Opinion
H12CP1716981A
05-30-2017
In re Mason S
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON ORDER OF TEMPORARY CUSTODY
Mary-Margaret D. Burgdorff, J.
This contested Order of Temporary Custody (OTC) hearing, in the interest of the minor child, Mason S., born June 16, 2015, was conducted pursuant to Practice Book Sec. 33a-7(d) and Connecticut General Statute § § 46b-129(b) and (f). Accordingly, the subject matter before the court is limited to the petitioner's claim that there is a continued need for the protective custody and care of Mason by someone other than the permanent legal guardian, Marilyn S., because he would be subject to immediate physical danger from his surroundings if returned to the care and custody of the permanent legal guardian. 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 § 46b-56b and the best interests of the child at issue in this temporary custody hearing.
The instant ex parte Order of Temporary Custody (OTC) and Neglect Petition was filed by the Department of Children and Families (DCF) on May 5, 2017. The ex parte OTC was granted by the court (Woods, J.) on May 5, 2017. Mother, Sarah S., and Father, Jason S., and the permanent legal guardian, Marilyn S., appeared at the preliminary hearing on May 12, 2017, denied the allegations, and elected a 10-day hearing to contest the ex parte OTC. Service was confirmed. At the 10-day hearing on May 22, 2017, the court found that Mother and Father have no legal standing to contest the OTC in light of the transfer of the legal permanent guardianship of Mason to Marilyn S. Mother and Father were not present at the hearing but were represented by counsel who remained present for the hearing. The permanent legal guardian and her counsel were present. Mason was represented by his counsel. DCF was represented by an assistant attorney general.
DCF's exhibits A, B, C, D, E and F were admitted as full exhibits. DCF offered testimony from the DCF social worker, a West Hartford police offer, a West Hartford detective, a North Branford police officer, and a caretaker working for the permanent legal guardian.
The court took judicial notice of the entire record of the prior non-delinquency proceedings including pleadings, petitions, social studies, status reports, evaluations, court memoranda and specific steps as well as the dates and contents of the court's findings, orders, rulings and judgments.
Unless otherwise specified, all facts are found by a fair preponderance of the evidence. By way of background, Mother and Father have a serious and significant history of substance abuse, mental health and domestic violence issues. An OTC was granted on behalf of Mason on June 26, 2015. Notably, Mason tested positive for cocaine at the time of his birth and was treated for Neonatal Abstinence Syndrome from June 16, 2015 to July 13, 2015. Mason was adjudicated neglected and committed to the care of DCF on January 21, 2016. Upon his discharge from the hospital, Mason was placed with his maternal grandmother, Marilyn S., where he has remained since his removal on May 5, 2017. On December 8, 2016, a subsidized permanent transfer of legal guardianship to Marilyn S. was ordered by the court. Mother and Father consented to the permanent transfer of legal guardianship.
On March 20, 2017, DCF received a report from the West Hartford police department that domestic violence incident between Mother and Father occurred at the permanent legal guardian's home. The permanent legal guardian was not present in the home at that time. Mother was residing in the home and Father had been staying in the home for several days. Mother stated to the police officer that she and Father had been using crack cocaine and heroin at the home, and that they had transported Mason to his daycare. They then proceeded to drive to Hartford to purchase crack cocaine. An argument ensued which continued until they returned to the permanent legal guardian's home at which time Father threatened Mother with physical violence and assaulted her. Father was arrested with disorderly conduct and threatening. A protective order was issued with Mother as the protected party. The police officer credibly testified that Mother appeared to be under the influence of drugs. DCF was contacted and, upon arrival at the home, the permanent legal guardian stated that she had no idea that Mother and Father were using drugs nor that she was ever aware of either parent being under the influence of drugs. The permanent legal guardian disclosed that Mother resided in her home and provided care for Mason, and transported him to daycare. The permanent legal guardian reported to the social worker that she was scheduled to have spinal surgery and would be out of the home for an extended period of time. The DCF social worker informed the permanent legal guardian that Mother and Father were not to have any unsupervised contact with Mason during her absence and that childcare resources acceptable to DCF would need to be obtained to provide care for Mason during her absence. The permanent legal guardian entered into a safety agreement with DCF agreeing not to allow Mother and Father unsupervised access to Mason. The permanent legal guardian disclosed to DCF the names of three caretakers, who were assessed and found to be acceptable by DCF to care for Mason. Mother continued to reside in the permanent legal guardian's home.
A North Branford police officer credibly testified that he was called to a domestic incident involving Mother and Father at a bank parking lot in North Branford on April 8, 2017. Mother reported that she went to the bank with Father to obtain money to purchase drugs. Father shoved her while she was trying to call the police. Father was arrested for violation of a protective order. Mother admitted she was aware of the existing protective order.
On April 21, 2017, DCF was contacted by the West Hartford police department to report a call from one of Mason's caretakers that a needle, a white power substance and a rock like substance was found in a bathroom used by Mother and Mason at the permanent legal guardian's home. A second report from the West Hartford police department that day to DCF reported that a caretaker heard Mother state that she was going to give Mason Benadryl to help him fall asleep.
One of the caretakers credibly testified that Mother had unsupervised access to Mason when she was residing in the permanent legal guardian's home. She also reported that Mother and Father transported Mason to his daycare.
On April 21, 2017 DCF contacted the permanent legal guardian at the hospital to report its concerns. The permanent legal guardian reported to the DCF social worker that she did not believe the concerns because of her negative experience with DCF in the past. She was resistant to DCF's request that Mother cease to reside in the permanent legal guardian's home and asserted that there was no evidence of drugs in her home because the syringe was empty and the rock like substance tested negative for illegal substances. She agreed not to allow Mother to reside in the home and not to allow Father to visit her home.
The permanent legal guardian has returned to her home with some physical limitations. The three caretakers previously hired by the permanent legal guardian will continue to assist her with her medical care, and are available to provide care for Mason if he is returned to her care.
Connecticut law is clear that, in the context of a hearing for an order of temporary custody pursuant to § 46b-129(b), a finding of immediate physical danger is a 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 or parents, or in this case, the guardian, and that continued removal was necessary to ensure their 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 or parents [or guardian] . . . Where there is no substantial showing . . . made at a temporary custody hearing that . . . [a child] . . . would be in immediate physical danger if [he or she] were returned to the [respondent's] home . . . [is] error for the court to grant temporary custody in one other than the child's [permanent legal guardian]. (Citations omitted.) In re Chronesca D., 126 Conn.App. 493, 13 A.3d 1106 (2011). The court notes that it must strive to maintain a proper balance between the legal guardian's rights to family integrity and the State's responsibility to protect the rights of children to grow up in a safe and nurturing environment. In re Christina M., 90 Conn.App. 565, 585 (2005) aff'd, 280 Conn. 474, 908 A.2d 1073 (2006). On a hearing for Temporary Custody, therefore, the court is to consider only whether the child or children are in such imminent physical danger that the state must step in to protect them, or whether they would be in such danger if returned to their parent or parents, or guardian.
The court finds that, based upon the credible evidence and testimony elicited at trial, that Mason was in immediate physical danger at the time the ex parte OTC was granted by the court and that reasonable efforts were made by DCF to prevent his removal. The permanent legal guardian's failure to ensure that Mason had supervised contact with his parents at all times at the permanent legal guardian's home along with their continued substance abuse and domestic violence issues which took place at her home placed him in imminent physical danger. The court is especially troubled by the permanent legal guardian's denial of Mother's substance abuse issues and her lack of insight as to how Mason's unsupervised exposure to Mother is dangerous especially in light of the fact that Mason was born addicted to cocaine. The court finds, however, that DCF has failed to sustain its burden of proof by a fair preponderance of the evidence that Mason would be subject to immediate physical danger if he is returned to the care of the permanent legal guardian. In making this determination, the court notes that the permanent legal guardian is now residing in her home, she has hired caretakers to assist her and provide care for Mason, that Mother is no longer residing in the home, and that the permanent legal guardian has agreed not to allow Father into the home.
The court reaffirms the preliminary specific steps ordered as to the permanent legal guardian on May 5, 2017. The court notes that it is imperative that the permanent legal guardian participate in her court-ordered services to learn and understand the danger her denial of Mother's ongoing substance abuse and Mother's and Father's domestic violence issues pose to Mason. Of paramount concern to the court is the permanent legal guardian's lack of insight into the danger Mother's substance abuse and domestic violence issues pose to Mason as demonstrated by her poor judgment allowing her daughter to reside with her on the date of the order of transfer of permanent legal guardianship and allowing Mother to provide unsupervised care for Mason including allowing Mother and Father to transport Mason in a motor vehicle to his daycare. The permanent legal guardian must demonstrate to the satisfaction of the court that she will not allow Mason to be exposed to the danger posed by his parents. The court further orders that Mother is not allowed to reside in the permanent legal guardian's home, that any visitations with Mason and Mother and Father be supervised and take place separately outside of the home. DCF is ordered to ensure that all caretakers be informed that Mother and Father are not to have access to the home, are not to have unsupervised contact with Mason, and that Mason's daycare provider be informed that Mother and Father are not to have contact with Mason without DCF's approval.
Accordingly, the order of temporary custody is vacated and Mason is ordered to be returned to the permanent legal guardian effective immediately subject to the above orders.
SO ORDERED.