Opinion
No. F04-CP08-07766-A
February 19, 2008
MEMORANDUM OF DECISION
INTRODUCTION
This is a contested hearing on whether to sustain or vacate an order of temporary custody.
Pursuant to General Statutes § 46b-129(b), which provides in part that
. . . If it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . .
on January 28, 2008, Superior Court for Juvenile Matters ("the regional court") found that (1) Daniel F. ("Daniel") was "in immediate physical danger from surroundings . . ." and that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . ." and the court issued an ex parte order vesting temporary custody of Daniel in the commissioner of the department of children and families ("DCF").
At the regional court the father of Daniel contested the court's findings and its determination that Daniel's temporary care and custody should be vested in DCF. On February 13, 2008, this court conducted the contested hearing. DCF appeared through its counsel and the social worker that investigated a hotline referral from the hospital where Daniel was born in January 2008. The father appeared and was represented by counsel. Although the mother did not give notice to the regional court that she was contesting the ex parte order of temporary custody, the mother appeared and was represented by counsel. The attorney for Daniel appeared. All parties participated in the contested hearing.
THE CONTESTED HEARING:
At the contested hearing DCF presented two witnesses and six exhibits. Neither the father nor the mother testified, presented witnesses or presented exhibits. (The court did not draw any adverse inference as permitted in the Supreme Court's decision in In re Samantha C., 268 Conn. 614, 847 A.2d 883 (2004), from either parent's decision not to testify.)
The neonatologist who has treated Daniel since his birth testified. She stated that within hours of his birth, Daniel evidenced withdrawal symptoms from methadone in his system. During her pregnancy, the mother had used heroin. In early September 2007, the mother began a program of methadone maintenance that she had continued though the date of the contested hearing. She received methadone during her labor at the hospital. On the date of the court's issuance of the ex parte order of temporary custody, and on the date of the contested hearing, Daniel was being medicated with phenobarbital and, occasionally, morphine to enable him eventually to withdraw successfully from the effects of methadone. He also needed to be held at least fourteen hours of each twenty-four-hour day to enable him to sleep and to eat. Such neonatologist stated that given Daniel's specialized needs, no one person, including herself, could care for him alone. Such neonatologist testified that if Daniel left the hospital, he needed to be placed in a foster home for medically fragile children until he successfully completed such withdrawal. Such neonatologist further testified that when the parents were with Daniel in the hospital and when they stayed overnight, they were not awakened by Daniel's loud crying and thus they did not attend to him and when the mother held Daniel, she fell asleep putting Daniel at risk.
The court credits the testimony of such neonatologist and determines by a fair preponderance of the evidence that because of Daniel's specialized needs and fragile condition as set forth by such neonatologist Daniel would have been at risk of serious physical harm, or even death, if he were removed from the hospital and returned to the parents for continuing care on January 28, 2008.
The court's determination also is supported by the evidence presented by the DCF investigative social worker. Such DCF investigative social worker testified and the affidavit prepared by her and filed in connection with the DCF ex parte motion for an order of temporary custody was admitted as a full exhibit (exhibit 1).
In such affidavit such investigative social worker set forth facts supporting the issuance of the order of temporary custody.
DCF's involvement with the family began on January 17, 2008, when DCF received a referral from the neonatologist concerning physical neglect of Daniel. Such neonatologist reported that Daniel had been born addicted to methadone and was recently going through withdrawal. Id., 1. The mother was addicted to heroin and had been receiving methadone maintenance treatment for the last three months of her pregnancy. Id. The father had been recently released from prison, and had a substance abuse history. Id.
The mother confirmed to such worker that she has a history of substance abuse, and that she most recently had used heroin. Id. The mother admitted that she had also used marijuana, cocaine, and alcohol in the past before she focused on heroin. Id.
The mother stated to such worker that she once had been in a detoxification program and in two rehabilitation programs, but that she relapsed after each program. Id., 2. The mother also stated to such worker that she has been arrested once in June 2004, for shoplifting because of her drug addiction. Id. The mother stated that she was about six months pregnant at the time she began methadone maintenance treatment. Id. The mother further stated that while she was on methadone maintenance treatment, she continued to use heroin until the middle of November 2007, when her methadone dosage was changed. Id. On January 17, 2008, the mother told such worker that she was not sure if she wanted to put Daniel up for adoption or to keep him. Id.
On January 24, 2008, the DCF investigator met with the father. Id. The father stated to such investigator that he and the mother used illegal drugs during the mother's pregnancy. Id. The father told such worker that after his release from incarceration that occurred approximately two months before their meeting, because he had urges to relapse into use of heroin, he enrolled himself in and began to attend a methadone maintenance program. Id. In fact, the father has been incarcerated for substantial periods and was last released from incarceration approximately two months before the ex parte order of temporary custody was issued. (Exhibit 9.)
As of January 28, 2007, the home that the parents had very recently moved into was not ready for Daniel to be able to live there. (Exhibit 2, 7, 10-12.) There was no bassinet or crib for Daniel. Id. The parents had not obtained required and necessary home furnishing and baby items. Id., 12.
As of January 28, 2008, the parents did not have family resources to help them with Daniel. ( Id., 6, 7, 8-9; testimony of DCF worker.) Daniel is the mother's first child. Id., 6.
As of January 28, 2008, the mother and the father did not have a history of maintaining a stable home. (Exhibits 1 and 2.) For approximately three months prior to Daniel's birth, the mother was homeless and lived with a friend. (Exhibit 2, 10.) Neither the mother nor the father has a stable work history. (Exhibits 1 and 2.) The father stated to such investigator that he is employed by a church (exhibit 2, 7), that he worked from 7 a.m. to 10 p.m. (testimony of worker) and thus his availability to the mother and Daniel is limited.
As of January 28, 2008, the mother and the father were participating in methadone treatment programs and had personal issues they needed to address for themselves and for the safety of Daniel.
APPLICABLE LAW:
Pursuant to General Statutes § 46b-129 (b), which provides in part that
. . . If it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal from such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . .
on January 28, 2008, the court found that (1) Daniel was "in immediate physical danger from surroundings . . ." and that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . ." and the court issued an ex parte order vesting temporary custody of Daniel in DCF.
Despite the "continuation in the home" language of the form order, in this case after his birth Daniel had not left the hospital and he had never been in the parents' home. There had not been any "immediate removal from such surroundings."
A contested hearing is defined in Connecticut Practice Book § 26a-1(f)(2) as follows:
(f) "Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include . . . (2) "Contested hearing on an order of temporary custody" means a hearing on an ex parte order of temporary custody or an order to show cause which is held within ten days from the day of a preliminary hearing on such orders. Contested hearings shall be held on consecutive days except for compelling circumstances or at the request of the parent or guardian . . .
In In re Nashiah C., 87 Conn.App. 210, 221, 866 A.2d 669 (2005), cert. denied, 273 Conn. 926, 871 A.2d 1031 (2005), the Appellate Court set forth the relation between the ex parte order of temporary custody and the subsequent contested hearing:
We turn now to the respondent's second argument. We initially set forth the applicable law and our standard of review. Pursuant to § 46b-129(b), the court may issue "an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody" if it appears, on the basis of the petition and supporting affidavits, that there is reasonable cause to believe that "(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety . . ."
"At a subsequent hearing on an order of temporary custody, the proper standard of proof . . . is the normal civil standard of a fair preponderance of the evidence." (Internal quotation marks omitted.) In re Kaurice B., 83 Conn.App. 519, 522, 850 A.2d 223 (2004).
See also Connecticut Practice Book § 32a-3.
In In re Kaurice B., supra, 83 Conn.App. at 522-23, 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)." (Citation omitted.) In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983).
Such fair preponderance of the evidence standard has been defined 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.
Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981).
In Fish v. Fish, 285 Conn. 24, 73-74 (2008), the Supreme Court set forth the constitutional authority for use of the fair preponderance standard in a temporary custody context:
Moreover, this court determined more than two decades ago that the fair preponderance standard is constitutionally permissible in temporary custody and neglect proceedings because the child's welfare and safety represents a strong countervailing interest in relative equipoise with the liberty interest of the parent. See In re Juvenile Appeal (83-CD), supra, 189 Conn. 287 (when child's interest no longer coincides with that of parent, magnitude of parent's right to family integrity is diminished); see also In re Juvenile Appeal (84-AB), 192 Conn. 254, 263-64, 471 A.2d 1380 (1984).
After DCF had concluded the presentation of its case in support of its motion for temporary custody, pursuant to Practice Book § 15-8 the mother moved for dismissal for DCF's alleged failure to make out a prima facie case. The court denied such oral motion, and sets forth below its reasons for doing so.
Practice Book § 15-8 provides as follows:
If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced evidence and rested his or her cause, the defendant may move for judgment of dismissal, and the judicial authority may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case. The defendant may offer evidence in the event the motion is not granted, without having reserved the right to do so and to the same extent as if the motion had not been made.
Practice Book § 1-1 sets forth the general scope of the rules for the superior court, and distinguishes between civil and juvenile matters:
(a) The rules for the superior court govern the practice and procedure in the superior court in all civil and family actions whether cognizable as cases at law, in equity or otherwise, in all criminal proceedings and in all proceedings on juvenile matters. These rules also relate to the admission, qualifications, practice and removal of attorneys.
(b) Except as otherwise provided, the sections in chapters 1 through 7 shall apply to civil, family, criminal and juvenile matters in the superior court.
Practice Book § 34a-1 reiterates the application of chapters 1 through 7 to juvenile matters, and then sets forth additional rules that are applicable to juvenile matters in addition to the rules set forth in chapters 26 through 35 of the Practice Book:
(a) Except as otherwise provided, the sections in chapters 1 through 7 shall apply to juvenile matters in the superior court as defined by General Statutes § 46b-121.
(b) The provisions of Sections 8-2, 9-5, 9-22, 10-12(a), 10-13, 10-14, 10-17, 10-18, 10-29, 10-62, 11-4, 11-5, 11-6, 11-7, 11-8, 11-10, 11-11, 11-12, 11-13, 12-1, 12-2 and 12-3 of the rules of practice shall apply to juvenile matters as defined by General Statutes § 46b-121.
Practice Book § 15-8 is not among such specifically enumerated rules. See In re Justin F., 2006 Ct.Sup. 678, No. U06-CP04-004754-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Bear, J., January 23, 2006):
Although Practice Book Section 17-4A provides for a new trial in cases tried to the court, that section is not incorporated into the rules for child protection matters. See Practice Book Sections 1-1(a), 1-1(b), 34a-1(a) and 34a-1(b)
and In re Sasylia P., 2004 Ct.Sup. 14684, 38 Conn. L. Rptr. 13, No. K09-CP03-008911-A, Superior Court for Juvenile Matters at Waterford, Judicial District of New London (Bear, J., September 27, 2004):
The respondent filed a 24-page request to revise and a 12-page memorandum of law. There were two oral arguments. The respondent neither cited to the court nor directed the court's attention to Practice Book Sections 34a-1 or 34a-14, which sections require denial of the respondent's attempt to file a request to revise pursuant to Sections 10-35 et seq. Practice Book Sections 34a-1 and 34a-14 were adopted on June 24, 2002, and became effective on January 1, 2003. Each was thus adopted after the Nicole J. decision cited by the respondent.
Section 34a-1 provides in relevant part that "(a) Except as otherwise provided, the sections in chapters 1 through 7 shall apply to juvenile matters in the superior court as defined by General Statutes Section 46b-121.
(b) The provisions of Sections 8-2, 9-5, 9-22, 10-12(a), 10-13, 10-14, 10-17, 10-18, 10-29, 10-62, 11-4, 11-5, 11-6, 11-7, 11-8, 11-10, 11-11, 11-12, 11-13, 12-1, 12-2, and 12-3 of the rules of practice shall apply to juvenile matters as defined by General Statutes [section] 46b-121." Section 46b-121 provides in relevant part that " . . . (A) Juvenile matters in the civil session include all proceedings concerning . . . termination of parental rights . . ."
. . . Because neither Section 34a-1 nor 34a-6 of the Practice Book (nor any other sections of the Practice Book reviewed by the court) include Section 10-35, 10-36 or 10-37 in the list of sections that "apply to juvenile matters" or are in "[t]he order of pleadings" for TPR cases, the respondent is precluded from filing and should not have filed her request to revise pursuant to Practice Book Section 10-35 et seq. Such filing is thus a nullity and this TPR case shall proceed as if it had not been filed.
(Footnotes omitted.)
While the juvenile matter before the court involves a motion in the context of a neglect case, the principles set forth above are equally applicable to it.
Additionally, if Practice Book § 15-8 were applicable, as the court stated during the contested hearing DCF had set forth a prima facie case.
CONCLUSION AND ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY
This is a case where, as of the January 28, 2008, entry of the ex parte order of temporary custody, based on the evidence presented to the court, it was more likely or probable than not that Daniel would have been in immediate physical danger if he were allowed to leave the hospital to live in the parents' home, that such ex parte order was necessary to ensure his safety, and thus the order of temporary custody is sustained.
However, DCF has a statutory duty to make efforts to reunify Daniel with one or both of his parents:
(a) The Commissioner of Children and Families shall make reasonable efforts to reunify a parent with a child unless the court (1) determines that such efforts are not required pursuant to subsection (b) of this section or subsection (j) of section 17a-112, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129.
General Statutes § 17a-111b.
Also, DCF has a statutory duty to provide visitation to each parent:
(a) The Commissioner of Children and Families shall ensure that a child placed in the care and custody of the commissioner pursuant to an order of temporary custody or an order of commitment is provided visitation with such child's parents and siblings, unless otherwise ordered by the court.
(b) The commissioner shall ensure that such child's visits with his or her parents shall occur as frequently as reasonably possible, based upon consideration of the best interests of the child, including the age and developmental level of the child, and shall be sufficient in number and duration to ensure continuation of the relationship . . .
General Statutes § 17a-10a.
In summary, as of January 28, 2008, when the ex parte order of temporary custody was issued by the court, if he were removed from the hospital and placed in the home of the parents, because of his specialized needs related to his withdrawal from methadone, Daniel would have been in immediate physical danger, up to and including death, from his surroundings. On January 28, 2008, because of his special needs, it would have been contrary to Daniel's welfare and best interest to have been allowed to leave the hospital in the care of his parents.
By a fair preponderance of the evidence, DCF has thus established that on January 28, 2008, Daniel was
. . . in immediate physical danger from his surroundings, and (2) that as a result of said conditions, his safety [was] endangered and immediate removal from such surroundings [was] necessary to ensure his safety . . .
Such temporary custody order thus is sustained and shall remain in effect unless and until vacated, terminated or otherwise modified by the court.