Opinion
K09CP16014712A
01-06-2017
In re Jayden R.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE ORDER OF TEMPORARY CUSTODY AND NEGLECT ADJUDICATION
Hon. John C. Driscoll, J.
At issue in these cases is the temporary custody of two siblings, Jayden R. and Maria R., as well as the adjudicatory issue of neglect. The necessary procedural history is as follows. On June 17, 2016, the commissioner of the department of children and families (" department" or " DCF") filed neglect petitions in the interest of the two children, alleging that the children, for reasons other than impoverishment, were being denied proper care and attention physically, educationally, emotionally or morally; or that the children were being permitted to live under conditions, circumstances or associations injurious to their well-being. The department claimed the mother was abusing substances and alcohol, had job and housing instability, unaddressed mental health needs, and that mother and father engaged in domestic violence in the presence of both children, and that Jayden's own mental health and emotional needs were not being addressed. Both parents were served and subsequently appeared, were advised of their rights, and appointed separate attorneys. An attorney was appointed for the children. The Indian Child Welfare Act does not apply, and this court has jurisdiction.
Thereafter, on August 10, 2016, DCF sought and obtained orders vesting temporary custody of the children in their maternal step-grandfather. These orders and the court-ordered specific steps for reunification were served in hand upon each parent. On August 19, 2016, both parents' counsel appeared as did father. Mother was reported to be at an inpatient treatment facility. The ten-day hearing was waived and the matter was continued for this contested hearing. Mother did not personally appear for the contested hearing, as she was reportedly still in treatment. Her attorney stated that mother was not contesting the order of temporary custody. The contested order of temporary custody hearing was tried to the court beginning on September 8, 2016. The court heard testimony from two department social workers, and A.B., father's aunt, and thirteen exhibits were entered into evidence. At that time the children were placed with maternal step-grandfather, but he was not a licensed foster parent, although the issues preventing his licensure were being addressed. On October 26, 2016, an agreement was reached to transfer the order of temporary custody from maternal step-grandfather to the department, without the children's placement being changed, and without prejudice to father's objection to the order of temporary custody. Proposed additional evidence was provided to father's attorney to review with father. This evidence was presented to the court by stipulation on December 12, 2016. Petitioner's Exhibit 9 was entered with the understanding that no consideration be given to references to " benzos" or benzodiazepines. It was stipulated that father made the same admission of recent cocaine use to DCF and SCADD (a substance abuse treatment provider).
" Our statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future . . . By its terms, § 17a-101(a) connotes a responsibility on the state's behalf to act before the actual occurrence of injury or neglect has taken place . . . General Statutes § 46b-129(b) permits the removal of a child from the home by the department when there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from his 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 . . . 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." (Internal quotation marks omitted.) In re Michael D., 58 Conn.App. 119, 123-24, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000). More recently, our Supreme Court has concluded that the trial court must find that it is more likely than not that, if the child remained in the current situation, the child would be neglected, and further that this standard needs to be met as to each parent seeking to parent the child independently. In re Joseph W., 305 Conn. 633, 646, 46 A.3d 59 (2012).
The court finds the following by a fair preponderance of the evidence. Jayden R. was born on January 3, 2005, and Maria R. was born on October 23, 2013. The respondents, Sarah R. and Edwin R., are their parents. The respondent parents had a troubled relationship, including domestic violence which resulted in father's arrest on at least two occasions. Mother developed a serious alcohol and substance abuse problem. DCF had been involved with the family periodically for over ten years with reports of physical neglect, substance abuse, domestic violence, inadequate housing and supervision, and lack of financial support. Mother and father had a history of separation, reconciliation, further separation and reconciliation, and domestic violence. In October 2015, father discovered that mother was having an affair. He responded with such anger and physicality that Jayden had to take Maria to their bathroom for safety. No police report was made. Father was so distraught over mother's infidelity that he attempted suicide by an intentional auto accident. Mother and father ultimately divorced in early 2016. The parents were to share custody, mother having the children during the week, and father on weekends. Father, despite his knowledge of mother's serious impairments, did not contest this arrangement.
Mother's substance abuse and mental health issues continued unabated and untreated. Father, despite long-standing awareness of mother's issues, made no sustained attempt to attain custody. In fact, father would send these children home with mother even after mother advised him she was actively abusing Percocet. Further, when father was exercising his shared custody, he neglected the children. He would often sleep well into the day leaving the children to fend for themselves. Father has had steady employment, but provided little and insufficient child support to mother. He complained to mother and family of his financial difficulties, yet bought an expensive automobile for himself.
Father's aunt, A.B., testified in his behalf, and acknowledged that father had depression issues. She attempted, without credibility, to minimize his issues. She testified, again without credibility, that father and the children were frequently with her. This is contradicted by the children. Father's aunt testified that she bailed father out after each of his arrests, but never inquired as to the particulars or even the charges. The court does not find persuasive her reports of father's caring involvement with the children or her confirmations of father's self-reports.
The court does find persuasive the evidence that father has mental health issues, serious enough that he attempted suicide, and that he failed to follow up with individual therapy as recommended by the department. Also, father acknowledged using cocaine either just before or after the order of temporary custody. Also, father has not taken advantage of offered visitation, and neglected his children when he had visitation, such as spending the night with an unknown teenager, possibly a minor, while his children were visiting, and then introducing the unknown young woman to them as their babysitter the next day.
Finally, to Jayden's detriment, neither parent cooperated with consistent treatment for Jayden's mental and emotional issues, causing school and behavioral difficulties for him. (He has improved markedly while in placement and treatment.)
Father has demonstrated such impaired judgment, indifference to his children's well-being, and potential risk from his temper and untreated significant mental health concerns, and his illegal substance use, that the children will be at risk in his care.
Accordingly, the orders vesting temporary custody of Jayden and Maria in the department of children and families are sustained, and the children are adjudicated neglected. The clerk is to schedule the matter for a dispositional review.