Opinion
H12CP15015984A
03-04-2016
In re Ryan R.
UNPUBLISHED OPINION
Filed March 7, 2016
MEMORANDUM OF DECISION
Mary-Margaret D. Burgdorff, J.
In accordance with Connecticut General Statutes § 46b-124 and Practice Book § 32a-7 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.
This contested Order of Temporary Custody (" OTC") hearing was conducted pursuant to Practice Book § 33a-7(d) and Connecticut General Statute § § 46b-129(b) and (f). In reaching its determination in this matter, within the confines of the issues presented by Connecticut General Statutes § § 46b-129(b) and (f), the court has also taken into consideration the statutory presumption established by Connecticut General Statutes § 36b-56b and the best interests of the child at issue in this temporary custody hearing. Pursuant to Practice Book § 33a-7, the OTC and the adjudicatory and dispositional phase of the underlying neglect petition have been consolidated by agreement of the parties. The court shall determine the outcome of the OTC based upon whether or not the ex parte OTC should be sustained or vacated irrespective of its finding on whether there is sufficient evidence to support an adjudication of neglect or uncared for.
The court takes judicial notice of the chronology of the case as well as the court memoranda. Specifically, the court takes judicial notice of the neglect petition filed on April 28, 2015, on behalf of Ryan R. which alleges that he is being permitted to live under conditions, circumstances or associations injurious to his well-being due to concerns regarding mother's mental health and substance abuse issues. A motion to amend the neglect petition to incorporate facts and circumstances outlined in the social worker affidavit provided with OTC was granted by the court (Dannehy, J.) on February 26, 2016.
The ex parte OTC was filed on February 19, 2016. It alleges that Ryan is in immediate physical danger from his surroundings and that as a result of said conditions, his safety is endangered and his immediate removal from the home is necessary to ensure his safety, and continuation in the home is contrary to the welfare of the child. The ex parte OTC was granted by the court (Dannehy, J.) on February 19, 2016, and the temporary custody of Ryan was ordered to vest with the Commissioner of Department of Children and Families (DCF). Preliminary Specific Steps were ordered and approved as to mother and father by the court on February 26, 2016. Mother is contesting the OTC as well as the neglect petition.
The court conducted a hearing on March 2, 2016. Carmen B. (mother) is the biological mother of Ryan. Mother was present and represented by counsel. Ryan was represented by counsel. Matthew R. (father) was not present and a motion for default for his failure to appear was granted by the court. Counsel for the father was present for the morning session of the trial. DCF was represented by an assistant attorney general. There is no claim of Indian Tribal Affiliation. The court finds that notice has been given in accordance with the General Statutes and the Connecticut Practice Book. The court further finds that the parents were properly served and that it has jurisdiction in this matter. There are no other actions pending in any other court affecting the custody of Ryan known to this court.
Nine exhibits were introduced as full exhibits by DCF stipulation of the parties. Mother introduced one exhibit as a full exhibit by agreement of the parties. The court heard testimony from a DCF program manager, a DCF supervisor, the DCF social worker, mother's mental health clinician and Ryan's speech therapist. Mother also testified. All counsel had a full opportunity to cross-examine the witnesses.
Due to the unavailability of witnesses and a report, the parties agreed at the commencement of the proceedings that the hearing with regard to the contested neglect petition would be continued to April 7, 2016. The parties agreed that the court would consider the evidence presented to the court on March 2, 2016, and issue a ruling with regard to the contested OTC.
Upon consideration of the relevant and credible evidence including the testimony and demeanor of the witnesses, the demeanor of mother, the exhibits introduced, the relevant case law and statutes, and arguments of counsel, the court, by a fair preponderance of the evidence, makes the following findings.
Mother
Mother is presently 35 years of age. She has been attending night classes for over two years to obtain her GED. She intends to further her education to become a medical assistant. She is not currently employed. She currently has housing. She receives monthly cash assistance, food stamps and HUSKY insurance. Mother reports suffering from chronic arthritis and using marijuana to control her chronic pain.
Mother has a significant criminal history which includes charges for violation of probation, failure to appear, sale of illegal drug, sale of hallucinogen/narcotic, interfere/resist arrest, larceny 5, assault 3 and breach of peace.
Mother has an extensive history of mental health, substance abuse and domestic violence issues. Her history with DCF commenced in 2008 due to allegations of physical neglect, emotional neglect, substance abuse, exposure to family violence and inadequate supervision. Mother has four children, none of whom are in her care. Her daughters, Tazmira B. and Honesty R., are in the care of their maternal aunts pursuant to orders of the probate court. Her daughter, Jamirelys, is in the care of maternal grandmother and maternal uncle pursuant to a transfer of guardianship ordered by the probate court.
Mother's long substance abuse history includes marijuana, crack cocaine and PCP abuse. Mother admitted to smoking crack cocaine while pregnant with Ryan. Mother reports smoking marijuana at the present time and has done so while Ryan has been in her care. She has a significant history of relapse. She has a long history of not cooperating with her services to address her substance abuse and mental health issues, and of failing to consistently attend and successfully complete those services resulting in unsuccessful discharges from many of those services. She has a history of noncompliance with her medication. Mother's services include Coventry House, Recovery Case Management, Advanced Behavioral Health (ABH), Women's Behavioral Health program, Wheeler Clinic for trauma group, relapse prevention, therapy, emotions management and random urine screens. Mother was unsuccessfully discharged from Wheeler Clinic due to her lack of attendance. She was referred to Family Based Recovery Services in February 2015. Mother reported that she did not want to engage with those services due to her lack of trust and paranoid feelings. An ABH referral was made to Community Health Services (CHR) of Manchester in September 2015 and an intake appointment took place on October 13, 2015. She was diagnosed at that time with severe cannabis use disorder. Mother refused to participate in substance abuse treatment at CHR which included recommendations for intensive outpatient level of care. Mother did re-engage in mental health services in November 2015 at Intercommunity. She has been inconsistent in her attendance at Intercommunity. She has attended four of her scheduled biweekly appointments with her clinician since November 2015.
Mother's diagnoses include Bi-Polar Disorder R/O, Mood Disorder, Psychosis NOS, Obsessive Compulsive Disorder, Intermittent Explosive Disorder and Post-Traumatic Stress Disorder in addition to Schizophrenia. She continues to struggle with stability, and she has failed to successfully address her mental health needs.
Mother has consistently exhibited threatening, hostile and volatile behavior with DCF employees during her involvement with DCF. Most recently, mother engaged in escalated, hostile, and verbally aggressive, out of control behavior with DCF personnel on the telephone on February 17th, 18th and 19th, 2016. She has consistently used profane language in the interactions with DCF personnel. Most concerning is that mother has exhibited at least some of these behaviors in Ryan's presence. Her decision to walk for five hours on February 17, 2016, to get to a DCF office demonstrates an extremely poor lack of judgment and decision making.
Ryan
Ryan is presently two years of age. He is a very happy and active child. He is up to date medically. He was diagnosed with a heart murmur, acid reflux and a hematoma at birth, all of which are being monitored. Ryan has a loving relationship with mother and is clearly bonded with her.
Ryan is presently involved with Birth To Three where he initially engaged on March 24, 2015, due to communication and cognitive delays. He also exhibited physically aggressive behaviors including hitting, biting, pulling hair and head banging. Since his participation with Birth to Three Services, Ryan has shown improvement. His communication skills have improved and his physical aggression has decreased. He is learning sign language. Mother has been cooperating with the Birth to Three Services.
Order 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. In re Juvenile Appeal (83-CD), 189 Conn. 276, 290-91, 455 A.2d 1313 (1983). For a court to sustain an Order of Temporary Custody, it must find that the petitioner has proved by a fair preponderance of the evidence that the child would be subjected to immediate physical danger if returned to the care and custody of the parent 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, 13 A.3d 1106 (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, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). On a hearing for Temporary Custody, therefore, the court is to consider only whether the child is in such imminent physical danger that the state must step into protect the child, or whether the child would be in such danger if returned to their parent or parents. As noted above, on February 19, 2016, the court found that Ryan was " in immediate physical danger from his surroundings . . ." and that " continuation in the home [was] contrary to the welfare of said child . . ." 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. See In re Juvenile Appeal 83-CD, supra, which supports the proposition that the child's safety pending further proceeding is the primary concern for a temporary custody proceeding.
DCF has proved by a fair preponderance of the evidence that Ryan would be subject to immediate physical danger if returned to the care and custody of his mother and that continued removal is necessary to ensure his safety. Mother's significant mental health concerns, her inappropriate behavior and poor decision making skills demonstrate that she is not able to provide a safe and stable environment for Ryan at the present time. As discussed in detail above, mother's behaviors on February 17th, 18th, and 19th, in conjunction with her significant and longstanding mental health issues and instability, clearly demonstrate that she is not able to safely parent Ryan at the present time. The court is especially concerned about mother's volatile and hostile behavior towards DCF employees. Further, mother's ongoing marijuana use is of concern in light of her poor decision making and poor judgment especially in light of Ryan's current needs. There is ample credible evidence that mother's mental health and judgment continue to remain inadequately addressed and she is not presently capable of providing a safe and nurturing environment for Ryan. While mother appears to love Ryan and desires him to live with her, that is not sufficient. It is not in Ryan's best interest to be placed in mother's care and continue to be exposed to these types of behaviors. Mother is not a suitable caretaker for Ryan at this time.
Accordingly, the court finds that, based upon a fair preponderance of the credible testimony and documentary evidence presented to the court, it is more probable than not that Ryan was in immediate physical danger while in the custody of mother at the time of his removal and that he would be in immediate physical danger if returned to the care of mother. The court further finds that his immediate removal was necessary to ensure his safety. The continuation of Ryan in his mother's care and custody under the circumstances on February 19, 2016, and currently, is contrary to his safety, wellbeing and best interest, in light of his age and lack of visibility in the community. The court further finds that reasonable efforts to prevent removal were made. The order of temporary custody is sustained and shall remain in effect until further order of the court. The court ratifies and adopts the preliminary specific steps ordered by the court on February 26, 2016.
The court orders that the evidence presented in this proceeding be preserved. It is so Ordered.