Opinion
No. W10-CP07-015200-A
April 12, 2007
MEMORANDUM OF DECISION
INTRODUCTION
This is a contested hearing on whether to sustain or vacate an order of temporary custody. Pursuant to Connecticut General Statutes ("C.G.S.") section 17a-101g(e) which provides in part that if the Commissioner of the Department of Children and Families ("DCF") "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety . . ." on March 26, 2007, at 4:32 p.m., DCF removed Amanda B. ("Amanda") and Shannon C. ("Shannon") from the father's care and custody (the "ninety-six hour hold").
"The remedies provided in [sections] 46b-129(b) and 17a-101g(c) are available only upon a finding that there is probable cause to believe that the child is in unsafe surroundings and that immediate removal is necessary to protect the child from harm." Teresa T. v. Ragaglia, 272 Conn. 734, 749-50, 865 A.2d 428 (2005). (Footnotes omitted.) Pursuant to Public Act 05-35, subsection (c) of section 17a-101 became subsection (e).
Pursuant to C.G.S. section 46b-129(b), which provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . ." on March 30, 2007, the court found that (1) Amanda and Shannon were "in immediate physical danger from surroundings . . ." and that (2) "[c]ontinuation in the home is contrary to the welfare of said child[ren] . . ." and the court issued an ex parte order vesting temporary custody of Amanda and Shannon in DCF.
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six hour hold and issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Teresa T. v. Ragaglia, supra, 272 Conn. at 758 n. 9: "The reasonable cause determination in [section] 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is immediate physical danger,' whereas the probable cause determination in [section] 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' `impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . ."
The father of Amanda and Shannon contested the courts findings and its determination that their temporary care and custody should be vested in DCF. On April 11, 2007, this court heard DCF, the father, the attorney for the children and the mother on the issue of whether the March 30, 2007, ex parte order of temporary custody should be sustained or vacated. Although the mother participated in such hearing, she was not a custodial parent at the time the children were removed from the care and custody of the father, and, through her attorney, she admitted to the court that she was not a custodial resource for such children.
THE CONTESTED HEARING
At the contested hearing DCF presented two witnesses and one exhibit. The father testified and presented two exhibits.
A state trooper testified about his contact with the parties that led to DCF involvement, the ninety-six hour hold, and the ex parte order of temporary custody.
The DCF investigative social worker testified and the affidavit prepared by her and filed in connection with the DCF ex parte motion for an order of temporary custody was admitted as a full exhibit.
The father testified and two exhibits offered by the father were admitted as full exhibits.
A friend of the father who babysat for the children on occasion testified.
Weighing such testimony and exhibits, the court makes the following factual findings by a fair preponderance of the evidence:
1. On Monday, March 26, 2007, the mother filed a complaint with a resident state trooper concerning the safety of the two minor children.
2. The mother's complaint to such trooper, and thereafter to the DCF investigative social worker who was assigned to the case, was that on March 24, 2007, while the mother was caring for the children in the father's home in the absence of the father, Amanda "found a loaded hand gun on the sofa. She stated that Amanda was frightened by the gun and handed it to her. [The mother] was holding three year old Shannon when Amanda handed her the gun. [The mother stated that she contacted [the father] to inform him that Amanda found the loaded gun. [The father] allegedly stated to mother, `Amanda has found my guns in the past and she knows what to do with the gun.' [The mother] placed the gun on top of the refrigerator." (Exhibit 1, 2.)
3. Additionally, the mother stated to the trooper and thereafter to the worker that "she [wa]s concerned about her daughter's safety in the home in regard to their father having unlocked and loaded guns, as well as father's treatment of the children. Mother disclosed that during her visit, father requested Amanda retrieve her trash can from her bedroom. Amanda brought the trash can to her father and father yelled saying, `Amanda you peed in the garbage again, I'm going to fuckin beat your ass.' [The mother] disclosed that Amanda is afraid to go downstairs to the bathroom at night for fear her father will yell at her." Id.
4. The mother further alleged to the worker "that father slaps three-year-old Shannon on the arms and hands when she does not eat for him in the morning." Id.
5. On March 26, 2007, such worker and two troopers went to the home of the father.
6. When they arrived at the home at approximately 3:00 p.m., the father was present at the home with Shannon, and he was waiting for Amanda to disembark from the school bus. The father, who has a permit to do so, had a loaded handgun in his front pants pocket.
7. The father was cooperative with the troopers and the investigative worker.
8. When the father was questioned by one of the troopers, he said that he had other weapons in the home, but they were locked in a safe in his bedroom.
9. The trooper asked to see the bedroom, and the father gave permission to do so.
10. The following then took place:
"Officer _____ followed [the father] up to the bedroom. [The father] retrieved a duffle bag out of a closet adjacent to the girl's bedroom. The closet did not have a door. [The father] retrieved a black colored gym bag and a rifle case that was leaning against the wall near the closet door opening. The gym bag contained two hand guns. One being a Ruger revolver that was in a black holster and not loaded. The second was a Beretta 9mm that was loaded with no rounds chambered. The rifle was found unloaded but had a full magazine. [The father] was questioned why he stated to the police that the guns were in a safe and he stated that he did not say that the guns were in a safe. He stated that he owns a safe. [The father] showed a small box safe that was not big enough for the weapons that he owned. Officer ______ discussed with [the father] the dangers of having the weapons within the children's reach. [The father] was adamant that he never leaves the children with other caretakers and is with them 24 hours a day. [The father] was questioned if he left the children with their mother over the weekend, and he stated that [the mother] is not allowed unsupervised contact with the girls due to her substance abuse issues." Id., 3.
11. On March 26, 2007, Amanda explained to the worker how she found the father's gun on March 24, 2007, when her mother was caring for her and Shannon:
"Amanda was asked if she has ever seen a gun. Amanda stated that she has, and showed this worker where she found her father's gun on Saturday 3/24/07. Amanda disclosed that she was home with her mother and sister watching T.V. and her father had gone to his friend's house. Amanda disclosed that while sitting on the sofa she found the gun and was afraid of it. She stated that she gave it to her mother and her mother put the gun on top of the refrigerator. Amanda was asked to describe the gun and she described it as being silver and brown. The description fits that of the gun found in [the father's] front pocket. Amanda was asked if anyone told her to say that she found a gun and she stated, `No.' " Id.
12. Although in his testimony he denied leaving the mother alone with the children on March 24, 2007, on March 26, 2007, he admitted to the worker that he had done so:
"Following the interview with Amanda, this worker informed [the father] that his daughter described the events that occurred on Saturday [March 24, 2007] and appears to be credible. This worker questioned [the father] if he left the home at all on Saturday 3/24/07, and he admitted that he did and left the children with their mother." Id.
13. On March 26, 2007, the father did deny to the worker that Amanda found his gun. Id.
14. Additionally, such father "minimized having loaded guns in the home within access to his three and eight year old daughters . . ., " id., and according to the worker, the father "failed to see how the unsecured and loaded guns could pose a potentially harmful and possibly deadly threat to his children . . ." Id., 4.
15. The trooper who testified stated that on March 26, 2007, the father, when they were outside his home, stated that his weapons were locked in a safe, and when he was confronted with the weapons on the second floor that were not locked in a safe, the father claimed that the trooper was incorrect about what he had said and that the trooper misheard him. Such trooper stated that he had listened carefully to what the father had said initially, and that he did not mishear the father.
16. The worker also heard the father state that he kept his firearms in a safe "upstairs," and thereafter she observed the guns in a gym bag in a second floor closet with no door.
17. The mother stated that she was holding Shannon when Amanda brought the gun to her that Amanda had found on the sofa/oversized love seat.
18. The worker identified other issues of concern to DCF as Amanda being afraid of the father's reaction if she went downstairs at night to use the bathroom, so she urinated in a trash receptacle kept on the second floor of the home, and the mother's active substance abuse, requiring her to have supervised visits with the children. DCF had prior involvement with the family in part because of such substance abuse.
19. The father testified that on March 26, 2007, the day of the visit from the troopers and the worker, he had driven to his brother's home to retrieve his weapons.
20. The father could not explain why he had not taken the hand guns from the gym bag and locked them in his safe.
21. The father also had possession in his home of a rifle that did not fit in the safe.
22. The father was aware of the mother's extensive drug history.
23. The father admitted that he carried a small gun with him "all the time." However, this was the gun that Amanda found on the oversized love seat.
24. The father denied that Amanda had found his gun on the oversized love seat. He denied that he left such gun there. He stated that the mother persuaded Amanda to say that she had found the gun on such oversized love seat and handed it to her mother.
25. The father stated that he is in constant pain from a work-related injury, and that he takes Vicodin three times a day and Ibuprofen because of such pain. However, when he is caring for the children, he stated that he tries to avoid taking such medication. When cross-examined by DCF's attorney, the father amended his previous answers to state that he takes Vicodin three times a day as needed, that he takes it at home and that he is "not out that much."
26. The father stated that his daughter Amanda "has seen his weapons hundreds of times." He stated that he has told Amanda never to touch his weapons.
27. A significant focus of the father is his weapons.
28. Additional findings are set forth on pages 8-11 below.
APPLICABLE LAW
Pursuant to C.G.S. § 17a-101g(e) (see footnote 1, supra), which provides in part that if DCF "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safely . . ., " on March 26, 2007, at 4:32 p.m., DCF removed Amanda and Shannon from the father's care and custody.
Pursuant to C.G.S. § 46b-129(b), which provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal of such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . ., " on March 30, 2007, the court found that (1) Amanda and Shannon were "in immediate physical danger from" and that (2) "[c]ontinuation in the home is contrary to the welfare of said child[ren] . . ." and the court issued an ex parte order vesting temporary custody of Amanda and Shannon in DCF. (See footnote 2, supra.)
In In re Nashiah C., 87 Conn.App. 210, 221, 866 A.2d 669 (2005), the Appellate Court set forth the relation between the ex parte order of temporary custody and the subsequent contested hearing:
"We turn now to the respondent's second argument. We initially set forth the applicable law and our standard of review. Pursuant to § 46b-129(b), the court may issue `an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody' if it appears, on the basis of the petition and supporting affidavits, 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) that 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 . . .'
`At a subsequent hearing on an order of temporary custody, the proper standard of proof . . . is the normal civil standard of a fair preponderance of the evidence.' (Internal quotation marks omitted.) In re Kaurice B., 83 Conn.App. 519, 522, 850 A.2d 223 (2004).' "
This is a case where, as of the March 30, 2006 date of the ex parte order of temporary custody and at present, based on the evidence presented to the court, it is more likely or probable than not that Amanda and Shannon would be in immediate physical danger if returned home, and that their immediate removal was and is necessary to ensure their safety. However, DCF has a statutory duty to make efforts to reunify Amanda and Shannon with their father:
"(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129." C.G.S. section 17a-111b.
Also, DCF has a statutory duty to provide visitation to the father:
"(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
"(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship . . ." C.G.S. section 17a-10a.
CONCLUSION AND ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY: CT Page 5132
As of (1) March 24, 2007, when the children were left by the father alone with the mother in the father's home, Amanda discovered the father's hand gun in the sofa/oversized loveseat and she handed such gun to her mother; (2) March 26, 2007, when the state troopers and the worker visited the father's home and found there unsecured hand guns and a rifle that were accessible to the children, and when the children were subsequently removed by DCF under a ninety-six hour hold; and (3) March 30, 2007, when the ex parte order of temporary custody was issued by the court, the children were in immediate physical danger from their surroundings.
By a fair preponderance of the evidence, DCF has thus established that on March 24, 2007, on March 26, 2007, and on March 30, 2007, Amanda and Shannon were and "[are] . . . in immediate physical danger from [their] surroundings, and (2) that as a result of said conditions, [their] safety [was and] is endangered and immediate removal from such surroundings [was and] is necessary to ensure [their] safety . . . By a fair preponderance of the evidence, the order of temporary custody is thus sustained. Continuation of Amanda and Shannon in the father's care under the circumstances existing on March 24, 2007, March 26, 2007 and on March 30, 2007, the date of the ex parte order, was contrary to their welfare and best interest.
The local court may wish to consider whether to order testing or an evaluation of the father relating to issues with his memory or similar issues.
Such temporary custody order thus is sustained and shall remain in effect unless and until vacated, terminated or otherwise modified by the court.