Opinion
Nos. H14-CP06-008564-A, H14-CP07-009138-A
August 1, 2007
MEMORANDUM OF DECISION
These are neglect cases.
On July 13, 2007, pursuant to a ninety-six hour hold provided for in General Statutes subsections 17a-101g(e) and (f), the commissioner of children and families (DCF) assumed temporary custody of Ember M-B. ("Ember") and Mary F. ("Mary").
General Statutes subsections 17a-101g(e) and (f) provide as follows: ". . . (e) If the Commissioner of Children and Families, or the commissioner's designee, has probable cause to believe that the child or any other child in the household is in imminent risk of physical harm from the child's surroundings and that immediate removal from such surroundings is necessary to ensure the child's safety, the commissioner, or the commissioner's designee, shall authorize any employee of the department or any law enforcement officer to remove the child and any other child similarly situated from such surroundings without the consent of the child's parent or guardian. The commissioner shall record in writing the reasons for such removal and include such record with the report of the investigation conducted under subsection (b) of this section.
"(f) The removal of a child pursuant to subsection (e) of this section shall not exceed ninety-six hours. During the period of such removal, the commissioner, or the commissioner's designee, shall provide the child with all necessary care, including medical care, which may include an examination by a physician or mental health professional with or without the consent of the child's parents, guardian or other person responsible for the child's care, provided reasonable attempts have been made to obtain consent of the child's parents or guardian or other person responsible for the care of such child. During the course of a medical examination, a physician may perform diagnostic tests and procedures necessary for the detection of child abuse or neglect. If the child is not returned home within such ninety-six-hour period, with or without protective services, the department shall proceed in accordance with section 46b-129."
On July 17, 2007, DCF filed a petition seeking that Mary be adjudicated neglected. DCF also filed ex parte motions for temporary custody of each of the children. On such date, (i) upon its finding pursuant to General Statutes § 46b-129(b) that each of the children was in immediate physical danger and that continuation in the mother's home was contrary to their welfare, the court granted such motion and awarded temporary custody of such children to DCF.
On August 2, 2006, Ember was adjudicated neglected, and placed with the mother under an order of protective supervision for one year. On July 19, 2007, DCF moved to modify disposition in Ember's case from an order of protective supervision to an order that Ember be committed to DCF.
General Statutes § 46b-129(b) provides in part that "[i]f it appears . . . that there is reasonable cause to believe that (1) the child . . . is in immediate physical danger from the child's . . . surroundings, and (2) that as a result of said conditions, the child's . . . safety is endangered and immediate removal of such surroundings is necessary to ensure the child's . . . safety, the court shall . . . (B) issue an order ex parte vesting in some suitable agency or person the child's . . . temporary care or custody . . ." See also Practice Book § 33a-6, footnote 4 infra.
Sections 17a-101g and 46b-129 contain different language establishing a basis for a ninety-six hour hold and the issuance of ex parte order of temporary custody. The Supreme Court has determined that the differing language reflects "a distinction without a difference." Teresa T. v. Ragaglia, 272 Conn. 734, 749 n. 9, 865 A.2d 428 (2005):
"The reasonable cause determination in § 46b-129(b) requires a finding that the child is `suffering from serious physical illness or serious physical injury or is in immediate physical danger,' whereas the probable cause determination in § 17a-101g(c) requires a finding that the child is `in imminent risk of physical harm.' The word `imminent' is defined as `[n]ear at hand,' impending' and `on the point of happening . . . Something which is threatening to happen at once, something close at hand, something to happen upon the instant . . .' Black's Law Dictionary, supra. The word `immediate' is defined as `[p]resent; at once; without delay . . . [T]he word . . . denotes that action is or must be taken either instantly or without any considerable loss of time.' Id. In our view, this is a distinction without a difference . . ."
"Furthermore, if the legislature had intended to distinguish between § 46b-129(b) and § 17a-101g(c) on the basis of the urgency of the threat to the child, it presumably would have used different language in each of those statutes to describe the necessity for removal. Instead, both statutes use identical language in providing that, as part of the probable cause determination, it must be found that `immediate removal . . . is necessary to ensure the child's safety . . .' General Statutes §§ 17a-101g(c) and 46b-129(b)."
On July 27, 2007, at the preliminary hearing in the local court the custodial mother and the non-custodial father of Mary contested the ex parte orders of temporary custody and sought a contested hearing.
Practice Book § 33a-6 provides in part as follows: "(a) If the judicial authority finds, based upon the specific allegations of the petition and other verified affirmations of fact provided by the applicant, that there is reasonable cause to believe that: (1) the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger from his 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 judicial authority shall, upon proper application at the time of filing of the petition or at any time subsequent thereto, either (A) issue an order to the respondents or other persons having responsibility for the care of the child or youth to appear at such time as the judicial authority may designate to determine whether the judicial authority 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.
"(b) A preliminary hearing on any ex parte custody order or order to appear issued by the judicial authority shall be held as soon as practicable but no more than ten days from the issuance of such order . . ."
Practice Book § 33a-7 provides in part as follows: "(a) At the preliminary hearing on the order of temporary custody . . . the judicial authority shall . . . (6) advise the respondents of the right to a hearing on the petitions and applications, to be held within ten days from the date of the preliminary hearing if the hearing is pursuant to an ex parte order of temporary custody or an order to appear . . . (d) Upon request, or upon its own motion, the judicial authority shall schedule a hearing on the order for temporary custody or the order to show cause to be held as soon as practicable but no more than ten days from the date of the preliminary hearing. Such hearing shall be held on consecutive days except for compelling circumstances or at the request of the respondents . . ." In this case the contested hearing was scheduled three days after the preliminary hearing.
The father of Ember supported the order of temporary custody and DCF's motion to modify disposition. Such father was excused from attendance at the contested hearing.
The contested hearing was scheduled in this court on July 30, 2007. After settlement negotiations between DCF and the mother, the mother agreed to plead nolo contendere to the "conditions injurious" allegations of the DCF petition concerning Mary. DCF, the mother and the attorney and guardian ad litem for Mary agreed that it was appropriate for the court to order that Mary be placed under DCF protective supervision for six months. The court canvassed the custodial mother, found that the mother's nolo contendere plea was knowingly, voluntarily and intelligently made by her, and the court, subject to the non-custodial father's neglect trial request, accepted the plea and agreed disposition.
Practice Book § 35a-1 provides in part as follows: ". . . (c) A written plea of nolo contendere signed by the respondent may be accepted by the judicial authority. Before accepting an admission or plea of nolo contendere, the judicial authority shall determine whether the right to counsel has been waived, and that the parties understand the content and consequences of their admission or plea. If the allegations are admitted or the plea accepted, the judicial authority shall make its finding as to the validity of the facts alleged in the petition and may proceed to a dispositional hearing . . ."
Although Practice Book § 35a-1 refers to the "right to counsel," what seems to be at issue is the waiver of the respondent's right to trial: "At the hearing, the mother, the custodial parent, entered a nolo contendere plea to the neglect petition. Before accepting the mother's plea, the trial court determined that the mother understood the content and consequences of her plea . . . namely, that she was giving up her right to a trial . . ." In re David L., 54 Conn.App. 185, 187, 733 A.2d 897 (1999) (footnote omitted).
In Groton v. United Steel Workers of America, 254 Conn. 35, 49-50, 757 A.2d 501 (2000), the Supreme Court discussed the effect of a plea of nolo contendere: "Although we have stated in the context of litigation and administrative rulings that a prior conviction based upon a nolo contendere plea may have no currency beyond the case in which it was rendered . . . such a conviction does have the weight of a final adjudication of guilt and does share at least some characteristics of a guilty plea. `A plea of nolo contendere has the same legal effect as a plea of guilty on all further proceedings within the indictment . . . The only practical difference is that the plea of nolo contendere may not be used against the defendant as an admission in a subsequent criminal or civil case . . . It is clear, however, that a nolo contendere plea also constitutes a waiver of all nonjurisdictional defects in a manner equivalent to a guilty plea . . .'"(Internal citations omitted.)
Justice Katz, dissenting, Groton v. United Steel Workers of America, supra, 254 Conn. at 55-56, further explained the limits of a plea of nolo contendere: "Although a conviction following a plea of nolo contendere has the weight of a final adjudication of guilt, and shares some characteristics of a guilty plea, its limited evidentiary value is undisputed. As this court has stated, unlike a plea of guilty, a plea of nolo contendere is merely a declaration by the accused that he will not contest the charge, and even though followed by a finding of guilty and the imposition of a fine or other penalty, is not admissible, either as a verbal admission or an admission by conduct. Casalo v. Clara, 147 Conn. 625, 632, 165 A.2d 153 [1960]. Nor is it admissible to affect a party's credibility, as evidence of an arrest, or as res judicata establishing that the plaintiff was engaged in a criminal act. Krowka v. Colt Patent Fire Arm Mfg. Co., 125 Conn. 705, 713, 8 A.2d 5 [1939]; see also Holden Daly, Connecticut Evidence § 103f. Pleas of nolo contendere may be entered for reasons of convenience and without much regard to guilt and collateral consequences. McCormick, Evidence (2d Ed.) § 265, p. 636. Even though the plea may be regarded as a tacit admission, its inconclusive and ambiguous nature dictates that it should be given no currency beyond the particular case in which it was entered . . . (Internal quotation marks omitted.) Lawrence v. Kozlowski, supra, 171 Conn. 711-12 n. 4." (Footnote omitted.)
The non-custodial father of Mary contested the neglect adjudication, and requested a trial. Such trial was held in the afternoon of July 30, 2007.
The DCF worker who investigated the events leading to DCF's decision to invoke the statutory ninety-six-hour hold testified at the neglect trial. The "social worker affidavit" she prepared in support of DCF's ex parte motion for temporary custody of each of the children was admitted as a full exhibit. The affidavit contains detailed information about incidents of domestic violence, alcohol abuse and weapons in the home where the mother and each of the children reside. The mother's extended family has been involved with DCF since at least 1997. On July 13, 2007, such DCF investigator observed Ember to be "very dirty. Her clothing was dirty and had a foul odor, her face and hair were also dirty. Th[e] worker observed dirt under both her fingernails as well as her toenails. The worker also observed her ears to be caked with dirt." (Exhibit 1, 5.) Such worker observed the condition of the home as "deplorable" and the home environment as "chaotic."
The DCF investigator determined that the non-custodial father was not a viable resource for his daughter Mary. Id., 4-5. The father was not a participant in any of the events that preceded DCF's decision to invoke the ninety-six hour hold and to seek temporary custody of the children. Id., 1-5. Although the father and the mother may have been married on or about July 6, 2007, they were not living together during such events, e.g., the father was not living in the home of the mother's extended family with her or Mary, nor were they living elsewhere with him.
As described by the DCF investigative worker, the father's behavior in front of the children on July 13, 2007, when and after the children had been removed by DCF was inappropriate.
At the neglect trial the non-custodial father's focus seemed to be on establishing that he had not neglected his daughter Mary. This is not an appropriate basis for a non-custodial parent to seek a neglect trial. In re David L., supra. In David L., the Appellate Court identified the issue before it as follows:
The sole issue on appeal is whether the father, a noncustodial parent, was entitled to participate in the adjudicatory phase of a neglect proceeding in which the custodial parent pleaded nolo contendere, in order to show that he was not responsible for the child's neglect.
CT Page 17554 In re David L., supra, 54 Conn.App. at 186.
The Appellate Court determined that a non-custodial parent did not have such a right to participate in the adjudicatory phase of a neglect proceeding after the mother pled nolo contendere. Such court explained that because an adjudication of neglect relates to the status of the child, it is "not necessarily premised on parental fault . . ."
The father did not object to the agreed disposition of six months' DCF protective supervision of Mary in the care of the custodial mother.
Our review of the relevant statutes leads us to conclude that an adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect. Although § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; "[i]t is not directed against them as parents, but rather is a finding that the children are neglected . . ." In re Elisabeth H., 45 Conn.App. 508, 511, 696 A.2d 1291, cert. denied, 243 Conn. 903, 701 A.2d 328 (1997); see also In re Jessica S., 51 Conn.App. 667, 672, 723 A.2d 356 (1999) (parent need not have custody to be named in neglect petition and for court to adjudicate child neglected).
In re David L., supra, 54 Conn.App. at 191-92.
The Appellate Court further explained:
The father misinterprets the purpose of the adjudicatory phase of a neglect proceeding and the effect of an adjudication of neglect. 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. Neglect proceedings, as do termination of parental rights cases, consist of two phases: adjudication and disposition. In the adjudicatory phase, the trial court must determine if the child is neglected. A neglected child is defined as a child who "(A) has been abandoned or (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 his well-being or (D) has been abused . . ." General Statutes § 46b-120(8). Section 46b-129(j) governs petitions for adjudication of neglected children and the commitment of their custody and provides that "[u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families . . ."
In re David L., supra, 54 Conn.App. at 191.
The Appellate Court set forth the general rights in a neglect proceeding of both custodial and non-custodial parents, but it noted that those rights did not pertain to the relief sought by the father, because the Practice Book specifically excluded such relief from the ambit of a neglect proceeding where the custodial mother pled nolo contendere to a ground of neglect:
We note that a parent is a legally necessary party in a neglect proceeding; General Statutes § 46b-129(a); see also In re Jonathan P., 23 Conn.App. 207, 212, 579 A.2d 587 (1990); and has a statutory right of confrontation and cross-examination in such proceedings; General Statutes § 46b-135(b); and to produce witnesses on behalf of any dispositional plan the parent may want to offer. Practice Book § 33-7. The statutes and rules of practice, however, do not afford a parent in a neglect proceeding the right to require the trial court to adjudge each parent's blameworthiness for a child's neglect. In fact, the rules specifically limit inquiry in the adjudicatory phase to the custodial parent in neglect proceedings and to all appearing parents in termination proceedings. Practice Book § 33-1(b). The rules allow the very procedure the father claims was improper. A court may proceed to disposition once the court has accepted a nolo contendere plea and has made a finding of neglect. Furthermore, the father did not seek to exercise his rights to contest the finding of neglect, nor did he exercise those rights at trial during the dispositional phase when the actual determination was made to transfer guardianship of the child to the commissioner. Instead, he seeks a remedy for which the law does not provide, namely, to establish that the child was not neglected by him.
In re David L., supra, 54 Conn.App. at 192-93. (Emphasis in original.)
Practice Book § 33-7 is now Practice Book § 35a-1(b), which contains the same language referred to by the Appellate Court:
(b) Notwithstanding any prior statements acknowledging responsibility, the judicial authority shall inquire whether the allegations of the petition are presently admitted or denied. This inquiry shall be made of the custodial parent in neglect, uncared for or dependent matters; and of all appearing parents in termination matters.
If DCF wanted to find the father directly "responsible for abuse or neglect of a child . . ." there is an administrative procedure through which it can attempt to do so. See, e.g., General Statutes § 17a-101k(b), et al.
CONCLUSION:
As set forth in In re David L., supra, 54 Conn.App. at 193:
. . . The statutes and rules of practice, however, do not afford a parent in a neglect proceeding the right to require the trial court to adjudge each parent's blameworthiness for a child's neglect. In fact, the rules specifically limit inquiry in the adjudicatory phase to the custodial parent in neglect proceedings and to all appearing parents in termination proceedings . . .
The father, who was and currently is a non-custodial parent, thus sought relief that the court is unable to provide in a neglect trial, e. g., a finding that he did not neglect Mary (in fact, if the court were to consider the personal responsibility of the father, it would evaluate whether the father's alleged inability to provide a home and suitable care for Mary, inter alia, denied Mary "proper care").
In any event, at the trial DCF established, by a fair preponderance of the evidence, that Mary was neglected.
The mother, knowingly, intelligently and voluntarily, pled nolo contendere to the adjudication of Mary as neglected.
The agreement of DCF, the mother, and the attorney and guardian ad litem for Mary, for a period of six months' protective supervision is fair and reasonable under the circumstances, and in Mary's best interest. Specific steps have been agreed to by the mother and ordered by the court.
The father of Mary was negotiating specific steps for himself. If DCF and such father are unable to agree on such steps, the matter shall be decided by the local court.
The agreement of DCF, the mother, and the attorney and guardian ad litem for Ember to extend the period of DCF protective supervision of Ember through January 30, 2008, was accepted, approved and ordered by this court.
Any interim hearing on the progress of or issues with such protective supervision of either child shall be scheduled by and heard by the local court.