Opinion
W10CP16017113A
04-05-2017
In re Eric S. [1]
UNPUBLISHED OPINION
The following abbreviations may be used in the text of this opinion:
Francis J. Foley, Judge Trial Referee.
On February 5, 2016, Joette Katz, as she is the Commissioner of the Department of Children and Families, (" DCF"), filed a neglect petition on behalf of Eric S. the child of Miranda S.J. and Ryan S. alleging neglect and abuse of Eric, through serious unexplained physical injuries. The department also filed an application for order of temporary custody. The child was removed from the parental care by virtue of a 96 hour hold by the department on February 3, 2016. The Order of Temporary Custody was granted by the court (Spellman, J.) The petitions alleged both neglect and abuse in that the child had serious physical injuries at variance with the mother's explanations for the injuries.
Subsequently on April 18, 2016, the department filed a petition pursuant to § 17a-112 for the termination of the parents rights. The Department alleges the child 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. The two cases were consolidated for hearing before this court for trial commencing on February 3, 2017, exactly one year from the date the child entered DCF care. The case will be considered as a coterminus petition (Practice Book § 35a-3). The trial was heard over three full days of trial on February 3, March 9, and concluding on March 24, 2017.
This schedule of non-consecutive days is uncommon in this court. A snow day prevented the days from being more consecutive.
Procedure
On February 3, 2016, a two year old child, Eric, was transferred from W.W. Backus Hospital to Hasbro Hospital in Providence Rhode Island with injuries highly suspicions of child abuse. After a DCF investigator learned more of the serious nature of the injuries, a 96 hour hold was placed on the child as a result of the multiple unexplained injuries at various stages of healing.
On February 5, 2016, DCF filed a motion for Order of Temporary Custody (OTC) with this court. On the same date, the department conducted a Considered Removal Team (CRT) meeting with as many relatives and friends of the family as could be immediately determined and located. That meeting determined the names of approximately ten family members and five other friends who might be considered for immediate placement of the child.
For reasons later explained, none of those immediately identified could be licensed for foster care or they declined to be considered. The licensing investigation is conducted by the Foster and Adoptive Services Unit (FASU). The maternal grandmother (MGM) then identified a very close family friend to be a placement for Eric. While the paternal relatives have now adopted a slightly different narrative of events, the court finds that both parents and the grandparents all agreed to this placement. The child was placed with Terry A. on February 11, 2016.
On May 12, 2016, the PGM filed a motion to intervene for custody. The motion was scheduled for hearing on August 10, 2016, but the PGM did not proceed with her motion as she was no longer interested in custody at that time. She reported to the court that " Eric was thriving and doing well where he is and she does not want to disturb the placement." (Court Memorandum, 8/10/16) Her motion was marked off.
On August 24, 2016, the PGM filed a motion to intervene in the neglect/TPR cases. The court granted the petitioner's motion to consolidate the neglect and termination petition. (Spellman, J.) Atty. for PGM reported that his client now wished to be considered as a placement resource and her attorney reported that a request for ICPC study would be made on behalf of the sister of the PGM, Kim A. This is the first formal mention of her name. The MGM was also in court and renewed her request for an ICPC study for herself in Rhode Island. The ICPC study was ordered but not as an expedited study.
On August 31, 2016, the petitioner reported that the ICPC paperwork for MGM had been completed.
On September 21, 2016, the father, Ryan S., filed a motion to request an interstate compact study to determine the suitability of Kimberly A., the paternal great aunt (herein after called PGA) of the child and her husband, both of Vermont, as proposed guardians of Eric.
On October 5, 2016, the court granted the motion for Interstate Compact on the Placement of Children (ICPC). This one page request form was inefficiently processed by DCF and not sent to Vermont until November 14, 2016. (PGA Ex. 1B).
The local DCF supervisor signed the ICPC request on November 10, 2016. The Sending State Administrator sent the one page form to Vermont on November 14, 2016.
Also on October 5, 2016, Kimberly A. (PGA) moved to intervene to seek guardianship of the child.
On November 10, 2016, PGA filed a motion to transfer the child's guardianship to herself and to vacate the order of temporary custody.
On November 10, 2016, the court following a contested hearing granted the motions to intervene filed by the PGM and her sister, the PGA, " for dispositional purposes only." (Spellman, J.)
On January 12, 2017, the petitioner filed a motion to amend the termination petition to allege abandonment as an additional ground claiming that both the respondents had not visited the child and had abandoned the child. The motion was granted by this court without objection on February 3, 2016, the first day of the trial.
On January 30, 2017, the PGA received approval of a foster care license from the State of Vermont. DCF in Connecticut received the ICPC study which approved the paternal great aunt and her husband for placement of Eric.
On January 31, 2017, the PGA filed a motion to transfer guardianship to her and a motion for out of state placement of the child.
On February 3, 2017, the court commenced the trial. There were seventeen people present, excluding court staff. They included the father, MGM, PGM, PGA and her husband, the foster mother, lawyers for all the aforementioned, two uncles and two DCF social workers. The respondent mother, Miranda, failed to appear but her attorney was present throughout the trial. The child was represented by counsel who participated in the trial and was present throughout the proceedings as well. The court announced the In re Yasiel, 317 Conn. 773, 120 A.3d 1188, (2015) advisement of rights to all present.
Neither parent has claimed federally recognized Indian Tribal affiliation. The court is aware of no other proceedings pending in any other court regarding the custody of this child. This court has jurisdiction.
At the commencement of the second day of the trial on March 9, 2017, the father presented to the court a properly executed form consenting to the termination of his parental rights. Having canvassed the father, this court found that he had been represented by competent counsel who was present with him when he executed the consent form. The court further found that the consent had been knowingly and voluntarily made with a full understanding of the legal consequences of his action, that the father understood that his actions permitted the child to be adopted. The consent of the father was accepted.
The Department of Child and Families (DCF) through counsel moved to amend the petition to withdraw the non-consensual grounds as to the father and to change the grounds to consent § 17a-112(i). Without objection, the motion was granted. The consenting father and his lawyer remained present throughout the three day trial.
The non-appearing respondent, mother, Miranda, called her lawyer on the phone before the second day of court to announce she wished to have the trial continued. Her attorney who was present in court requested a continuance. There were multiple witnesses, lawyers, and parties ready to proceed including the paternal great aunt and her husband from Vermont. As the mother had not appeared for the first day of hearings and had an inadequate excuse for her failure to attend, her request for continuance was denied. She did not seek a continuance for the third day of trial and did not appear for trial but her lawyer was present throughout the proceedings.
On the first day of trial the court received Exhibits A-Q as full exhibits as well as various other exhibits from the respondents and intervenors. Also on the first day of trial the court heard from Dr. Amy Goldberg, a pediatrician with a sub-specialty in child abuse. This sub-specialty is recognized by the American Board of Pediatrics. Dr. Goldberg was qualified as an expert witness. (Curriculum Vitae, Exhibit F.) The court also heard from two social workers. On the second day of trial the court heard principally from the social worker supervisor. The court also heard from the PGM in furtherance of her bid for guardianship. The third day of trial was principally dedicated to the witnesses called by the PGA.
The trial was scheduled to conclude on Friday, March 10th, but due to weather forecasts of substantial snow, the trial date was continued again to Friday March 24, 2017. On the third day of trial two social workers were recalled, the PGA and her husband each testified, the MGM testified and the approved, fictive kin, licensed pre-adoptive foster mother testified. In all, nine persons testified, some twice.
Sec. 17a-114. (Formerly Sec. 17-43c.) Licensing or approval of persons for child placement required. Criminal history records checks. Placement of children with relatives or fictive kin caregivers. Standard. " (a) As used in this section, (1) " approval" or " approved" means that a person has been approved to provide foster care by a child-placing agency licensed pursuant to section 17a-149, (2) " licensed" means a person holds a license to provide foster care issued by the Department of Children and Families, (3) " fictive kin caregiver" means a person who is twenty-one years of age or older and who is unrelated to a child by birth, adoption or marriage but who has an emotionally significant relationship with such child amounting to a familial relationship, and (4) . . ."
The court has reviewed the various Exhibits A-Q and the respondents and intervenors exhibits. The court has reviewed and consider the memoranda of law submitted by counsel. " Although a judge [charged with determining whether termination of parental rights is in a child's best interest] is guided by legal principles, the ultimate decision [whether termination is justified] is intensely human. It is the judge in the courtroom who looks the witnesses in the eye, interprets their body language, listens to the inflections in their voices and otherwise assesses the subtleties that are not conveyed in the cold transcript." In re Davonta V., 285 Conn. 483, 497, 940 A.2d 733 (2008).
It is also " the peculiar province of the trial court to observe the demeanor of the parties and their witnesses and to draw inferences therefrom as to the motives underlying their testimony and conduct. Dadio v. Dadio, 123 Conn. 88, 192 A. 557 (1937) After considering the testimony of the witnesses, the appearance and demeanor of the witnesses and the respondents, and documentary evidence presented the court makes the following findings of fact by clear and convincing evidence.
A. Findings of Facts
1. Miranda (Eric's mother) is twenty-eight years of age. She has two children by different paternities. Neither child is in her care.
2. Miranda reported to DCF that she was currently (as of the date of removal) unemployed and had no source of income. She had worked at Dunkin Donuts and Jimmy's Greenhouse part time and at Staples. Miranda has struggled with addiction problems since her teenage years. In October 2008, Miranda first became involved with DCF.
[Miranda] has a prior history with the Department involving her daughter, Alise. In October 2008, the Department became involved with [Miranda] with her first child, Alise. [Miranda] was actively using opiates while she was in a care-taking role for Alise. [Miranda] had been using opiates with the father of Alise. During this investigation it was learned that Alise (2 years old) had found her father deceased on October 3, 2008. While the case was opened the paternal grandparents of Alise legally intervened at the Brooklyn Probate Court and were granted legal guardianship of Alise. [Miranda's] guardianship of Alise was removed on April 27, 2009 (Exhibit B).
3. Ryan (father of Eric) is thirty-one years of age. He has had two children by different maternities. Neither child is in his care. Ryan has struggled with addiction problems as an adult. Ryan has an extensive criminal history.
4. The child subject to these neglect and termination proceedings is Eric. He was born on June 2, 2013. At the time of his birth he was suffering from opiate withdrawal symptoms. His mother had been using opiates. Mother, father, and baby, Eric, left the hospital together to live with the MGM and sometimes the parents and child lived on their own in an apartment until they were evicted. The extended family, including the paternal great-grandparents, assisted Miranda and Ryan financially and provided them with transportation. Both parents were in various treatment programs for their addictions during Eric's short life. Mother admitted to taking Suboxone on the day before her delivery, to treat her withdrawal from Percocet abuse.
5. Three months after the birth of Eric, in September 2013, Miranda experienced heart failure and had to have open heart surgery. She was hospitalized, according to her, for two and a half months. Ryan and the PGM cared for Eric. Upon her recovery in November-December, 2013, Miranda and Ryan then got an apartment and lived together as a family until June 2014, about six months. At that time the parents got evicted from their apartment and Ryan took Eric to live with, his mother, the PGM.
6. From the account of the PGM, the child Eric spent the next year with his father and PGM who provided support and housing. Ryan was struggling with addiction problems and was attending Quinebaug Day Treatment program. He and the child lived in an in-law apartment downstairs from the PGM. That account is not entirely consistent with other testimony received.
7. A few months after the parents got evicted, in August 2014, the parents reported to PGM that they (Miranda and Ryan) wanted to try to work things out, to be together as a family, and to receive state benefits. The PGM, allowed Miranda to move in to the house. Miranda did not get along with PGM. In December 2014, PGM heard the parents arguing downstairs and tried to calm them down. PGM told DCF that " out of the blue" Miranda struck her in the face. Thereafter, PGM obtained a restraining order against Miranda, and Miranda moved out of PGM's house, never to return.
8. On August 1, 2015, the police were notified by the PGM that her son Ryan had locked himself in his room with a deadbolt. He was not responsive to the calls of PGM for over an hour and a half. PGM became distraught, she knew of Ryan's propensity for illegal drug use and she needed a diaper from Ryan's quarters. The police were summoned. The police were aware of Ryan from previous encounters. The police ultimately broke down the door to Ryan's apartment and found him passed out, eyes closed, face down with a needle in his hand. He had overdosed on heroin. (Exhibit D.)
9. DCF immediately investigated and identified the PGM as having " a genuine concern and appears she is the primary caretaker for the child." The PGM told DCF that Miranda had left the home and " has had little contact with Eric." The safety plan for Eric was that the father, Ryan, should leave the house and that PGM should care for the child. PGM was employed full time as therapeutic recreational services director at a skilled nursing rehabilitation facility. She indicted to DCF that she would need daycare for Eric when she was at work. As there was an outstanding restraining order between the PGM and Miranda; Miranda was not to come to her house. PGM told DCF the location of Miranda was unknown. This court finds that some of these representations to DCF by PGM, regarding Miranda's involvement with the child and her address and other matters misrepresented the actual situation. The court finds the testimony of the PGM to be inaccurate and self-serving and lacking in credibility.
10. Thereafter, Miranda was located (as Ryan had her address and phone number) and Miranda was contacted by DCF on August 4, 2015, three days after Ryan's overdose. Miranda's account of child care differed wildly from the PGM's account. Miranda said that she is the primary caretaker of Eric and stated that father recently had Eric overnight for the week-end for the first time in a long time. She told DCF that she was confused why father and PGM were saying that they are the primary caretaker and that Eric is with her all the time. Miranda said she separated from Ryan because of his " mental illness" and that his mother, PGM, is " a drunk." Miranda said the parents, she and Ryan, have been alternating week-ends with Eric and had a somewhat equal time-sharing arrangement. There were no court orders, just the agreements of Miranda and Ryan. The court finds this account more credible based on the totality of the evidence.
11. DCF asked Miranda to have a drug test which she agreed to do. The drug test was negative for illegal substances. She said that since her heart surgery she has remained free of substances. DCF contacted Miranda's new boyfriend, Brandon, who confirmed that the child was primarily with Miranda but that they (Miranda and Ryan) traded off days.
12. In the days following Ryan's heroin overdose in August 2015, DCF interviewed Brandon, Miranda's boyfriend. He responded to DCF questioning that he was never alone with Eric and would never hurt him and never had an urge to hurt him. He said it was his role to support Miranda as a parent and that he was financially providing for them. He said that he and Miranda were in the process of getting their own place. He said Miranda had been worried for the past three days since she could not contact Ryan or see Eric, she could not go to the house, due to the restraining order, and that Miranda then went to the police for assistance in finding her son. Brandon said Miranda was frantic for three days. Neither PGM nor Ryan contacted Miranda regarding Ryan's recent heroin overdose.
13. DCF talked to Brandon's grandparents with whom Brandon and Miranda lived. The grandparents confirmed that they, Brandon, Miranda and her son, Eric, had lived with them for about five months and that Miranda is always with Eric. They said to their knowledge Eric is cared for by both the mother and the father.
14. DCF also talked to MGM (Miranda's mother) who vouched for her daughter in every way. She said that Miranda is doing " great." She said Miranda is clean and sober she has recently gained weight She said Miranda has applied for housing assistance, she is a good mother, and she is with Eric all the time.
15. A safety plan (service agreement) stating that as of August 4, 2015, mother will provide all care for Eric at this time. PGM called DCF and told them that she agreed to this plan. DCF thereafter arranged for Eric to be transported to Miranda who took the child. Miranda had exclusive care of Eric for six months from on or about August 4, 2015, to February 2, 2016.
16. On August 28, 2015, the social worker conducted an unannounced home visit to mother's home. All household members, Brandon and his parents, were present. Miranda and Eric were outside playing and Eric was observed to be a very active child, running all around. Miranda was constantly chasing him and doing a " good job of staying on top of where he was." (Ex D p. 19.) The social worker observed a greenish/yellowish bruise on Eric's forehead. " Mother doesn't know how it happened however Eric is very active and due to his age/height and activeness the bruise appears to be consistent with him bumping it. He is well dressed and smiling while running around." Miranda told DCF that she and Brandon were engaged to be married.
17. On February 1, 2016, Miranda and her two year old son were living with Brandon in the house owned by Brandon's grandfather and grandmother. The grandparents also lived in the house. Neither Brandon nor Miranda were employed. Miranda took Eric to the pediatrician due to vomiting over the weekend and Eric " holding his head." The physician noted some bruising on Eric's head and forearms. He reported that Miranda said they were self-inflicted by accidental means. They were sent home.
18. On February 2, 2016, Miranda took Eric to W.W. Backus Hospital Emergency clinic in Plainfield. Miranda had concerns due to bruising on Eric's head and chest. Due to what appeared to be suspicious bruising and injury, the hospital staff arranged for the child to be transferred to the Hasbro Children's Hospital in Providence, Rhode Island, the closest major hospital with a child abuse clinic, for further examination due to suspicion of inflicted trauma.
19. Dr. Amy Goldberg, a pediatrician with a sub-specialty in child abuse pediatrics testified in this proceeding. Her curricula vitae was marked as an exhibit. Exhibit V is a compact disk with images showing bruising and injuries to Eric. Dr. Goldberg used these images to demonstrate the injuries to the child. Dr. Goldberg works at the Aubin Child Protection Center. She was qualified without objection as an expert in child abuse pediatrics.
20. An ultra sound and CT scan of the organs was conducted, a Magnetic Resonance Imaging (MRI) of the brain was conducted and a full body skeletal survey was performed. These tests along with the medical findings upon physical examination indicated a high level of trauma consistent with child abuse. These injuries were: " bruising to the left side of face/head including bruising to facial cheek and pre-auricular area over the left eyelid, left temporal area and bruising behind the left ear, a large " v" shaped bruise to the right temporal area; bruise over right ear; large area of bruising to left chest approximately 5 x 5 cm (2 oblong and 2 circular bruises with this area): circular bruise to right anterior shoulder, approximately 3 x 3 cm; greater than 10 bruises to back and lateral right chest wall; two bruises to anterior lower legs; left wrist, approximate 6 x 2 cm lesion, concerning for a deep partial thickness burn; diffuse scalp swelling bruise over right parietal area of head; macrocephaly; bilateral chronic subdural hemorrhages with small areas of acute blood; compression fractures of 3 thoracic vertebrate; high suspicion for healing kidney contusion.
Computerized Axiel Tomography
Dr. Goldberg stated that there were intracranial chronic bilateral subdural hemorrhages that are highly concerning for rotational forces applied to the head, likely on more than one occasion, there are 3 healing compression fractures of the vertebral bodies/back bone that are from severe axial load applied to the patient's back or spine; Eric has 2 lesions seen on abdominal CT that are most consistent with blunt force trauma causing injury to his kidney . . . (Exhibit B.)
Dr. Goldberg said that " Shaken Baby Syndrome" is no longer accepted terminology.
21. Dr. Goldberg explained that the compression injuries stand apart from some of the other injuries in that the mechanism of injury to the back bone (spinal column), the axial load force is up and down, not horizontal. Usually an axial load force occurs from below. In this instance a child very forcefully landing on the base of his spinal column. This type of injury is consistent with inflicted injury. Some of the injuries were more than two weeks old. One injury appeared to be a burn injury.
22. Miranda indicated to DCF and the police that she and Brandon were the principal caretakers of the child. She said the child was clumsy, that the injuries were self-inflicted, the child was thought to be autistic, developmentally delayed, that he is very top heavy and is always falling down by accident. It is noted that while Brandon and Miranda indicated that Eric was hard to control and they believed he might be autistic, the MRI conducted at the hospital indicated a normal brain, according to Dr. Goldberg.
23. Dr. Goldberg's assessment was that " this two year 8 month old male child presents with extensive bruising to multiple planes of his face, extensive soft tissue swelling to his head/scalp, bruising to his left chest wall, right shoulder, and multiple bruises to his back and right lateral chest wall. There is notably, minimal bruising to his lower extremities which would be expected of an active toddler. These injuries are consistent with multiple blunt force impacts."
24. " There is no history provided or medical information to explain this patient's multiple and serious injuries. The evaluation to date is consistent with a pattern of chronic child physical abuse that places him at risk of serious harm and /or death if he is discharged into the same environment." (Exhibit E.) These inadequately explained injuries constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights. § 17a-112(j)(3)(C).
25. While the child was still in the hospital, DCF arranged for a Considered Removal Team (CRT) meeting to place the child as quickly as possible. The court is not familiar with all the considerations that must be followed to place a child, but federal law as set forth in the Adoption and Safe Families Act is instructive. 42 U.S.C.A. § 675(5) requires that the child protection agency find " a placement in a safe setting that is the least restrictive (most family like) and most appropriate setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child, " And further that CGS. § 46b-129(b) provides " [T]he agency shall give primary consideration to placing the child or youth in the town where such child or youth resides." The investigative social worker testified that out of state relatives, including the MGM who lived nearby but across the state borderline in Coventry, Rhode Island, cannot be considered for immediate placement until an Interstate Compact study is conducted.
The court takes judicial notice that the Town of Killingly, Connecticut borders on the State of Rhode Island. Coventry and Foster are abutting Rhode Island towns.
26. On February 5, 2016, the child was placed in a non-relative, licensed foster home as an emergency temporary placement. The child stayed in that home until February 11, 2016, at which time the child was moved the child was moved to the kin-foster home of Terry A., the child's present foster mother.
27. As of March 24, 2017, Miranda continues to live with her boyfriend Brandon. She has not engaged in any services since her son was abused. She denies mental health and substance abuse issues. Miranda continues to report that she was the only caretaker for Eric when he was abused. She has seen Eric only three times and stopped visiting after April 18, 2016. She refuses to speak directly with DCF. She continues to maintain that the injuries were self-inflicted.
28. On September 16, 2016, an arrest warrant was issued naming Miranda as the accused and the child, Eric, as the victim. She has been charged with risk of injury to a child in violation of § 53-21(a)(1) of the General Statutes. These charges remain pending.
B. POST TRAUMA EVENTS
29. A considered removal team (CRT) meeting was held on February 5, 2016. This is a gathering of all known parents, grandparents, family, and friends who might be available for immediate placement of the child. The goal is to keep the child in the community with relatives, fictive kin or friends to the extent possible, which further promotes the possibility of reunification and visitation with the parents, and to avoid foster care with strangers unless absolutely necessary. Those attending, in person and by phone or who were nominated as possible placement resources were: 1) Miranda and 2) Ryan (the parents); 3) Judy (MGM), mother of Miranda, participating by way of teleconference, indicating she wanted to be a resource; 4) Timothy and 5) Robin S.J. were suggested. Timothy is Miranda's brother, the child's uncle. 6) Cheryl and 7) Alan C. (relationship not stated); 8) maternal uncle, Eric S.; 9) PGM, Ryan's mother; and 10) Michael P., PGM's boyfriend: 11) Sean C. (step maternal grandfather); 12) Sheila B. and 13) her husband Darren. Additionally, 14) Cassandra S., paternal aunt and 15) Austin S. paternal uncle were identified as possible placement resources. (Petitioner's Exhibit X-Relative Search Checklist.) Ten of those named persons were relatives by blood or marriage. It should be noted, the name of Terry A., the person who would soon become the foster parent, was not at the meeting nor was she one of the original fifteen people under consideration.
§ 46b-129(b) requires " [T]he agency shall give primary consideration to placing the child or youth in the town where such child resides."
30. The considered removal meeting was led by a facilitator who wrote the names of all the possible placements on a board. The PGM was at the meeting in person and could see the names of all persons suggested. She wanted to be a placement resource herself. The meeting concluded with a document, Exhibit Y, which noted that Eric, the child, would remain in DCF care and " DCF will seek to place him with Sheila B." Both parents were in agreement with Sheila B. DCF was also to assess Judy, the maternal grandmother, who lived in Rhode Island, as a resource. The next family team meeting was scheduled for March 22, 2016.
31. DCF did begin the process of obtaining an interstate compact study in Rhode Island for the maternal grandmother Judy, who lived in Rhode Island, a short distance away. The interstate compact study was later withdrawn at Judy's request. She wanted the child to stay in his present foster care placement with her friend, Terry A.
32. The maternal grandmother had identified Sheila and Darren B., two people known to Miranda and Ryan, who had been licensed by DCF in the past. Miranda and Ryan both identified this couple as their first choice for the placement of Eric, according to the social study. (Exhibit Y.) This couple were later determined not to be an option as they declined to be considered due to personal issues. After that happened, the maternal grandmother was speaking on the phone with her good friend of twenty years, Terry A., lamenting about the failed placement of Eric. Terry A. who had known Eric since birth, offered to take care of Eric.
33. PGM was present at the considered removal hearing and stated she wished to be considered as a placement resource. The department conducted a study of the PGM. (Exhibit 1A.) PGM had a prior conviction for driving under the influence in New Hampshire, and a pending driving under the influence charge in Connecticut as of November 15, 2015. Her case was unresolved at time of the initial investigation. The driving under the influence case involved an automobile accident in which PGM failed to maintain control of the car and her car flipped over. Ultimately, in June 2016, PGM was convicted on a substituted information of reckless driving and failure to maintain proper lane, according to her own testimony. But DCF could not immediately place the child with a person with outstanding charges for driving under the influence against her. She was therefore not available as an immediate placement resource in February 2016.
34. In addition to the concerns over PGM's possible alcohol problems, PGM was guarded about her current relationship with Michael P. PGM would not disclose any identifying information. She admitted a relationship in which she spent nights at his house and he at hers, but would not disclose background information which would be relevant if she were to be considered a placement resource for Eric. Additionally, her son, the heroin addicted Ryan, still lived in the same house. In the DCF study it is noted that in November 2016, maternal grandmother indirectly removed herself from consideration as a guardian by indicating that she was not actually a long term placement resource and wished her sister in Vermont (the child's paternal great aunt, PGA) to be the placement resource.
That same month, November 2016, her sister, the PGA, notified DCF that PGM had a drinking problem. PGA told DCF that in telephone calls from PGM, she sounded intoxicated. PGM was removed from further consideration by DCF. For those same reasons, and other reasons to be discussed, considering the best interests of the child, as will be later discussed, this court does not find PGM to be suitable and worthy of guardianship.
35. PGM testified in court that at the considered removal meeting of February 5, 2016, she put forth the name of her sister, the child's paternal great aunt (PGA), Kimberly A. and her husband as possible placement resources. That statement is totally inconsistent with the written notes of the meeting and with the recollection of the DCF personnel in attendance. It is clear that everyone mentioned was written on the board and included in the notes of the meeting. For a variety of reasons, the court finds this paternal relative narrative is not credible. First, DCF was seeking people for immediate placement. They could not make an immediate placement out of state. This would require an Interstate Compact for the Placement of Children study (ICPC). Second, there was no lack of people already suggested as possible immediate resources; fifteen in all, ten of whom were related to the child, and third, it is not likely that PGM would be advancing the name of a person that would be in competition to her own bid for placement.
During her testimony in court, on March 9, 2017, when asked " what placement is in the best interest of the child, you or your sister?" PGM responded " First me, then my sister. I have the relationship with him." The clear implication being that PGA had no relationship with the child. The court does not credit the current narrative of the paternal relatives that the name of the paternal great aunt was mentioned as a placement resource at the considered removal hearing of February 5, 2016.
36. On February 11, 2016, Eric was placed in a KIN pre-adoptive licensed foster home with Terry A. where he remains to date. Terry is considered fictive kin, since Terry was not actually related to the child, but had known the family for over twenty years, and lived nearby. She had known the child since birth and Terry and her daughter had a family-like relationship with Eric.
37. When placed in this foster home, Eric had virtually no vocabulary. He was two years and eight months old. His mother, Miranda, and boyfriend, Brandon represented that the child had autism and was uncontrollable. The foster mother reported that the only way Eric communicated initially was through tantrums and screaming.
38. Terry A. placed Eric in the Birth to Three program due to his significant developmental delays. Since Eric only had a few months to remain in the program, he was soon to be three, the Birth to Three people did an intensive program for him. Eric has made significant progress and attends full-time pre-school at this time. He still receives speech and occupational therapy through the school. Eric is now able to express himself and he has made progress in all domains. He knows the alphabet and speaks in sentences. The foster mother reports that Eric seeks her out for comfort and support. They are closely bonded. The social worker reports Eric has thrived in his present foster home. He refers to Terry as " mommy." Eric is considered by DCF as a special needs child.
39. With respect to visitation of the PGM with whom the child had lived for some portion of the child's chaotic early life, DCF would not initially permit her or PGA, independent visitation with the child. DCF permitted visitation once a month with the child's father, Ryan, present. Ryan could only be present if he passed a drug screen. DCF views relative visitation as derivative of the parent's visitation. Thus, if Ryan, the father, did not visit, neither the PGM nor the PGA were permitted visits with the child. Ryan did not visit regularly and stopped his visits altogether. He failed to attend his visitation at the end of June 2016. Although it appears that over the past year, the paternal relatives did visit at the June 2016, visitation, they also had visits in December 2016, and January, February and March of 2017.
40. The court finds that PGA called the DCF social worker frequently during the pendency of this case. It is clear that initially, PGA called to learn, " out of concern and interest" what was happening. During one of the phone calls, the social worker told PGA that if she wished to be considered as a placement resource for Eric, an interstate study would have to be conducted and that could take up to a year. This was not an accurate statement of the law nor is it an accurate statement of DCF policy. 42 U.S.C. § 671(a)(26)(A) provides: " In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which . . . (26) provides that--" (A)(i) within 60 days after the State receives from another State a request to conduct a study of a home environment for purposes of assessing the safety and suitability of placing a child in the home, the State shall, directly or by contract--" (I) conduct and complete the study; and" (II) return to the other State a report on the results of the study, . . ."
The Adoption and Safe Families Act.
41. The social study in support of the termination petition (Exhibit J), as is the customary practice, does not provide substantial identifying information or social history and background of the licensed kin foster mother. This is true, since, as will be explained, it is not the function of the court in a termination of parental rights case to make placement decisions. The court's obligations with respect to a termination of parental rights case are solely, to determine if grounds exist to terminate the parental rights, and, if so, thence to evaluate whether the continuation of those parental rights is not in the child's best interest.
" [A] hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition . . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights . . . exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase . . . In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the [parent's] parental rights is not in the best interests of the child. In arriving at that decision, the court is mandated to consider and make written findings regarding seven factors delineated in . . . § [17a-112 (k)] . . ." (Citations omitted; internal quotation marks omitted.) In re Joseph M., 158 Conn.App. 849, 858-59, 120 A.3d 1271 (2015). In re Daniel N. et al., 163 Conn.App. 798, 134 A.3d 624 cert. denied, 321 Conn. 908, 135 A.3d 280 (2016).
C. Adjudication--Neglect Petition
The testimony of the social workers and Dr. Amy Goldberg, taken together with the affidavits and social studies, as well as the other documents admitted into evidence supports a finding by a fair preponderance of the evidence that Eric S. has been abused in that Eric sustained serious physical injuries by other than accidental means and has injuries that are at variance with the mother's explanations for those injuries.
It should be noted that Ryan was a non-custodial parent of Eric, not living in the home when Eric was abused. In the termination petition DCF alleged the ground of acts of parental commission or omission including, but not limited to, . . . severe physical abuse against the father as well. There is no evidence of that he committed any such acts. Ryan did consent to the termination of his parental rights however, which obviates the DCF errors in the pleadings.
D. Adjudication--Termination of Parental Rights
The testimony of the social workers and Dr. Amy Goldberg, taken together with the affidavits and social studies, as well as the other documents admitted into evidence supports a finding by clear and convincing evidence that the child, Eric, has been denied, by reason of an act or acts of parental commission or omission including, but not limited to, . . . 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. 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. Dr. Goldberg testified that the injuries sustained by Eric were inflicted, blunt force trauma and were not accidental. The explanation provided by Miranda, that the injuries were self-inflicted, would not account for the serious and varied injuries Eric sustained. The evidence is clear that Miranda failed to protect her child from, or personally inflicted, multiple serious injuries upon the child. General Statutes § 17a-112(j)(3)(C). The petitioner has sustained her burden of proof.
E. Disposition General Statutes § 17a-112(k)
In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the parents' parental rights is not in the best interests of the child. 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 Nevaeh W. 317 Conn. 723, 120 A.3d 1177 (2015), In re Jonathon G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001) In re Denzel A., 53 Conn.App. 827, 833, 733 A.2d 298 (1999)). These findings are not required as to the consenting parent, Ryan.
It is particularly worth noting in this particular case that " [A]fter the statutory grounds for termination are proved by clear and convincing evidence in an adjudicatory phase, the question then to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child." In re Denzel A. Id.
" In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child The best interests of the child include the child's interests in sustained growth, development, well-being, and continuity and stability of [his or her] environment . . . In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a-112(k)] . . . The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered . . . There is no requirement that each factor be proven by clear and convincing evidence." (Footnote omitted; internal quotation marks omitted.) In re Joseph M., supra, 158 Conn.App. at 868-69, 120 A.3d 1271; see also In re Nevaeh W., 317 Conn. 723, 739, 120 A.3d 1177 (2015). In re Daniel N., 163 Conn.App. 798, 806-07, 134 A.3d 624, 630 (2016).
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 Eden F. 250 Conn.674, 741 A.2d 873, (1999), In re Nevaeh, supra . at 739, " There is no requirement that each factor be proven by clear and convincing evidence. " In re Janazia S., 112 Conn.App. 69, 98, 961 A.2d 1036 (2009), In re Davonta V., 98 Conn.App. 42, 46-47, 907 A.2d 126 (2006). The court considers each of them in determining whether to terminate parental rights under this section.
(1) The Timeliness, Nature, and Extent of Services Offered or Provided to the Parent and the Child by an Agency to Facilitate the Reunion of the Child With the Parent
DCF represents that Miranda was offered individual therapy, supervised visitation with parenting education and case management services. She did not attend the services. 42 U.S.C.A. § 671(a)(15)(D) provides that " reasonable efforts . . . shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that--(i) the parent has subjected the child to aggravated circumstances (as defined in State law, which definition may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse)." This court has found that aggravating circumstances, in the form of chronic abuse, exist. In re Unique R. 170 Conn.App.833, 850 (2017).
(2) Whether the Department of Children and Families Has Made Reasonable Efforts to Reunite the Family Pursuant the Adoption and Safe Families Act, as Amended
The court finds that reasonable efforts to reunify are not required under § 17a-111b(b) because of the aggravating factor that the child's mother knowingly inflicted or knowingly allowed severe physical abuse upon the child. In re Unique R., Id.
(3) The Terms of Any Court Orders Entered Into and Agreed Upon by Any Individual or Agency and the Parent, and the Extent to Which the Parties Have Fulfilled Their Expectations
The court finds that specific steps were ordered (exhibits K and L). Neither parent complied with the Specific Steps. Of particular concern is that neither parent " Within 30 days, of this order, [dated 2/5/16, Spellman, J.] and at any time after that, [the respondents] tell DCF in writing the name, address, family relationship and birth date of any person(s) who you would like the department to investigate and consider as a placement resource for the child." (Emphasis added.) They did not propose any relatives in writing until Ryan's lawyer filed a motion to have an ICPC study done regarding the PGA in September 21, 2016.
(4) The Feelings and Emotional Ties of the Child With Respect to the Parents, Any Guardians of His Person and Any Person Who Has Exercised Physical Care Custody or Control of the Child for at Least One Year and With Whom the Child Has Developed Significant Emotional Ties
This is hard to assess. In the first two years of his life, there was little housing stability. The parents were frequently in transit. They separated frequently from each other. They were often emotionally unavailable to the child due to their substance abuse. Both were intermittently in drug programs. The child did have significant contact at intervals with each his paternal and maternal grandmothers. It is likely Eric has some recognition of them. Eric must have some modest recollection of his parents; neither of whom he has seen him in nearly a year. At this point in time, there is certainly no parent-child relationship.
The paternal great aunt is not " . . . the parents, any guardians of his person and any person who has exercised physical care, custody or control of the child for at least one year the parents, any guardians of his person and any person who has exercised physical care custody or control of the child for at least one year and with whom the child has developed significant emotional ties." Even if she were to be considered, she has no significant relationship with Eric.
The only relationship which Eric presently has of profound significance, that is worthy of preserving, is the bond he has with his foster mother whom he views as his " mommy" and whom has exercised the care, custody and control of the child for at least one year and with whom the child has developed significant emotional ties.
The social study and the child's attorney both highly praise the developmental progress Eric has made in her care and the bond of devotion they have for each other. The foster mother has an emotionally significant relationship with the child amounting to a parent-child relationship. None of the challenging contestants for Eric's guardianship denies that the foster mother has done a remarkable job in providing for Eric's well-being over the last year and two months. The PGM reported to the court that " Eric is thriving" in the care of Terry.
(5) The Age of the Child:
Eric was born on June 2, 2013. He is presently three years and ten months old.
(6) The Effort the Parent Has Made to Adjust His Circumstances, Conduct, or Conditions to Make it in the Best Interest of the Child to Return to His Home in the Foreseeable Future Including But Not Limited to (A) The Extent to Which the Parent Has Maintained Contact With the Child as Part of an Effort to Reunite the Child With the Parent Provided the Court May Give Weight to Incidental Visitations, Communications or Contributions and (B) The Maintenance of Regular Contact With the Guardian or Other Custodian of the Child
Miranda has no recent contact with Eric. When Eric first entered DCF care Miranda had three sporadic visits but has had no contact with the child since April 18, 2016, nearly one year ago. She lives in the same general vicinity as the child. Ryan has consented to the termination of his parental rights.
(7) The Extent to Which a Parent Has Been Prevented From Maintaining a Meaningful Relationship by the Unreasonable Act or Conduct of the Other Parent of the Child, or the Unreasonable Act of Any Other Person or by the Economic Circumstances of the Parent
There has been no such unreasonable act or conduct. Miranda's economic circumstances did not prevent visits with Eric nor did they prevent her from having a meaningful relationship with her son.
F. The Motions To Transfer Guardianship
Sec. 35a-12A " Motions to transfer guardianship" reads as follows " (A) Motions to transfer guardianship are dispositional in nature, based upon the prior adjudication."
This case was aggressively litigated over the three days of trial. The parties filed memoranda of law. The PGA through counsel believes that misinformation received by the PGA from the DCF social worker and the delays in processing the ICPC application by her supervisor have prevented her from a successful bid for guardianship of the child. While the court understands her dismay and, even distress, under the circumstances of this case, the requirements of state and federal law, the consideration of many other relatives and her location out of state all dictated away from her request for guardianship.
1. A crucial, and ultimately, pivotal decision was made under emergent circumstances: the initial placement of Eric on February 11, 2016. When virtually all of the persons initially suggested by the parents and maternal and paternal grandparents were unwilling or unable to be licensed to care for Eric, a person not initially suggested, inadvertently appeared and was willing to assist. The court notes with emphasis that PGA was not suggested by any of the paternal relatives as a placement alternative in February 2016. The child was placed in the home of the maternal grandmother's best friend of twenty years: the foster mother, Terry A., a person who qualifies as fictive kin.
§ 17a-114(a) As used in this section, . . . (3) 'fictive kin caregiver' means a person who is twenty-one years of age or older and who is unrelated to a child by birth, adoption or marriage but who has an emotionally significant relationship with such child amounting to a familial relationship, . . .
While Public Act 16-124, which amended § 17a-114, was effective on October 1, 2016, this court has observed that the concept of fictive kin and the use of fictive kin as placement resources has been the policy of DCF for a considerable period of time antedating the passage of this statute and it is, of course, the law as of this date.
2. The placement of Eric has been successful, a fact acknowledged even by the paternal relatives. This operates in favor of a rebuttable presumption that the foster parent should continue to care for the child and that she is suitable and worthy to adopt the child upon termination of parental rights. § 46b-129(j)(3). Neither the PGM nor the PGA offered any evidence to rebut this presumption and this court finds that the foster mother is suitable and worthy.
3. The department fully examined the many relatives and friends nominated by the parents and the grandparents at the initial Considered Removal hearing. Neither parent ever advanced the name of the paternal grand aunt until the father's attorney filed a motion on September 21, 2016.
4. The court is required to determine in any contest for guardianship what is in the best interests of the child. Legislative findings re: Best Interests of Child. § 45a-727a
The General Assembly finds that:
(1) The best interests of a child are promoted by having persons in the child's life who manifest a deep concern for the child's growth and development;
(2) The best interests of a child are promoted when a child has as many persons loving and caring for the child as possible; and
(3) The best interests of a child are promoted when the child is part of a loving, supportive and stable family, whether that family is a nuclear, extended, split, blended, single parent, adoptive or foster family.
This court finds that all of the legislative requirements are met by a continuation of care in the present foster home. The present foster mother and her daughter have a deep concern for the growth and development of Eric. They are closely bonded to the child. The placement in Connecticut allows for Eric to be surrounded by his maternal and paternal relatives. The extent of contact with those relatives is for the adoptive parent to arrange, but the biological relatives are in close proximity. That would not be true in Vermont. Eric is part of a loving and supportive, single parent foster family that is pre-adoptive.
5. Eric is a " special needs child" according to the social study, " who sustained significant physical abuse while in the care of his mother and her boyfriend. Eric has been traumatized both physically and emotionally at the hands of adult caregivers in his life." (DCF Social Study--Exhibit J.) A " special needs" child is a child who is a ward of the Commissioner of Children and Families or is to be placed by a licensed child-placing agency and is difficult to place in adoption because of one or more conditions including, but not limited to, . . . or because the child has established significant emotional ties with prospective adoptive parents while in their care as a foster child and has been certified as a special needs child by the Commissioner of Children and Families. Conn. Gen. Stat. Ann. § 17a-116. (Emphasis added.) It is clear from this language that our legislature has recognized the importance of the parent-child like relationship, the significant emotional ties, which develops between a young child and the foster parent. The child's attorney emphasized in her argument the emotional ties Eric has with the foster mother and her teenage daughter. Terry A. testified that " Eric always adored her daughter and they are like brother and sister." Although, she testified that " He (Eric) does still have social and emotional issues."
The court finds that remaining in the present kin foster pre-adoptive home would foster the sustained growth, development and well-being of the child as well as the continuity and stability of his environment. In re Haley B. 81 Conn.App. 62, 838 A.2d 1006, (2004).
In this regard the duration of the placement is an important factor. It is axiomatic that " time is of the essence in child custody cases." In re Juvenile Appeal, 187 Conn. 431, 439-40, 446 A.2d 808 (1982). The misinformation and delay in obtaining the interstate study by DCF may have operated against the earlier intervention PGA. But, on balance, weighing all considerations, it was not the pivotal factor and, it is not likely that even a timely study would have changed the outcome given the very successful initial placement of Eric. At one time being a relative may have given the PGA an edge, but now she stands on equal footing with fictive kin.
DCF also failed to file a permanency plan in this case. Both Federal and State law require the permanency planning: " Within twelve months of foster home placements, state courts must hold permanency hearings to consider the future status of each child. 42 U.S.C. § 675(5)(C) (2000 Ed.)." In Re Darien S., 82 Conn.App. 169, 175-76, 842 A.2d 1177 (2004). See also, C.G.S.A. § 46b-129(k)(1). This omission may effect DCF federal reimbursement, it does not affect the child's placement in this case.
There were so many factors which were required to be considered immediately in the beginning of February that ultimately determined the outcome of this case. The actual placement was, for Eric, serendipitous. He was seamlessly placed in a suitable home, with people known to him, and he thrived in the placement. As has been previously indicated, the court is satisfied that the paternal relatives present narrative regarding the Considered Removal Team meeting, and the fact that neither parent, in writing, as required by the Specific Steps, ever indicated to DCF that PGA should be considered, was more dispositive of the issues than the delayed ICPC.
An early successful placement of a child, as here, often leads to a finding by the courts that disruption of that placement is not in the best interest of the child. See In re Ryan V., 46 Conn.App. 69, 73-74, 698 A.2d 371, 373-74 (1997), In the Interest of Felicia B., CPS Middletown, 1998 Ct.Sup. 15649, (Conn.Super.Ct. 1998, Quinn, J.), In re Denzel A., 53 Conn.App. 827, 833-34, 733 A.2d 298 (1999), In re Sheena I., 63 Conn.App. 713, 778 A.2d 997 (2001), In re Haley B., 81 Conn.App. 62, 838 A.2d 1006 (2004), In re Anthony A., 112 Conn.App. 643, 963 A.2d 1057 (2009), In re Sena W., 147 Conn.App. 435, 82 A.3d 684 (2013), In re Luis Anthony R. Jr., CPS Middletown, H12-CP11-014325-A, 2014 WL 7714333, Dec 18, 2014 (Quinn, JTR), In re Mindy F., 153 Conn.App. 786, 105 A.3d 351 (2014), In re Daniel N., 163 Conn.App. 798, 134 A.3d 624, cert denied, 321 Conn. 908, 135 A.3d 280 (2016). This court similarly finds that a disruption in the placement of Eric is distinctly not in the child's best interests.
Even given all the considerations previously discussed, that dictate in favor of a continuation of placement in the present foster home, the efforts of the PGA were important to undertake. The PGA and her family certainly are a " suitable and worthy" family for consideration, but especially true, in the event of a placement disruption. In the unfortunate event of Eric's disruption, it is important to understand that a suitable and valued placement resource was available. The paternal great aunt and her family are commended for their expression of concern and love for this young child and their willingness to raise him.
Under these circumstances however, the motions for transfer of guardianship by the paternal grandmother and by the paternal great aunt are denied.
G. Termination of Parental Rights and Best Interests of the Child
With respect to the best interests of the child contemplated by C.G.S. § 17a-112(j)(2), by clear and convincing evidence, and based upon all of the foregoing, the court finds that termination of the parental rights of Miranda S.J. and Ryan S., by his consent, to the child Eric is in the best interest of the child.
In finding that termination of the respondents' parental rights would be in the child's best interest, the court has examined multiple relevant factors including the child's interests in sustained growth, development, well-being, stability and continuity of his environment; his length of stay with the foster family; the nature of his relationship with foster mother and her daughter and the extended biological relatives; the degree of contact maintained with the biological parents; and his genetic bond to the parents. In re Alexander C., 60 Conn.App. 555, 559, 760 A.2d 532 (2000); In re Shyina B., 58 Conn.App. 159, 167, 752 A.2d 1139 (2000); In re Savanna M., 55 Conn.App. 807, 816, 740 A.2d 484 (1999). The court has also considered the applications for transfer of guardianship by Eric's relatives.
It is accordingly, ORDERED that the parental rights of Miranda and Ryan to Eric are hereby terminated. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for this child.
The Commissioner will file, within 30 days hereof, a report as to the status of this child as required by statute and such further reports shall be timely presented to the court as required by law.
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 Avenue, Willimantic of the date when said adoption is finalized.
Judgment may enter accordingly.
It is so ordered.
Mo. = Mother MGM = Maternal Grandmother MGF = Maternal Grandfather Fa. = Father PGM = Paternal Grandmother PGF = Paternal Grandfather In this case: PGA = Paternal Grand Aunt TOG = Transfer of Guardianship CRT = Considered Removal Team