Opinion
H12CP17016862A H12CP17016863A H12CP17016864A
01-23-2018
IN RE LIAM B.[1] In re Riley B. In re Maximus R.
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Robert G. Gilligan, J.T.R.
The Commissioner of the Department of Children and Families (" DCF" ), by petitions filed March 1, 2017, has alleged that the minor children, Liam B. (born 1/08/10), Riley B. (born 6/12/12) and Maximus R. (born 4/24/15) were neglected as of that date in that the children were being denied proper care and attention, physically, educationally, emotionally or morally or that they were being permitted to live under conditions, circumstances or associations injurious to their well-being. The respondents, Nora R. (" Mother" ), Michael B., father of Liam and Riley (" Father B." ) and Scott R., father of Maximus (" Father R." ), were properly served with the petitions, appeared and were represented by counsel. Counsel was appointed for the minor children.
On August 11, 2017, DCF invoked its statutory authority to remove children determined to be in imminent risk of physical harm from their surroundings for a period not to exceed 96 hours and removed Liam and Riley from the home. Maximus was not removed. On August 15, 2017, DCF applied for and was granted ex parte orders of temporary custody in the interests of Liam and Riley. (Gilligan, J.) At the preliminary hearing on the OTC conducted on August 25, 2017, the parties waived their rights to a contested hearing within 10 days from the preliminary hearing, the court ordered consolidation of the contested orders of temporary custody with the neglect petitions and assigned three dates for trial as requested by the parties. (Dannehy, J.) A contested hearing on the consolidated matters of the orders of temporary custody and neglect petitions was conducted on October 23, 25, and 26 and November 27, 2017.
The Evidence
The court heard testimony from DCF social worker Teresa Benson, Kathleen Legare, LCSW, Lisa Murphy-Cipolla, coordinator of Clinical Services at the Children’s Advocacy Center, John Chapdelaine, a licensed therapist, Dr. Bruce Freedman, a licensed psychologist, Sgt. Charles Lelas, Officers Witold Klos and Christopher Dufresne, all with the Enfield Police Department, Nadine Blackwood, a parenting counselor with Klingberg Family Center, Linda Henriques, a social worker at Noah Webster School, Barbara Burke, a family service support provider at Noah Webster School, Tracie Preli-Derwin, LCSW with Staltaro Psychological Services, Laqueshia Clemons, a clinician at Wheeler Clinic, Dr. Eric Frazier, a licensed psychologist, Attorney Katherine Bissonette, and respondents Michael B., Nora R., and Scott R.
DCF offered twenty-four exhibits (Exhibits A, B, C, D, E, F, G, H-1, H-2, I-1, I-2, J, K, M, N, O, P, P-1, P-2, Q-1, Q-2, R, S, and T) which were admitted as full exhibits. Mother offered seven exhibits (Exhibits 1, 5A, 5B, 6, 7, 8, and 9) which were admitted as full exhibits. Father R. offered seven exhibits (Exhibits 1, 2, 3, 4, 5, 6, and 7) which were admitted as full exhibits. The attorney for the minor children offered one exhibit (Exhibit 1) which was admitted as a full exhibit. No exhibits were offered by the attorney for Father B.
The court was able to closely observe the appearance and demeanor of the witnesses and determine the validity, cohesion, and credibility of their testimony. The court has reviewed and considered the documentary and recorded evidence admitted as full exhibits. The court makes the findings set forth herein by a fair preponderance of the evidence upon an independent assessment of all the evidence admitted.
Findings of Fact
Mother and Father B. were married in 2009. Liam was born January 8, 2010 and Riley was born June 12, 2012. Mother and Father B. were divorced in July 2014 and have engaged in contentious and ongoing child custody proceedings including multiple applications for restraining orders. Since his divorce from Mother, Father B. has married Tiffany B. with whom he lives, together with paternal grandmother, Barbara K. and Tiffany B.’s 6-year-old son, Wyatt. Liam and Riley have resided with Father B. pursuant to a safety plan since February 2017 when allegations of sexual abuse of Riley were made against Mother and Father R. Since her divorce from Father B., Mother has married Scott R. with whom she resides. Mother and Scott R. have a son, Maximus born April 24, 2015, who has resided with his paternal grandmother, Deborah R., pursuant to a safety plan and agreement reached in February 2017.
Child Protection History
Mother and Father B. have a history with the Department of Children and Families. DCF has received multiple reports since 2013 of allegations of physical abuse and unexplained injuries suffered by Liam and/or Riley while in the custody of Mother and Father B. which have led to investigations by DCF and local police authorities and physical examinations at the Suspected Child Abuse and Neglect unit (" SCAN" ) at the Connecticut Children’s Medical Center (" CCMC" ).
In November 2013, Riley’s day care reported that 17-month-old Riley presented with a red mark on her forehead and bruises on her buttocks and thighs. Riley was assessed by SCAN and the bruises were determined by Dr. Livingston to be suspicious of being inflicted. Mother and maternal grandfather, who was Riley’s primary care giver while Mother was at work, had no explanation for the bruises. MGF took a polygraph and no deception was detected. There was no explanation for the injuries, no perpetrator was identified and the case was closed. (Mother’s Exhibit 8.) A second report of bruises on Riley’s buttocks and thighs was received from Riley’s day care on January 28, 2014 which the examiner at SCAN assessed as a pattern injury but it could not be determined whether the bruises were inflicted or accidental. (Mother’s Exhibit 8.)
On December 21, 2013, DCF was contacted by the East Hartford Police as a result of Father B.’s report that Liam disclosed to his PGM and Father B. that Mother " hits him in the face." The police investigated and found Liam crying but he would not speak with the police officer. The police found no visible marks on Liam. When interviewed by the police, Mother denied hitting Liam and said that Father B. and PGM were " making things up." (Mother’s Exhibit 8, p.15 of 581.)
More recently, DCF received a referral from the East Hartford Police on October 23, 2016, that Father B. and Tiffany B. reported that Liam and Riley had disclosed that Mother and Father R. were abusing them physically. On October 28, 2016, Liam and Riley were medically examined at SCAN. Liam reported that he had been " choked" by Father R. and hit in the head by Mother. Riley was observed as having " wet" her pants and complained that her genital area was " sore." Dr. Moles determined that the minor injuries observed could have occurred accidentally. However, since Liam made his disclosure to her as well as Father B. and DCF, his safety in the home was considered by Dr. Moles to be " unclear." Additionally, Dr. Moles considered reports of Liam’s aggressive behavior in school as possibly indicative of exposure to trauma in the home. (Exhibit H-1.) Dr. Moles referred Liam for a forensic interview at the Children’s Advocacy Center (" CAC" ).
A diagnostic interview of Liam at CAC was conducted by Lisa Murphy-Cipolla on November 8, 2016 a summary of which was submitted. (Exhibit F.) The interview was recorded. (Mother’s 5A.) Liam repeated his assertion of physical and emotional abuse at the hands of Mother and Father R. On February 8, 2017, Tiffany B. reported that while giving Riley a shower, Riley said that her vagina was hurting her and that Father R. and Mother " touch" her there. On February 16, 2017, Riley attended an interview at CAC where she disclosed sexual abuse by Father R. and Mother to Linda Murphy-Cipolla, LMFT, the clinical services coordinator at CAC. Having received multiple reports of allegations of physical abuse and unexplained injuries suffered by Liam and/or Riley, DCF filed neglect petitions in the interests of Liam, Riley and Maximus on March 1, 2017.
As a result of Riley’s disclosure of sexual abuse, the respondents and their counsel agreed to a voluntary safety plan whereby Liam and Riley would remain in the care of Father B. and Mother and Father R. would have no contact with Liam or Riley until recommended by the children’s therapist. Maximus would be cared for by his paternal grandmother, Deborah R. who would supervise unlimited visitation by Mother and Father R.
On August 11, 2017, Mother’s attorney sent an e-mail to DCF that Mother was no longer in agreement with the safety plan and that Mother would be picking up Liam and Riley after she completed her work day. When DCF supervisor Nardelli called Mother’s attorney to discuss the apparent change in Mother’s position and explained that as a consequence of her client’s intentions Liam and. Riley may be placed in foster care, Nardelli was told by Mother’s attorney there was " nothing to discuss." When social worker Benson called Mother to determine her intentions, Mother told Benson to " talk to her attorney" and hung up. At 5:55 p.m. on August 11, 2017, DCF program manager Cynthia Bowman issued a 96-hour-hold on behalf of Liam and Riley. DCF social worker Benson went to Father B.’s home to explain the situation to Liam and Riley. When Benson explained that Father B. and Tiffany B. would have to leave the home until it could be assessed by DCF, Riley became very pale, began shaking and wet her pants. Riley said " Nora is going to come and take me" and fell into a fetal position. Riley said she was " very scared" and stopped talking. Liam began sobbing and said he was scared that Mother and Father R. would come and take him. Despite Father B.’s attempts to assure Liam that he would be okay, Liam ran to his room and according to social worker Benson began banging on the walls, was grunting and crying inconsolably and hid under a blanket. (Exhibit B, p. 11.) DCF conducted an emergency assessment of the home and found it to be appropriate for placement. DCF social worker Benson explained to Liam and Riley that they would remain in the home with their paternal grandmother, Bonnie K. and that DCF would arrange a supervised visit with Father B. the following day and the children calmed down. Mother never actually went to Father’s home to pick up Liam and Riley.
On August 12, 2017, DCF supervised a visit between Father B., Tiffany B., Liam and Riley in Father B.’s home. Also in attendance was the court-appointed attorney for the minor children. Social worker Benson reported that Liam and Riley greeted Father B. and Tiffany B. by running to them, kissing and hugging them. When the children were told that the end of the visit that Father B. and Tiffany B. needed to leave the home, Liam ran to the backyard. Riley wet her pants, Liam returned, hid behind the curtains and cried. Both children stopped talking and paternal grandmother reported that on that night, Liam and Riley asked to sleep in her bed.
On August 15, 2017 DCF applied for and was granted an ex parte order of temporary custody and temporary custody was vested in Father B. where Liam and Riley had resided since February 2017.
CAC Interview
As noted, the videotaped forensic interviews of Liam (Exhibit 5A), and Riley (Exhibit 5B) at the Children’s Advocacy Center were submitted by Mother as full exhibits. Both interviews were conducted by Linda Murphy-Cipolla, LMFT, the clinical services coordinator at CAC. Murphy-Cipolla testified that she has conducted forensic interviews referred by DCF, police authorities and hospitals for nineteen years and estimated that she has conducted approximately one hundred interviews each year. Murphy-Cipolla explained that she utilizes the RATAC method of interviewing children who are suspected to have been sexually abused. Murphy-Cipolla testified that she conducted a videotaped diagnostic interview of Riley on February 16, 2017 which was observed through a two-way mirror by DCF social worker, Teresa Benson and family advocate, Heidi Rivera. (Exhibit 5B-DVD.) Riley, who was four years old at the time of the interview, told Murphy-Cipolla that Father R. and Mother touched her genital area with their hands underneath her clothes. When asked how many times it happened, Riley held up three fingers. Riley also reported that she told them " Don’t touch, but they ‘keeped’ (sic), on touching it." During the interview, Riley reported no physical abuse.
Mother and Father R. offered testimony from their respective expert witnesses Bruce Freedman, Ph.D. and Eric Frazier, Ph.D., both of whom testified that they reviewed the video tape of the interview of Riley conducted by the Children’s Advocacy Center.
Dr. Freedman testified that in preparation for his opinion, he reviewed a number of documents provided by Mother’s counsel, including police reports, transcripts from family court proceedings, DCF narratives and affidavits and the Children’s Advocacy Center DVD. He also spoke with a counselor at Noah Webster School, Barbara Burke and Mother’s individual therapist. Dr. Freedman interviewed Mother, who he described as " sweet" and Father R. who he characterized as a " star athlete."
Dr. Freedman described the CAC interview of Riley as " not bad, in fact pretty good" and later that the interview was " conducted better than I would have done." He described Lisa Murphy-Cipolla as a " good interviewer." Despite those compliments, Freedman expressed his opinion that using the terms " body safety" and other terms used by Murphy-Cipolla in an interview are not likely to be understood by a four-year-old child. He also noted that, during the interview, when asked, Riley stated that she liked to be " hugged and kissed" by Mother and Father R. and that she liked " everything" about Mother’s home. Dr. Freedman’s summary description of the CAC interview was that it was a " good starting point" for further investigation but, in his opinion, despite Riley’s disclosure, he considered the sexual abuse claim " highly questionable, although you can never prove a negative." On cross examination, Dr. Freedman acknowledged that he did not interview Riley and was not able to assess whether Riley understood the interviewer’s questions or if she was being truthful. Nor did he interview Liam or speak with Father B. Dr. Freedman acknowledged that the only persons he interviewed and the only documents he reviewed in formulating his opinions were provided by Mother’s counsel. Although Dr. Freedman reviewed the children’s therapist’s notes of her therapy sessions with the children, he did not speak with her personally. Dr. Freedman conceded that not having conducted those interviews might have created a " deficit" or limitation on his opinions.
Dr. Frazier was retained by Father R.’s attorney to conduct an independent psychological evaluation of Father R. (Exhibit 7.) Dr. Frazier testified that he also reviewed the CAC video of Riley’s forensic interview and was critical of the use of the RATAC method employed by Murphy-Cipolla in the interview. In Dr. Frazier’s opinion, the RATAC method has not been sufficiently subjected to peer review. Dr. Frazier considered an alternate method known as the NICHD protocol to be the " gold standard" for forensic interviews involving sexual abuse allegations which he believed should have been employed. When questioned about Dr. Freedman’s testimony and description of the RATAC protocol as the " standard" method used throughout the country and how he believed that Murphy-Cipolla did a better job than he would have done, Frazier maintained that he " would not say the same" for himself. Dr. Frazier considered the interview as containing only minimal data that was contextual to the alleged abuse and involved repeat questions and vague responses from Riley such as " don’t know" and " maybe."
Dr. Frazier also testified that, based on the psychological tests he administered to Father R., his review of the records provided to him by Father R.’s attorney listed on page 2 of Exhibit 7 and his collateral interview with Father R.’s therapist, Tracie Preli-Derwin, in Dr. Frazier’s opinion, it was not likely that Father R. sexually abused Riley.
Like Dr. Freedman, Dr. Frazier did not interview Liam or Riley or the children’s therapist, Kathleen Legare. He acknowledged that it would have been " better if he did." Although he reviewed Legare’s notes dated April 5, 2017 (Exhibit C) and August 15, 2017 (Exhibit 1-2) he did not review Legare’s May 28, 2017 notes consisting of 18 pages. (Exhibit I-1.)
On cross examination, Dr. Frazier acknowledged that he has never personally conducted an initial forensic interview of a child alleging child abuse. Dr. Frazier’s written evaluation included that Father R. reported that he never hit Liam or Riley. With regard to spanking, Father R. said he never spanked the children however, Mother did, but rarely. (Father R Exhibit 7, p.7). Father R.’s report to Dr. Frazier is at variance with his testimony at trial. In his testimony, Father R. said he and Mother employed several means of discipline including time outs and spanking (more by Mother), but they reduced their reliance on spanking finding it to be ineffective.
Testimony of the Children’s Therapist
DCF offered testimony from Liam and Riley’s therapist, Kathleen Legare, LCSW with The Family Affirmation Center for Treatment. Legare was qualified as an expert witness in childhood trauma. DCF referred the children to The Family Affirmation Center for Treatment in April 2017. Legare testified that when Liam was referred, he used aggressive words and engaged in aggressive behaviors towards staff and others. He frequently experienced meltdowns, was unable to stay in class and was extremely anxious that his mother was going to take him from the school. (Exhibit C, p. 1.) Liam reported to Legare that Mother and Father R. were " always mad at him." He reported that he was always being " punched and choked." Legare testified that Liam has been consistent in his claims since she began therapy sessions with him in April 2017.
Legare testified that Riley has experienced trauma. (Exhibit C.) Riley reported having seen Liam being hit. She described seeing Liam hiding in the closet and hiding Maximus in the closet to protect him. Riley disclosed being touched in her " no no" area by Father R. and Mother and pointed to the vaginal area on a doll. Although she reported the touching, Legare testified that Riley talked mostly about fear and being " scared" of Mother and Father R. In her sand box play therapy, Mother and Father R. were depicted by Riley as characters who needed to be surrounded by a protective fence and by police officers or vicious animals such as alligators or rats. In one scenario, Riley asked Legare to play the part of Mother and required her to just say " Riley is a liar" repeatedly and then she had Mother arrested by a police officer. When Legare asked Riley how she would feel about seeing Mother, Riley " stiffened" she became pale and wet her pants. Legare testified that Riley’s behavior and demeanor was normal up until the point when she was asked about seeing Mother.
Legare testified that when she was told on August 11, 2017 that Mother was planning to pick up Liam and Riley, Legare went to Father B.’s home. As the children’s therapist, she said she knew that Liam and Riley would be upset and she wanted to comfort them. Legare testified that when Liam and Riley were told that Father B. and Tiffany B. needed to leave the Father B’s home, Riley wet her pants and " shut down." Liam got teary-eyed, ran to Father B. and hugged him. After Father B. comforted him, Liam ran to his room and began punching the walls.
Legare reported that the situation created on August 11, 2017 re-traumatized Liam and Riley. As of August 15, 2017, Liam was withdrawn, refusing to eat and crying frequently. In Legare’s opinion, Liam was developing depressive symptoms. Riley became hypervigilant, continues to remain fearful and has since become overly apologetic as if all things were her fault. Up until August 11, 2017 when he was told by DCF in Legare’s presence that Father B. and Tiffany B. had to leave the home, Liam had not suffered any meltdowns for several weeks. His ability to sleep and behavior improved and he played with other children appropriately. Legare testified that, up until that point, Liam had become more emotionally regulated.
Legare reported that " Both Liam and Riley have multiple trauma symptoms. Without prompting, both children have talked about their fear of their mother, Scott and living in their mother’s home." (Exhibit 1-2, p. 16.)
Father R. admits he has spanked Liam but " only once." He testified that he and Mother believe in spanking but after some period of time, they considered it to be ineffective and abandoned it as a means of discipline. On cross examination, he acknowledged that Mother had spanked the children " a few times."
Mother’s counsel offered testimony from Atty. Katherine Bissonette, the guardian ad litem for Liam and Riley in the ongoing family court proceedings. Bissonette testified that Liam told her on January 9, 2017 that his reports of abuse by Mother and Father R. were false. However, the social worker at Noah Webster School, Linda Henriques testified that Liam came to see her on January 19, 2017 and was very angry at Mother because she promised him Legos if he would tell Bissonette that he lied about being abused but Mother " broke her promise."
In the summary section of the May 28, 2017 clinical update of Liam and Riley, Liam and Riley’s therapist astutely described the tragic nature of the present case. " At best, this is a complicated case. It has been difficult to weed out what are important facts, what the facts are and what is affecting the children." (Exhibit 1-2, p. 15.) The court has reviewed four days of testimony from numerous witnesses and voluminous exhibits including DVDs and has done its best to resolve the foregoing difficulties.
Legal Standard
Practice Book § 33a-7(e) provides in relevant part: " At a consolidated order of temporary custody and neglect adjudication hearing, the judicial authority shall determine the outcome of the order of temporary custody based upon whether or not continued removal is necessary to ensure the child’s or youth’s safety, irrespective of its findings on whether there is sufficient evidence to support an adjudication of neglect or uncared for." " 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 ... 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.) In re Rafael S., 125 Conn.App. 605, 611-12 (2010). Circumstantial evidence has the same weight as direct evidence. In re Cheyenne A., 59 Conn.App. 151, 158, cert. denied, 254 Conn. 940 (2000).
The Orders of Temporary Custody
DCF has asked the court to sustain the OTC pursuant to Connecticut General Statutes § 46b-129(b). Connecticut law is clear that in the context of a hearing for an order of temporary custody pursuant to Connecticut General Statutes § 46b-129(b), a finding of immediate physical danger is prerequisite to the court’s entry of a temporary order vesting custody of a child in one other than the child’s parents. For a court to sustain an OTC, 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 and that continued removal is necessary to ensure (the child’s) safety. Such a finding may be made on the basis of predictive circumstances if, for example, the child is currently safe but would be exposed to such risks if released to the parent. In re Chronesca D., 126 Conn.App. 493 (2011). " The doctrine of predictive neglect is grounded in the State’s responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred." In re T.K, 105 Conn.App. 502, 505-06, cert. denied, 286 Conn. 914 (2008). Trial courts have consistently and logically reasoned that the principle of predictive neglect can readily be applied to orders of temporary custody as the order of temporary custody proceeding is a corollary of the neglect proceeding itself. Further, it is neither consistent with statutory law, nor is it reasonable to prevent a judge from protecting a child if harm is reasonably predictable. Although DCF still bears the burden of proof, the inability of a court to consider predictive injury or neglect as a basis for sustaining an order of temporary custody creates an imbalance between family integrity and the safety and well-being of children.
OTC Rulings
On the basis of the credible testimony and evidence presented, the Court finds that the Commissioner of DCF has proved, by a fair preponderance of the evidence that, as of August 15, 2017, the date of the entry of the ex parte Orders of Temporary Custody, it was more likely, or more probable than not, that if Liam and Riley remained or were returned to the care and custody of Mother, they would be subject to continued exposure to immediate physical danger and as a result of those conditions, immediate removal was necessary, and continues to be necessary to ensure their safety. Accordingly, the Orders of Temporary Custody are sustained.
The Neglect Petitions
The court incorporates by reference here all of the factual findings that previously made in this memorandum of decision. As noted, DCF alleges in each petition that Liam, Riley and Maximus have been denied proper care and attention, physically, educationally, emotionally or morally and/or, are being permitted to live under conditions, circumstances or associations injurious to their well-being. The court notes that " an adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding of fault is different from finding who is responsible for the child’s condition of neglect. The adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the [child is] neglected." In re T.K., supra . The attorney for the minor children supports a finding of neglect as to Liam, Riley and Maximus.
Liam and Riley
On the basis of the court’s factual findings set forth above, the court finds by a fair preponderance of the evidence that, as of the date of the neglect petition, Liam and Riley were neglected in that they were being denied proper care and attention physically and were being permitted to live under conditions injurious to their well-being. Accordingly, the court finds by a fair preponderance of the evidence that DCF has proven neglect as alleged and therefore, adjudications of neglect are entered in the interests of Liam and Riley.
Maximus
Counsel for Father R. maintained in closing argument that Maximus is not similarly situated with Liam and Riley because he is of a " different age" and " is not the subject of an incredibly contentious family court case." Liam and Riley reported that when Mother and Father R. fight, they would hide in the closet in their bedroom and take Maximus with them to protect him. Maximus is a little more than 2 1/2 years old and too young to protect himself or to report to others if he encounters risk of physical harm or danger from his surroundings. Under the doctrine of predictive harm, the State is authorized to act before injury occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected. In re Etta H., 146 Conn.App 751, 764 (2013). Although the court received no direct or actual evidence of any physical injury suffered by Maximus, the court finds, under the circumstances of this case, that Maximus is similarly situated with Liam and Riley and further finds by a fair preponderance of the evidence that DCF has proved the grounds alleged in the neglect petition and on the basis of predictive neglect, the court adjudicates Maximus to be a neglected child.
Disposition
" It is axiomatic that, once a child has been adjudicated neglected, the dispositional decision must be based on the best interest of the child and that the interest of the child and the parent may diverge." (Citation omitted.) In re Natalie S., 325 Conn. 833, 847 (2017).
Pursuant to C.G.S. § 46b-129(d), the court has three possible options from which to choose regarding custody of a child found to be neglected: (1) commit the child to DCF; (2) vest guardianship of the child in a third party until the child reaches the age of eighteen and; (3) permit the natural parent or guardian to retain custody or guardianship of the child with or without protective supervision. " The trial court is vested with broad discretion in determining what is in the child’s best interests." Schult v. Schult, 241 Conn. 767, 777-78 (1997). The court may weigh a number of interests to determine which disposition is in the best interest of the child. In re Kamari C-L, 122 Conn.App. 815, n.14 (2010). 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 (2004); In re Brianna C., 98 Conn.App. 797, 804 (2006). The primary concern is the safety of the child. In re Shane P., 58 Conn.App. 244, 54 (2000). In evaluating which of the various custodial alternatives is in the best interest of the child, " [t]he judicial authority may admit into evidence any testimony relevant and material to the issue of disposition, including events occurring through the close of the evidentiary hearing ..." Practice Book 35a-9. General Statutes § 17a-101(a) provides: The public policy of this state is to protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing parental capacity for good child care; and to provide a temporary or permanent nurturing and safe environment.
In determining whether a custodial placement is in the best interest of the child, the court may also consider the relative parenting abilities of the parties.
Father B.
Father B. reports that he made many poor choices as a teenager. In 1999, at age 17, he was arrested, subsequently convicted for sexual assault in the first degree, was incarcerated for four years and is listed on the sex offender registry. Following a fall from a ladder on June 9, 2016, Father B. injured his arm. Whether intentionally, or unsuspectedly as he claims, Father B. self-administered heroin which interacted with Xanex and fell unconscious. Father B. was placed in a medically induced coma for several weeks and suffered compartment syndrome which resulted in the amputation of his right arm. Father B. participated in a substance abuse program at Community Health Resources (" CHR" ). Father B. successfully completed treatment at CHR including submission to a hair test which returned negative of illegal substances and was discharged from the program with no recommendations for any further treatment. Father B. continues to participate in weekly individual counseling with his therapist, John Chapdelaine, LADC at St. Francis Behavioral Health. The court heard testimony from Chapedelaine who was qualified as an expert in clinical psychotherapy with twenty-five years experience. Chapedelaine reported to DCF that Father B. has surpassed his goals in treatment and has " very good insight into his past." (Exhibit B., p. 5.) Chapedelaine described Father B. as having no safety issues and committed to caring for his children.
Mother
Mother reports that she was raised primarily by her mother, her parents having divorced as a result of her father’s alcoholism when she was four years old. Mother reports that she was sexually assaulted at age fourteen. Mother has been treating with her therapist, Dr. Stephen Lee, since before the petition was filed.
Mother has no criminal record. She participated in a substance abuse evaluation at Wheeler Clinic. The urine screen taken was negative and there was no recommendation for any substance abuse treatment.
Mother has not seen Liam or Riley since the safety plan was agreed to in February 2017. Mother testified that she receives reports from Liam and Riley’s teachers and from school staff. Mother testified that Liam is doing very well academically, has been making friends and his in-school behavior is reported to have improved since February 2017. According to information received by Mother, Riley is doing " okay" academically but is having behavioral issues, such as hitting her teacher and other students, throwing things around the room and wetting her pants frequently.
Legare noted that, in her sessions with Mother, Mother’s focus was often not on the children but on her ex-husband Father B. and what she believed to be his shortcomings. " Her insight is almost nonexistent in terms of understanding her children’s needs. For several weeks, I was unable to get her to focus on the children’s needs, their presentation or how they felt. She had a clear agenda of explaining that Mike was a drug addict, he was never safe, his criminal history, etc." (Exhibit C, p. 8.) " Father, on the other hand, comes in with many tattoos and a past that is more than a little disturbing. However, every time he enters the Center, he talks about his children’s feelings, their functioning, his concerns for their feelings and functioning. He has always presented as calm, focused, caring and concerned. He has not spent any time giving a history of his ex-wife." (Exhibit 1-2, p. 16.) Father B. and Tiffany B. have attended all appointments for the children with Legare.
Father R.
Father R. testified that he injured his back playing professional baseball and has undergone four surgeries on his back and shoulder and suffers from chronic pain. He was prescribed Pcreocet and Fentanyl patches for pain. He developed a dependency on pain medications and was treated at a pain clinic in West Hartford. Father R. attended a 42-day in-patient drug rehabilitation program in Florida during February and March of 2017 and attends an ongoing 12-step follow-up program in the community six evenings per week. The laboratory results of Father R.’s hair test conducted on September 14, 2017 were negative for the five major drug classes. (Father R.’s Exhibit 1.) Father R. attends weekly individual therapy sessions with Tracie Preli-Derwin, LCSW at Steltaro Psychological Services which began in April 2017. Preli-Derwin testified that Father R.’s treatment goals are stress reduction and to maintain sobriety. She acknowledged that her firm does not perform drug testing. Preli-Derwin reported that Father R. was making progress and she recommended that he continue with weekly therapy sessions. Father R. participated in services at Wheeler Clinic prior to referral by DCF but declined to participate in a domestic violence program because he denied there was any basis for it. Father R. declined to participate in parenting classes because he said his attorney and DCF couldn’t agree on release language.
Legare testified that she has met with Mother and although she advised Mother to inform Father R. that he was invited to attend any sessions that Mother attended, Father R. has not attended.
Liam and Riley
The attorney for the minor children reports that she has visited and conferred with Liam and Riley and they have consistently expressed their claims of abuse, their fears of Mother and Father R. and their unwavering wish to remain permanently in the custody of Father B.
Neither Liam nor Riley refer to Mother as " mother." Liam refused to say " mother" because he maintained that a " real" mother would not hurt her children. Riley has reported to DCF that she does not want to live with Mother and Father R. Riley refers to Mother as a " fucking a-hole" and " lying bitch." When asked by DCF social worker Benson where she learned that language, Riley replied that she heard it being said when she resided with Mother. (Exhibit B, p. 8.)
Intensive Family Preservation (" IFP" ) has provided in-home services to Liam and Riley in Father B.’s home. Alicea Price, IFP clinician has reported to DCF that she has no concerns about the care of Liam and Riley in Father B.’s home and that Father B. and Tiffany B. have done a " nice job of co-parenting." (Exhibit B, p. 4.)
Based on her observations of them in her office, Legare described the relationship between Liam and Riley and Father B. as affectionate and loving. Although she observed frequent joking behavior, Legare reported that Father B. and Tiffany B. are able to control the children by appropriate means when there is a need to be serious. Legare noted that Father B. has corrected the use of any foul language by saying " we don’t use that kind of language" and Legare has noticed that Liam has recently been correcting himself when he slips.
Legare testified that in order for her to recommend re-unification sessions for Mother with Liam and Riley, Mother would not need to admit to anything but would need to acknowledge the children’s feelings and fears of not being safe in Mother’s home.
Legare testified that it can be more damaging for a child not to be believed than the damage caused by the traumatic act or event itself. Legare further opined that the children would require extensive clinical sessions to address their trauma before such sessions should begin.
Based upon the fair preponderance of the credible testimony and documentary evidence presented, the court finds that Liam and Riley cannot be reunified with Mother at the present time.
Based on the totality of the evidence and having applied the legal standard of the best interests of the children, including the position of the attorney for the minor children, the court finds that it is in the best interests of Liam and Riley that sole custody and guardianship of Liam and Riley be vested in their father, Michael B. DCF is ordered to provide six months of protective supervision of Liam and Riley.
Maximus
The attorney for the minor children argues that Maximus should be committed to DCF. " [O]ur statutory scheme offers alternatives to commitment of the child to the care and custody of the department. Specifically, § 46b-129(j)(2) provides in relevant part that ‘[u]pon finding and adjudging that any child or youth is uncared for, neglected or abused the court may ... (B) vest such child’s or youth’s legal guardianship ... with any other person or persons found to be suitable and worthy of such responsibility by the court, including, but not limited to, any relative of such child or youth by blood or marriage ...’ [I]t is important to note that in § 46b-129(j)(2)(D), the legislature clearly provided that the court can order continued involvement by the department in some situations. Specifically, § 46b-129(j)(2) provides " [u]pon finding and adjudging that any child or youth is uncared for, neglected or abused the court may ... (D) place the child or youth in the custody of the parent or guardian with protective supervision by the Commissioner of Children and Families subject to conditions established by the court." In re Natalie S., 325 Conn. 833, 844-46 (2017).
Maximus has resided with, and been cared for, by his paternal grandmother Deborah R. since February 2017 under a family arrangement. Mother and Father R. have visited with Maximus on a regular, almost daily basis. DCF has requested that the court vest sole guardianship of Maximus in his paternal grandmother Deborah R. and that the court find her to be a suitable and worthy guardian. DCF reports that Maximus is well cared for in paternal grandmother’s home. (Exhibit B, p. 4.) Other than DCF’s declarative statement, there is insufficient evidence in the record concerning the suitability and worthiness of the proposed legal guardian, Deborah R. or the eligibility of her home to be licensed by DCF. With due consideration for his well-being, consistency and stability, the court finds that, until reunification, it would likely be in the best interest of Maximus that his legal guardianship be vested in his paternal grandmother Deborah R. if the court were provided with satisfactory evidence of her suitability and worthiness.
Absent the availability of that evidence at this time, the court finds it to be in the best interest of Maximus that he be committed to the Commissioner of DCF. The court STAYS the commitment for a period of sixty days for the parties to offer evidence concerning a transfer of guardianship to paternal grandmother. The clerk shall schedule an in-court review for evidence concerning such transfer of guardianship within thirty (30) days.
DCF is ordered to file proposed specific steps with the court for all parties within seven days and any objections are to be filed within fourteen days. Any disagreement concerning any aspect of the specific steps shall be heard at the above referenced in-court review concerning the proposed transfer of guardianship.
The court finds that continuation in the home is contrary to the welfare of Maximus and that reasonable efforts to prevent or eliminate the need for removal were made by DCF.
Liam and Riley have not seen Maximus since February 2017. The attorney for the minor children reports that Liam and Riley are concerned about Maximus and would like to have visits with Maximus. DCF, Father B. and the legal guardian of Maximus are to facilitate and ensure that Liam, Riley and Maximus have the mutual benefit of sibling visitation on terms and conditions consistent with the provisions of this memorandum of decision.
All existing Family Court orders related to custody, guardianship and visitation are hereby modified to the extent that any such orders may be inconsistent with the provisions or orders set forth in this memorandum of decision.