 Conn. 929, 742 A.2d 364 (1999) (" [i]t is the quintessential function of the finder of fact to reject or accept evidence and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert"). Here, Dr. Green's conclusions are found to be credible and proven to be true. He provided persuasive and believable testimony and opinions about the child, the respondent mother, and the respondent father.
Dr. Green's overall opinion and assessment were that it was unlikely that either respondent parent would be able, within a reasonable time, to assume a responsible position in the child's life, but he acknowledged that the respondent father's long history of stable employment provided some hope " that psychotherapeutic intervention can be successful, " so that reunification might be feasible. Ex. 13, p 39. Although the father has now shown a willingness to begin services in order to be reunified with the child, his unwillingness to accept DCF's recommendation that he participate in the fatherhood program suggests a continued lack of understanding on his part of his need to improve his parenting abilities. It is important that he make progress toward seeing the need for change, and then actively participate in therapy. It is also important that he develop better insight into and understanding about the needs of children and how to meet those needs. Presently, however, the child's best interest is for her to be committed to the Commissioner, and it would be detrimental to her wellbeing to be returned to the custody of either respondent parent (or to both of them).
Such a commitment supercedes the OTC, moreover, thereby rendering moot the respondent parents' challenge to the OTC. See In re Carl O., 10 Conn.App. 428, 434, 523 A.2d 1339, cert. denied, 204 Conn. 802, 525 A.2d 964 (1987) (stating that " [a]ny issues involving-the order of temporary custody, however, are moot because that order expired when the child was later adjudicated an uncared for child and was committed to DCYS . . ."); see also Pamela B. v. Ment, 244 Conn. 296, 321, 709 A.2d 1089 (1998), vacated on other grounds by Gold v. Rowland, 296 Conn. 186, 994 A.2d 106 (2010) (" issues involving temporary custody order are moot once child is adjudicated neglected and committed to department").
Finally, the court orders the Commissioner to file proposed specific steps within two weeks of the date of this decision. If any objection is filed within one week thereafter by any party, the court will schedule a hearing; otherwise, it will order specific steps on the papers and direct the clerk to provide them to counsel in the ordinary manner and to mail them to the respondent parents at the address each one has most recently provided to the court. Until then, the preliminary specific steps entered ex parte on the OTC shall remain in effect.
Section 46b-120 provides in relevant part: " (6) A child or youth may be found 'neglected' who, for reasons other than being impoverished . . . (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 well-being of the child or youth . . ."
The relevant rule of evidence is set forth in § 8-3 of the Connecticut Code of Evidence, which provides: " The following are not excluded by the hearsay rule, even though the declarant is available as a witness: (4) Statement of then-existing mental or emotional condition. A statement of the declarant's then-existing mental or emotional condition, including a statement indicating a present intention to do a particular act in the immediate future, provided that the statement is a natural expression of the condition and is not a statement of memory or belief to prove the fact remembered or believed." As explained in the commentary to the Connecticut Code of Evidence § 8-3, this exception to the hearsay rule " covers a declarant's statement of present intention to perform a subsequent act as an inference that the subsequent act actually occurred."