Opinion
No. U06-CP09-006724-A
March 20, 2009
MEMORANDUM OF DECISION
This is a neglect proceeding. The court finds the following facts by a fair preponderance of the evidence.
Neither parent reported to DCF that he or she might be of Native American descent.
1. Elizabeth K. ("Elizabeth") was born at Yale-New Haven Hospital in October 2008, after twenty-three weeks of gestation. At birth she weighed 1.23 pounds. After birth she remained in the hospital's neo-natal care unit because of chronic lung disease and retinopathy of prematurity.
2. In January, the department of children and families ("DCF") received a telephone referral from a social worker at the hospital. Such social worker testified that she made the first of two referrals because the father provided her with information that raised concerns about the mother's ability to care for Elizabeth. The father described to her an incident that, if Elizabeth had been in the home, had the potential to be harmful to her. Subsequently, such social worker made a second referral because of concerns of the nursing staff about the mother's lack of visitation, e.g., spending time with Elizabeth. Such worker stated that for babies who have prematurity-related issues it is important for the parents to be in the hospital nursery to learn "baby cues," feeding techniques, to bond with the baby and to see and practice those behaviors required to care for the baby, and the mother was not doing those things.
General Statutes § 17a-103a is entitled "Telephone hotline to receive reports of child abuse or neglect." It provides as follows:
The Commissioner of Children and Families shall provide a telephone hotline for child abuse that shall be dedicated to receive reports of child abuse. Such hotline shall accept all reports of abuse or neglect regardless of the relationship of the alleged perpetrator to the child who is the alleged victim and regardless of the alleged perpetrator's affiliation with any organization or other entity in any capacity. The commissioner shall classify and evaluate all reports pursuant to the provisions of section 17a-101g.
General Statutes § 17a-102a is entitled "Education and training for nurses and birthing hospital staff caring for high-risk newborns re responsibilities as mandated reporters of child abuse and neglect . . ." and it provides in part:
(a) Each birthing hospital shall provide education and training for nurses and other staff who care for high-risk newborns on the roles and responsibilities of such nurses and other staff as mandated reporters of potential child abuse and neglect under section 17a-101.
(Emphasis supplied.)
General Statutes § 17a-101 is entitled "Protection of children from abuse, Mandated reporters . . ." and it provides in part:
(a) The public policy of this state is: To protect children whose health and welfare may be adversely affected though injury and neglect; to strengthen the family and to make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.
(b) The following persons shall be mandated reporters: Any physician or surgeon licensed under the provisions of chapter 370, any resident physician or intern in any hospital in this state, whether or not so licensed, any registered nurse, licensed practical nurse, medical examiner, dentist, dental hygienist, psychologist, coach of intramural or interscholastic athletics, school teacher, school principal, school guidance counselor, school paraprofessional, school coach, social worker, police officer, juvenile or adult probation officer, juvenile or adult parole officer, member of the clergy, pharmacist, physical therapist, optometrist, chiropractor, podiatrist, mental health professional or physician assistant, any person who is a licensed or certified emergency medical services provider, any person who is a licensed or certified alcohol and drug counselor, any person who is a licensed marital and family therapist, any person who is a sexual assault counselor or a battered women's counselor as defined in section 52-146k, any person who is a licensed professional counselor, any person paid to care for a child in any public or private facility, child day care center, group day care home or family day care home licensed by the state, any employee of the Department of Children and Families, any employee of the Department of Public Health who is responsible for the licensing of child day care centers, group day care homes, family day care homes or youth camps, the Child Advocate and any employee of the Office of Child Advocate.
(Emphasis supplied.)
3. On January 26, 2009, DCF assigned to the mother's case the investigative social worker who testified at trial.
4. On January 27, 2009, such worker interviewed the hospital social worker about the telephone referral to DCF. As set forth in exhibit 2, such hospital social worker told the DCF worker about the mother's admissions concerning use of alcohol and marijuana prior to learning of her pregnancy. The mother also reported the existence of a criminal protective order against the father. The hospital social worker reported that the mother had been visiting Elizabeth only on a limited basis. Elizabeth was required to receive oxygen through a machine and she was still medically fragile so that a cold could be life-threatening.
The father stated that the mother continued to use alcohol after she learned she was pregnant. (Exhibit 2, page 2, paragraph 5.) The mother denied to the DCF worker that she had substance abuse issues.
Petitioner's exhibit 5 is the father's criminal history. On August 29, 2008, the father was arrested for assault in the third degree and breach of peace in the second degree. Such charges were pending on March 13, 2009, the date of the report of such history. During her cross-examination, the mother declined to answer any questions concerning domestic violence between her and the father. She did testify that after the August incident she sought a protective order.
The mother did not visit Elizabeth as often as the hospital team assigned to Elizabeth recommended. The hospital team instructed the mother that she needed to maximize her time with Elizabeth so that she would learn to recognize Elizabeth's breathing patterns, feeding habits (and other "baby cues"). (Exhibit 2, 2.) The mother did not want to travel to New Haven, she wanted Elizabeth to be home with her and she was frustrated by what she perceived as delays. She also testified that she "was tired of crying in her daughter's room at night."
5. On February 3, 2009, the mother entered into a service agreement/safety plan ("service agreement") with DCF. The service agreement provided that the mother "will participate in a substance abuse screen/evaluation" and that the mother "will participate in all of the recommended trainings that are provided by Yale New Haven Hospital[.]"
The purpose of a service agreement "is to ensure that the parents or legal guardians and the [DCF] representative are aware of what needs to be accomplished to ensure that the children involved are safe and well cared for . . ." The service agreement is voluntary and may be prior to (e.g., no petition has been filed by DCF or is pending in the SCJM) or may be in addition to any specific steps that are ordered by the court if any petition has been filed.
The mother did participate in a substance abuse screen and evaluation.
The mother did not participate in all of the trainings at the hospital, and her failure to do so was a substantial factor in the decision of the hospital concerning the risk of abuse and neglect if Elizabeth were returned to the mother for a second time and in the decision of DCF to file the neglect petition and motion for order of temporary custody. Before the first release of Elizabeth from the hospital the hospital social worker expressed to the DCF worker "serious concerns relating to mom's ability to care for the baby." (Exhibit 3.)
6. On Friday, February 13, 2009, such social worker sent by facsimile transmission a letter to the mother's employer so that the mother's family medical leave could start. The plan by the hospital was that the mother would come to the hospital from February 14, 2009, through February 16, 2009, the anticipated date of Elizabeth's discharge, for extensive and intensive training so that she could properly care for Elizabeth after discharge.
7. Elizabeth was discharged from the hospital and sent home with the mother on Tuesday, February 17, 2009.
8. The mother reported to DCF that she was bathing Elizabeth during the evening of February 17, 2009, when Elizabeth's hands started shaking and her face turned red. The mother began to perform CPR on Elizabeth and she telephoned 911 for help. She was told by the dispatcher to stop performing CPR on Elizabeth but she refused to do so, thus endangering Elizabeth. (The DCF ARG nurse testified that the mother should have given Elizabeth "puffs of small breaths" rather than CPR chest compressions.) CPR would have been appropriate if Elizabeth were turning blue, e. g., having a cardiac incident but not a breathing incident reflected by her red color. Elizabeth was taken by ambulance to St. Mary's Hospital where she remained overnight through Wednesday, February 18, 2009.
9. On February 18, 2009, the DCF investigative social worker and a DCF area resource group nurse made a home visit to the mother and Elizabeth. The mother admitted that she continued to perform CPR on Elizabeth after she was told by the 911 dispatcher not to do so. In her testimony the mother attempted without success to explain her decision to continue with CPR after being told not to do so, and the mother did not acknowledge that she could have injured Elizabeth by doing that.
10. On February 18, 2009, a respiratory therapist was also present and she instructed the mother how to stimulate Elizabeth when her oxygen level fell below 85. On a few occasions the respiratory therapist stated that Elizabeth was not breathing. The DCF social worker noted that "Mom appeared anxious and overwhelmed." (Exhibit 3.) Elizabeth was returned to St. Mary's Hospital and she was then transported to Yale-New Haven Hospital where she remained through February 25, 2009, the date DCF filed its neglect petition and ex parte motion for an order of temporary custody.
11. The mother admitted to DCF that she was unprepared for all of the efforts required to care for Elizabeth and her specialized needs. The mother had not arranged for assistance from her mother or other persons. When Elizabeth was being returned to Yale-New Haven Hospital, the mother claimed she had been up for a long time without sleep: "Mom continued to state that she hadn't slept last night and that her baby had stopped breathing." The DCF worker recommended that she stay home for some sleep rather than accompanying Elizabeth to the hospital, and the DCF investigative social worker arranged with the mother to transport her to the hospital on February 19, 2009, where DCF and the hospital team expected the mother would remain on a continuous basis until Elizabeth was ready to be discharged from her second hospitalization.
Regardless of the reasons therefor and without assessing or determining whether any person or organization was at fault, the court finds that the mother was unable to provide the care necessary for Elizabeth's health, welfare and safety while she was with the mother during the approximately twenty-four-hour period on February 17 and 18, 2009.
12. Between February 18, 2009, and February 25, 2009, the mother did not spend the amount of time at the hospital with Elizabeth that DCF and such hospital believed was necessary for Elizabeth to be returned to her. Additionally, according to the testimony of an attending physician from such hospital, the mother's capacity to care for Elizabeth was re-evaluated and downgraded after Elizabeth returned on February 18, 2009. (Such physician referred in her testimony to a re-evaluation of "the social circumstances.")
13. On Friday, February 20, 2009, the mother chose to leave the hospital to return to Waterbury for an appointment at 6:00 p.m. concerning her taxes rather than to stay at the hospital with Elizabeth and the hospital team so that she could continue her training on how to care for Elizabeth.
The mother's choice of her tax appointment over her training with Elizabeth and the hospital team certainly caught the attention of DCF and the hospital team and caused them to consider the extent of the mother's commitment to reach a level where Elizabeth would be safe in her care. See, e.g., exhibit 2, pages 4-5, paragraphs 13, 15 and 16. The mother believed that her choice to keep her taxes appointment caused DCF and the hospital staff to decide not to return Elizabeth to her.
14. On February 21, 2009, the mother returned at 2:30 p.m. and stayed with Elizabeth for approximately ninety minutes. Between February 21, 2009 and February 25, 2009, the mother did not stay overnight either at the Ronald McDonald House or at the hospital to be with Elizabeth.
15. While the father was willing to be a resource for Elizabeth, he had not participated in necessary training to care for her, and he had not developed a strong bond with her.
16. On February 25, 2009, the hospital team, through the hospital social worker, reported their finding that Elizabeth "is at risk of abuse and or neglect if left in the unsupervised, single caregiver care of her mother." (Exhibit 2, page 6, paragraph 23.)
17. The DCF investigative social worker reported that "[d]espite repeated encouragement from hospital staff and this worker, mother has failed to spend enough time with her baby to distinguish typical behavior from distressful situations. Father has also visited the baby on a limited basis and has not been trained on how to use the oxygen machine. (Exhibit 2, page 6, paragraph 24.)
18. On February 25, 2009, pursuant to General Statutes § 46b-120(9)(B) and (C), DCF filed petitions in the Superior Court for Juvenile Matters ("SCJM") alleging that Elizabeth was neglected because she had been denied proper care and attention, physically, educationally, emotionally or morally ("denied proper care"), or was being permitted to live under conditions, circumstances or associations injurious to her well-being ("conditions injurious"). DCF also sought an ex parte order of temporary custody that was granted by the court. Such court found that Elizabeth was suffering from a serious physical illness, that she also was in immediate physical danger from her surroundings and that continuation in the mother's home was contrary to her welfare. The court vested temporary custody of Elizabeth in DCF.
General Statutes § 46b-120(9)(A) and (B) provide that
. . . (9) a child or youth may be found "neglected" who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth . . .
General Statutes § 46b-129(b) provides in part:
If it appears from the specific allegations of the petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, 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, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest in some suitable agency or person the child's or youth's temporary care and custody pending disposition of the petition, or (B) issue an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody.
19. On February 25, 2009, the court also issued specific steps to each parent.
20. On March 6, 2009, the father consented to the order of temporary custody. The mother contested such order. DCF filed a motion to consolidate the hearing on the contested order of temporary custody with the hearing on the adjudicatory phase of the neglect petition. The consolidated hearings occurred on March 16 and March 17, 2009, at the Superior Court for Juvenile Matters, Child Protection Session at Middletown ("SCJM CPS" or "CPS"). The assistant attorney general representing DCF, the current worker assigned to the family, the attorney for Elizabeth, the biological mother and father of Elizabeth, and their separate counsel appeared before the court for the consolidated neglect and temporary custody hearings.
Although hearings on neglect petitions may sometimes be referred to as trials, in the Practice Book they are defined as hearings. See Practice Book § 26-1:
. . . (f) "Hearing" means an activity of the court on the record in the presence of a judicial authority and shall include (1) "Adjudicatory hearing": A court hearing to determine the validity of the facts alleged in a petition or information to establish thereby the judicial authority's jurisdiction to decide the matter which is the subject of the petition or information; . . . (3) "Dispositive hearing": The judicial authority's jurisdiction to adjudicate the matter which is the subject of the petition or information having been established, a court hearing in which the judicial authority, after considering the social study or predispositional study and the total circumstances of the child, orders whatever action is in the best interests of the child and, where applicable, the community. In the discretion of the judicial authority, evidence concerning adjudication and disposition may be presented on a single hearing.
Practice Book § 32a-2(a) provides that all such hearings are essentially civil proceedings but that they ". . . shall at all times be as informal as the requirements of due process and fairness permit . . .":
All hearings are essentially civil proceedings except where otherwise provided by statute. Testimony may be given in narrative form and the proceedings shall at all times be as informal as the requirements of due process and fairness permit . . .
Practice Book § 33a-7(e) provides for such consolidation:
Subject to the requirements of Sec. 33a-7(a)(6), upon motion of any party or on its own motion, the judicial authority may consolidate the hearing on the order of temporary custody or order to appear with the adjudicatory phase of the trial on the underlying petition. At a consolidated order of temporary custody and neglect adjudication hearing the judicial authority shall determine the outcome of the order of temporary custody based upon whether or not continued removal is necessary to ensure the child's or youth's safety, irrespective of its findings on whether there is sufficient evidence to support an adjudication of neglect or uncared for. Nothing in this subsection prohibits the judicial authority from proceeding to disposition of the underlying petition immediately after such consolidated hearing if the social study has been filed and the parties had previously agreed to sustain the order of temporary custody and waived the ten-day hearing or the parties should reasonably be ready to proceed.
21. Additional facts are set forth infra. Unless otherwise specified, all facts set forth in this decision are found by a fair preponderance of the evidence.
LAW APPLICABLE TO ADJUDICATORY PHASE OF NEGLECT CASES
CT Page 5318
1. Definition of neglect
The grounds for an adjudication of neglect alleged by DCF in this case are based on General Statutes § 46b-120:
. . . (9) a child or youth may be found "neglected" who . . . (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth.
In Randall v. Dunbar, No. CV 04 0525159 S, Superior Court, Judicial District of New Britain at New Britain (Murray, J., December 29, 2004) [38 Conn. L. Rptr. 468], the court set forth a definition of neglect:
. . . the law regarding neglect . . . has long been settled that neglect does not require intent. "Neglect . . . is the failure to exercise the care that the circumstances justly demand. It embraces willful as well as unintentional disregard of duty. It is not a term of fixed and measured meaning. It takes its context always from specific circumstances and its meaning varies as the context of surrounding circumstances changes." (Internal quotation marks omitted.) The Honorable Thomas D. Gill, "The Legal Nature of Neglect," 6 Nat'l Probation Parole Assn. J. 1, 6 (1960), quoting People v. LaBrenz, 411 Ill. 618, 624, 104 N.E.2d 769 (1952).
Judge Gill also explained in his article: "The court must always look to and be bound by the statutory definitions of neglect. Its right to respond to the needs of the neglected child is dependent upon the sufficiency of the evidence to prove and establish neglect." (Internal quotation marks omitted.) T. Gill, supra, 6 Nat'l Probation Parole Assn. J. 4.
Neglect also has been generally defined as "the failure, whether intentional or not, of the person responsible for the child's care to provide and maintain adequate food, clothing, medical care, supervision and/or education." State of Connecticut DCF website, operational definitions. The following are set forth as "examples of physical neglect: 1. the failure to provide adequate food, shelter, and clothing appropriate to the climatic and environmental conditions[;] 2. the failure to provide, whether intentional or not, supervision or a reliable person(s) to provide child care[;] 3. leaving a child alone for an excessive period of time given the child's age and cognitive abilities[;] 4. holding the child responsible for the care of siblings or others where beyond the child's ability[;] 5. the person responsible for the child's care displays erratic or impaired behavior[;] 6. the person responsible for the child's care is unable to consistently perform the minimum of child-caring tasks[; and] 7. death." There are additional examples set forth in the DCF operational definitions of educational, emotional and moral neglect. See also Kimberly L. v. Susan I. Hamilton, Department of Children and Families Commissioner, 2008 Ct.Sup. 15247, No. HHB-CV-07 4015542, Superior Court, Judicial District of New Britain at New Britain (Cohn, J., September 24, 2008), and In re Cameron W., F04-CP04-006236-A, Superior Court, Judicial District of Middlesex, Child Protection Session at Middletown (Wilson, J., December 28, 2006).
2. The nature of a neglect proceeding
A neglect petition has been described as sui generis, and as "not a typical civil action." In re Allison G., 276 Conn. 146, 158, 883 A.2d 1226 (2005). The purpose of neglect and uncared for proceedings are to insure the child's safety and to secure a permanent placement for such child "as expeditiously as possible," whether such placement is with one or both parents, biological relatives, foster care or an institutional setting. Id. In In re Allison G., the primary issue was whether the trial court judge properly dismissed the neglect allegations of the DCF petition over the objection of DCF after the parents agreed to plead no contest to the uncared for allegations of such petition, and after the parents agreed to the relief sought by DCF, e.g., commitment of the child to the care, custody and guardianship of DCF. The Court set forth some "general observations":
In considering this issue, we begin with some general observations about the context in which this claim arises. A neglect petition and concomitant request for an order of commitment are not a typical civil action. "A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999). In such proceedings, the petitioner acts not to vindicate her personal rights but, acting for the state as parens patriae, to ensure, first and foremost, the child's safety and, second, a permanent placement of the child as expeditiously as possible. In re Joshua S., 260 Conn. 182, 196-97 n. 15, 796 A.2d 1141 (2002); In re Jason C., 255 Conn. 565, 576-77, 767 A.2d 710 (2001); In re Jonathan M., 255 Conn. 208, 231-32, 764 A.2d 739 (2001). The petitioner [DCF] does not seek the monetary or equitable relief of a typical civil action, but, rather, actions by the court that will further the dual goals of safety and permanency. Accordingly, "relief" in this context takes on a somewhat different meaning, and the petitioner's interests in seeking an adjudication and disposition upon filing a neglect petition do not fit neatly within the aggrievement rubric. See In re David L., supra, 191-93 (distinguishing between significance of adjudication and disposition of neglect petition).
In re Allison G., supra, 276 Conn. at 158-59.
In In re Allison G., the Supreme Court recognized that "[t]he focal point of a neglect petition is not condemnation of the parents, but, rather, the status of the child." In re Allison G., supra, 276 Conn. at 164. Such court also noted that the status of the child "is determined as a result of the adjudication, not the disposition of the petition." Id. Such court also stated:
An adjudication of neglect that results in an order of commitment necessarily implies that the neglect occurred due to some action or inaction on the part of the custodial parents. A finding to that effect does not serve merely a punitive purpose, as suggested by the trial court. Rather, the parents' willingness thereafter to accept responsibility reasonably may bear on whether reunification or termination of parental rights is in the child's best interest . . .
In re Allison G., supra, 276 Conn. at 164.
In In re Allison G., supra, 276 Conn. at 153 n. 4, the court ". . . underscore[d] the importance of an adjudication of both counts of the petition . . . ," e.g., both the neglect and uncared for counts.
3. Neglect standards
Pursuant to General Statutes § 46b-129, neglect trials are comprised of two parts, adjudication and disposition. In re Brianna C., 98 Conn.App. 797, 801 (2006). Conn. Practice Book § 35a-7A also provides:
(a) In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment . . .
(b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded.
In Brianna C., supra, 98 Conn.App. at 805, the Appellate Court explained this court's disposition options as follows:
In this case after the social study is filed by DCF, the court in the future will conduct a hearing concerning disposition.
After an adjudication of neglect, a court may
(1) commit the child to the commissioner,
(2) vest guardianship in a third party or
(3) permit the parent to retain custody with or without protective supervision. General Statutes § 46b-129(j) . . .
In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child. "To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of [the child's] environment." (Internal quotation marks omitted.) In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004). At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65.
As set forth above, and pursuant to Practice Book § 32a-3(a), the standard of proof applied in a neglect, uncared for or dependency proceeding is a fair preponderance of the evidence. In In re Brianna C., supra, 98 Conn.App. at 801, the Appellate Court confirmed that "[t]he burden of proof is on the petitioner to show by a fair preponderance of the evidence that removal of a child from his or her home is warranted. In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983)." Later in such decision, the Appellate Court reiterated:
The standard of proof applicable to nonpermanent custody proceedings, such as neglect proceedings, is a fair preponderance of the evidence. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); Practice Book § 32a-3 (a).
In re Brianna C., supra, 98 Conn.App. at 802.
Specifically with respect to dispositional matters, the same burden of proof applies:
At trial, the commissioner had the burden of proving by a fair preponderance of the evidence that it was in the child's best interest to be committed to the commissioner rather than to remain with the respondent. See id., 65. On appeal, we must determine whether there was sufficient evidence before the court so that it reasonably could find, by a fair preponderance of the evidence, that the best interest of the child was to commit custody of her to the commissioner, with eight hours daily of unsupervised visits with the respondent.
In re Brianna C., supra, 98 Conn.App. at 804-05.
4. The meaning of "fair preponderance of the evidence"
As set forth above, the standard of proof in a neglect case is the "fair preponderance of the evidence."
Such 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 had been satisfied with respect to a fact if all the evidence considered fairly and impartially evince[d] a reasonable belief that it [wa]s more probable than not that the fact [wa]s true.
Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981); see also Konover Development Corp. v. Zeller, 228 Conn. 206, 230, 635 A.2d 798 (1994).
The Connecticut Supreme Court has previously determined that in temporary custody and neglect proceedings application of the fair preponderance standard satisfies constitutional requirements:
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).
Fish v. Fish, supra, 285 Conn. at 73-74.
5. Weight to be given to testimony of witnesses, including testimony from experts
In Davonta V., 285 Conn. 483, 488-89, 940 A.2d 733 (2008), a TPR case, the Supreme Court set forth the standards to be applied by the court in considering expert testimony, which testimony has an important role in neglect and TPR trials:
Parental termination litigation, including the present case, often involves testimony from various child welfare professionals. "The testimony of professionals is given great weight in parental termination proceedings . . . It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . On appeal, we do not retry the facts or pass on the credibility of witnesses . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 781-82, 740 A.2d 896 (1999) . . .
In In re Melody L., 290 Conn. 131, 161 (2009), the Supreme Court stated that a trial court can give credence to the testimony of an expert witness even on "the ultimate issue" to be decided by the trial court:
This court repeatedly has held that, "[e]xperts can . . . sometimes give an opinion on an ultimate issue where the trier, in order to make intelligent findings, needs expert assistance on the precise question on which it must pass." (Internal quotation marks omitted.) State v. Vilalastra, 207 Conn. 35, 41, 540 A.2d 42 (1988), cert. denied, 349 U.S. 926, 75 S.Ct. 775, 99 L.Ed. 1257 (1955). This understanding has been codified in § 7-3(a) of the Connecticut Code of Evidence, which provides in relevant part that "[t]estimony in the form of an opinion is inadmissible if it embraces an ultimate issue to be decided by the trier of fact, except that . . . an expert witness may give an opinion that embraces an ultimate issue where the trier of fact needs expert assistance in deciding the issue."
As the Appellate Court aptly has recognized, "[t]he trial court's exercise of discretion in admitting expert testimony is not to be disturbed unless it has been abused or the error is clear and involves a misconception of the law . . . Furthermore, [c]ourts are entitled to give great weight to professionals in parental termination cases." (Citation omitted; internal quotation marks omitted.) In re Tabitha P., 39 Conn.App. 353, 364-65 n. 8, 664 A.2d 1168 (1995); id. (concluding that trial court had not abused its discretion in admitting into evidence testimony of court-appointed evaluator's conclusions where there was no evidence that court failed to consider any other evidence in rendering its decision).
Earlier, the Supreme Court set forth the parameters for a trial court's use of expert testimony in a family case:
As in other areas where expert testimony is offered, a trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful . . . In family cases in particular, it would be anomalous to require a trial court to assign particular weight to a report which is based on statements that the trial court may evaluate differently and on circumstances that may have changed.
Yontef v. Yontef, 185 Conn. 275, 281-82, 440 A.2d 899 (1981). See also Ford v. Ford, 68 Conn.App. 173, 190 (2002):
". . . [A] trial court is free to rely on whatever parts of an expert's opinion the court finds probative and helpful." Yontef v. Yontef, 185 Conn. 275, 281, 440 A.2d 899 (1981).
The trial court in whole or in part need not accept a person's testimony, whether or not such person has been qualified as an expert:
The law traditionally recognizes the trial court as a tribunal equipped to resolve disputed evidentiary issues, and as the "final judge of credibility." Clark v. Haggard, 141 Conn. 668, 674, 109 A.2d 358 (1954). Moreover, as we have often noted, the fact that a witness testifies as an expert does not compel the acceptance of his or her testimony as true. See, e.g., Aspiazu v. Orgera, 205 Conn. 623, 634, 535 A.2d 338 (1987).
State v. Joly, 219 Conn. 234, 237, 243, 593 A.2d 96 (1991). The Supreme Court stated that factual determinations are ". . . appropriately committed to the sound discretion of the trial court." Id. In Joly, the issue was whether a witness had been hypnotized. Id. The Supreme Court then stated:
. . . In resolving this issue, the court may be aided, but is not bound, by expert opinion. Id. Such testimony must be "considered, weighed and tested like any other evidence"; id.; and assessed "`in relation to the other circumstances in evidence bearing on the question in issue'"; Blake v. Blake, 207 Conn. 217, 225, 541 A.2d 1201 (1988); including, if offered, the testimony of the allegedly hypnotized witness. The trial court "`is privileged to adopt whatever testimony [it] reasonably believes to be credible'"; (emphasis in original); Eichman v. JJ Building Co., 216 Conn. 443, 451-52, 582 A.2d 182 (1990); and expert testimony may be rejected in favor of other evidence found more persuasive. Transportation Plaza Associates v. Powers, 203 Conn. 364, 377, 525 A.2d 68 (1987).
In In re David W., 254 Conn. 676, 687-88, 759 A.2d 89 (2000), the Supreme Court emphasized deference to the trial court's discretion in determining the weight to be given to all or part of an expert's testimony:
Previously, we held that "[t]he credibility of expert witnesses and the weight to be accorded their testimony are within the province of the trier of facts, who is privileged to adopt whatever testimony he reasonably believes to be credible." (Internal quotation marks omitted.) Transportation Plaza Associates v. Powers, 203 Conn. 364, 378, 525 A.2d 68 (1987). Furthermore, it is well settled that the trial court possesses discretion in ruling, not only on the qualifications of expert witnesses, but on the admissibility and weight of their opinions and testimony. State v. Kemp, 199 Conn. 473, 476, 507 A.2d 1387 (1986). "As the witness qualified as an expert, any objection to his testimony would go to its weight rather than to its admissibility." (Emphasis added; internal quotation marks omitted.) State v. Avila, 166 Conn. 569, 576, 353 A.2d 776 (1974). "It is rare for this court to find that a trial court has erred in a ruling permitting expert testimony." State v. John, 210 Conn. 652, 677, 557 A.2d 93, cert. denied, 493 U.S. 824, 110 S.Ct. 84, 107 L.Ed.2d 50 (1989) . . .
6. Predictive neglect
The doctrine of predictive neglect is well-known in the Connecticut case law, and it allows DCF to act prophylactically when it has reason to believe that there is a potential for neglect:
In addition to the manual and statutes, there is, of course, a well developed body of case law addressing parameters for findings of abuse and neglect, as well as cases addressing circumstances when the defendant may act prophylactically. See, e.g., In re Stephen M., 109 Conn.App. 644, 651 and n. 11, 953 A.2d 668 (2008) (citing "doctrine of predictive neglect"); In re T.K., 105 Conn.App. 502, 513, 939 A.2d 9 ("[t]he doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred"), cert. denied, 286 Conn. 914, 945 A.2d 976 (2008); In re Michael D., 58 Conn.App. 119, 123, 752 A.2d 1135 ("[o]ur statutes clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future"), cert. denied, 254 Conn. 911, 759 A.2d 505 (2000).
Prior neglect need not be established in a case where the doctrine of predictive neglect is applicable:
"Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected." (Emphasis added.) In re Michael D., 58 Conn.App. 119, 124, 752 A.2d 1135 (2000), cert. denied, 254 Conn. 911, 759 A.2d 505 (2002); see also In re T.K., 105 Conn.App. 502, 513, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).
In re Francisco R., 111 Conn.App. 529, 531 n. 1, 959 A.2d 1079 (2008).
In the Francisco R. case, the father had been accused of sexually assaulting children other than a child who was the subject of the petition and the father had agreed with the mother and with DCF to remove himself from and not to enter the home where a child who was the subject of the petition resided. The trial court's adjudication of neglect was affirmed:
The fact that the respondent and the child's mother apparently were in compliance with the service plan that they had agreed upon with the department at that time does not change the analysis. "Just because services are accepted . . . does not mean that a child cannot be deemed neglected under our law. The doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the wellbeing of a child, not to repair it after a tragedy has occurred." In re T.K., supra, 105 Conn.App. 513. See General Statutes § 17a-101.
In re Francisco R., supra, 111 Conn.App. at 538.
In In re T.K., 105 Conn.App. 502, 511-13, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008), while the baby was in the hospital the mother had disturbing thoughts of harming herself and/or the baby. The court's adjudication of neglect was affirmed although no actual harm had occurred and the mother had not taken the child from the hospital. The Appellate Court noted:
Just because a parent has never refused services does not mean that the services are not warranted, as this case illustrates. Just because services are accepted, on the other hand, does not mean that a child cannot be deemed neglected under our law. The doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred.
In re T.K., supra, 105 Conn.App. at 513.
In In re Kelly S., 29 Conn.App. 600, 602, 616 A.2d 1161 (1992), the trial court adjudicated the child neglected and uncared for. The coterminous neglect and TPR petitions and the ex parte motion for an order of temporary custody were filed with the court while Kelly was still in the hospital as a newborn. Id., 603. The mother had a long history of mental illness. Id., 604. Kelly's special needs were described in part as follows:
In this case DCF has not alleged that Elizabeth is uncared for despite her obvious specialized needs.
Kelly is a child with special needs. At the time of the hearing, she was developmentally delayed by at least six months. According to her pediatrician, Kelly is a high risk baby with special needs and is demanding. Rearing a child in this condition would be taxing for a parent with ordinary abilities, as her medication and feedings require strict regulation. Caring for her requires constant diligence and vigilance. She has a gastroesophageal reflux condition that could cause food to be regurgitated into her lungs. This condition could be life threatening. Kelly must be held and positioned in a special way; she will not tolerate lying on her stomach or on her back for long . . .
In re Kelly S., supra, 29 Conn.App. at 604-05.
The Appellate Court affirmed the trial court's finding of predictive neglect (although that term was not used in the decision):
In its memorandum of decision, the trial court observed that there was "no evidence that Kelly has been actually neglected or uncared for by her parents" since she had never been in their custody. (Emphasis in original.) On the basis of its findings of fact, however, the court concluded that the respondent's parental deficiencies, if Kelly were in her care, would have permitted the child to live under conditions, circumstances or associations injurious to her well-being and would have denied her proper care and attention physically, educationally, emotionally or morally. The court also found that the respondent's instability and inability to parent rendered Kelly homeless. The court further found that, although the respondent had obtained housing at the time of trial, it was totally inadequate, in light of the parents' deficiencies, to be viewed as a home for the child. Additionally, the court found that the respondent's home could not provide the specialized care that Kelly's physical, emotional or medical condition requires. Accordingly, the court adjudicated Kelly to be a neglected and uncared for child pursuant to 46b-129.
In re Kelly S., supra, 29 Conn.App. at 606-07.
CONCLUSION AND ADJUDICATION OF NEGLECT
In this case, the court finds based on the facts set forth above by a fair preponderance of the evidence that Elizabeth was neglected after her birth and through the February 25, 2009, date of the neglect petition. However, even if those facts do not establish that Elizabeth was denied proper care and exposed to conditions and circumstances injurious to her health, the court can reasonably predict by a fair preponderance of the evidence that as of February 25, 2009, given, inter alia, Elizabeth's medically fragile condition, her specialized needs and the mother's lack of ability to read Elizabeth's cues and to properly respond to her needs, e.g., her lack of ability to distinguish between Elizabeth's "normal" behavior and behavior requiring intervention for Elizabeth's health, welfare and safety, that if Elizabeth were returned to the mother's care she would be denied proper care and she would be exposed to conditions or circumstances injurious to her well-being.
The mother continuing to perform CPR against the advice of the EMT dispatcher when it was not required and when it was reasonably likely to be dangerous to Elizabeth is sufficient to establish that she was denied proper care. Additionally, the mother's lack of ability to discern Elizabeth's normal (for her) behavior from behavior requiring a parental or other response, her lack of understanding and appreciation of the scope of effort needed to maintain and care for Elizabeth despite the efforts of the hospital team to educate and train her, the need for two hospital interventions by St. Mary's Hospital in the approximate twenty-four-hour period she was at the mother's home, and the mother's refusal to spend the time deemed necessary by the hospital team for her to bond with and get to know Elizabeth's cues also establishes that Elizabeth was denied proper care. Also, while she was in the care of the mother, she lived under conditions and circumstances injurious to her well-being.
The mother testified at the consolidated hearings and demonstrated her lack of appreciation and understanding of Elizabeth's and her circumstances existing as of February 25, 2009, by asking why she was being "punished" by not being allowed to have Elizabeth home with her. She seemed more focused on the perceived unfairness of what was happening to her than on the medically fragile and very challenging (for any parent) circumstances of Elizabeth if the mother were responsible for her at home.
Also, in contradiction to the testimony of the hospital and DCF social workers about their contact with the mother and the contact by members of the hospital team with her about the importance of the mother spending as much time as possible with Elizabeth, on February 24, 2009, the mother claimed to the hospital social worker that she had not been aware that it was important for her to be spending as much time as possible with Elizabeth in preparation for the transfer to her care. The mother also told the hospital social worker that she viewed her time spent at the hospital as a "waste."
APPLICABLE LAW RE CONTESTED 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 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 . . . 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 February 25, 2009, the SCJM court found that (1) Elizabeth was "suffering from serious physical illness" and that she also was "in immediate physical danger from surroundings . . ."; the court further found that (2) "[c]ontinuation in the home is contrary to the welfare of said child . . . ," and (3) the court issued an ex parte order vesting temporary custody of Elizabeth in DCF.
An OTC 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.
(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 responsibility 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).
In In re Kaurice B., supra, 83 Conn.App. at 525-26, the Appellate Court described the required finding of the trial court after the contested hearing if an OTC is sustained:
On the basis of the evidence admitted at the hearing, the court concluded that K would be subject to immediate physical danger from her family surroundings if she was returned to the care and custody of her father and stepmother. Accordingly, the court sustained the order of temporary custody.
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).
CONCLUSION AND ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY
This is a case where, as of the February 25, 2009, entry of the ex parte order of temporary custody, based on the evidence presented to the court in this contested hearing, it was more likely or probable than not that Elizabeth would have been in immediate physical danger if she were allowed to return to and reside in the home where the mother was residing; that such ex parte order was necessary to ensure her safety which was endangered; and thus the order of temporary custody is sustained.
However, at this point in the case, and until this court orders otherwise, DCF has to perform its statutory duty to make reasonable efforts to reunify Elizabeth with one or both of her 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 pursuant to General Statutes § 17a-10a:
(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.
In summary, by a fair preponderance of the evidence, DCF has thus established that on February 25, 2009, Elizabeth was
. . . suffering from serious physical illness . . . [and] in immediate physical danger from h[er] surroundings, and (2) that as a result of said conditions, h[er] safety [was] endangered and immediate removal from such surroundings [was] necessary to ensure h[er] safety . . .
Such temporary custody order thus is sustained and shall remain in effect unless and until vacated, terminated or otherwise modified by the court. The specific steps entered on February 25, 2009, shall remain in effect until further order of the court.