Opinion
No. L15-CP06-008245-A
November 17, 2006.
MEMORANDUM OF DECISION
INTRODUCTION:
This is a contested hearing on whether to sustain or vacate an order of temporary custody. Pursuant to Connecticut General Statutes ("C.G.S.") section 17a-101g(e), which provides in part that if the commissioner of the Department of Children and Families ("DCF") "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety . . ." on October 29, 2006, at 9:30 p.m., DCF removed Jaiden S. ("Jaiden") from the mother (the "ninety-six hour hold").
"The remedies provided in [sections] 46b-129(b) and 17a-101g(c) are available only upon a finding that there is probable cause to believe that the child is in unsafe surroundings and that immediate removal is necessary to protect the child from harm." Teresa T. v. Ragaglia, 272 Conn. 734, 749-50, 865 A.2d 428 (2005). (Footnotes omitted.) Pursuant to Public Act 05-35, subsection (c) of section 17a-101 became subsection (e).
Pursuant to C.G.S. section 46b-129(b), which provides in part that "[i]f 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 of 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 November 2, 2006, the court found that (1) Jaiden 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 of temporary custody vesting custody of Jaiden in DCF.
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six hour hold and issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Id., 758 n. 9: "The reasonable cause determination in [section] 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is immediate physical danger,' whereas the probable cause determination in [section] 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' `impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . ."
The mother of Jaiden contested the court's findings and its determination that his custody should be vested in DCF. On November 16, 2006, this court heard the parties on the issue of whether the November 2, 2006, ex parte order of temporary custody should be sustained or vacated.
THE CONTESTED HEARING: CT Page 21365
DCF's first witness was the hotline investigator who on October 29, 2006, was assigned on an emergency basis to investigate a report from a hospital that "a baby had been dropped on its head," and the mother had been arrested. Such worker went to a police station in the town where the incident had occurred to interview the mother. The mother told such worker that she had an altercation with the child's father (actually the putative father, who has requested a paternity test). He was going to leave and she wanted him to spend more time with Jaiden.The mother said that she, the father and Jaiden, who was thirty-nine days old, had spent a weekend at a motel. On Sunday, October 29, 2006, as she was in the motel parking lot loading her vehicle, the father's "cousin" (later in such hearing identified by the mother as the father's twenty-eight year old nephew) "pushed her" and caused her to drop Jaiden "face-first" into the open trunk of her vehicle.
Such worker stated that DCF knew that the mother had two older children who, in 2003, had been placed with the maternal grandmother.
On August 12, 2006, the mother had been arrested for the offenses of criminal trespass in violation of C.G.S. section 53a-107 and harassment in the second degree in violation of C.G.S. section 53a-183. (Exhibit 2A, 2.) While such charges were pending, as they were on October 29, 2006, the mother was ordered, inter alia, not to have contact with the father.
C.G.S. section 46b-38c provides in relevant part: "(e) A protective order issued under this section may include provisions necessary to protect the victim from threats, harassment, injury or intimidation by the defendant including, but not limited to, an order enjoining the defendant from (1) imposing any restraint upon the person or liberty of the victim, (2) threatening, harassing, assaulting, molesting or sexually assaulting the victim, or (3) entering the family dwelling or the dwelling of the victim. Such order shall be made a condition of the bail or release of the defendant and shall contain the following language: `In accordance with section 53a-223 of the Connecticut general statutes, any violation of this order constitutes criminal violation of a protective order which is punishable by a term of imprisonment of not more than five years, a fine of not more than five thousand dollars, or both. Additionally, in accordance with section 53a-107 of the Connecticut general statutes, entering or remaining in a building or any other premises in violation of this order constitutes criminal trespass in the first degree which is punishable by a term of imprisonment of not more than one year, a fine of not more than two thousand dollars, or both. Violation of this order also violates a condition of your bail or release, and may result in raising the amount of bail or revoking release.' Every order of the court made in accordance with this section after notice and hearing shall also contain the following language: `This court had jurisdiction over the parties and the subject matter when it issued this protection order. Respondent was afforded both notice and opportunity to be heard in the hearing that gave rise to this order. Pursuant to the Violence Against Women Act of 1994, 18 U.S.C. [section] 2265, this order is valid and enforceable in all fifty states, any territory or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico and tribal lands.' The information contained in and concerning the issuance of any protective order issued under this section shall be entered in the registry of protective orders pursuant to section 51-5c."
On October 29, 2006, pursuant to C.G.S. section 53a-223, a class D felony, the mother was arrested for the offense of violation of a protective order. (Exhibit 2, 2.)
"(a) A person is guilty of criminal violation of a protective order when an order issued pursuant to subsection (e) of section 46b-38c . . . has been issued against such person, and such person violates such order. (b) Criminal violation of a protective order is a class D felony."
The mother claimed to the worker that she and Jaiden were at the motel so that Jaiden could visit with his father.
If she could not have Jaiden returned to her, the mother told such worker that she wanted her mother, the maternal grandmother, to care for Jaiden. After conversations with the maternal grandmother concerning a lack of family members available to care for Jaiden, and the maternal grandmother's concerns about the mother's ability to care for Jaiden, such worker issued the ninety-six hour hold and placed Jaiden in an emergency foster home.
The expressed concerns were the mother's "overfeeding" of Jaiden, his "vomiting" after being fed, the mother sleeping until one or two p.m., the mother's post-traumatic stress disorder, her "other illnesses," and her unwillingness to be prescribed and to take medications.
The maternal grandmother was unable, physically and financially, to assist the mother. Earlier in 2006, she had a heart attack. She worked on the third shift at a factory. She provided a home for and cared for the mother's two older children and the mother's eighteen-year-old sister.
The DCF investigative worker who received the case after the hotline worker had conducted the emergency investigation testified that she was assigned to the case on October 30, 2006, one day after the incident that resulted in Jaiden being taken to the hospital emergency room. Such worker placed Jaiden in the specialized long-time foster home where he currently is residing. Such worker described her meeting with the mother at the DCF office. The mother came to such office without an appointment (an understandable action on the mother's part because of her concern for Jaiden). She described to the worker how she had spent the previous weekend with the putative father at a motel. The mother stated that the putative father had called her to see Jaiden. The mother was aware of the criminal protective order. The mother stated to such worker that the order was entered because of "a verbal argument in the summertime." She claimed to such worker that her understanding of the order was that if the putative father contacted her she could see him without violating the order. The mother stated that during the weekend of October 27-29, 2006, they had some "little arguments." As she was in the motel parking lot preparing to leave, the father's nephew appeared and began to call her "vulgar names." A verbal argument ensued, and the putative father took the keys from her vehicle. The mother stated to such worker that the nephew pushed her and she dropped Jaiden into the open trunk area of her vehicle.
The mother's testimony about the presence of the putative father's nephew, her explanation of his behavior toward her, their past differences and why the father helped the nephew take her keys from her vehicle was incomplete, vague, lacking in detail and confusing.
Such worker checked the mother's DCF records. Although the mother claimed that there had been one previous referral, the worker found that there had been several previous referrals to DCF concerning the mother.
In the context of the mother's pending criminal matters, such worker testified that the court referred the mother to a local counseling service for mental health treatment. The maternal grandmother confirmed to such worker her observations that the mother had mental health issues.
Because of their existing family obligations, such worker was told by the maternal grandmother that neither she nor the mother's married sister could be a resource for Jaiden. However, the maternal grandmother stated that the mother and Jaiden could live with her "for a few weeks" only if DCF were considering placement of the child with the putative father.
Such worker was told, despite the court referral to a local counseling service, that the mother believes that she has no mental health needs. However, the worker was informed that the mother did attend the intake session at such counseling service.
The investigative worker concluded that as of October 29 and 30, the mother was living transiently. For several years she had been living with other people, including the maternal grandmother. It had been several years since she had her own residence. She also had been staying at different hotels and motels. After the ninety-six hour hold and ex parte order of temporary custody were issued, the mother contacted a local housing authority and was placed on a six-eight week awaiting list.
Such worker stated that she was concerned about the mother's use of a body lotion on Jaiden that was not approved by Jaiden's pediatrician. Such lotion irritated Jaiden's skin condition. Different lotions had been recommended.
The investigative worker determined that the mother was not following the pediatrician's instructions concerning Jaiden's formula. The mother was adding solid foods that Jaiden was not ready or old enough to have.
The worker, who is experienced in investigations and in dealing with parents and children, said that when the mother was with her at a visitation with Jaiden and during the prior interview the mother's moods fluctuated over a more broad than normal spectrum. The worker found the wide range of her moods to be abnormal. At times the mother cried and hit herself. Such worker concluded that the mother was not processing the information that was being provided to her.
During the visitation the mother had not turned off her phone, and she received a call from her married sister. The mother held Jaiden in one arm and used her other arm for the phone. During such visitation, when Jaiden was falling asleep the mother would wake him up. The mother changed his clothes without reason an unusual number of times during the visitation, and she covered him with the unapproved fragranced lotion.
The mother was aware of the putative father's criminal record and that he was incarcerated for approximately four years. She told such investigative worker that she and the putative father, a convicted felon who is sixteen years older than she is, had been together for several years except when he was incarcerated. The father's Connecticut criminal record is four pages, and, starting in 1992, it includes three convictions for risk of injury, a conviction for risk of injury for sexual purposes, a conviction for enticing a minor and convictions for reckless endangerment, assault in the third degree, breach of peace, disorderly conduct and for probation violations. (Exhibit 2B.)
The putative father, who is living out of state, has been placed on the Connecticut sexual offender registry for ten years.
The mother claimed to the investigative worker that the putative father was never alone with her two older children (daughters).
On the October 27-29, 2006 weekend, Jaiden's diaper bag contained his supplies and also contained the mother's materials for romantic activities with the putative father. Since Jaiden's mid-September 2006, birth, the mother, in continuing violation of the court's criminal protective order, had spent each weekend with the putative father.
The court finds that the reasons for the ninety-six hour hold and the ex parte order of temporary custody are as follows:
1. The mother had no stable home for Jaiden.
2. The mother could offer no stable placement for Jaiden.
3. The mother needed to be but she was not meaningfully involved in mental health services.
4. The mother was unwilling to engage in substance abuse evaluation or testing.
5. The mother would not cooperate with DCF's efforts to provide services to her so she could be helped and Jaiden's safety could be insured:
6. The mother would not sign releases to enable DCF to provide or arrange for such services and to obtain necessary information. The mother did not have to sign such releases, but she does have to live with the consequences of her lack of cooperation in beginning the reunification process between Jaiden and her, of which the execution of such releases and cooperation with DCF is a part.
7. Over her family's reasonably-based objections and disapproval, the mother (a) persisted in her relationship and (b) involved Jaiden in such relationship with a dangerous convicted felon of unsuitable character and history (c) despite, since August 2006, the existence of a C.G.S. section 46b-38c criminal protective order and (d) her continuing violation of such criminal protective order, (e) which is a class D felony if the mother is convicted of such offense. The mother admitted that since Jaiden's birth, she has spent every weekend with such individual.
7. The mother has no legal source of income.
8. The mother has little insight into Jaiden's needs and is engaging in inappropriate and potentially dangerous behavior with and care for him, including the matters set forth above in this decision, and including having a bassinet that is too small for him to sleep in, a curved car seat/carrier that he was sleeping in, sleeping with him in her bed, having a crib for him but not setting it up, and taking showers daily with him and holding him with one arm in such shower while doing so.
On November 2, 2006 and as of the date of the contested hearing, the mother had not made any real effort to put herself in a position so that Jaiden could be returned to her.
The court finds that much of what the mother said was not credible. DCF reasonably has not relied on her statements and promises. The mother is in denial about her own issues that she needs to address before the safety of Jaiden while in her care can be assured.
APPLICABLE LAW:
Pursuant to C.G.S. § 17a-101g(e) (see fn 1, supra), which provides in part that if DCF "has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety. . .," on October 29, 2006, DCF removed Jaiden from the mother.
Pursuant to C.G.S. § 46b-129(b), which provides in part that "[i]f 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 of 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 November 2, 2006, the court found that Jaiden was "in immediate physical danger from surroundings . . ." and that "[c]ontinuation in the home is contrary to the welfare of said child . . ." and the court issued an ex parte order of temporary custody vesting custody of Jaiden in DCF. (See fn 2, supra.)
In In re Nashiah C., 87 Conn.App. 210, 221, 866 A.2d 669 (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)."
This is a case where, as of the November 2, 2006, date of the ex parte order of temporary custody and at present, based on the evidence presented to the court, it is more likely or probable than not that Jaiden would be in immediate physical danger if returned home, and Jaiden's immediate removal was and is necessary to ensure his safety. However, DCF has a statutory duty to make efforts to reunify Jaiden with the mother:
"(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, as amended by this act, or (2) has approved a permanency plan other than reunification pursuant to subsection (k) of section 46b-129, as amended by this act." C.G.S. section 17a-111b, as amended by Public Act 06-102, effective October 1, 2006. Also, DCF has a statutory duty to provide visitation to the mother: "(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 . . ." C.G.S. section 17a-10a.
CONCLUSION AND ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY:
As of November 2, 2006,
(a) given the mother's choice of a long-term abusive relationship with a convicted felon who is listed on the Connecticut sexual offender registry for a total of ten years,
(b) whom she continued to see and meet in violation of a criminal protective order,
(c) given the issues that have been identified as to the safety and security of Jaiden, who was born approximately thirty-nine days before the October 29, 2006, incident, as a result of which fortunately he did not seem to be seriously injured,
(d) given the mother's denial or non-recognition of the issues reflected by her choice of person for a long-term romantic relationship,
(e) noting the mother's unwillingness to be evaluated and tested, and thus leaving unanswered questions concerning whether the mother has any substance abuse issues,
(f) noting the mother's behavior and issues reflecting the immediate need for mental health evaluation and probable treatment, and her denial of such need, and
(g) given the mother's unwillingness to cooperate with DCF and act in a way to provide assurances that Jaiden would be safe in her care, if Jaiden were returned to the mother at this time, he would be in immediate physical danger from surroundings.
By a fair preponderance of the evidence, DCF has established that on October 29, 2006, on November 2, 2006, and at present, Jaiden was and "is . . . in immediate physical danger from [his] surroundings, and (2) that as a result of said conditions, [his] safety [was and] is endangered and immediate removal from such surroundings [was and] is necessary to ensure [his] safety . . ."
By a fair preponderance of the evidence, the order of temporary custody is thus sustained. Continuation of Jaiden in the mother's care under the mother's current circumstances was contrary to his welfare and best interest on November 2, 2006, the date of the ex parte order, and is at present contrary to his welfare and best interest.
Such temporary custody order thus shall remain in effect unless and until modified, vacated, or terminated by the court.