Opinion
No. H12-CP05-010476-A
September 28, 2006
MEMORANDUM OF DECISION
On October 19, 2005, the petitioner, Department of Children and Families, (DCF) filed a petition pursuant to Section 46b-129 of the Connecticut General Statutes alleging that the minor child, Shemarie M., was "uncared for" within the meaning of Section 46b-120(10) of the Connecticut General Statutes. In its petition, DCF alleges that the minor child is uncared in that the child's home cannot provide the specialized care which the physical, emotional or mental condition of the child requires.
Sheryl B. ("Mother") is the mother of Shemarie. Patrick M., the father of Shemarie, is deceased. Sheryl B. is married to Joseph B. The petition specifically alleges that Shemarie was sexually abused by her stepfather Joseph B. and her cousin. Omar C. Shemarie considers Joseph B. her father. Mother, Sheryl B., denies the allegations in the petition and requested a trial on the merits of the petition.
On May 11, 2006, the petitioner and the respondent mother, Sheryl B., appeared and presented evidence in this uncared for proceeding. The petitioner offered as exhibits a hospital record dated June 2, 2005 with a drawing dated June 3, 2005 (Ex. B), a DCF service agreement dated June 3, 2005 (Ex. C), an investigation protocol revised August 22, 2005 (Ex. D), a narrative report from the Children's center dated August 1, 2005 (Ex. E), a police report dated June 3, 2005 (Ex. F), the curriculum vitae of Martha B. Mingel (Ex. G), a intake information narrative dated June 2, 2006 (Ex. H), a social study dated December 6, 2005 (Ex. I), a case status report dated February 6, 2006 (Ex. J), the resume of William Frederick Hobson (Ex. K) and a running narrative (Ex. L). The respondent offered as exhibits a family treatment plan dated September 8, 2005 (Ex. 1), a running narrative document starting July 25, 2005 (Ex. 2), a report from Path Outpatient services dated December 7, 2005 (Ex. 3), and a certificate of completion dated November 23, 2005 (Ex. 4).
Dr. Parvin Fadakar, the child's pediatrician, Dr. Shawn London, the ER physician at the University of Connecticut Health Center, Alexa Ortiz, a DCF investigative social worker, Jessica Alejandro, a clinical interview specialist, Sabina Nyenhuis, a detective in the Hartford Police Department, Marta Mingel, a social worker-psychotherapist, Nadia Pelarz, a DCF social worker, and William Hobson, a psychologist testified for the petitioner. In addition, Diane Argenta, a DCF social worker-supervisor, Frieda Griffin a DCF ongoing services worker, and Sheryl B., the respondent, testified for the respondent.
Because of the evidence presented and the nature of this case, the court requested briefs on the issues from the petitioner and the respondent. The record closed on June 20, 2006, by agreement, after briefs were received.
The court finds that notice of this proceeding has been provided in accordance with the provisions of the Practice Book. The court further finds that the Superior Court, Juvenile Matters has jurisdiction over the pending case and that no action is pending in any other court affecting custody of the child.
General Statutes Section 46b-120(10) defines "uncared for" as a child "who is homeless or whose home cannot provide the specialized care that the physical, emotional or mental condition of the child requires." Proceedings brought under Section 46b-129 require an adjudication on whether Shemarie M. was "uncared for" by her mother as alleged in the petition. In re David L., 54 Conn.App. 185, 191 (1999). Generally, our rules establish that in the adjudicatory phase, `the judicial authority is limited to evidence of events preceding the filing of the petition . . ." Practice Book § 35a-7(a). Here, the petition was filed on October 19, 2005. The petitioner bears the burden of proving the allegations of "uncared for" by a preponderance of the evidence. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263 (1984); In re Brandon W., 56 Conn.App. 418, 427-28 (2000).
In this case, DCF seeks an adjudication of "uncared for" because DCF asserts that Shemarie was actually "uncared for" and because her mother does not believe that the events as alleged by Shemarie took place. Because of Mother's disbelief, DCF argues that Mother will fail to protect her in the future. "Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been adversely affected. The commissioner of DCF need not show, but simply allege, that "there is a potential for harm to occur." In Re Michael D., 58 Conn.App. 119, 124 (2000).
FACTS RE ADJUDICATION
The credible evidence admitted at trial establishes the following facts by a preponderance of the evidence:
Before bringing this petition, DCF discovered that Shemarie had made allegations of sexual abuse by her step-father and cousin. These allegations were brought to Mother's attention by Shemarie.
On June 2, 2005, in the car and on the way to school, Shemarie disclosed to her mother that she did not like the way her step-father, Joseph B., and her cousin, Omar C., had "sexed her." At the time, Shemarie was six years old, having been born on May 6, 1999. Mother questioned Shemarie further and the child stated that she did not like the way her step-father and cousin were touching her vagina with their penises. Immediately, Mother took Shemarie to her pediatrician, Dr. Fadakar, to whom Shemarie repeated the allegations. The pediatrician sent Mother and Shemarie to the Connecticut Children's Medical Center (CCMC), where Shemarie again repeated the accusations. The child's physical examination on June 2, 2005 revealed no physical evidence of sexual abuse.
At a diagnostic interview at St. Francis Hospital, Shemarie described, in detail, penile-vaginal contact with her 21-year-old cousin, Omar. Shemarie indicated that she told her step-father, Joseph B. about it and that her step-father told her to keep it a secret. Shemarie said that her step-father began sexually abusing her. There was no testimony concerning the frequency of the abuse or exactly when the abuse took place. In later interviews, Shemarie indicated that the sexual abuse was a dream.
Mother was instructed by CCMC, the social worker and the DCF investigator that she not allow further contact between Shemarie and her step-father and Omar C. Mother agreed to comply with the request. Joseph B. moved out of the family dwelling. Shemarie remained in her mother's custody.
In August 2005, Joseph B. and Omar C. were arrested for sexual assault in the first degree and risk of injury to a minor. Bond was set at $200,000.00 for Joseph B. Mother posted bond for her husband.
Prior to June 2, 2006, DCF had not been involved with Mother, Shemarie or her step-father. Mother has no history of involvement with the criminal justice system and there is no indication of alcohol or drug abuse. Mother has a college-level education and a stable employment history. Prior to June 2, 2005, Joseph B. did not have involvement with the criminal justice system or a history of drug or alcohol problems and he has a stable employment history.
Since June 2, 2005, Joseph B. has not resided in the family home. On one occasion, he called home to speak with Mother and Shemarie answered the telephone. Otherwise, Shemarie has had no contact with her stepfather.
Mother agreed voluntarily to the petitioner's request that step-father not have any contact with Shemarie and there is no indication that either Mother or step-father contravened the voluntary agreement.
After his arrest on August 12, 2005, a no contact order was issued by Superior Court in the criminal case on October 6, 2005, prohibiting contact between step-father and Shemarie. There is no evidence that step-father violated the no contact order or that Mother acted in contravention of the order.
Shemarie participated in counseling sessions. There, she repeated her accusations against both men. Because of her young age, her counselor did not recommend further counseling. In addition, Mother participated in counseling sessions to learn the signs of sexual abuse. From that time until the petition was filed on October 19, 2005, while preventing contact with Shemarie and Joseph B., mother consistently voiced her disbelief regarding her daughter's abuse by her husband.
Mother testified that she wants to see her family reunited. Shemarie wants to be reunited with her step-father. When Mother was asked about whether Shemarie would be safe if her husband returned home, Mother indicated that Shemarie would be safe. Because of the counseling where she learned the signs of sexual abuse, Mother testified that she could now recognize the signs of sexual abuse if her daughter were abused in the future. The petitioner argues that implict in her testimony is the acceptance of further sexual abuse of Shemarie as the price of her husband's return to the family home.
William Hobson, an expert in the treatment and risk assessment for sexual offenders, testified that Shemarie should not have contact with the perpetrators of the abuse. Hobson's opinion is predicated on the sexual abuse having occurred. Further, he testified that future contact would be safe for Shemarie only if certain conditions were fulfilled. Among the conditions for the step-father are an acknowledgment that he sexually abused Shemarie and that he participate in specialized sexual offender treatment. As for Mother, Hobson testified that she believe the accusations made by Shemarie, that she agree that there exists a risk of re-offense by Joseph B. and that she know the risk factors of Joseph B. if he returns to live with Mother and Shemarie. Finally, Hobson testified that Mother be willing to confront Joseph B. and access outside authorities to protect Shemarie if there is a reoccurrence of his conduct toward Shemarie.
ADJUDICATION
The court finds that the petitioner, DCF, has not met its burden of proof having failed to prove by a preponderance of the evidence that Shemarie M. was uncared for within the meaning of the Connecticut General Statutes on the date of the filing of the uncared for petition. The court finds that the minor child, Shemarie was properly cared for by the respondent mother, despite Mother's reservations concerning the allegations made by her daughter.
The petition was brought by DCF alleging that Shemarie M. was "uncared for." Prior to the petition being filed, Shemarie lived with her mother. When the petition was filed and after the petition was filed, she continued to live with her mother and was being cared for by her mother. There was no evidence presented that Mother was not providing proper care for her daughter before, during and after the petition was filed. Welfare Commissioner v. Anonymous, 33 Conn.Sup. 100 (1976), In Re Destiny Q., 2201 Ct.Sup. 15941-cp (2001). When the child reported the allegations of abuse to Mother, it was Mother who took the child to her pediatrician and who took the child to CCMC for a medical examination. The examination revealed no objective proof of sexual abuse by Joseph B. or Omar C. Nevertheless, Mother agreed that Shemarie would have no contact with Joseph B. or Omar C. Thereafter, Mother took Shemarie to counseling and Mother was counseled on the signs of sexual abuse. Despite her reservations about the events that her daughter alleges to have occurred, Mother has verbalized consistently an understanding of the need to assure that Shemarie be protected.
The court notes that the revelations of a young child should be taken seriously to assure the child that she is protected and will be protected in the future. In this case, Mother acted appropriately to protect her daughter.
The petitioner and the child's attorney seek a finding of "uncared for" and a disposition of protective supervision. The case was brought by DCF alleging solely that the child's home cannot provide the specialized care which the physical, emotional or mental condition of the child requires. In construing the statute, none of the facts prove the petition, as brought by DCF. "[I]n construing a statute concerning the relationship of children to biological or nonbiological parents, courts should prefer that construction which minimizes state intervention." Welfare Commissioner v. Anonymous, supra, 33 Conn.Sup. 100. Here, the petitioner has failed in its burden of proving that Shemarie was "uncared for" by her mother.
The petition is dismissed.