Opinion
H12CP16016629A
10-20-2016
In re Jesiah L.-R. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert G. Gilligan, Judge
This child protection matter in the interest of the minor child, Jesiah L.-R., born August 21, 2016, was commenced by an ex parte Order of Temporary Custody and Neglect Petition filed by the Department of Children and Families (" DCF") on September 13, 2016. The ex parte Order of Temporary Custody was issued by the court on September 13, 2016. (Woods, J.) The respondent mother, Solsairy L.-R. (" Mother") and respondent father, Christopher M. (" Father") appeared at the preliminary hearing on September 23, 2016 and denied the allegations in the Neglect Petition and elected a ten-day hearing to contest the ex parte Order of Temporary Custody. The court confirmed service of process on Mother and Father and appointed counsel for Mother, Father, and the child. As Father questioned his paternity of Jesiah, the court ordered a genetic paternity test and suspended Father's visits with the child pending results of the paternity test. (Dannehy, J.)
Background
Mother delivered Jesiah at Hartford Hospital on August 21, 2016. At the time of Jesiah's birth, Mother's three other children were not in her care following child protection proceedings initiated by DCF in April 2016 as a result of Father's having inflicted injuries on Mother's five-month-old son, King. Those proceedings remain pending in this court. Prior to Jesiah's discharge from the hospital, DCF conducted a safety assessment on September 13, 2016, determined that Jesiah was unsafe and filed a request for an ex parte order of temporary custody and a companion neglect petition. As noted, the ex parte Order of Temporary Custody was issued by the court on September 13, 2016. (Woods, J.)
A contested Order of Temporary Custody hearing was conducted on October 6, 2016 pursuant to Practice Book § 33a-7(d) and General Statutes § 46b-129(b) and (f). Father was present by habeas and reported through counsel that he did not contest the OTC. Father's counsel requested that she and her client be excused from the proceedings. Hearing no objection, the court excused Father and his counsel from the hearing and sustained the OTC as to Father. The issue before the court is DCF's claim that, as of the date of the ex parte Order of Temporary Custody, Jesiah was in immediate physical danger from his surroundings and that continued need for custody and care of Jesiah by someone other than Mother is necessary to ensure his safety.
DCF's Exhibits A, B-1, B-2, C, D and E were admitted as full exhibits. Mother's Exhibits 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 were admitted as full exhibits. DCF offered testimony from DCF social worker Michael Walsh and Dr. Rebecca Moles, a pediatrician and director of the Suspected Abuse and Neglect (SCAN) program at Connecticut Children's Medical Center. Dr. Moles was offered as an expert witness and there was not challenge to her qualification as such. Mother presented testimony from Dr. Lee Kett, a licensed professional counselor who has provided counseling services to Mother and from Tiffany Overstreet, a volunteer counselor at Interval House, a domestic abuse shelter for women.
DCF's Claims
The thrust of DCF's claim is that Jesiah was in immediate physical danger at the time of the ex parte order and would be in immediate physical danger if returned to Mother's custody. DCF's claim is predicated on Mother's history of enduring and tolerating domestic violence at the hand of Father, including a text message threatening to kill her, and her failure to protect her children from him. Despite the existence of a protective order issued in Florida, Mother allowed Father to reside with her and her children after she re-located to Connecticut. DCF asserts that by permitting Father to reside with her and her children in the face of Father's history of domestic violence, Mother demonstrated poor judgment, exposed her children to danger and that Jesiah would be at the same risk if permitted to remain or be returned to Mother's custody.
Legal Standard
In the context of a hearing on an order of temporary custody pursuant to § 46b-129(b), a finding of immediate physical danger is a prerequisite to the court's entry of an order vesting custody of a child in one other than the child's parents. In re Juvenile Appeal (83-CD), 189 Conn. 276, 290-91, 455 A.2d 1313 (1983). 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 . . ." (Emphasis added.) The petitioner is required to meet this standard with respect to each parent who has contested the proceedings and seeks or is willing to care for their child independently of the other. In re Joseph W., 305 Conn. 633, 646, 46 A.3d 59 (2012).
" For a court to sustain an Order of Temporary Custody it must find that the petitioner has proved by a fair preponderance of the evidence that the child would be subjected to immediate physical danger if returned to the care and custody of the parent or parents and that continued removal was necessary to ensure his safety. Such a finding may be made on the basis of predictive circumstances if, for example, the child is currently safe--for example, in a hospital--but would be exposed to such risks if released to the parent or parents." (Emphasis added.) In re Chronesca D., 126 Conn.App. 493, 495-96, 13 A.3d 1106 (2011). Thus, DCF is required to meet a higher standard of proof in a contested order of temporary custody hearing for the court to sustain an order of temporary custody than is required for an ex parte order of temporary custody.
After careful consideration of the credible testimony of the witnesses, the full exhibits admitted in evidence, the weight to be accorded specific evidence and the probative value of any conflicting evidence, the court finds the following facts were established by a fair preponderance of the evidence.
Factual Findings
Mother is twenty-three years old. She has four children under the age of six. At the time of trial, she resided at a CRT shelter however, DCF social worker Walsh testified that with the assistance of DCF, she has pursued and identified housing for which she is eligible and expected to secure and occupy very soon. She has a history of multiple residences in Florida, Connecticut and for a brief period in Massachusetts. She moved to Connecticut with her mother when their shared housing was sold by their landlord. She has no record of any criminal convictions nor did DCF present any evidence of any substance abuse. She has self-reported having anxiety and depression but testimony was received that she attributes it to the removal of her children by DCF. It was undisputed that Mother has completed a twelve-week domestic violence program at Radiance in connection with the pending neglect proceedings concerning her three other children. DCF worker Walsh acknowledged that Mother actively participated in the sessions and her participation was described as very " hands on." In her testimony, Tiffany Overstreet described Mother's participation in the program similarly. Social worker Walsh testified on cross examination that Mother has consistently visited her children on a regular basis including visits with the child who was injured while he was hospitalized. Walsh testified that he had no concerns about Mother's parenting skills or behavior during the visits which he supervised and that he has verified that other social workers supervising Mother's visits share the same opinion. Walsh testified that Mother calls him practically daily to inquire about her children's well-being.
The precipitating event that led to the removal of Mother's three other children was Father's having inflicted intentional physical injuries on her five-month-old son King in April 2016, while she took a shower. It was not disputed that when Mother returned from her shower, she immediately noticed King's injuries, screamed at Father, took King from his arms and called 911. She notified the police and provided information which led to his being apprehended at the bus station. Father is currently incarcerated following his conviction on risk of injury to a minor charges resulting from the injuries to King. Father has a discharge date scheduled in January 2017 and he is prohibited from any contact with Mother or the children. Mother's therapist, Dr. Kett and Tiffany Overstreet both testified that Mother has convincingly stated that she has no intention of resuming any contact with Father.
It is worth noting that Dr. Rebecca Moles testified that in addition to King's injuries in April 2016, King suffered a medical condition in March 2016 which was suspected, but not confirmed, to be the result of child abuse while in Father's care. DCF moved to have Dr. Mole's entire testimony preserved for purposes of the trial on the neglect petition which motion was granted, absent objection. Dr. Mole's testimony will, no doubt, be an important component of the upcoming neglect trial.
In closing argument, the attorney for the minor child urged the court to vacate the temporary order of custody and return Jesiah to Mother's custody as being in his best interest.
Conclusion
" Trial courts must take the laboring oar to maintain the proper balance between parental rights to family integrity and the state's responsibility to protect the rights of children to grow up in a safe and nurturing environment." In re Christina M., 90 Conn.App. 565, 585, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006). " Where there is no 'substantial showing . . . made at the temporary custody hearing that . . . [a child] . . . would be in immediate physical danger if [he or she] were returned to the [respondent's] home . . . [i]t [is] error for the court to grant . . . temporary custody' in one other than the child's parents." (Citations omitted.) In re Chronesca D., 126 Conn.App. 493, 496, 13 A.3d 1106 (2011). Inasmuch as the court is limited in this proceeding to the discrete issue of whether Jesiah would be in immediate physical danger if returned to his Mother's custody, the court finds that there was no substantial showing that Jesiah would be in immediate danger if he were returned to Mother's custody.
Under the circumstances of this case, the court finds on the basis of the credible testimony and evidence elicited at trial, that DCF has failed to sustain its burden to prove by a fair preponderance of the evidence that at the time of the ex parte order of temporary custody Jesiah was in immediate physical danger if he remained in his Mother's custody or that he would be subject to immediate physical danger if he were returned to Mother's custody and there is a continuing need for his removal.
The order of temporary custody is vacated and Jesiah is to be returned to Mother's custody effective immediately.
So Ordered.