Opinion
Nos. H14-CP07-009185-A, H14-CP07-009186-A
March 6, 2009
MEMORANDUM OF DECISION
This is a neglect proceeding. The court finds the following facts by a fair preponderance of the evidence:
The father reported to DCF that he might be of Native American descent, but he offered no proof thereof and he was unsure of the Tribe to which he might belong. In a similar situation, in In re Donavin C., 2008 Ct.Sup. 19634-35, No. H14-CP07-008948-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Olear, J., December 10, 2008), Judge Olear determined that there was no evidence before the court that the child was of Native American descent or that the parent was a member of an Indian Tribe:
The court finds that the court has jurisdiction and there is no known action pending in any other court affecting custody of this child. Despite references in Exhibits, including, without limitation, Exhibits 1 and H, to Mother being of Cherokee and Native American descent, there is no evidence before the court that Mother claimed Donavin is an Indian Child or that Mother herself is a member of an Indian Tribe as those terms are defined in 25 U.S.C. § 1903. Until the party asserting the applicability of the Indian Child Welfare Act 25 U.S.C. § 1901 et seq. ("ICWA"), establishes on the record the child is an Indian Child, the ICWA does not apply. The burden of proof is upon the party asserting the applicability of ICWA to produce evidence for the court to decide whether a child is an Indian child. In re Adoption of C.D., 751 N.W.2d 236, 242 (N.D., 2008) citing In re A.L., 2001 ND 59, 623 N.W.2d 418; In re H.D., 343 Ill.App.3d 483, 278 Ill. Dec. 194, 797 N.E.2d 1112, 1117-18 (2003); In re J.D.B., 584 N.W.2d 577, 582 (Iowa Ct.App. 1998); In re J.L.M., 234 Neb. 381, 451 N.W.2d 377, 387 (1990); Anderson, 31 P.3d at 512; In re A.S., 2000 SD 94, 614 N.W.2d 383; 42 C.J.S. Indians § 156 (2007). If there is insufficient reason to believe a child is an Indian Child, notice under the ICWA need not be given. See In re O.K., 106 Cal.App. 4th 152, 157 (2003), In re Aaron R., 130 Cal.App. 4th 697, 707 (2005). Accordingly, based on the paucity of information presented to the court, the court finds there is no evidence the child is an Indian Child.
In this case, however, where the facts are not subject to serious dispute, if the standard were clear and convincing evidence, the court's findings would meet that standard.
1. On September 5, 2007, the department of children and families ("DCF") received a telephone referral from a maternal uncle concerning the mother's abandonment in writing of Jessica D. ("Jessica") and Rebecca D. ("Rebecca"). The document (exhibit 14, 1), which was written by a maternal uncle and signed by the mother, was as follows:
[Wednesday] Sept. 5th, 2007
I, [the mother], request CT DCF to temporarily remove [Jessica and Rebecca] from m[y] family home on [street address] in [town]. I have not been able to determine who the girls want to live with. Their behavior includes
-constant daily abuse instigated by [maternal aunt and her husband]
-uncontrollable outbursts
-pounding and yelling
-verbal threats of police action
I will be away from residence and can be reached at [telephone number]. Girls attend [name of school] and have a key to apartment to retrieve their personal belongings.
Witness — [name of maternal uncle] brother [name of mother] [mother's signature]
On September 5, 2007, such document was left at the______ Youth Center.
Also on September 5, 2007, the mother wrote as follows in a note (exhibit 14, 2) left in the family home:
Rebecca and Jessica, stay here and do your homework. Wait until youth Services to contact Jes [?] for appointment.
On September 5, 2007, Jessica and Rebecca were fourteen years old.
2. Such uncle telephoned DCF at 10:32 a.m. on September 5 (exhibit 3, 2) and reported to DCF the substance of the mother's letter to DCF and note to Jessica and Rebecca.
3. At approximately 11:00 a.m. on such day an investigative social worker telephoned such maternal uncle who was traveling with the mother and left a detailed message asking such uncle to contact her. (Exhibit 3, 3.) Such investigative worker followed up with several additional messages to such uncle asking him to call her, and the worker went to the address provided by such uncle as his residence and discovered that such uncle had provided the address of the Hartford City Hall. Id.
4. At approximately 2:20 p.m. such uncle returned the calls of the investigative social worker. Id. He stated that he and the mother were in Massachusetts (at an antiques show, see exhibit 3, 7). Id. He stated that the mother "can no longer care for the girls." Id. He claimed that Jessica was "abusive towards [the mother] and [was] constantly yelling and pounding on the door." Id. Such uncle stated that the mother wanted Jessica and Rebecca "to get an evaluation to determine who they want to reside with." He also claimed that the mother was "fearful of the girls and wants them out of the home." Id.
The investigative worker told such uncle that she needed to speak to the mother "in order to assess the family situation and offer counseling or in-home services in an attempt to maintain the family intact." Id. Such uncle stated that "he was not going to allow this worker to speak to [the mother]." Id. Such uncle claimed that such worker wanted "to brainwash [the mother] into taking the children back." He stated that the mother was "very fragile" and that she needed "someone to be with her all day in order to help care for the children." Id.
Such investigative worker informed such uncle that the mother needed "to have a plan for her children, or this would be considered abandonment." Id.
Such uncle told such worker that Jessica and Rebecca needed "to be placed with the state." Id. Such worker said to the uncle that DCF considered relative placements before foster care placement. Such uncle responded that he and the mother did not want Jessica and Rebecca placed with their maternal aunt "as she has been interfering with the care of the children." Id. The worker "also heard mother in the background state that she did not want children placed with [such aunt]." Id.
5. On September 5, 2007, at 3:30 p.m. DCF invoked a ninety-six hour hold on behalf of Jessica and Rebecca "due to abandonment and parents' inability to provide an appropriate plan for their children." Id., 5. Jessica and Rebecca, as they wanted, were placed with such maternal aunt and her husband. Id. The non-custodial father agreed with the placement. Id., 6.
6. On September 7, 2007, pursuant to General Statutes § 46b-120(9)(A) and (B), DCF filed petitions in the Superior Court for Juvenile Matters ("SCJM") alleging that Jessica and Rebecca were neglected because each had been abandoned and each had been denied proper care and attention, physically, educationally, emotionally or morally ("denied proper care"). DCF also sought ex parte orders of temporary custody that were granted by the court. Such court found that Jessica and Rebecca were in immediate physical danger from their surroundings and that continuation in the mother's home was contrary to their welfare. Although Jessica and Rebecca were placed with the maternal aunt and her husband, the court vested temporary custody of such children in DCF.
General Statutes § 46b-120(9)(A) and (B) provide that
(9) a child or youth may be found "neglected" who . . . (A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally.
General Statutes § 46b-129(b) provides in part:
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) 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, 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 in some suitable agency or person the child's or youth's temporary care and custody pending disposition of the petition, or (B) issue an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody.
On September 7, 2007, the court also issued specific steps to each parent. On September 14, 2007, each of the parents agreed to and signed such specific steps, and each such order of temporary custody was sustained by the court after a full canvass of each parent. Id.
7. On October 23, 2007, a court-ordered evaluation of the mother, Jessica and Rebecca occurred. (Exhibit 6.) During the interaction, Jessica "expressed her gratitude" for her aunt. Id., 16. As she had stated before September 5, 2007, she told the evaluator that she did not want to have any involvement with her grandmother or the uncle who had helped the mother. She "repeatedly castigated her mother for abandoning her and Rebecca when she could have signed over guardianship to [the maternal aunt with whom she and Rebecca were residing.]" Id. She was "caustic and rude" to her mother during the interaction. Id.
The evaluator reported that in the interaction Rebecca had an "intense, angry reaction to her mother." Id. Both she and Jessica commented that the mother was untrustworthy because she commonly said "one thing to one person and a different thing to another." Id. She felt that her mother "turned on people" and that her uncle and her grandmother "were the catalysts behind [the mother] giving them `to the State.'"
The mother would not participate in an interview with the evaluator without the presence of the maternal grandmother. Id., 17. The evaluator thought that the mother was cognitively limited and that she had mental health issues. A psychiatrist had prescribed medication for the mother that she was taking at the time of the interview. The evaluator's DSM-IV-TR diagnosis of the mother included on Axis IV "[s]ignificant conflict with adolescent daughters; [p]arenting difficulties culminating in abandonment of children and subsequent removal of children . . . [history of psychiatric hospitalization; [q]uestionable social support; [e]nmeshed and likely counter-productive relationship with several relatives."
The evaluator gave the mother a DSM-IV-TR Axis V diagnosis of 30. The range between 30 and 21 is described as follows:
Behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).
The evaluator observed the intensity of the children's negative feelings about the mother's abandonment of them approximately seven weeks prior to such interaction, and described it in his report:
Jessica and Rebecca agreed to meet with [the mother] for the interaction, but were extremely terse and unpleasant toward her. Each seemed angry with their mother, and repeatedly expressed their intention to remain with [the maternal aunt]. They adamantly insisted that [the mother] abandoned them. The girls refused to look directly at their mother, and Jessica said, "I don't want to look at you." Rebecca and Jessica told [the mother] they thought she was mentally ill, and suggested she needed help. Although she made an effort to converse with her daughters, [the mother] ultimately became frustrated and upset, leaving suddenly.
Id., 19.
The mother was making efforts to obtain and participate in services, but the evaluator noted her "acute inability to sympathize with [Jessica and Rebecca] and take responsibility for her actions":
[The mother] said she was attending parenting classes. Shesaid she was seeing an individual therapist named D. at W.C. She told this examiner about some of her treatment goals, including feeling stronger and dealing with situations when they come up, and managing problems with concentration. However, her approach to her daughters exhibited an acute inability to sympathize with them and take responsibility for her actions. Given her significant limitations and her daughters' hostility toward her, this examiner believes far more intervention would be required to create a situation where ongoing conflict and risks for all involved would not be present.
Id., 20.
The maternal aunt was a consistent support for both Jessica and Rebecca, while the mother, such uncle and their maternal grandmother (the mother's network of support, see below) were anathematic to such children:
Both girls described [the maternal aunt] as a consistent and significant support. Jessica said [the maternal aunt] and her cousin D. are her primary supports. She said they are available and she is comfortable talking to them. She expressed fear of [such uncle], exhibited antipathy toward [the maternal grandmother], and said she did not want to see her mother.
Rebecca described Jessica as supportive. Rebecca identified [the maternal aunt] as her primary support and said she is close to her cousin S. She said she "loves" living with [the maternal aunt]. Rebecca said she recently went to a football game with her Uncle and said they "get along good." It is noted that the people whom [the mother] identified as supports are the people her daughters see as detracting from their safety and support.
Id., 20.
The evaluator reported that the maternal grandmother could not be involved in the care of Jessica and Rebecca because of her antagonism toward them. Id. There was "significant tension" between the mother and the maternal aunt. Id. The evaluator concluded that because of the mother's psychological and intellectual problems and because of Jessica's and Rebecca's anger toward her, the mother could not discharge childcare responsibilities for them "at this time," and that both Jessica and Rebecca should remain in the care of the maternal aunt. Id.
Such evaluator emphasized the seriousness of the rift between the children and the mother:
This examiner is not optimistic that sufficient change can be achieved in a time frame that would return Jessica or Rebecca to their mother's care prior to them reaching the age of majority. Further, attempts at family therapy are likely to be met with the same kind of hostility and defiance evident in the interaction observed by this examiner.
Id.
At the time of the interview and interaction, the children were approximately three and one-half years from the age of majority. The evaluator concluded the report by stating that as long as the maternal aunt was available, he "would be unlikely to recommend reunification . . ." Id., 21.
8. On May 13, 2008, each of the children testified in the SCJM before Judge Gleeson. Each stated that she wanted to live with the maternal aunt and her husband, their uncle. (Exhibit 5, 11-12, 21.) Rebecca did not want to visit with the mother because of the unresolved issues between the mother, Jessica and her; between the mother and the maternal aunt; and between the mother and the father. Id., 12-14. Jessica also did not want to visit with the mother. Id., 22.
9. Also on May 13, 2008, the court granted the maternal aunt's motion to intervene for dispositional purposes only.
10. On May 30, 2008, the mother was evaluated by a forensic psychiatrist. (Exhibit 16.) Such psychiatrist concluded that the mother could understand the nature of the neglect proceedings but could not adequately assist her attorney in her defense, and such psychiatrist recommended appointment of a guardian ad litem for the mother.
11. On July 3, 2008, the court appointed a guardian ad litem for the mother.
12. On November 3, 2008, the SCJM Child Protection Session ("CPS") suspended the mother's visitation with the minor children after a hearing on such motion filed by their attorney.
13. On Friday, February 27, 2009, the assistant attorney general representing DCF, the current worker assigned to the family, the attorney for Jessica and Rebecca, the mother and father of Jessica and Rebecca, their separate counsel and the guardian ad litem for the mother appeared before the court for the neglect hearing.
Although hearings on neglect petitions may sometimes be referred to as trials, in the Practice Book they are defined as hearings. See Practice Book § 26-1:
(f) "Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include (1) "Adjudicatory hearing:" A court hearing to determine the validity of the facts alleged in a petition or information to establish thereby the judicial authority's jurisdiction to decide the matter which is the subject of the petition or information; . . . (3) "Dispositive hearing:" The judicial authority's jurisdiction to adjudicate the matter which is the subject of the petition or information having been established, a court hearing in which the judicial authority, after considering the social study or predispositional study and the total circumstances of the child, orders whatever action is in the best interests of the child and, where applicable, the community. In the discretion of the judicial authority, evidence concerning adjudication and disposition may be presented on a single hearing.
Practice Book § 32a-2(a) provides that all such hearings are essentially civil proceedings but that they ". . . shall at all times be as informal as the requirements of due process and fairness permit . . ."
All hearings are essentially civil proceedings except where otherwise provided by statute. Testimony may be given in narrative form and the proceedings shall at all times be as informal as the requirements of due process and fairness permit . . .
14. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by a fair preponderance of the evidence.
LAW APPLICABLE TO NEGLECT CASES: 1. Definition of neglect:
The grounds for an adjudication of neglect alleged by DCF in this case are based on General Statutes § 46b-120:
(9) a child or youth may be found "neglected" who . . . (A) has been abandoned; (B) is being denied proper care and attention, physically, educationally, emotionally or morally . . .
In Randall v. Dunbar, No. CV 04 0525159 S, Superior Court, Judicial District of New Britain at New Britain (Murray, J., December 29, 2004) [ 38 Conn. L. Rptr. 468], the court set forth a definition of neglect:
the law regarding neglect . . . has long been settled that neglect does not require intent. "Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes." (Internal quotation marks omitted.) The Honorable Thomas D. Gill, "The Legal Nature of Neglect," 6 Nat'l Probation Parole Assn. J. 1, 6 (1960), quoting People v. LaBrenz, 411 Ill. 618, 624, 104 N.E.2d 769 (1952). Judge Gill also explained in his article: "The court must always look to and be bound by the statutory definitions of neglect. Its right to respond to the needs of the neglected child is dependent upon the sufficiency of the evidence to prove and establish neglect." (Internal quotation marks omitted.) T. Gill, supra, 6 Nat'l Probation Parole Assn. J. 4.
Neglect also has been generally defined as "the failure, whether intentional or not, of the person responsible for the child's care to provide and maintain adequate food, clothing, medical care, supervision and/or education." State of Connecticut DCF website, operational definitions. The following are set forth as "examples of physical neglect: 1. the failure to provide adequate food, shelter, and clothing appropriate to the climactic and environmental conditions[;] 2. the failure to provide, whether intentional or not, supervision or a reliable person(s) to provide child care[;] 3. leaving a child alone for an excessive period of time given the child's age and cognitive abilities[;] 4. holding the child responsible for the care of siblings or others where beyond the child's ability[;] 5. the person responsible for the child's care displays erratic or impaired behavior[;] 6. the person responsible for the child's care is unable to consistently perform the minimum of child-caring tasks[; and] 7. death." There are additional examples set forth in the DCF operational definitions of educational, emotional and moral neglect. See also Kimberly L. v. Susan I. Hamilton, Department of Children and Families Commissioner, 2008 Ct.Sup. 15247, No. HHB-CV-07 4015542, Superior Court, Judicial District of New Britain at New Britain (Cohn, September 24, 2008) and In re Cameron W., F04-CP04-006236-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., December 28, 2006).
2. The nature of a neglect proceeding:
A neglect petition has been described as sui generis, and as "not a typical civil action." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). The purpose of neglect and uncared for proceedings are to insure the child's safety and to secure a permanent placement for such child "as expeditiously as possible," whether such placement is with one or both parents, biological relatives, foster care or an institutional setting. Id. In In re Allison G., the primary issue was whether the trial court judge properly dismissed the neglect allegations of the DCF petition over the objection of DCF after the parents agreed to plead no contest to the uncared for allegations of such petition, and after the parents agreed to the relief sought by DCF, e. g., commitment of the child to the care, custody and guardianship of DCF. The Court set forth some "general observations:"
In considering this issue, we begin with some general observations about the context in which this claim arises. A neglect petition and concomitant request for an order of commitment are not a typical civil action. "A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). In such proceedings, the petitioner acts not to vindicate her personal rights but, acting for the state as parens patriae, to ensure, first and foremost, the child's safety and, second, a permanent placement of the child as expeditiously as possible. In re Joshua S., 260 Conn. 182, 196-97 n. 15, 796 A.2d 1141 (2002); In re Jason C., 255 Conn. 565, 576-77, 767 A.2d 710 (2001); In re Jonathan M., 255 Conn. 208, 231-32, 764 A.2d 739 (2001). The petitioner [DCF] does not seek the monetary or equitable relief of a typical civil action, but, rather, actions by the court that will further the dual goals of safety and permanency. Accordingly, "relief" in this context takes on a somewhat different meaning, and the petitioner's interests in seeking an adjudication and disposition upon filing a neglect petition do not fit neatly within the aggrievement rubric. See In re David L., supra, 191-93 (distinguishing between significance of adjudication and disposition of neglect petition).
In re Allison G., supra, 276 Conn. at 158-59.
In In re Allison G., the Supreme Court recognized that "[t]he focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child." In re Allison G., supra, 276 Conn. at 164. Such court also noted that the status of the child "is determined as a result of the adjudication, not the disposition of the petition." Id. Such court also stated:
An adjudication of neglect that results in an order of commitment necessarily implies that the neglect occurred due to some action or inaction on the part of the custodial parents. A finding to that effect does not serve merely a punitive purpose, as suggested by the trial court. Rather, the parents' willingness thereafter to accept responsibility reasonably may bear on whether reunification or termination of parental rights is in the child's best interest . . .
In re Allison G., supra, 276 Conn. at 164.
In In re Allison G., supra, 276 Conn. at 153 n. 4, the court ". . . underscore[d] the importance of an adjudication of both counts of the petition . . ." e.g. both the neglect and uncared for counts.
3. Neglect standards:
Pursuant to General Statutes § 46b-129, neglect trials are comprised of two parts, adjudication and disposition. In re Brianna C., 98 Conn.App. 797, 801 (2006). Conn. Practice Book § 35a-7A also provides:
(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . .
(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In Brianna C., supra, 98 Conn.App. at 805, the Appellate Court explained this court's disposition options as follows:
After an adjudication of neglect, a court may
(1) commit the child to the commissioner,
(2) vest guardianship in a third party or
CT Page 4560
(3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129(j) . . .
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.
"To determine 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 Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004). At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65.
General Statutes § 46b-129(j) sets forth the court's authority to commit a child:
(j) Upon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit such child or youth to the Commissioner of Children and Families. Such commitment shall remain in effect until further order of the court, except that such commitment may be revoked or parental rights terminated at any time by the court, or the court may vest such child's or youth's care and personal custody in any private or public agency that is permitted by law to care for neglected, uncared-for or dependent children or youths or with any person or persons found to be suitable and worthy of such responsibility by the court . . .
Only if a commitment of a child is ordered does the court also order specific steps for reunification:
We first note that the commitment in this case is not one of "permanency," such as a judgment of termination of parental rights, but one that requires, pursuant to § 46b-129(j), the court to "order specific steps which the parent must take to facilitate the return of the child or youth to the custody of such parent."8
In re Brianna C., supra, 98 Conn.App. at 805.
In such footnote 8 in Brianna C., the court noted that the trial court in that case ordered many specific steps for reunification:
the specific steps were many, including unannounced visits to the respondent and the child by department workers, attendance at parenting classes, individual and domestic counseling, and protective orders against the child's father to safeguard the child.
Id. If the court orders that a child be committed to the care, custody and guardianship of DCF, the court must also find that DCF made reasonable efforts to keep the children in the home, or that such efforts were not possible:
The respondent also claims that the court abused its discretion when it found that the department had made reasonable efforts to keep the child with the respondent before seeking custody of the child. The last sentence of § 46b-129(j) provides in relevant part: Upon the issuance of an order committing the child or youth to the [commissioner], or not later than sixty days after the issuance of such order, the court shall make a determination whether the [department] made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order . . .
In re Brianna C., supra, 98 Conn.App. at 806-07.
The full relevant language in § 46b-129(j) is as follows:
Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall make a determination whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety.
In connection with determining the disposition of a neglect case, the court looks at the full picture of the family circumstances, including the full history of each parent's parenting abilities, to determine whether either parent can and will ". . . foster the [child's] growth, development and well-being . . ." Gil v. Gil, 94 Conn.App. 306, 322, 892 A.2d 318 (2006). In the Gil case, a dissolution of marriage case, this requirement has been expressed as follows:
Nevertheless our Supreme Court has also held that "the court must . . . take account of the parents' past behavior, since it must evaluate their present and future parenting ability and the consistency of their parenting for the purpose of determining which parent will better foster the [child's] growth, development and well-being." Yontef v. Yontef, 185 Conn. 275, 283, 440 A.2d 899 (1981).
In In re Jennifer W., 75 Conn.App. 485, 499, 816 A.2d 697 (2003), cert. denied 263 Conn. 917, 821 A.2d 770 (2003), a termination of parental rights case, the duty of the trial court was set forth as follows:
The court, however, makes an inquiry into the full history of the respondent's parenting abilities. In re Galen F., 54 Conn.App. 590, 594, 737 A.2d 499 (1999).
In a very recent TPR decision, the Appellate Court has expressed the trial court's duty to consider the "entire picture" of the parent-child relationship:
In order for the court to make a determination as to the respondent's prospects for rehabilitation, the court was required to obtain "a historical perspective of the respondent's child caring and parenting abilities." In re Tabitha P., 39 Conn.App. 353, 361, 664 A.2d 1168 (1995). "Because the parent-child relationship is at issue, all relevant facts and family history should be considered by the trial court when deciding whether to terminate the respondent's parental rights . . . The parent-child relationship presents an ongoing dynamic that cannot be frozen in time. The entire picture of that relationship must be considered whenever the termination of parental rights is under consideration by a judicial authority." In re Brianna F., 50 Conn.App. 805, 814, 719 A.2d 478 (1998). Finally, "[t]o preclude consideration of the facts existing at the time of [a prior termination of parental rights proceeding] would not allow for a comprehensive analysis of the parent-child relationship." Id., 818.
In re Anna Lee M., 104 Conn.App. 121, 123 (2007), cert. denied, 284 Conn. 939 (2007).
As in any case involving the determination of custody, the touchstone for such dispositional decision is the court is the best interest of the child:
Generally, questions of custodial placement are resolved by a determination of "what is in the best interest of the child . . . as shown by a fair preponderance of the evidence." (Citations omitted.) In re Shyina B., 58 Conn.App. 159, 163, 752 A.2d 1139 (2000). "The trial court is vested with broad discretion in determining what is in the child's best interests." (Internal quotation marks omitted.) In re Joshua S., 260 Conn. 182, 209, 796 A.2d 1141 (2002) . . .
In re Haley B., 81 Conn.App. 62, 65 (2004).
But see Fish v. Fish, 285 Conn. 24, 81, 89-90 (2008) with respect to custody awards to a third party, whether or not a relative, in a family case:
In the present case, we believe that it has because, to the extent that this court has placed a judicial gloss on the standard of harm set forth in § 46b-56b, courts will have clear notice that third party custody awards may not be based on a few instances of misconduct, that such awards are justified only in exceptional circumstances and that the petitioner must allege and prove, at the very least, that continued parental custody will be clearly damaging, injurious or harmful to the child. This is a heavy burden under either standard of proof. See McGaffin v. Roberts, supra, 193 Conn. 412 (Parskey, J., dissenting) (burden on nonparent to disprove presumption in favor of parental custody is "a heavy one").
***
To summarize, in cases in which a third party seeks to intervene in a custody proceeding brought pursuant to § 46b-56(a), the party must prove by a fair preponderance of the evidence facts demonstrating that he or she has a relationship with the child akin to that of a parent, that parental custody clearly would be detrimental to the child and, upon a finding of detriment, that third party custody would be in the child's best interest. In cases in which the trial court considers awarding custody to a third party who has not intervened pursuant to § 46b-57, the court may award custody to the third party provided that the record contains proof of the foregoing facts by a fair preponderance of the evidence.
***
In the present case, the trial court failed to apply the correct standard when it granted [paternal aunt's] motion to intervene and awarded her custody solely on the basis of the best interest of the child.
General Statutes § 46b-57, et al., however, is not applicable in this neglect case. See In re Cameron C., 103 Conn.App. 746, 753-54, 930 A.2d 826 (2007), cert. denied, 285 Conn. 906, 942 A.2d 414 (2008).
In a recent Appellate Court decision, such court affirmed the trial court's transfer of guardianship to a paternal aunt and uncle over the objection of the respondent mother. In re Karl J., 110 Conn.App. 22, 954 A.2d 231 (2008). In such decision the Appellate Court set forth the best interest of the child standard in the context of a placement that provides for a child's opportunity for growth and development, well-being, and continuity and stability of such child's environment, and the "clear abuse of discretion" standard in reviewing the trial court's judgment:
We begin with the standard of review. "To determine 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 its environment . . . We have stated that when making the determination of what is in the best interest of the child, [t]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference . . . In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) In re Patricia C., 93 Conn.App. 25, 32-33, 887 A.2d 929, cert. denied, 277 Conn. 931, 896 A.2d 101 (2006); In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004); see also Practice Book § 35a-16. "[G]reat weight is given to the judgment of the trial court because of [the court's] opportunity to observe the parties and the evidence . . . [Appellate courts] are not in a position to second-guess the opinions of witnesses, professional or otherwise, nor the observations and conclusions of the Juvenile Court when they are based on reliable evidence." (Citation omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 397-98, 852 A.2d 643 (2004).
In re Karl J., supra, 110 Conn.App. at 26.
As set forth above, and pursuant to Practice Book § 32a-3(a), the standard of proof applied in a neglect, uncared for or dependency proceeding is a fair preponderance of the evidence. In In re Brianna C., supra, 98 Conn.App. at 801, the Appellate Court confirmed that "[t]he burden of proof is on the petitioner to show by a fair preponderance of the evidence that removal of a child from his or her home is warranted. In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983)." Later in such decision, the Appellate Court reiterated:
The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); Practice Book § 32a-3(a).
In re Brianna C., supra, 98 Conn.App. at 802.
Specifically with respect to dispositional matters, the same burden of proof applies:
At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65. On appeal, we must determine whether there was sufficient evidence before the court so that it reasonably could find, by a fair preponderance of the evidence, that the best interest of the child was to commit custody of her to the commissioner, with eight hours daily of unsupervised visits with the respondent.
In re Brianna C., supra, 98 Conn.App. at 804-05.
4. The meaning of "fair preponderance of the evidence":
As set forth above, the standard of proof in a neglect case is the "fair preponderance of the evidence."
Such standard has been defined as follows:
"Fair preponderance of the evidence" was properly defined as "the better evidence, the evidence having the greater weight, the more convincing force in your mind." The court charged that the standard had been satisfied with respect to a fact if all the evidence considered fairly and impartially evince[d] a reasonable belief that it [wa]s more probable than not that the fact [wa]s true.
Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981); see also Konover Development Corp. v. Zeller, 228 Conn. 206, 230, 635 A.2d 798 (1994).
The Connecticut Supreme Court has previously determined that in temporary custody and neglect proceedings application of the fair preponderance standard satisfies constitutional requirements:
Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).
Fish v. Fish, supra, 285 Conn. at 73-74.
5. Best interests of the child in a neglect case:
As set forth above, with respect to disposition after an adjudication that a child is neglected or uncared for, ". . . the court must decide which of the various custody alternatives are in the best interest of the child . . ." In re Brianna C., supra, 98 Conn.App. at 805. In doing so, ". . . 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 its environment.'" In re Haley B., supra, 81 Conn.App. at 67. See also In re Karl J., supra, 110 Conn.App. at 26 and pages 22-23, supra.
In deciding what is in the best interest of the child, the trial court "is vested with broad discretion." In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000). The Appellate Court explained the basis for such broad discretion in the trial court as follows:
"The trial court had the advantage of observing the parties and witnesses. [T]he authority to exercise the judicial discretion under the circumstances revealed by the finding is not conferred upon this court, but upon the trial court, and . . . we are not privileged to usurp that authority or to substitute ourselves for the trial court . . . A mere difference of opinion or judgment cannot justify our intervention. Nothing short of a conviction that the action of the trial court is one which discloses a clear abuse of discretion can warrant our interference." (Internal quotation marks omitted). Kearney v. State, 174 Conn. 244, 252, 386 A.2d 223 (1978). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Simmons v. Simmons, 244 Conn. 158, 175, 708 A.2d 949 (1998); Ignacio v. Montana-Ignacio, 57 Conn.App. 647, 648, 750 A.2d 491 (2000).
Id., 559-60; see also In re Patricia C., 93 Conn.App. 25, 33, 887 A.2d 929 (2005) (such a deferential standard of review is appropriate) and In re Karl J., supra, 110 Conn.App. at 26.
A child's best interests include the child's interest in health and safety, in sustained growth, development, well-being, and in the continuity and stability of its environment. General Statutes § 46b-129(j); see pages 22-23, supra. These factors are also considered and applied in termination of parental rights dispositions, In re Joseph L., 105 Conn.App. 515, 529 (2008), and in revocation of commitment cases, In re Cameron C. 103 Conn.App. 746, 759, 930 A.2d 826 (2007).
6. Weight to be given to testimony of witnesses, including from court-appointed psychologists:
In Davonta V., supra, 285 Conn. at 488-89, the Supreme Court set forth the standards to be applied by the court in considering expert testimony, which testimony has an important role in neglect and TPR trials:
Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain 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 offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896(1999) . . .
In In re Melody L., supra, 290 Conn. at 161, the Supreme Court stated that a trial court can give credence to the testimony of an expert witness even on "the ultimate issue" to be decided by the trial court:
This court repeatedly has held that, "[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S.Ct. 775, 99 L.Ed. 1257 (1955). This understanding has been codified in § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."
As the Appellate Court aptly has recognized, "[t]he trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases." (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn.App. 353, 364-65 n. 8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluator's conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).
With respect to the trial court's responsibilities concerning the best interest of a child, the Supreme Court emphasized that after considering expert testimony, such court ". . . must make its own independent determination as to the best interest of the child . . .":
Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643 (2004) ("[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest" [citations omitted; internal quotation marks omitted]). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in Davonta's best interest.
In re Davonta V., supra, 285 Conn. at 489.
Similar principles have been set forth in earlier decisions:
In the Appellate Court decision in Davonta V., supra, 98 Conn.App. at 60, Judge Schaller, dissenting, wrote:
"The psychological testimony from professionals is rightly accorded great weight in termination proceedings. In re Nicolina T., 9 Conn.App. 598, 605, 520 A.2d 639, cert. denied, 203 Conn. 804, 525 A.2d 519 (1987)." (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 22, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).
(Emphasis added.)
In an earlier case, the Appellate Court also stated essentially the same proposition:
Psychological testimony from professionals is appropriately accorded great weight in termination proceedings.
In re Shyliesh H., 56 Conn.App. 167, 176, 743 A.2d 165 (1999) (emphasis added).
Earlier, the Supreme Court set forth the parameters for a trial court's use of expert testimony in a family case:
As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.
Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002):
"[A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).
The trial court in whole or in part need not accept a person's testimony, whether or not such person has been qualified as an expert:
The law traditionally recognizes the trial court as a tribunal equipped to resolve disputed evidentiary issues, and as the "final judge of credibility." Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358 (1954). Moreover, as we have often noted, the fact that a witness testifies as an expert does not compel the acceptance of his or her testimony as true. See, e.g., Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338 (1987).
State v. Joly, 219 Conn. 234, 237, 243, 593 A.2d 96 (1991). The Supreme Court stated that factual determinations are ". . . appropriately committed to the sound discretion of the trial court." Id. In Joly, the issue was whether a witness had been hypnotized. Id. The Supreme Court then stated:
In resolving this issue, the court may be aided, but is not bound, by expert opinion. Id. Such testimony must be "considered, weighed and tested like any other evidence"; id.; and assessed "in relation to the other circumstances in evidence bearing on the question in issue"; Blake v. Blake, 207 Conn. 217, 225, 541 A.2d 1201 (1988); including, if offered, the testimony of the allegedly hypnotized witness. The trial court "is privileged to adopt whatever testimony [it] reasonably believes to be credible"; (emphasis in original) Eichman v. J J Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990); and expert testimony may be rejected in favor of other evidence found more persuasive. Transportation Plaza Associates v. Powers, 203 Conn. 364, 377, 525 A.2d 68 (1987).
In In re David W., 254 Conn. 676, 687-88, 759 A.2d 89 (2000), the Supreme Court emphasized deference to the trial court's discretion in determining the weight to be given to all or part of an expert's testimony:
Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989) . . .
ON AND BEFORE SEPTEMBER 7, 2007, JESSICA AND REBECCA WERE ABANDONED AND NEGLECTED:
DCF has proved by a fair preponderance of the evidence that on September 7, 2007, the date of the neglect petition, Jessica and Rebecca were abandoned, and as set forth in the credible testimony and other evidence, they also were neglected on the basis of the ground alleged in each neglect petition, e.g., denied proper care.
Given the sad and unfortunate limitations, issues and problems of the mother, the limitations and issues of the father and the negative history of each such respondent's parenting including domestic violence and other negative behavior toward and in front of the children set forth in detail in the credible testimony and other evidence, some details of which have previously been set forth in this decision, and given the consistently expressed wishes of Jessica and Rebecca who are almost fifteen years and ten months old, the disposition that will foster each of their health, safety and general well-being; their interest in sustained growth and development; their interest in a home environment that provides continuity and stability for them; and their general best interest, is for them to continue to remain with the maternal aunt and uncle with whom they have resided since September 5, 2007. It is not in either of their best interests to be returned to the care, custody or guardianship of either parent.
Therefore, pursuant to General Statutes § 46b-129(j), see page 15, supra, this court vests the care, custody and guardianship of Jessica and Rebecca in such maternal aunt and uncle and they are found suitable and worthy to assume such responsibility.