Opinion
W10CP11016138A.
11-27-2012
In re BRAYLEN P-Z.
UNPUBLISHED OPINION
FOLEY, J.T.R.
This is a coterminous action for neglect and termination of the parental rights of Harley P., the mother, hereinafter referred to as " mother" or " Harley, " and Kevin Z., the father of Braylen, born September 30, 2011. The parents have appeared and are represented by counsel. The child is represented by counsel. Neither parent claims Indian Tribal affiliation. Neither parent is now or has been in the military service. The court is aware of no other proceedings pending in any other court regarding the custody of this child. This court has jurisdiction.
Thereafter on October 31, November 1 and November 19, 2012, the parents appeared with counsel for a contested hearing. The court heard testimony from the ten witnesses including the medical director of the Suspected Child Abuse and Neglect program at Connecticut Children's Medical Center (CCMC), a pediatric radiologist, a forensic psychologist, a video conference testimony of a Chicago orthopaedist, a Behavioral Health consultant, a probation officer and relatives. Neither of the parents testified. No adverse inferences are drawn.
The court reviewed numerous documents entered in to evidence. After considering all of the testimony and documentary evidence presented and having the opportunity to observe the witnesses, the court makes the following findings of fact by clear and convincing evidence.
Initial findings:
On December 11, 2011, Braylen was 2 months old. He was brought to the Windham Hospital and subsequently transferred to the Connecticut Children's Medical Center due to injuries suspicious of child abuse. The child was examined by a team of medical doctors, led by the director of the Suspected Child Abuse and Neglect (SCAN) team, Dr. Nina Livingston. She reported that 2-month-old Braylen had multiple bruises and extensive injuries including bruises on both upper arms, bruising on left forearm including patterned (linear parallel) bruises, circumferential bruising to the shaft of his penis (photos, Exhibit S), patterned bruise on left lower leg consistent with grab mark; multiple fractures including: healing left clavicle fracture (not compatible with birth, most likely 2-4 weeks old), classic metaphyseal lesions of uncertain age, a fracture highly specific for abuse in multiple locations of the lower extremities. Dr. Livingston also found two additional areas suspicious for classic metaphyseal lesions and tenderness on palpitation of left humerus, suggesting possible injury to this area; an acute subdural hematoma, likely within a range of as recent as immediately or within 7 to 10 days of CT scan, and bilateral multilayered extensive retinal hemorrhages. Dr. Livingston testified in court that these injuries were diagnostic for inflicted trauma in multiple time frames and that the head trauma was life threatening. Additionally, the unusual pattern of injury to Braylen's penis was suspicious for sexual abuse. (Exhibit C.) The parents said they had no idea how the injuries occurred.
Kevin, the father, stated that, on the evening before the hospital admission, the child fed normally at 11:00 P.M., slept until 2:20 A.M. at which time Kevin fed the child and returned the child to the crib. At 5:45 A.M., the child awoke again and cried normally. Kevin said he changed the child's diaper in the crib. He then wrapped the child in a blanket and took him to the living room and placed him on the sofa while he went to get a bottle. A minute later, upon his return he noted that Braylen was shaking " like he was cold" and then became limp with eyes rolling back in his head; unresponsive, pale and did not appear to be breathing for several seconds. Braylen then began to make grunting noises with intermittent gasping respirations and moans. Kevin then woke the mother, Harley, and they decided to take the child to the nearby hospital. (Exhibit C.)
The parents could not explain the injuries to the pediatrician. When asked about the bruises, they thought that it was possibly from the safety harness on the car seat. They reported no known injuries. (Exhibit D.) At the Connecticut Children's Medical Center, Kevin denied shaking the baby, performing chest compressions or doing any resuscitative maneuvers. Father denied any trauma of any kind but did say that the child had his first bruise about one month earlier and has had intermittent bruising on his lower legs and arms. He said that the child had intermittent bleeding from his upper gums/mouth, which he believed were caused by scratching himself and may have sustained bruises from the car seat straps. He said the bruising on his penis has been present since his circumcision. Kevin described Braylen as having an outgoing personality. " He explores a lot. Now he can see farther. He likes to look at lights. There's times when he is fussy and cranky, but he's a fun little boy."
Harley's description of events was largely consistent with Kevin's except her description of Braylen's temperment is notably different. She says Braylen began to scream and refuse to feed at three weeks old. She said he has remained intermittently fussy ever since, especially when diapers are changed. He vomited twice in 24 hours around thanksgiving and would not feed for seven hours. She describes Braylen as " a very fussy and cranky baby."
Police detectives obtained text messages sent by mother to father while the father was out of the home on a day in the recent past. Mother indicated she was frustrated and that if father did not come home his son's life might be in danger.
DCF reported a prior substantiation of father sexually abusing a young child. Cross examination of the social worker revealed that Kevin's father has exactly the same name as Kevin and has been convicted of illegal sexual contact with a minor.
Braylen's past pediatric record reveals that on November 9, there was a phone call regarding Braylen spitting up formula and feeding advice was given. On November 25, another phone call for vomiting on and off for two days and crying when Braylen was laid flat for five days. The pediatrician saw the child on that day and Braylen cried throughout the visit. Braylen was seen on November 30, for a 2-month well child visit. It was reported that Braylen was fussy and refused feedings at times. Respondent's Exhibit 7 consists of records from the hospital at birth and pediatric visits. The newborn discharge notes describe the circumcision as healing well. None of the four pediatric visits made any note of a ring of bruising around the shaft of the penis. The photographs taken at the hospital (CCMC), show very obvious bruising.
Based upon the laboratory results, family history, physical examination of the child, genetic and metabolic testing, including ruling out blood disorders and skeletal x-rays, thus ruling out every possible medical disorder, and further after two weeks in protected care in the hospital, there being no additional bruises or fractures, Dr. Livingston testified " This child was physically abused. I am sure Braylen was physically abused." (See also Exhibit F.)
The parents secured a medical opinion of a board certified, Chicago orthopaedist, Christopher Sullivan. This physician testified at the trial by video conferencing. He testified that he had spent two hours on this case reviewing records. He did not physically examine the child, interview the parents or review the social history of the family. It was unclear what he actually reviewed. He concluded that there was not sufficient evidence to satisfy him there was any child abuse. He attributed the bone fractures to a mild vitamin D deficiency noting that rickets was a possible cause, the other fractures, the classic metaphyseal lesions were evidence of rapid growth. Dr. Sullivan thought the subdural hematoma was possibly caused by benign external hydrocephalus separating the brain from the inside of the skull and re-bleeding. He admitted he is neither a pediatrician nor a neurologist. He was however, completely dismissive of the team that evaluated Braylen " [C]hild abuse experts tend to get excited over things." This court found his opinions to be of little weight and wholly insufficient to disturb the thorough and comprehensive findings of the CCMC medical team.
It should be also noted that Dr. Timothy Brown, a pediatric radiologist at CCMC, testified that the child did not have an enlargement of the fluid spaces, to which the Chicago doctor alluded, and neither did the child have rickets. In the only area of real medical competence, the Chicago doctor, an orthopaedist, persuasively argued that the classic metaphyseal lesions were non-displaced, perfectly symmetrical and, in his opinion, could not be replicated. He therefore concluded that these are just evidence of rapid bone growth.
Neglect Finding:
By history, the parents were the sole primary caretakers of Braylen. In their care the child received severe and life threatening injuries. Based upon these facts this court finds by a preponderance of the evidence that at the time the petition was filed, the child was neglected in that he was permitted to live under conditions, circumstances or associations injurious to his well-being, and the child was abused in that the child has inflicted injuries by other than accidental means. § 46b-120(9).
Termination of parental rights:
The petition alleges that the child, Braylen, has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care guidance or control necessary for the child's physical, educational moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights. § 17a-112(j)(3)(C).
Based upon the medical testimony, records and documents in evidence, the court finds that Braylen has suffered nonaccidental or inadequately explained serious physical injury.
Both biological parents were involved with DCF as children. Harley says she was physically and emotionally abused by her father. Her parents were arrested for domestic violence. She identifies her father as having a problem with alcohol. Her parents divorced when she was ten. She reports having been diagnosed with bipolar disorder and having manic episodes in which she was full of energy and didn't need sleep. (Exhibit I.)
Kevin had two out-of-home placements. In 2004, his sister reported to being sexually abused by her father. In September 2004, DCF received a referral that Kevin had fondled a three-year-old toddler. The allegation was not confirmed. In 2005, Kevin was held in New Haven detention. He had left his home several times between 11:30 at night and 4:30 in the morning. Kevin admitted to setting fire to 10 recycling bins. He was charged with arson. As an adult, Kevin was arrested on February 5, 2010 and charged with burglary. He subsequently pled guilty and was sentenced to five years in jail, suspended after ten months served, and placed on probation for three years. Harley told Dr. David Mantell that Kevin had a history of cocaine and marijuana use.
Harley met Kevin when she was 14 and he was 17. They did not get to know each other until they started to date in December 2010. Harley was majoring in auto body work at a technical college in Rhode Island. Harley said they dated for three months. They broke up in February 2011. A week later Harley found out she was pregnant and dropped out of technical college.
In the beginning of March 2011, they resumed their relationship. Kevin worked in landscaping " so he was not around often." During the pregnancy the couple was transient. First they lived with Harley's grandmother, then with Kevin's mother. His mother decided to move so Harley and Kevin had to relocate. They moved in with her cousin in Plainfield who was not supportive, according to Harley. They then moved in with her father's girlfriend in Andover. Harley said that she was viewed as ungrateful and unhelpful. They then moved in with her father in an apartment in Chaplin. The maternal grandmother found an apartment for Harley and Kevin and they moved in to that apartment in Scotland, CT in November 2011. Braylen was one month old. It was Kevin and Harley's sixth move in nine months. They were able to pay the rent for one month until Kevin lost his job. The maternal grandmother paid the $600 monthly rent.
Harley told DCF that Kevin was very supportive in the evenings and early morning hours allowing her to sleep. Kevin told the psychologist that Harley didn't like to do housework. He said the whole time they were together " he had done everything for her; he cooked, cleaned, got up with the baby at night so she could sleep, made all his bottles before he went to work so that they were all set for her, make sure he was fed and back to sleep before he went to work, and they had a video monitor and he would make sure it was plugged in so she could hear and see Braylen and be alert." (Petitioner's Exhibit I p. 15.)
Dr. David Mantell conducted individual and separate interviews of the parents, conferred with them jointly and talked to a number of independent witnesses. Kevin answered some of Dr. Mantell's questions at follows;
" Asked what the care of Braylen was like for the last 2 weeks, he said the child was switched to soy formula because he wasn't taking Enfamil. He was still gassy and they thought that he was lactose. But the father says, " He was fine when I was there." He recalled a Saturday before the weekend at the hospital when he went to help a buddy with his truck. While he was with his buddy, he received 13 text messages within a half an hour from Harley, which said things like:
" I can't do this anymore.
He won't stop screaming or crying.
You are putting your son's life in danger by going out and helping your friends.
I'm so sick to deal with this at the moment. You've got to come home.
When are you coming home?
What are you doing?
I'd say why don't you go outside and look 2 yards down and you'll see what I'm doing.
He went home after that. She was lying on her bed. He was lying on his tummy.
She just said, " I don't feel good. I can't do this."
Asked what he thought that Harley was telling him, Kevin said he didn't know. Asked whether it might have been that she wanted him to stay with her and not with his friends, he said that that was it and that is how she has always been, and he had to drop all of his friends to be with her. Asked whether he thought she was saying that she had decided that being a young mother was not for her, he said no and that Harley " is capable of taking care of him (Braylen) for 1 to 2 hours while I'm gone. She came waltzing up to me and she was fine. I said you can't keep doing this. I'm going to have friends." He reports that she told him that this was fair, that she had friends and she was still going out until 2 or 3 in the morning all of the time that he was staying home with Braylen. He said she went with her friends, Brittany, Sarah, and his friends would call and tell him that she was out with one of her exes. He said he just decided to put Braylen as his first priority and didn't pay any mind to her. He said that, " I already knew she's start doing this as soon as she had him." Asked what he meant by that, he answered, " Go out." He said before she was pregnant, she would go out all of the time. He said that it crossed his mind many times that she would pick up with one of her exes when she went out and, in fact, she broke up with him for one of her exes, and then she thought it was wrong and tried to get back with me. He reports that he told her at that time and these are " my exact words:"
" I am only taking you back to be a part of my son's life because you hurt me."
Asked if he ever trusted her again, he said, " Not really, sort of, kind of, " and the he found out she was out with her ex until 4 in the morning. He said he would talk to her and this was before Braylen was taken. Kevin said he does not know whether she was sexually active with other people when she was out at night. He said he was hoping she wasn't."
Curiously, when Dr. Mantell talked to the parents together, Harley set the tone for the content of their information, according to the psychologist. Harley described the baby as a peaceful baby who always ate on time, had his own schedule which was consistent and she said that they adjusted their schedule to work with him. " The mother reported that Braylen loved to lie on his chest and calm down and fall asleep and is still like that." She said Braylen was fussy once in a while ..." [H]e didn't really cry" Kevin chimed in " He only cried when he woke up in the middle of the night ." The father denied, when they were together that the mother ever felt he was with his friends too much, adding, " I didn't have friends really."
Dr. Mantell obtained collateral information from others (see Exhibit I pp. 26-33). The great grandmother described Braylen as being a " very mean, cranky child and had a lot of gas. He cried a lot and was a needy newborn because he cried and was a fussy baby."
She said at times Harley was unable to calm him. Asked to describe Braylen now she said he is having screaming fits at night and would scream for no reason. Asked describe his scream, she told Dr. Mantell, it sounded like he was in pain. A real loud scream.
Nicole D. who is married to Harley's uncle was with Braylen about six times prior to his removal. She says he was a very fussy baby who screamed a lot and kicked a lot during fits. She said that " When Kevin was there, he did more child care than Harley did."
" She (Nicole D.) does not think that the parents are capable of meeting the baby's needs and describes him as child who is very difficult to handle at times. She remembers being on the phone with Harley and hearing the baby screaming and Harley saying she didn't know what to do." While the child was placed with the D.s, they did a video of the child who screamed " like a cat being skinned alive." with the child screaming from 15 minutes to 7 hours with an ear-splitting scream."
Dr. Mantell found that Harley has a superior intellectual ability and that Kevin tests with dull to central average range of intellectual ability. " The mother is described in ways that indicate she has a strong need to dominate and control her husband and he a strong need to cater to her wishes and comforts. She has become the primary breadwinner and he repeatedly unemployed. He characterizes himself as the primary homemaker even when he was employed full time."
" The father also provides a substantial amount of information that contrasts sharply with the mother's statements about herself and which indicate, if accurate, that the mother was deeply stressed and destabilized by the parenting requirements of her child, felt unable to cope, and saw herself at risk for harming her child and announced this on many occasions to the father and to others."
Dr. Mantell recommends that the child not be placed with the parents until a perpetrator is identified, the parents being the primary persons of concern as perpetrators of the life threatening injuries to this child. Neither did Dr. Mantell recommend reunification efforts until there is clarity about how and by whom the child was injured.
With respect to permanency, Dr. Mantell noted a basic developmental requirement for children to provide them with a continuity of care, personal identification with adult caretakers, opportunity to emotionally bond with caretakers and develop the essential emotional foundation for healthy development. As Braylen has spent an unusual length of time hospitalized and has had three sets of caretakers in his fifteen months of life, " these facts accentuate this child's need for permanency."
Very important in any decision of this nature has to do with rehabilitation and the prospects for competent parenting. Here, the child has been exposed to horrific personal injuries for which the parents cannot or will not explain. The father is now incarcerated on unrelated charges. Harley has only recently engaged mental health therapy and has essentially failed in parent education training. A year after removal of the child, Harley continues to be easily frustrated in her parenting and the child will not make eye contact with her. (Respondent Mother's Exhibit 6, last page dated October 26, 2012, also testimony of Pamela St. John.)
Based upon the testimony and documentary evidence the court finds by clear and convincing evidence that the child, Braylen, has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care guidance or control necessary for the child's physical, educational moral or emotional well-being. The court has earlier noted that nonaccidental or inadequately explained serious physical injury to a child constitutes prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights. § 17a-112(j)(3)(C).
Disposition:
During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. In re Quanitra M., 60 Conn.App. 96, 103 (2000). " In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in General Statutes [17a-112(k) ]." In re Jonathon G., 63 Conn.App. 516, 528 (2001) (quoting In re Denzel A., 53 Conn.App. 827, 833 (1999)). The seven factors " serve simply as guidelines to the court and are not statutory prerequisites that need to be proven before termination can be ordered." In re Quanitra M., supra at 104. " There is no requirement that each factor be proven by clear and convincing evidence." In re Rafael S., 125 Conn.App. 605-610-11, 9 A.3d 417 (2010). The court considers each of them in determining whether to terminate parental rights under this section.
1. TIMELINESS, NATURE AND EXTENT OF SERVICES— § 17a-112(k)(1). Timely and appropriate services were provided for the parents, consistent with the great harm to their child which is not explained by them. Those services included, but are not limited to: treatment and permanency plans; case management services; and administrative case reviews; referrals to Community Health Resources for individual counseling, referrals to Behavioral Health Consulting Services for parent education, and transportation services for visitation supervised by DCF personnel, or by therapeutic visitation programs.
On individual counseling, Harley went for an intake in April 2012 and her first visit in May 2012. She then stopped attending until she got new counsel in August 2012, when she resumed her individual counseling.
While attending supervised visitation Braylen tended to gravitate toward the father. Kevin seemed to anticipate the child's needs and was attentive to them. The parenting education clinician testified at trial. She said that Kevin was comfortable and appropriate in his care for Braylen, but he stopped attending the program when he subsequently became incarcerated. According to Kevin's probation officer, in April 2012, Kevin had picked up a new arrest for burglary and was incarcerated on a probation violation. Those charges are still pending.
Kevin appeared at court, having been brought from Department of Corrections. He has four years of unexecuted sentence remaining on his prior conviction.
Harley did not fare well in parenting education. She was uncomfortable with the baby when he cried. Her goal was to get him to go to sleep. Her engagement and eye contact with the child were limited. When a suggestion was made regarding parenting she would say " I know that." Sometimes she would " storm out of the room" or runs crying from the room. (Respondent's Exhibit 6.) The clinician said she has emotional issues that need to be worked out with a therapist. Her reactions to the child are beyond those of normal parenting. She had extreme frustration and would frequently say when changing the child " why are you fighting me on this?" She would deny saying that, and later admit it. The clinician said she told Harley that it is not a personal thing about a child being resistant to being changed. One time Harley flipped Braylen over banging his head. She was unable to manage her own frustrations according to the clinician. " The main concern is that mother gets frustrated and in turn is abrupt and rough with him." She concluded by saying that " her reactive responses make it hard to do parent training with her." (Respondent Mother's Exhibit 6, last page dated October 26, 2012.)
2. REUNIFICATION EFFORTS PURSUANT TO FEDERAL LAW— § 17a-112(k)(2). DCF made limited efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended. DCF arranged for psychological testing to determine what services were needed. Dr. Mantell reported that reunification was not a feasible plan unless and until the parents could explain how the child was injured and why it is that a child could be safely placed with them.
3. COMPLIANCE WITH COURT ORDERS— § 17a-112(k)(3). Specific Steps were ordered on December 15, 2011 (Dyer, J.). While the father, who appears to be the better parent, failed to comply with the specific steps by relapsing on marijuana, K2, and cocaine (Exhibit R) and became and remains incarcerated. Harley has been in tepid, if reluctant, compliance, she has not benefited significantly from services. Foremost, she has not cooperated with DCF by explaining how the injuries to the child came about. She has manifested poor parenting skills and remains in need of significant mental health treatment. Given the nature of the child's injuries, the psychological findings from her evaluation, her history of untreated bipolar disorder and her failure to account for the injuries to her child, no child could be safely placed in her care.
4. THE CHILDREN'S FEELINGS AND EMOTIONAL TIES— § 17a-112(k)(4). Since Braylen is very young child and was removed at two months of age the child has formed attachments to others. Since Braylen was removed at such an early age, no parent-child relationship occurred. The parents have had visitation. The child does not make eye contact with the mother, she is not comfortable with the child and there appears to be no bond at all. Regrettably, the father who had the closest bond of the two parents is now incapacitated and unavailable by virtue of his incarceration. The child needs a place of security, affection, competence and nurturing now. Neither parent can provide that now nor within any reasonably foreseeable time.
5. AGE OF THE CHILD— § 17a-112(k)(5). Braylen was born on September 30, 2011. He is now fourteen months of age.
6. PARENT'S EFFORT TO ADJUST CIRCUMSTANCES— § 17a-112(k)(6). The findings of Dr. Mantell are highly suggestive of abuse by a highly stressed and frustrated mother. It may be that the father is protective of the mother, it certainly is suggested by the psychological findings. They have adopted a position that they have no knowledge of how the injuries occurred. The court finds that the parents have not adjusted their circumstances to facilitate reunification. The parents are unable or unwilling to benefit from services and have not adjusted their circumstances to accommodate the child.
7. EXTENT TO WHICH RESPONDENT WAS PREVENTED FROM MAINTAINING A RELATIONSHIP WITH THE CHILDREN— § 17a-112(k)(7). No unreasonable conduct by the child protection agency, foster parents or third parties is noted. The visitation has been supervised to keep the child from further harm and no further harm has occurred since removal from the parents' care.
Orders
" The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care ..." General Statutes § 17a-101(a). " Time is of the essence in child custody cases ... This furthers the express public policy of this state to provide all of its children a safe, stable nurturing environment." (Citation omitted; internal quotation marks omitted.) In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 439-40, 446 A.2d 808 (1982).
After due consideration of the child's sense of time, his need for a secure and permanent environment and the totality of circumstances; and having considered all the statutory criteria and having found by clear and convincing evidence that grounds exist for termination of parental rights; and having concluded that the termination of the parental rights at issue will be in the child's best interests, the court issues the following orders: That the parental rights of Harley and Kevin are hereby terminated as to the child Braylen P-Z. The commissioner of the Department of Children and Families is hereby appointed the statutory parent for the child for the purpose of securing an adoptive family or other permanent placement for him. That a case plan shall be submitted within 30 days of this judgment, and that such further reports shall be timely presented to the court, as required by law.
The permanency plan calling for termination of parental rights and adoption is approved. The court finds that the agency has made reasonable efforts to effectuate the plan.
The Clerk of any court with jurisdiction over any subsequent adoption of this child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters, 81 Columbia Ave., Willimantic CT 06226 of the date when said adoption is finalized.
Judgment may enter accordingly.
It is so ordered.