Opinion
Nos. CP08-008435-A, CP08-008436-A, CP08-008437-A
March 31, 2008
MEMORANDUM OF DECISION
In accordance with the Connecticut General Statutes § 46b-124 and Practice Book § 32a-7, the names of the parties involved in this case are not to be disclosed and the records and papers of this case shall be open for inspection only to persons having a proper interest therein and only upon order of the Superior Court.
On March 7, 2008, the Department of Children and Families (DCF) invoked a ninety-six-hour hold of the children, Nicholas T., Tristan V. and Cheyenne V., pursuant to General Statutes § 17a-101g. On March 11, 2008, DCF filed an ex parte application for orders of temporary custody with respect to said children. On March 11, 2008, the court, Goldstein, J., granted the ex parte orders of temporary custody with respect to said minor children, which placed the temporary care and custody of Nicholas with his father, Dustin C., and the temporary care and custody of Tristan and Cheyenne with DCF. In issuing the orders of temporary custody, the court found that the children were in immediate danger from their surroundings, and, as a result of said conditions, the children's safety was endangered and immediate removal from such surroundings was necessary to ensure their safety. The court also found that continuation in the home was contrary to the welfare of said children and that reasonable efforts to prevent or eliminate the need for the removal of said children were not possible.
At the preliminary hearing on March 18, 2008, the parents did not consent to the sustaining of the orders of temporary custody. A hearing date of March 24, 2008, was selected for the motions for orders of temporary custody.
The contested temporary custody hearing took place on March 24, 2008, in accordance with General Statutes § 46b-129. DCF was represented by an assistant attorney general. The minor children were represented by an attorney who also served as the guardian ad litem for the children. The mother was present during the hearing and was represented by an attorney. The father of Nicolas was present during the hearing and was represented by an attorney. The father of Tristan and Cheyenne was present during the hearing and was represented by an attorney.
The petitioner introduced three exhibits during the hearing, including a sworn statement from Dr. Nina Livingston of the Connecticut Children's Medical Center (CCMC), the resume of Dr. Livingston and a medical diagram of the scalp, skull, meninges and cerebrum. The mother did not introduce any exhibits. The father of Nicolas did not introduce any exhibits. The father of Tristan and Cheyenne did not introduce any exhibits. The attorney for the minor child did not introduce any exhibits.
The petitioner called two witnesses to testify in this trial: Dr. Livingston, who was qualified and who testified as an expert in the area of pediatrics and child abuse, and a DCF social worker. The mother did not testify in the hearing nor call any witnesses. The father of Nicolas did not testify in the hearing nor call any witnesses. The father of Tristan and Cheyenne did not testify in the hearing nor call any witnesses. The attorney for the minor child did not call any witnesses to testify in the hearing. The court did not apply any adverse inference as the result of a parties choosing not to testify.
The court, having conducted the hearing in this case, having heard the testimony of the witnesses, having examined the exhibits and having reviewed the evidence, hereby finds by a fair preponderance of the evidence that the orders of temporary custody should be sustained.
In In re Kaurice B., 83 Conn.App. 519, 522-23, 850 A.2d 223 (2004) the Appellate Court explained DCF's burden of proof in a contested OTC hearing: "The party seeking a change in custody, in this case, the [petitioner], must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in § 46b-129(b). In In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983)."
In Cross v. Huttenlocher, 185 Conn. 390, 394-94, 440 A.2d 952 (1981), the Supreme Court defined fair preponderance of the evidence standard 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 has been satisfied with respect to a fact if all the evidence considered fairly and impartially evinces a reasonable belief that it is more probable than not that the fact is true."
Nicholas T. was born on July 30, 2003, and is four years old. Tristan and Cheyenne were born on August 21, 2007, and are seven months old. The mother of all three children is Nicole V. The father of Nicholas is Dustin C. The father of Tristan and Cheyenne is Luis V.
On March 6, 2008, a social worker from the Charlotte Hungerford Hospital contacted DCF to report that the mother and father of Tristan had brought Tristan to that hospital because the child had been vomiting over an eight-day period and had been displaying other symptoms such as listlessness, lethargy, urinating less then usual and having not passed stool normally. The child was six months old at that time. The child was admitted to the hospital. Initially, the hospital believed that the child was suffering a stomach flu or gastroenteritis. The hospital physician noticed that Tristan had a downward gaze and that his soft spot on the top of his head was firm and bulging. Accordingly, a CT scan of the child's head was done at Charlotte Hungerford Hospital which revealed chronic subdural hematomas with an area that appeared to be a collection of fresher blood. The child had intracraneal blood around his brain. The child was then transferred to the intensive care unit of CCMC in Hartford, Connecticut. CCMC performed an MRI on Tristan which confirmed the presence of a substantial collection of blood between the brain and the skull with some older blood and some fresher blood. The bleeding was not inside the brain but was bleeding around the brain between the brain and the skull. The exact age of the bleeding was unknown, but the older collection of blood appeared to be at least ten days old and could have been months old. The fresher blood accumulation occurred after the older collection of blood; however, the exact time was unknown. The child developed a palsy of his sixth cranial nerve on March 10, 2008. In addition, he was not eating well and continued to be very irritable. Accordingly, a neurosurgeon tapped the blood accumulation and placed a temporary drain in his head. A medical decision was made to place a shunt from his intracranial spaces to his abdomen. On March 14, 2008, while in the operating room to receive the shunt, Tristan went into cardiac arrest when his heart stopped. He was resuscitated in the operating room and returned to the intensive care unit. The child recovered and ultimately received the shunt on March 19, 2008, without any adverse complications. Fortunately, Tristan now appears to be doing well.
Dr. Nina Livingston testified as an expert in the area of pediatrics and child abuse. She evaluated Tristan for his subdural hematoma at CCMC following his transfer from Charlotte Hungerford Hospital. In her affidavit entered as petitioner's exhibit #1, she detailed the multiple sources she obtained her information from, including, her review of the medical records of the child, consultations with other doctors and interviews with the mother, Nicole V. and the father, Louis V. Her affidavit submitted into evidence and her testimony revealed that the child had both fresh and older blood collections which were consistent with chronic subdural hematomas. As to the older collection of blood, the doctor testified that she was not able to determine the age of the subdural hematoma but that it was at least ten days old and could be several months old. As to the fresher blood, it was possible that the older subdural hematomas re-bled; that it could have occurred spontaneously; or that it could have occurred from trauma. Dr. Livingston could not state that the injury to Tristan was caused by trauma. However, her affidavit states: "The most common cause of this finding is significant head trauma." Her testimony at the hearing revealed that "the most common cause of kids who have old and new subdural blood is trauma." In regard to trauma, she further explained: "This is not minor trauma, like bouncing a child on your knee or even, you know, bumping the child's head against the edge of the car when you're putting the baby in the car seat. We think that it takes, that it really takes a significant head trauma to cause tearing of the veins and bleeding from a traumatic source. So that is the most common cause. She testified that a significant event was necessary to create the first bleeding in the child. She described a significant event as being "a significant trauma to the head . . . inflicted head . . . shaking with or without impact a motor vehicle accident, a long fall or in very rare cases, a short fall, but an unusual short fall."
Because there was no history of trauma, the doctor testified that she sought other possible explanations for the bleeding around the brain. The other less likely possibilities that might have caused this condition include a bleeding disorder, an infection, a cancer like leukemia and some cancers of the brain, an underlying malformation of the brain, rare diseases and the possibility of something happening around the time of birth, a perinatal event. From the testing and available information, she was able to rule out a bleeding disorder, infection, cancer including leukemia and brain cancer and malformation of the brain. She also tested Tristan for a couple of rare diseases in order to rule those out. She further testified that while it is "always possible for someone to have a rare disease that has not yet been detected . . . we have tested for everything that seems remotely reasonable in terms of an explanation for his condition." However, one test result is still pending for a rare disorder called glutaric aciduria type 1, but Dr. Livingston does not think Tristan has that disease as he does not have other features of the disease and because Tristan's previous newborn screen included testing for the disease which showed a normal test result.
As there was no report of trauma and the other possibilities that may have caused this condition have been ruled out, as previously explained, by her testing and review of the records, the only other cause Dr. Livingston could think of was the possibility that the child could have had a perinatal event when infants can have bleeding inside the brain at the time of birth, whether such event occurred during labor, when the infant was stressed out during labor or in the birth process itself.
Dr. Livingston stated that some research has indicated that some newborns can be asymptomatic but still have small bleeds around the time of birth. However, in a follow up study of those infants one month after identifying such small bleeds, all of the small bleeds were gone. Dr. Livingston does not believe that the research is complete and that this results in some uncertainty due to the small number of children that were subsequently followed in such research studies. While Dr. Livingston acknowledged that it was possible that a small bleed of an asymptomatic newborn could evolve into big symptomatic collections, she thinks that "it's rare, because if it were more common we would see many more babies like Tristan presenting later in infancy with these unexplained big collections and that is a very unusual presentation. So if it does happen it's rare. And that's why we feel, that I feel confident saying well it's more likely that this was some trauma event that happened after birth. Because if you look at probabilistically, that's much more likely given what we known." She cannot exclude the possibility that Tristan had a small asymptomatic perinatal bleed that then evolved, testifying that it is "theoretically possible." Dr. Livingston then testified that "it is possible to get subdural bleeding from accidental injuries, but these are usually big trauma events, like motor vehicle accidents, extremely long falls or in very, very rare cases, shorter falls that are unusual and have a lot of rotational acceleration associated with them. So, I'm taking about either inflicted injuries or very significant trauma events about which you would expect any caretaker to be well aware." When questioned whether Tristan has shaken baby syndrome, Dr. Livingston testified that she did not know.
Tristan was born in a twin pregnancy and was premature at birth. As such, he was followed closely by the doctors after his birth and had an ultrasound of his brain and organs when he was nine days old. The ultrasound was determined to be normal, with no bleeding found inside the brain or in the fluid near the brain. A review of his medical records from his birth also revealed nothing unusual such as trauma in his early birthing days.
While no evidence of any other injuries to the child has been detected, Dr. Livingston testified that if the injury was inflicted several months ago, other injuries would not necessarily be visible as they may have just healed with the child just being left with the chronic subdural collection.
The bleeding between the brain and the skull is a serious condition. Dr. Livingston testified that the child could "suffer seizures . . . more palsies of his cranial nerves or abnormalities of the nerves that lead to his face. He could lose consciousness . . . look distinctly more abnormal." As to Tristan's prognosis, Dr. Livingston is unable to give a specific prognosis but is "quite hopeful that he will have a full recovery, that he will outgrow his shunt, that they will be be able to be removed, and that he will go on and have a normal life."
The DCF social worker testified that the children have been in the primary care of the parents, Nicole V. and Luis V., during the relevant periods with the following exceptions. The children were in a licensed day care on February 14 and 15, 2008, and prior to that had not been in day care for approximately a month. In addition, the children were under the care of the paternal grandmother on two occasions with the maternal aunt reporting watching the children a few times for a very brief period of time. The father of Nicholas T. exercised visitation with Nicholas. The DCF social worker testified that her investigation of the day care provider, the paternal grandmother and the maternal aunt revealed no indications if any unusual events reported by them in taking care of the children. As to the daily care of the children, typically, the children would be alone with the father, Luis V. while the mother, Nicole V., was at work or be alone with the mother while the father was at work. The parents, Luis V. and Nicole V., have no previous child protection history, no criminal history, nor any known substance abuse or domestic violence history. They have been cooperating with DCF and the doctors and have acted appropriately. Their home is appropriate and they have family support. They have denied to the social worker and the medical providers of having any knowledge of an event that caused trauma to Tristan that could explain his condition.
During closing argument, the attorney and guardian ad litem asked the court to vacate the orders of temporary custody on behalf of the three children.
It is undisputed that the child, Tristan, suffered from a serious medical condition. The bleeding between the brain and the skull can place the child in danger of serious adverse medical conditions. It is undisputed that the child displays evidence of both an old brain bleed and a new brain bleed with the exact timing of the bleeding being unknown. The exact cause of the bleeding, given the facts presented, is also unknown. The children have been in the primary care of both of the parents, Nicole V. and Luis V., and have received limited care by the grandmother and aunt with some limited day care involvement. Pursuant to the investigation by DCF, the parents, the grandmother, the aunt and the day care provider denied having knowledge of any event that could have caused trauma to the child or explain the injury.
The children, Tristan and Cheyenne, are now seven months old and the child, Nicholas, is four years old. They are entirely dependent on their care givers for their survival. Although Tristan is now only seven months old, he has sustained evidence of having bleeding between his brain and his skull on at least two separate occasions. His cardiac arrest on March 14, 2008, is unexplained, although Dr. Livingston does not think it is related to the blood accumulation. It is unknown as to whether the second bleed is a rebleeding of the first bleed or is another separate event. No explanation has been presented by the parents, or any other caretaker to explain the cause of the bleeding. The most likely cause of the bleeding, according to credible medical testimony, is a significant injury or trauma to the head which could include an inflicted injury. That cause has not been eliminated and no information has been presented to indicate that the child sustained any significant event that resulted in trauma to his head. The less likely factors that would explain his condition, such as a bleeding disorder, infection, cancer including leukemia and brain cancer, and an underlying malformation of the brain, and rare disease, have been substantially ruled out. As previously explained, one test result is still outstanding but the child had previously been tested at birth which a negative result; therefore, it is not anticipated that the results would be any different. The possibility of something happening at birth, a perinatal event, cannot be entirely ruled out although it is not a common occurrence and is rare. The child's ultrasound on the ninth day of his life was negative for any bleeding in or near the brain.
The court is unable to determine exactly how Tristan sustained the bleeding of the brain on two separate occasions. The most likely cause is significant trauma to the head and is of the type that would be noticeable to a caretaker of the child and not caused from the normal caring of a child. The other less likely potential causes have either been eliminated or are rare. The law provides that a child must be protected when found to be in immediate physical danger from surroundings and that continuation in the home is contrary to the welfare of the child or children. All three children are similarly situated in the care of their parents and all three children are totally dependent on their caretakers for their survival. This court, based upon the evidence presented, does believe that the state has sustained its burden of proof by a fair preponderance of the evidence.
Accordingly, based upon the evidence that was presented at the hearing of March 24, 2008, this court finds that the totality of the circumstances do warrant the sustaining the order of temporary custody in regard to the three subject children.
The court finds by a fair preponderance of the evidence that the petitioner has proven that the minor children were in immediate physical danger from their surroundings and that as a result of said conditions, the children's safety was endangered and immediate removal from such surroundings was necessary to insure their safety and that continuation in the home was contrary to the welfare of the children.
The court also notes that pursuant to General Statutes § 17a-111b, DCF has a statutory duty to make efforts to reunify the children with their parents. Given the parents' lack of a child protection history, and the lack of multiple risk factors, the court anticipates that DCF shall take timely reasonable efforts to reunify the parents with the children as soon as is reasonably possible. Additionally, pursuant to General Statutes § 17a-10a, DCF has a statutory duty to provide visitation to the parents. The court anticipates that such statutorily-mandated visitation will be granted to the parents.
It is hereby ordered that there is a continuing need for the temporary care and custody of the children Tristan and Cheyenne to be vested in the Department of Children and Families and that the temporary care and custody of the child Nicholas to be vested in his father, Dustin C. The court maintains the preliminary specific steps for the parents on March 11, 2008, also to include counseling on basic parenting skills including safety and supervision.
Accordingly, the orders of temporary custody are sustained and shall remain in effect until vacated or modified by the court.