Opinion
Nos. HP12-CP09-018590-B, HP12-CP09-018591-B
May 23, 2011
MEMORANDUM OF DECISION
The respondent mother, Elizabeth S., has filed the pending motion to open the judgment terminating her parental rights and to modify the disposition by vacating her consent, which was assigned for hearing before this judge. She appeared with counsel for hearing on three dates in April and May of this year, as did the attorneys for the child and the department of children and families. The court heard testimony from the respondent mother, DCF social work supervisor Jeffrey Gold, DCF social worker Karen Gadola, Beth Ann O'Sullivan, an occupational therapist who worked with Kylie in the birth-to-three program, officer Darrin Rembisz of the Wallingford police department, and Frank R., foster father of the two children and the respondent mother's great-uncle. In addition, the following exhibits were introduced into evidence: a transcript of the proceedings on October 26, 2010, before the Honorable Richard Dyer; a "social study in support motion to review permanency plan" dated August 16, 2010; a "social study in support termination of parental rights" dated September 27, 2010; and a decree from the Wallingford Probate Court on respondent's application for appointment of a voluntary conservator appointing Stephanie Hinkle as respondent's conservator of the person authorized "to speak and act on behalf of Elizabeth [S.] in all legal matters," dated March 8, 2011. (Ms. Hinkle was present during all of the proceedings before this court.) In addition to the evidence offered, the court has also taken judicial notice of all court orders entered in the neglect and TPR proceedings, all pleadings in the court file (not for the truth); the hearing before the court on October 27, 2010; the court's memorandum of decision on the TPR; and prior court proceedings as reflected in the written memoranda of hearing contained in the court file. The court has carefully considered the evidence and testimony presented and the matter is now ready for decision.
For example, statements contained in pleadings or documents attached to pleadings are not taken to be true but as merely reflecting what a particular party was claiming.
The court, Dyer, J., entered its order granting the petition and terminating the respondent's parental rights orally after conclusion of the hearing on October 27, 2010. After the respondent mother filed her pending motion, the court signed a transcript of its oral decision as its memorandum of decision, in accordance with Practice Book Section 64-1(a), which provides, in pertinent part, as follows:
The court shall state its decision either orally or in writing, in all of the following: (1) in rendering judgments in trials to the court in civil . . . matters, . . . The court's decision shall encompass its conclusion as to each claim of law raised by the parties and the factual basis therefor. If oral, the decision shall be recorded by a court reporter, and, if there is an appeal, the trial court shall create a memorandum of decision for use in the appeal by ordering a transcript of the portion of the proceedings in which it stated its oral decision. The transcript of the decision shall be signed by the trial judge and filed in the trial court clerk's office.
The evidence showed that in November 2009 Beth Ann O'Sullivan visited Ms. S.'s home as part of ongoing birth-to-three services that O'Sullivan had been providing to Kylie. When O'Sullivan arrived at the home that day, the respondent mother was not present, but Mr. S. was, with whom the respondent had begun residing the previous May, present. O'Sullivan used a particular chair that was ordinarily kept in Trevor's bedroom to prevent Kylie from climbing on it, and when the session was over, she took the chair back to Trevor's bedroom, where she saw Trevor on his bed with packing tape covering his mouth from cheek to cheek. While working that day with Kylie, who was then 28 months old, O'Sullivan had also seen certain bruises and injuries on the child's face, chest, and arms. After leaving the home, O'Sullivan made a report to the DCF hotline, and DCF then sent an investigator to the premises, where police officer Rembisz, who had been called by DCF to assist in the investigation, also arrived. When officer Rembisz entered the premises, he saw a third young child, who was strapped into a car seat in front of a television. He observed facial injuries on Kylie, bite marks on her arms, bruising on her face, some fresh and some faded, and scratch marks on her chest. The officer arrested Mr. S. for assault in the third degree and risk of injury to a minor based on an admission made by Mr. S. to the DCF investigator that he had caused one of the injuries to Kylie's body. DCF took the children into custody, and on December 3, 2009, the department obtained an order of temporary custody, pursuant to General Statutes § 171-101g.
Section 17a-101g provides in relevant part as follows: "(c) If the Commissioner of Children and Families, or his designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from his surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or his designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section."
On November 24, the department filed a neglect petition alleging that Trevor and Kylie were being denied proper care and attention and living under conditions injurious to their well-being, and, in addition, that Kylie had been abused. The petitions were returnable to the Superior Court for Juvenile Matters in New Haven, which sustained the OTC by agreement of the parties on December 4, 2009. On January 28, 2010, by agreement of all parties, both children were adjudicated to be neglected and committed to DCF, after the respondent mother had entered a plea of nolo contendere and the respondent father had been allowed to stand silent. On July 22, 2010, the court, Brown, J., granted a motion to change venue to this court.
On September 30, 2010, the department filed in this court a petition to terminate the parental rights (TPR) of both respondents on the grounds of consent, with an initial hearing date of October 19, 2010, at which time both parties appeared, attorney Valeria Caldwell-Gaines was appointed and appeared as counsel for the respondent mother, and the matter was continued to October 26, 2010, for a consent hearing on the TPR petition. On October 26, both respondents appeared for the consent hearing but attorney Caldwell-Gaines was not present. A court service officer (CSO) informed the court, Dyer, J., of having spoken by telephone with attorney Caldwell-Gaines, who had explained that she was not present because the court docket had omitted her name. The CSO said that "Attorney Gaines assures me that she met with mom, that mom signed the consent," and that counsel was faxing the signed consent form that day to the court. Attorney Gerald Gore agreed to serve as counsel that day for the respondent mother. Judge Dyer then showed Ms. S. the facsimile copy of her consent, and she said she had signed the original after reviewing it with attorney Gaines. Judge Dyer also asked Ms. S. whether she would be willing to proceed that day in the absence of attorney Caldwell-Gaines and with attorney Gore representing her instead, and she agreed to do so. The court then canvassed Ms. S. on her consent, found that she had consented knowingly and voluntarily after adequate and effective assistance of counsel. State's ex. 1, 24. The matter was then continued to the following day, at which time the court heard evidence on the best interests of the children and granted the petitions.
THE COURT: . . . Ma'am, I'm going to show you that form, did you sign that form? It's a facsimile?
RESPONDENT MOTHER: Yes, I did.
THE COURT: . . . Did you read it before you signed it?
RESPONDENT MOTHER: Yes, I did.
THE COURT: Ok, and did you go over it with Attorney Gaines, who's not here now?
RESPONDENT MOTHER: Yes I did.
THE COURT: Are you willing to allow me to proceed today and question you about this form?
RESPONDENT MOTHER: Yes.
THE COURT: Do you understand that if you told me, hey judge, I want attorney Gaines here, I'd stop this matter and continue for Attorney Gaines to be here?
RESPONDENT MOTHER: I understand.
THE COURT: And do you understand that Attorney Gore has very graciously agreed to sit in, so if you have any questions now you could call time out and ask for her his legal counsel?
RESPONDENT MOTHER: I understand.
State's exhibit 1, transcript of proceedings, 10/26/10, at 19.
Less than four months thereafter, in January 2011, the respondent mother filed a two-page document with the court that she characterized as an appeal and claimed, in part, that she had been "coerced and threatened into believing that terminating my parental rights and freeing my children to be adopted by family members was the only hope I had in retaining a relationship with my children." The matter was assigned a court hearing date of February 10, at which time this judge informed the respondent mother that it would treat her motion as one to open the judgment and for a new trial. Thereafter on February 23, 2011, new counsel for Ms. S. filed an "amended motion . . . to vacate consent to termination of parental rights and to reopen disposition of termination of parental rights." The amended motion claims that the respondent mother "(1) felt coerced by statements made by the Department of Children and Families including but not limited to social worker and social work supervisor, (2) has mental health issues, including anxiety, such that she was not thinking clearly and rationally on the date of the canvas by the Court, and (3) was made to believe that there was no defense to this action by statements made to her by DCF." In closing argument, her attorney argued that the respondent was relying on the common law ground of duress because she felt coerced and threatened into believing that adoption was the only way she had of maintaining a relationship with these children and that she has mental health issues that may have contributed to a feeling of helplessness on her behalf and to making the alleged threats by DCF more real in her mind.
The respondent's motion is governed by General Statutes § 45a-717, which provides, in pertinent part, as follows:
The court may grant a motion to open or set aside a judgment terminating parental rights pursuant to section 52-212 or 52-212a or pursuant to common law . . ., provided the court shall consider the best interest of the child, except that no such motion or petition may be granted if a final decree of adoption has been issued prior to the filing of any such motion or petition . . . For the purpose of this section, "best interest of the child" shall include, but not be limited to, a consideration of the age of the child, the nature of the relationship of the child with the caretaker of the child, the length of time the child has been in the custody of the caretaker, the nature of the relationship of the child with the birth parent, the length of time the child has been in the custody of the birth parent, any relationship that may exist between the child and siblings or other children in the caretaker's household, and the psychological and medical needs of the child. The determination of the best interest of the child shall not be based on a consideration of the socio-economic status of the birth parent or the caretaker.
It has long been the common law of this state that a judgment obtained by duress may be opened; see In re Baby Girl B., 224 Conn. 263, 283, 618 A.2d 1 (1992) (stating that "[c]ourts have intrinsic powers, independent of statutory provisions authorizing the opening of judgments, to vacate any judgment obtained by fraud, duress or mutual mistake"); but § 45a-717 imposes a statutory limitation on that principle by further requiring, in the case of a judgment terminating parental rights, that the court must also consider the best interest of the child. The best interest "statutory provision . . . contemplates that once the court is satisfied that there exist valid grounds to grant the motion to open, it can grant such motion only after it conducts an additional inquiry into whether opening the termination judgments would be in the best interests of the children." In re Travis R., CT Page 12101 80 Conn.App. 777, 787, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004).
"For a party to demonstrate duress, it must prove [1] a wrongful act or threat [2] that left the victim no reasonable alternative, and [3] to which the victim in fact acceded, and that [4] the resulting transaction was unfair to the victim . . . The wrongful conduct at issue could take virtually any form, but must induce a fearful state of mind in the other party, which makes it impossible for [the party] to exercise his own free will." (Citations omitted.) Id., 782. The respondent mother claimed and testified here that she consented to the termination of her parental rights because of statements made to her during what she said was a visit to her home in Meriden by DCF social work supervisor Jeffrey Gold in April or May of 2010. In May 2010, Kylie and Trevor had been placed by DCF with Frank and Lori R., with whom Ms. S. had a good relationship. She claimed that Gold told her that DCF was changing its permanency plan from reunifying the children with her to that of terminating her parental rights and their adoption. She said that he told her she had no choice but to go along with DCF's decision and that if she did not do so DCF would place the children with someone else and she would never see her children again. She testified that these purported statements by Gold were the prime reason that she consented to termination of her parental rights.
The court has no doubt that a threat, if the respondent would not consent to termination of parental rights, to move her children from one potential adoptive placement, in which the respondent mother had a good relationship with the foster parents and reasonable expectations of continued contact with her children should her parental rights be terminated, to another placement with a stranger who might never let her see her children again, might qualify as "wrongful conduct" within the meaning of In re Travis R. But much credible evidence was offered that lead the court to conclude that Gold never visited Ms. S., that this conversation never occurred, and that such threats were never uttered. Gold himself was a witness and testified credibly that he never visited Ms. S.'s home and never made those statements. He was then the social work supervisor in a DCF office that did not serve the Meriden area. He testified that ten to 15 years ago he had conducted a DCF investigation of the respondent's mother with regard to the respondent's brother and that in 2005 he had supervised another social worker in a DCF case involving the respondent and her daughter Kylie, but that he had never had any in-person contact with Ms. S. and had less than 10 telephone conversations with her. He testified that he had had no contact with her since 2005.
There is an obvious and direct conflict between the testimony of Ms. S. and that of Gold. Assessing that conflict and determining what was proven and who was credible are the responsibility of this court, as the trier of fact in this matter. "It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony . . . It is the quintessential function of the fact finder to reject or accept certain evidence . . ." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "The fact-finding function is vested in the trial court with its unique opportunity to view the evidence presented in a totality of the circumstances, i.e., including its observations of the demeanor and conduct of the witnesses and parties." (Internal quotation marks omitted.) Cavoli v. DeSimone, 88 Conn.App. 638, 646, cert. denied, 274 Conn. 906 (2005). "[N]othing in our law is more elementary than that the trier [of fact] is the final judge of the credibility of witnesses and of the weight to be accorded to the testimony." (Citation omitted; internal quotation marks omitted.) Toffolon v. Avon, 173 Conn. 525, 530, 378 A.2d 580 (1977). "[T]he trier is free to juxtapose conflicting versions of events and determine which is more credible . . . It is the trier's exclusive province to weigh the conflicting evidence and determine the credibility of witnesses . . . the trier of fact may accept or reject the testimony of any witness . . . the trier can, as well, decide what — all, none, or some — of the witnesses' testimony to accept or reject." (Citations omitted; internal quotation marks omitted.) State v. Osborn, 41 Conn.App. 287, 291, 676 A.2d 399 (1996). Thus, in In re Travis R., supra, 80 Conn.App. 777, the Appellate Court affirmed a trial court decision denying a motion to open a judgment on the grounds of duress where the trial court did not believe a respondent's testimony that threats from a DCF social worker had induced her to consent to the termination proceedings, and the court had instead found credible the testimony of that social worker denying any such threats. "Although [the social worker] and the respondent offered conflicting testimony, the court was entitled to credit [the social worker's] testimony as more reliable." Id., 784-85.
Here, for a variety of reasons, the court finds Gold's testimony more credible. The court notes that despite the fact that Ms. S. claims that the alleged statements by Gold were the primary reason she consented to termination of her parental rights, she acknowledged in her testimony that she never mentioned those threats or statements to her attorney, to the DCF social worker, or to Judge Dyer at the time she was canvassed on the consent. Had such threats actually been made, however, it is improbable that she would not have attempted to confirm their validity by speaking to at least one of these individuals. Although her attorney argued during summation that Ms. S. has mental health issues that left her susceptible to feeling overwhelmed by such threats, the respondent offered no expert testimony to establish either her mental condition or any effects of her mental status on her ability to understand, process, evaluate and withstand such threats, if made. Moreover, Mr. R., the respondent's great-uncle who is the children's foster father, testified credibly that shortly after the OTC Ms. S. had asked him to take custody of her children. At that point he had only seen them once or twice in their lives. At some point before she entered the consent, Mr. R. tried to persuade Ms. S. to cooperate with DCF and the services it was offering, but she told him that she did not want DCF telling her whom to marry and that she would consent to termination of her parental rights because she believed that the children were in a good place in his home. These are not the statements of an individual who feels compelled or coerced, but someone who instead is voluntarily preferring termination of her parental rights. The court simply does not find her testimony on this point to be believable, and does find Gold's testimony credible. There is thus no credible evidence that she was subjected to improper or wrongful threats or acts, and her proof fails on one of the essential elements for a common law claim of duress.
The respondent mother has not proven that she consented to termination of her parental rights because she was under duress. Her motion to open the judgment and vacate the consent is therefore denied.
In In re Travis R., 80 Conn.App. 777, 786, 838 A.2d 1000, cert. denied, 268 Conn. 904, 845 A.2d 409 (2004), the Appellate Court held that a trial court need not consider the best interest component of § 45a-717 unless first finding that a statutory or common-law basis for opening the judgment has been proven. Although the Supreme Court denied certiorari, that holding was not central to the court's decision. The Appellate Court opinion is binding on this court, but in an abundance of caution, without definitive guidance from the Supreme Court, this court will address best interest as well.
The evidence shows that Ms. S. recently married Mr. S., and that Mr. S.'s conduct toward the children was one of the principal reasons for their removal from parental custody. He caused physical harm to Kylie, covered Trevor's mouth with packing tape, and strapped another young child into a car seat in front of a television. Young children need stimulation and parental interaction, not to be strapped into a chair or prevented from speaking. The obvious inference the court makes from the way Trevor and the younger child were restrained that day is that Mr. S. did not want to interact with the children, but for them to leave him alone. Children need gentle, loving treatment, not to be ignored or injured. Ms. S. did not testify that she recognized his treatment of these children had been wrong or offer the court any reason to believe that the children would be safe from further injury or mistreatment from Mr. S. In their current placement, on the other hand, they are thriving.
These are still young children. Kylie is four years old and will be five in July. Trevor turned five years old three months ago. When younger they were diagnosed with having special needs. When they came to the foster home, Trevor, at age four, was unable to dress or feed himself, was not yet completely toilet trained, and only said one word. Kylie, then almost three, also needed help dressing, being fed, and assistance with toileting. She said nothing and often would not pay attention if adults tried to talk to her. Neither child knew how to hold a fork properly. They have been living in the foster family for almost a year now, are happy there, and have closely bonded to their foster parents. Trevor is in fulltime pre-kindergarten school, with a short daily period of daycare afterward, and Kylie is in half-day pre-K, and daycare for the remainder of the school day. Trevor is now talking, and can bathe and feed himself. Kylie can use the toilet by herself and is learning to bathe herself. Ms. S., however, does not recognize her children's abilities. When invited by the foster parents to a Christmas Eve gathering at a local restaurant, the foster father told her that the children were now able to feed themselves, but she said she did not believe him and insisted on feeding Kylie. Both children hug and kiss the foster parents frequently, while their bond with their mother is withering, and they have not expressed any sentiment of missing her for several months. The foster family wants to adopt them, and adoption proceedings were pending until the pending motion was filed. At their age, Trevor and Kylie need stability and permanency, not uncertainty. Under these circumstances, it is in their best interest not to open the judgment.