Opinion
Nos. W10-CP02-014132-A, W10-CP02-014133-A, W10-CP02-014134-A, W10-CP02-014135-A, W10-CP02-014136-A, W10-CP02-014137-A
October 28, 2004
MEMORANDUM OF DECISION RE MOTION TO REVOKE COMMITMENT
On November 26, 2002, the Department of Children and Families (DCF) filed a petition alleging neglect/uncared of the above-named children in Superior Court for Juvenile Matters, District Ten, located in Willimantic (SCJM).
On January 8, 1983, the respondent parents, Lodona S. and James S., appeared in SCJM, entered denials and were appointed counsel (Mack, CAJ).
On July 16, 2003, the respondent mother pled nolo contendere to neglect allegations concerning the above-named children in SCJM (Mack, CAJ). The respondent father was defaulted. The respondent mother was awarded custody of the children under 6 months of protective supervision. Specific steps were ordered for the respondent mother at that time.
On September 9, 2003, DCF filed a Motion to Open and Modify Disposition from protective supervision to commitment.
On September 24, 2003, the parties and counsel appeared in SCJM (Lopez, J.). At that time, the respondent father's court-appointed counsel withdrew from the case and new counsel was appointed.
On December 2, 2003, DCF filed a Motion for an Order of Temporary Custody (OTC) on behalf of Amatillah. The OTC was granted by the court (Mack, CAJ) on that same date.
On December 9, 2003, the parties and counsel appeared in SCJM (Burke, J.) The OTC was sustained at that time and the court ordered that protective supervision on all of the children be extended until further order of the court. At the request of DCF, the court also ordered the respondent parents not to videotape or photograph the DCF social worker during home visits. The court denied the respondent father's request for the assignment of a different DCF social worker. Specific steps were ordered for the respondent father at that time.
On January 26, 2004, a trial was commenced at the Child Protection Session of Superior Court in Middletown (CPS) on the issue of the Motion to Open and Modify Disposition (Driscoll, J.). The respondent mother agreed to the commitment of Amatillah, but contested the commitment of the other five children. The respondent father did not attend the trial.
On March 3, 2004, the court, Driscoll, J., rendered its decision concerning the January 26, 2004 trial and ordered that the children be committed to the care and custody of DCF. The children placed in foster care on that date.
On May 5, 2004, the parties and counsel appeared in SCJM (Mack, CAJ), in response to the respondent mother's counsel's request for an immediate in-court review. At that time, the parties and counsel agreed to release Dr. Stephen Humphrey's evaluations to the respondent mother's therapist. The court also ordered new specific steps for both parents at that time.
On July 6, 2004, DCF filed a motion to suspend visitation between Amatillah and the respondent parents.
On July 30, 2004, the following motions were filed in SCJM:
Motion for Visitation — respondent father
Motion to Restore Visitation — respondent mother
Motion to Revoke Commitment — respondent mother
On August 3, 2004, the respondents filed with SCJM a letter addressed to the court, Turner, J., asking that the commitment of all six children be revoked.
On August 4, 2004, counsel for the respondent father filed a Motion to Withdraw Appearance in SCJM. The attorney represented that his attorney-client relationship had completely broken down, that the respondent father no longer wished the attorney to represent him and that he was unable to continue working with his client.
On August 11, 2004, the parties and counsel appeared in SCJM, Turner, J. The court granted the Motion to Withdraw Appearance and referred the other outstanding motion to CPS for trial on September 30, 2004.
On September 30, 2004, trial commenced as to the motions to revoke commitment and the motions to resume visitation before this court at CPS. The trial concluded the same day.
James represented himself at this trial.
This court has jurisdiction over the pending case. Notice of this proceeding has been provided in accordance with the applicable provisions of the Practice Book. No action is pending in any other court affecting custody of these children.
General Statues § 46b-129(m) provides: "Any court by which a child . . . has been committed pursuant to the provisions of the section, may, upon the application of a parent . . . upon finding that cause for commitment no longer exists, revoke such commitment . . ."
Having brought the motion to revoke commitment, the respondents have the burden of alleging and proving "that cause for commitment no longer exists." (Internal quotation marks omitted.) In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); see also Practice Book § 33-10. "Once that has been established, the inquiry becomes whether a continuation of commitment will nevertheless serve the child's best interests." (Internal quotation marks omitted.) Id. Only if this burden is met by one of the respondent parents does the burden then shift to the petitioner, who must prove that it would not be in the best interest of the child to be returned to his or her natural parents.
In In re Cesar G., 56 Conn.App. 289, 742 A.2d 428 (2000), the Appellate Court held that "[t]he burden is clearly upon the persons applying for the revocation of commitment to allege and prove that the cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child's best interests." (Internal quotation marks omitted.) In re Cesar G., 56 Conn.App. 289, 292-93, 742 A.2d 428 (2000). "The court, in determining whether cause for commitment no longer exists, would obviously look to the original cause to see whether the conduct or circumstances that resulted in commitment continue to exist . . . The trial court, thereafter, "may consider if any cause for commitment still exists." (Emphasis in original; internal quotations marks omitted.) Id., 294.
In reaching its determination in this case, the court has made findings of fact utilizing the appropriate standard of proof in this matter, which is proof "by a fair preponderance of the evidence." Practice Book § 33-10.
In reaching its factual determinations, the court followed the applicable legal standards. "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000); see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999). In addition to reliance upon direct evidence, it is the fact finder's prerogative "to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted; citation omitted.) State v. Copas, 252 Conn. 318, 338, 746 A.2d 761 (2000); In re Cheyenne A., 59 Conn.App. 151, 159, 256 A.2d 303 (2000). In child protection matters, as in other cases, "[t]he law does not distinguish between direct and circumstantial evidence as far as probative force is concerned." (Quotation marks, citations ornitted.) In re Cheyenne A., supra, 59 Conn.App. 158-9. "The probative force of conflicting evidence is for the trier to determine . . . In re Ashley E., 62 Conn.App. 307, 316 (2001)." In re Jonathon C., 63 Conn.App. 516, 528, 777 A.2d 695 (2001).
The respondent parents presented evidence and testimony in support of their motions. The respondent mother presented the testimony of Nancy Roberts from the EastConn Family Visitation Center. Ms. Roberts testified that she has supervised visitation between the respondent parents and the children since June 17, 2004. She also indicated that she provides parenting education for the respondent mother.
Ms. Roberts indicated that the respondent mother has never missed a visit and is punctual. She testified that the children are happy to see her, they are affectionate, they actively interact with the respondent mother and she responds to their needs. Ms. Roberts also testified that the respondent mother has not shown much distance with the children and that her discipline is appropriate. She also indicated that the respondent mother has responded to her parenting suggestions.
Ms. Roberts also presented a less encouraging picture of the respondent father during these visits. She indicated that the respondent father has a tendency to not interact with the children during visitation and usually sits and watches. She also testified that the respondent father is late for visitation and that he makes inappropriate inquiries of the children, despite having been told not to.
Ms. Roberts stated that she observed James threatening to use physical discipline on Muhsin, in response to one of his tantrums, and indicated that she found this conduct disturbing.
The respondent mother also called Christine Juravoty, DCF social worker case aide, as a witness. Ms. Juravoty testified that she supervised visitation between the children and the respondent parents between April and June of 2004. She noted that the children appeared happy to see the respondent mother, but did not say much to the respondent father. She testified that the respondent mother was inconsistent, but not inappropriate. More specifically, the respondent mother engaged with the children at times, but at other times just watched them.
Ms. Juravoty stated that the respondent mother became more engaged with the children later. Ms. Juravoty testified, however, that the respondent mother was not engaged or warm toward Amatillah, although she hugged the other children. Additionally, Ms. Juravoty indicated that the respondent father was inappropriate during visitation because he voiced his complaints in front of the children. He also did not interact much with the children.
The court found the testimony of Ms. Roberts and Ms. Juravoty to be, on the whole, credible. The respondent mother also testified on her own behalf.
DCF called three witnesses in opposition to the motions.
Lynn Ereshena-Manning, a child guidance clinician at United Services of Columbia, testified that she was Amatillah's therapist from May 2004, through August 24, 2004. Ms. Ereshena-Manning indicated that Amatillah's foster mother brought Amatillah to her because of the child's behavior, which included 1 1/2 hour long temper tantrums and instability.
Ms. Ereshena-Manning, after having been qualified as an expert witness in the area of child therapy, testified that Amatillah suffered from Reactive Attachment Disorder (RAP) and Post Traumatic Stress Disorder (PTSD). She stated that Amatillah was not stable, did not fit in at the foster home and that the foster mother could not control her. She presented with nightmares, tantrums, hypervigilance and a flat affect. As therapy continued, Ereshena-Manning noted that Amatillah stopped engaging with the foster mother, the other children in the foster home and Ereshena-Manning herself. The foster mother also noted great difficulty in getting Amatillah to attend visits with her parents and siblings.
Ms. Ereshena-Manning testified that she wrote a letter to Sandra Branch, the DCF social worker, recommending that visits between Amatillah and her biological family be suspended. This letter, dated July 2, 2004, which was entered as an exhibit for the petitioner, indicated the following:
It has been reported that [Amatillah] visits with her biological family at least once a week. It is also being reported and observed in treatment that she tends to exhibit increased agitation and emotional lability following the visits. However, this past week, a marked deterioration was reported and observed with [Amatillah]. She stopped engaging or giving eye contact with this clinician, foster mom and then the foster siblings.
[Amatillah] is receiving weekly therapy. She had shown improvement but not consistent. As she is exhibiting regressive behaviors and emotional lability, it is being recommended that the visits with the biological family stop at this time until she shows consistent improvement and then resume visitation as tolerated.
Ms. Ereshena-Manning surprisingly indicated that after the visits were suspended, Amatillah engaged with her on the next session and noted a reduction of most behaviors after the suspension of visits. Ms. Ereshena-Manning testified that Amatillah's new therapist must establish a relationship with her before indicating that the visits with the biological family could resume and that she believed that it was appropriate that the visits not resume.
DCF also called Dr. Stephen Humphrey, Ph.D, a licensed clinical psychologist who evaluated the family on two separate occasions, in March 2003, and June 2004. Dr. Humphrey's testimony and written evaluation document a very concerning and disturbing home environment and dysfunctional parenting. Dr. Humphrey testified that he did not see any changes in the issues that concerned him during the first evaluation addressed in the second evaluation that he performed. Dr. Humphrey indicated that he had diagnosed both parents as suffering from Personality Disorder, NOS. He testified that the respondent mother's condition is of long standing, that it affects her perception and insight of other people and that she lacks insight concerning her problematic behavior.
In his report concerning the second evaluation of the family, Dr. Humphrey wrote the following about the respondent mother:
Due to comments made by [Lodona] during the initial evaluation, this examiner opined that tho children were at risk for both physical and emotional neglect. Her lax attitude toward allegations that they were improperly clothed and her approach to them in the interactional study raised concerns that she would not attend properly to their needs for supervision and nuturance.
The present evaluation evokes the same concerns, as [Lodona] adopted a very utilitarian, unemotional approach to her children in the interactional session. Although she brought them fruit chews and envelopes with unknown contents, [Lodona] interacted very little with her children. When she did, it was often to correct their speech or instruct them on how they should behave. She also worked on Naseehah's hair. In this examiner's opinion, she showed remarkably little emotional response to Naseehah's sobbing, and the fact that Naseehah tried to stifle her cry suggests that she did not feel safe expressing the pain to her mother directly.
When Amatillah entered crying, [Lodona] did not console her, but rather berated her mildly for not communicating her needs clearly. She instructed Amatillah to smile and say she loved her, and then told her to inform her foster mother that she was OK.
[Lodona] stated that she and her husband would probably have separated without DCF intervention, but that they came to an agreement after Ms. Castonguay reportedly gave her an ultimatum. [Lodona] claimed that she and her husband do not have anything in common, noting that he provides cash and material assistance to the family. She states that she has told her children that their father works far away.
[Lodona]'s claims that she did not need WIC assistance and that she was concerned about the level of supervision at Head Start are reasonable and rational to this examiner. More confusing are the various explanations from different sources about why she did not continue therapy with Scott Stevens. [Lodona] claimed that she is seeing a Dr. Aubrecht for therapy but did not specifically identify any goals that they are addressing. [Lodona]'s claim that she does not have time to involve her children in a playgroup or other therapeutic activities highlights her lack of insight with regard to theirt emotional and developmental needs. Like her husband, she has consistently denied the need for outside intervention despite child protection referrals from numerous agencies over the years including schools, shelters, and other unidentified sources.
[Lodona] she did not care what bed her children slept in, and did not know if Amatillah ever slept on the floor. She reported that she does not tell her children what to wear. During this evaluation, she addressed concerns that the children did not wear underwear by saying that she does not always wear underwear. She added, "it's not that big a thing." [Lodona] described her approach to letting her children learn about what to wear on their own as "natural discovery."
This examiner must also diagnose [Lodona] with Personality Disorder, NOS, due to her atypical ways of perceiving and interpreting herself, other people, and events, and the limited range of her emotional response to others . . .
[Lodona] has a cold, instrumental approach to her children that is almost always lacking in emotionality and expressions of sympathy, empathy, and nurturance. Many of her goals for the children are admirable. She encourages them to be polite, educated and self controlled. She reports that she limits their television time and encourages them to be self sufficient. The children seem to have adapted to this style and did not seem fazed when their mother was indifferent to Naseehah's crying or when she repeatedly drilled three-year-old Sa'd about saying "yes" instead of "yeah."
This examiner continues to have concerns that [Lodona] will not attend properly to the children's physical and emotional needs, and will not involve them in services that will help to alleviate the neglectful environment to which they have been subjected. [James] is not likely to be present often, but he also seems to lack an appreciation of the reason for repeated DCF referrals from various agencies . . .
[James] and [Lodona] both exhibit pervasive denial with regard to the neglectful and abusive conditions within their home over the past several years. See the above answers for a more detailed discussion of this denial. Further, Amatillah has been adversely affected because of her status as the family scapegoat. Her siblings have been indoctrinated into the belief that she is the problem . . .
It is this examiner's opinion that Amatillah should definitely not be returned to the care of her parents until they have engaged in family therapy with her and her siblings. That therapy should be singly focused on helping the family to explore dysfunctional elements and dispel the heavily propagated myth that Amatillah is the "bad" child. However, at least the projected primary caretaker, [Lodona] should first (1) attend psychotherapy to gain insight as to why such family therapy is necessary; and (2) be recommended by her therapist to proceed with family therapy.
Whether the other children should be reunified with their mother depends upon her progress in the therapy recommended below . . .
This examiner agrees with DCF's recommendation for both parents to receive individual psychotherapy. However, it should be understood that due to features of their respective personalities, they are likely to resist this recommendation and see it as unnecessary. For this reason, goals should be clear and focused. Both should work with therapists qualified to treat personality disorders, and preferably therapists who are experienced in working with parents. The goal should be to provide appropriate boundaries and supervision within the home that promote the safety, emotional nurturance and mental health of their children.
Further, both parents should participate in parenting classes that focus on interpersonal boundaries, disciplinary methods, proper physical care of children, development stages, and managing behavioral difficulties. Again, it is likely that the [respondent parents] will resist attending such a group, and that they will resist instruction if they do attend. Unfortunately, to the degree that they fail to learn and institute these practices, their children will be vulnerable to ongoing physical and emotional neglect while in their care.
At the trial, Dr. Humphrey testified that, after performing the second evaluation he believed that the children were at risk of injury. He described her as cold, detached and lacking in warmth and affection and he did not expect her parenting style to change much.
Dr. Humphrey indicated, however, that the respondent mother's diagnosis did not preclude her from parenting. He testified that she must acknowledge, though therapy, that her children were exposed to physical and psychological risks based upon the respondent parents' behavior. Additionally, the respondent mother must work with a family therapy to understand the factors that caused the risks to the children and learn how to apply what she has learned to the upbringing of her children. Furthermore, the respondent mother must learn to understand, through therapy, other persons' points of view and to appreciate her children's developmental abilities and needs, especially concerning their abilities to feed and clothe themselves.
Dr. Humphrey questioned the effectiveness of the respondent mother's therapy with Dr. Aubrecht. He testified that the respondent mother required the services of more than a typical psychotherapist.
Dr. Humphrey's assessment of the respondent father was unpromising. In his testimony, he described the respondent father as being "highly tangential and grandiose." His report went into greater detail.
In the initial report, this examiner diagnosed [James] with Personality Disorder, NOS, and opined that a head injury sustained early in his life might have caused some neurological difficulties that would exacerbate or cause his verbosity, tangentiality, and narcissism. During that evaluation, [James] also reported a history of familial psychiatric problems (his mother's depression) that raise questions of a familial history of mental illness. In conclusion, this examiner wrote:
[James] presents as very narcissistic. He does not fully meet the criteria for the diagnosis of Narcissistic Personality Disorder, however. Regardless, this narcissism is likely a principal hindrance to acknowledging his limitations and being open to outside intervention. [James] is not likely to adopt other's views in favor of his own on most subjects, especially the subject of parenting.
The examiner finds continued support for these initial findings. [James] appeared to be staring this examiner down when he came to the DCF office, and joked about the aforementioned diagnosis and formulation. Consistent with his alleged disregard for meetings and recommendations, [James] arrived more than two hours early and then returned approximately one hour later than the time he was given by this examiner.
[James] eschewed the need for individual therapy for himself, claiming that neither he nor Dr. Stevens understood why he was seeking treatment. This is certainly understandable, as [James] lack of insight into the pattern of neglect and abuse in his household is fueled by his personality disorder and perhaps neurological problems. Should [James]' need a synopsis of why he should seek treatment, it would be helpful if that therapist had access to both of this examiner's reports. He suggested that he chose to leave his home rather than attend psychotherapy because he is too busy. It would make sense, though, that he would have more free time now that his children are in placement, and should have the opportunity to attend at least weekly individual psychotherapy.
[James] stated that his children "wear whatever they feel like wearing" in response to reports that they went to school without adequate clothing. He claimed that and his wife used to check the younger children, however. [James] indicated that he did not go to conferences at DCF pertaining to his children because he was not going to miss work "to have a conversation."
[James] implied that he will attend court in the future to see what the "answers" are, but that he does not plan to be a custodial parent, either legally or physically. He suggested that he would comply with recommendations that his visits with the children be supervised. According to [Lodona], [James] still has keys to the family home and his belongings remain there.
Finally, Branch, the DCF social worker, testified as to work with this family. Branch indicated that she started as the social worker on this case on March 29, 2004. She stated that, after reviewing the psychological evaluation, that the respondent parents have not met Dr. Humphrey's goals.
The respondent mother has not engaged in appropriate individual therapy. Ms. Branch indicated that she discussed Dr. Humphrey's evaluation with Dr. Aubrecht, who indicated that she was not qualified to deal with the respondent mother's issues as indicated by Dr. Humphrey. Ms. Branch testified that the respondent mother is not presently in therapy, nor is she on the waiting list anywhere to receive therapy. She further indicated that the mother's previous parenting counseling was incomplete.
Additionally, the respondent father has failed to engage in any therapy whatsoever, and questions the need for him to do so.
General Statutes § 46b-129(m), provides in relevant part: "The commissioner, a parent or the child's attorney may file a motion to revoke commitment, and, upon finding that cause for commitment no longer exists, and that such revocation is in the best interest and welfare of such child or youth, the court may revoke the commitment of any child or youth." "The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists. Once that has been established, the inquiry becomes whether a continuation of the commitment will nevertheless serve the child's best interests. On this point, when it is the natural parents who have moved to revoke commitment, the state must prove that it would not be in the best interests of the child to be returned to his or her natural parents." In re Cesar G., supra, 56 Conn.App. 292-93. (Internal quotation marks omitted.)
Based upon the credible testimony and evidence brought forth, it is clear that the respondent parents have failed to show that the cause for commitment no longer exists. At the time of the filing of the neglect petition, DCF alleged the following:
[James and Lodona] have failed to provide adequate medical care.
[James and Lodona] have failed to provide appropriate supervision.
[James and Lodona] have exposed their children to unsanitary living conditions.
[James and Lodona] have exposed their children to physical discipline. CT Page 16056
[James and Lodona] have failed to ensure their children live in a safe and nurturing home environment.
The children's safety cannot be assured in the home.
As part of the disposition of this neglect case, SCJM (Mack, CAJ) ordered specific steps for both parents at different times in the past. Those included, but were not limited to, parenting, individual and family counseling.
Dr. Humphrey, who diagnosed the respondent parents with Personality Disorder NOS, examined the respondent parents twice. He indicated that the same issues that concerned him during his 2003 evaluation were still present at the 2004 evaluation. The final paragraph of his evaluation reiterates his testimony concerning the dangers of returning these children to the respondent parents:
This examiner agrees with DCF's recommendation for both parents to receive individual psychotherapy. However, it should be understood that due to features of their respective personalities, they are likely to resist this recommendation and see it as unnecessary. For this reason goals should be clear and focused. Both should work with therapists qualified to treat personality disorders, and preferably therapists who are experienced in working with parents. The goal should be to provide appropriate boundaries and supervision within the home that promote the safety, emotional nurturance and mental health of their children.
Further, both parents should participate in parenting classes that focus on interpersonal boundaries, disciplinary methods, proper physical care of children, developmental stages, and managing behavioral difficulties. Again, it is likely that the [respondent parents] will resist attending such a group, and that they will resist instruction if they do attend. Unfortunately, to the degree that they fail to learn and institute these practices, their children will be vulnerable to ongoing physical and emotional neglect while in their care.
The credible evidence clearly shows by a fair preponderance of the evidence that the respondent father has not undertaken any referrals for parenting, individual and family counseling. Furthermore, he has failed to consistently visit his children. Even when he does visit Ms. Roberts' testimony indicated that his parenting style still gives a prudent person cause for alarm and concern. Finally, Dr. Humphrey testified that the respondent father told him that he was not seeking custody of the children. The court cannot reach any other conclusion than the respondent father has failed to show that the cause for commitment no longer exists.
Unlike the respondent father, the respondent mother has made some efforts towards rehabilitation. She visits with five of the six children regularly and conducts herself appropriately. She has undertaken some parenting and individual counseling.
Unfortunately, Dr. Humphrey testified that the respondent mother is not yet ready to have any of her children returned to her custody. It has been shown by a fair preponderance of the evidence that she needs to undertake individual counseling as indicated by Dr. Humphrey in his report. Although the respondent mother had undergone counseling with Dr. Albrecht, both Dr. Humphrey and DCF social worker Branch testified that Dr. Albrecht was not qualified to treat a person with the respondent mother's issues. Furthermore, it was shown that the respondent mother's parenting counseling was missing a necessary component, specifically child development. The respondent mother has yet to begin family counseling.
Even with giving the respondent mother the benefit of the doubt in reference to her willing to undertake counseling and referrals, her failure to have completed any of these programs, by itself, indicates by a fair preponderance of the evidence that there has been a failure to show that the cause for commitment no longer exists.
Further, even if the court were to have concluded that there are no causes for commitment remaining, the court is required to consider whether or not a continuation of the commitment will nevertheless serve the best interests of the children. In view of the nature of the unresolved problems plaguing the respondent parents, including but not limited to, their mental health issues, their parenting issues, the instability of their marriage and the behavioral/mental health issues of some of the children, it has been shown by a fair preponderance of the evidence that a continuation of the commitment will serve the children's best interests.
ORDER CT Page 16058
The Motion to Revoke the Commitment of Taibah S., Talib S., Naseehah S., Amatillah S., Sa, d S. and Mulisin S. to the custody of the Department of Children and Families is hereby ordered DENIED.
BY THE COURT,
Carl E. Taylor, J.