Opinion
No. W10-CP06-015101-A
December 28, 2007
MEMORANDUM OF DECISION REGARDING REASONABLE EFFORTS
I. Introduction and Procedural Background
A decision is required within 60 days of removal of the child from the home on October 30, 2007. The contested hearing occurred over two days in December 2007 and briefs were filed on December 24, 2007. The decision must be filed by December 30, 2007. Accordingly the court will adopt much, but not all, of the respondent's excellent brief for the recitation of background and history.
On October 5, 2006, the Department of Children and Families (DCF) filed a neglect petition against the respondent mother, Darlene M., alleging that her son, Juan R. born August 22, 2000, was being denied proper care and attention, physically, educationally, emotionally or morally; and that he was being permitted to live under conditions, circumstances or associations injurious to his well-being. The petition also named Juan's half sister, Kiara, born April 2, 1999. The respondent, mother, pleaded nolo contendere to the neglect charges. The court, (Boland, J.), issued a finding that Juan R. and Kiara were neglected, entered an order of steps on January 17, 2007, and ordered six months of protective supervision. Protective supervision was extended for an additional six months at a hearing held on July 20, 2007 (Boland, J.). That same day, the court also ordered an evaluation by Dr. Robin Grant-Hall, a well respected clinical psychologist. Thereafter, on October 1, 2007, DCF filed motions to modify the order of protective supervision seeking commitment of the two children. The respondent, mother, filed a motion to "Reopen (sic) and Modify Disposition" on October 17, 2007, requesting that the court vacate its order of protective supervision and enter an order that the DCF provide voluntary mental health services to the respondent and her children. On October 23, 2007, this court heard testimony from Dr. Robin Grant-Hall and Dr. Erik Mayville. At the conclusion of the hearing, this court entered an order committing Juan R. to the care and custody of the DCF effective October 30, 2007. In accordance with Conn. Gen. Stat. § 46b-129(j), a hearing to determine whether DCF had made reasonable efforts to prevent Juan's removal from his home was held on December 13, and 14, 2007. Interested parties were provided the opportunity to submit simultaneous briefs on the issues on or before December 24, 2007 to enable the court to make its finding prior to the statutorily mandated date of December 30, 2007.
II. Factual Background
The record reflects that Juan R. was born on August 22, 2000. He was diagnosed with autism, chromosomal abnormalities, and mental retardation. Juan's ". . . impairment spans all of the core domains of functioning affected by autism (i.e., deficits in communication and socialization, as well as restricted and repetitive behavior and interests), as well as a number of associated features (e.g., inattention, over activity, abnormalities in sensory function). Such a profile is consistent with the domain of the most severe presentation of this clinical disorder." (Mayville evaluation, Respondent's Exhibit #2, at p. 6.) Juan received early intervention services from Birth-to-Three, a program administered through the Department of Mental Retardation (hereinafter referred to as the Department of Developmental Services, or DDS). He was assigned a DDS case manager, Keith Taylor, as well as a DDS educational consultant, Ann Tetreault. (Petitioner's Exhibit B, at 11; testimony, DCF social worker Fecto-Smith.) DDS provided Juan with some limited respite services, as well as annual cash assistance of $1,000.00 to assist his mother in providing for his specialized needs. Juan received special education services through Plainfield Public Schools in a program at Sterling Memorial School in Sterling, Connecticut. Juan achieved only "limited progress" in his Individualized Education Plan goals since 2003; he has not mastered even the most basic skills repeated over several years. (Respondent's Ex. 2 at 2.) He "possesses very few skills to facilitate acquiring basic learning repertoires." (Respondent's Ex. 2 at p. 6), or to stay safe (Mayville, testimony October 23, 2007).
DCF was aware of the severity of Juan's autism as early as January 2002 (Oral Stipulation by DCF at reasonable efforts hearing, 12.14.07). On November 6, 2005, DCF initiated an investigation after receiving a call reporting that Juan had "escaped" from his mother's apartment. During this investigation, the DCF worker observed "the apartment to be messy and disorganized." The report notes,
[m]other reported to SW that she couldn't help it because she is only one person with two young children one with special needs and in need of 24 hours attention . . . Mother stated that she does not sleep in her bedroom because `she sleeps in the living room so that she can intercept Juan if he tries to escape. (Respondent's Ex 22, p. 6 of 11.)
During the course of this investigation, the DCF social worker contacted Keith Taylor, Juan's DDS case manager, who reported that Juan ". . . suffers from the worst case of autism he has ever seen." (Respondent's Ex 22, p. 7 of 11.) The DCF worker also phoned Dr. Lieberman, Director of Special Education in Sterling, CT, who "reported that Juan is classified as `classic autistic and the worst case of autism that he has seen in the many years of service.' Dr. Lieberman reported that mother has been appropriately requesting support from the school." Id. The social worker also faxed a questionnaire to Juan's school, in which the teacher reported that "Juan engages in very loud tantrums while at school-an average of 2 hours per day. Child also engages in long periods of noncompliance where he will refuse to sit in his seat to work. Child mouths and bites books and toys in the room and on numerous occasions have tried to leave the room (sic)." The DCF worker also noted, during a home visit on November 10, 2005, that he observed Juan "did not stop jumping in place and constantly took off his diaper," but noted that the children "appeared well care for and content. (sic)." Despite being apprized of the foregoing information, and despite its recognition that there had been five other unsubstantiated reports of neglect in the years between 2002 and 2004, DCF concluded its investigation by noting that Juan's needs for safety, well-being and permanency are "presently being met in the home." There were no services offered to prevent out-of-home placement. The disposition of the case was "close, no further contact."
On November 16, 2005, Juan escaped from his home a second time after his sister Kiara had come inside after playing outdoors and left the front door ajar. In response, DCF suggested that Darlene contact Systems of Care to help her with Juan, and the DCF social worker agreed to make a referral for respite services through United Community Family Services. The DCF report noted, "[a]lthough mother appears to be overwhelmed with her current situation, it does not seem to have negatively impacted the children in any way." It does not appear that DCF provided any additional services to Darlene.
On April 7, 2006, DCF investigated a report that Juan's sister, Kiara, was left outside unsupervised in her neighborhood. During the investigation, the DCF social worker called Juan's DMR case manager, Keith Taylor. Mr. Taylor informed the DCF worker assigned to Juan's case that Juan "rates "high" on the scale for autism; that, under the best circumstances it would be difficult to care for Juan." He recommended that Darlene apply for voluntary services. On April 18, 2006, twelve days after DCF opened a file and began an investigation, Darlene followed Mr. Taylor's recommendation and requested voluntary services by filing the DCF Voluntary Services Application Form. She wrote, "[m]y son has autism and is in need of some services. DMR has no funds for additional support for him." The respondent also noted on the application that she suffers from depression and stress, and that she was "taking meds." The application further notes that "Juan requires extensive programming; that DMR services are limited, as DMR provided only one weekend a month respite. Mother requested a mentor, as well as education to assist with her child; it was also noted that she "might need residential services further down the line for the child." On June 12, 2006, however, DCF concluded that Darlene was ineligible for voluntary services intake, because a case was already opened by investigations for child protective services issues.
Following the investigation of the report filed on April 6, 2006, and following a supervisory conference, DCF concluded it had sufficient information to substantiate physical neglect of Kiara due to inadequate supervision. In so doing, however, DCF noted that Darlene's lack of "adequate supervision of her daughter appear[ed] to be the result of the amount of supervision and energy that Kiara's brother, Juan, requires." The treatment planning goals and recommendations established at that time by DCF were to assure that Darlene would continue with counseling services, that she seek counseling services for Kiara; that she maintain appropriate supervision of Kiara; and that she continue services for Juan through DMR. DCF agreed to pursue in-home services for Darlene such as a parent aid or `PEAS.' DCF also agreed to refer Darlene for counseling and to assist in subsidized housing. The case was then transferred to DCF Protective Services. For reasons which are not stated in documents in evidence nor in testimony, DCF did not offer any additional services to address the overwhelming nature of Juan's autism and its impact on this family.
Three months later, DCF had not provided any additional services to stabilize Juan in his home environment. A treatment plan developed on July 17, 2006, mirrored the goals from the April treatment plan. The services offered by DCF were "case management, Safety Plan," service agreement/safety plan. DCF also made referrals to United Services for counseling for Kiara, and a referral to the local housing authorities. No additional services were offered specifically to Juan that were responsive to his severely autistic behaviors.
In September 2006, Dr. Jonathan Lieberman, the administrator of Juan's school program at Sterling Memorial School, submitted a proposal to DCF, the purpose of which was to implement a "behavioral plan within home-matched to school functioning," six to 8 hours per week for a diagnostic period of six weeks. DCF funded this program, referring to it as "the ABA mentorship program." The program had limited success. The program was staffed by two para-professionals from Juan's program at Sterling Memorial School; however, neither of them was certified in applied behavioral analysis or any other known approved autism treatment.
Subsequently, DCF offered another home training mentorship program in June 2007. There, two para-professionals from Juan's school program were sent out to work with Juan in his home and to take him into the community. DCF referred to this program as an "Applied Behavioral Analysis (ABA) mentor program" designed specifically for Juan.
From this it is clear that DCF did not robustly investigate and creatively seek to gather and implement services to meet Juan's needs in his early years. It may be that DCF was satisfied with the Birth-to-Three program and the school and community based programming. More specific information was not made known to the court. But, reasonable services were gradually being implemented over the fourteen months prior to removal of Juan.
DCF embraces the "Systems of Care" philosophy in the administration of its behavioral health services, and offers, according to the DCF website, "a broad array of community-based behavioral health services to children and their families, including intensive in home services and family support teams, all designed to provide clinical intervention and support" necessary to successfully maintain children in the home or community.
Those services either known to DCF or provided by DCF to this family included:
1) individual and family counseling for mother through United Services and Day Kimball Hospital for treatment of depression, 2) counseling for Kiara with Susan Frechette at United Services and medication management with Dr. Thangada,
3) Specialized education and programming at the Sterling Memorial school for Juan,
4) September 2006, DCF funded an in-home mentorship program for Juan,
5) June 2007, a second training mentorship program, in-home and community based specifically designed for Juan was implemented,
6) a housing referral for the family, subsidized housing as well as state financial assistance was monitored,
7) DMR (now DDS) services through Ann Tetreault case coordinator, Dempsey Center in Putnam CT. for Juan,
8) a parent aide through United Services to assist in household management, including improving the cleanliness of the home environment was provided,
9) Additional school based services through Shepard Hill Elementary School for Kiara including Monday through Friday after school programs,
10) case management and oversight by DCF social workers of all programs.
11) Psychological evaluation of the family to determine service needs and to assess Juan's behavioral health needs was conducted prior to removal.
Further factual information is necessary to assess the reasonableness of the efforts offered prior to the placement on October 30th.
Darlene M. is the 43-year-old mother of Juan and Kiara. Darlene has been married once and has three children by different fathers. DCF became involved with Darlene and her oldest daughter in 1997 regarding issues of domestic violence, substance abuse and neglect. The social study reports involvement with the family every year since 1997.
Disturbingly, this a case with another social study that provides very little social history of the family dynamics and DCF involvement over time. Education? Criminal record? Employment history? Child protection history?
Darlene reports that she was removed from her parent's care early in her childhood and reports being "bounced around from one alcoholic aunt to another." Her childhood was difficult and unhappy, likely with no good maternal figures. She remains married to the father of her adult first daughter although they have been separated for many years. She reports multiple unhealthy intimate relationships.
Kiara's father had a relationship with Darlene while he was briefly separated but still married to his current wife. He is reportedly living in a one-bedroom apartment belonging to his wife's parents. He, his wife and two teenage children are living in this one-bedroom apartment as he is "down on his luck." He cannot be a placement resource for Kiara. He maintains that Darlene "doesn't watch the kids."
Juan's father dutifully attended these contested proceedings as he was delivered each day from the Corrigan Correctional Center which currently provides for his full-time care. Nothing is reported in the social study about his personal history except that his current incarceration relates to a domestic violence arrest in which his current girlfriend was the victim. He believes DCF is involved in this case because of Darlene's neighbors who "have issues with my bi-racial son" and have complained. He believes that Darlene is a good mother. He last saw her and Juan more than a year ago when they attended a prison visit.
This present DCF involvement commenced 18 months ago, May 2006, upon complaints of inadequate supervision of Kiara. Service providers and the social worker testified that Kiara is not getting the Five months later in October 2006, DCF filed neglect petitions alleging that the children were being denied proper care and attention, physically and emotionally, as well as being permitted to live under conditions injurious to their well-being. The thrust of reports from school and service providers is that Darlene and the children lived in chaotic and disorganized circumstances. The apartment is at times in great disarray. Juan presents as a twenty-four hour a day control problem. He is seven years old with little if any language skills, no bowel control, leaves his soiled diapers about, is in almost constant motion, flapping his arms, running around, engaged in the purposeless stimming, twirling "shaking a [nonexistent] string," and other rapid behaviors that are almost ceaseless according to observers. He does not sleep through the night. He requires constant vigilance which, according to Robin Grant Hall, Ph.d., would present enormous difficulties for even a stellar parent.
Darlene is, at best, a very marginal caretaker. Darlene struggles with her own mental health issues and depression. Her cognitive skills are limited. Service providers and in-home mentors report little or no progress in teaching Darlene parenting skills. The psychologist, Dr. Grant-Hall, describes mother as having other significant cognitive and behavioral issues. She has testified that Darlene is completely over-whelmed by these two needy children and is not able to care for both children together at this time.
Kiara's therapist reports that the interaction between mother and Kiara is negative, also that she felt that mother was depressed and has very low energy, that compounded by the special needs of Juan exacerbates the current issues between mother and Kiara.
Dr. Erik Mayville testified for the respondent. He was qualified as an expert in autism spectrum disorders. He is the clinical director of the Institute for Educational Planning in Milford Connecticut. This clinic provides psycho-educational evaluation services for children with developmental disorders. His specialty is providing applied behavioral analysis education and treatment. He explains applied behavioral analysis as a systematic method of instruction for persons with marked deficits of social functioning. It is one of numerous treatment modalities for addressing the problems of children with autism.
According to Dr. Mayville, Juan functions well below the norm in all domains. He has no basic communicative skills, few adaptive skills, play skills, toileting skills or social relatedness. He exhibited considerable resistance to any instruction. The doctor could not get him to imitate any behaviors. He estimated Juan to have an intelligence quotient of 20 to 30; severe mental retardation as well as autism. He described Juan as having the skills of a newborn infant with the capacity to move about.
Dr. Mayville proposed a treatment model that called for a team of people to provide, essentially twenty-four-hour care, supervised by a Board Certified Behavioral Analysis (BOBA). He described the treatment as a "problem reduction program with consistent and programatic instruction at all times in the home. It's going to take other people in the home because of his need for constant supervision," said the doctor. Dr. Mayville did not assess nor comment upon the competence of the mother or her cognitive and mental health issues.
In addition, the court heard the testimony of Ms. Suzanne Letso, a person familiar with the field of systems development for autistic children. Ms. Letso testified that for the past four years she has worked on a regular, cooperative basis with the DCF, DDS, and other private agencies to develop systems of care around children like Juan who are severely autistic. Her organization teaches parents and service providers skills to assist in educating autistic children. She did not evaluate the competence of Darlene, to learn coping or educational skills. She knew of no child protection cases where her services had been engaged. She was aware of a women with autistic twins who was getting 50 hours of voluntary services per week. She did not offer a specific program for Juan. She was familiar with services that DCF had provided including funding the cost of out of home placement for severely autistic children with needs similar to Juan's.
Essentially, the respondent is requesting that DCF provide surrogate, supplemental parenting by a professional team of persons, supervised by a Board Certified Behavioral Analysis, twenty-four hours a day, year round. None of the respondent's witnesses addressed whether such services are available in Eastern Connecticut nor mentioned the weekly, monthly or annual cost of such services. She maintains that DCF is required to offer such services in order to satisfy state and federal "reasonable efforts" requirements.
Again, the court draws much of its legal analysis from the excellent presentation of the law contained in Respondent's memorandum of law.
Conn. Gen. Stat. § 46b-129(j) provides, in pertinent part,
Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall determine whether the Department of Children and Families made reasonable efforts to keep the child or youth with his or her parents or guardian prior to the issuance of such order and, if such efforts were not made, whether such reasonable efforts were not possible, taking into consideration the child's or youth's best interests, including the child's or youth's health and safety.
Although Connecticut case law does not address what constitutes reasonable efforts to prevent a child's removal from his home in the first instance, it does address the meaning of reasonable efforts in the context of termination of parental rights proceedings, where the focus of "reasonable efforts" generally is directed to the issue of parental rehabilitation.
In that context the Connecticut Appellate Court has consistently noted: "[t]he word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged. Neither the word "reasonable" nor the word "efforts" is, however, defined by our legislature or by the federal act from which the requirement was drawn . . . [R]easonable efforts means doing everything reasonable, not everything possible." In re Hector L., 53 Conn.App. 359, 371, 730 A.2d 106, 114 (1999); In re Ebony H., 68 Conn.App. 342, 349, 789 A.2d 1158, 1163 (2002); In re Alexander T., 81 Conn.App. 668, 673, 841 A.2d 274, 279 (2004).
"[R]easonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." In re Daniel C., 63 Conn.App. 339, 363-63, 776 A.2d 487, 503 (2001).
Most apposite however is the case of In re Steven M., 264 Conn. 747, 760-62 (2003). In that case as in this case, the respondent believed that DCF was required to provide a high level of "appropriate services" rather than move a child to an institutional setting. The Supreme Court held that the trial court was not obligated to consider a utopian alternative to the elected course of institutional treatment.
With respect to funding issues, see footnote 9 at page 760.
( ii). Federal Requirements
Connecticut's statutory requirement that DCF make reasonable efforts to maintain a child with his parent is based on the federal requirements of the 1980 Adoption Assistance and Child Welfare Act (AACWA) and the 1997 Adoption and Safe Families Act (ASFA). See Conn. Gen. Stats. 46b-129(j); 49 U.S.C. §§ 620 et seq. Congress passed the ASFA in 1997 to help prevent "foster care drift" by providing greater judicial oversight of the entire placement process, mandating the delivery of services to families, identifying children in need of adoption within twelve months, and terminating parental rights of parents within eighteen months of out of home placement. The Act also emphasized the need to maintain children in stable family environments in so far as possible.
In ASFA, Congress clarified the requirement of reasonable efforts, noting that reasonable efforts must be made to preserve families, and that these efforts must be made prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home. 42 U.S.C. 671(a)(15)(A)(I), 42 U.S.C. 671(a)(15)(B)(I). Later in the Act, Congress emphasized that "[n]othing in this Act is intended to disrupt the family unnecessarily or to intrude inappropriately into family life . . . or to prescribe a particular method of parenting." 42 U.S.C. 671, Note to Sec. 401. See also Christine H. Kim, Putting Reason Back Into the Reasonable Efforts Requirements In Child Abuse And Neglect Cases, U. Ill.L.Rev. (1999).
AACWA requirements have been described by one commentator as follows:
[t]hrough federal matching fund incentives to the states, AACWA encouraged states to lessen emphasis on foster care placement and to encourage greater efforts to find permanent homes for children either by making it possible to return to their own families or by placing them in adoptive homes . . . Reasonable efforts have been construed to include efforts to avoid removal in the first place." Kurtis A. Kemper, Annotation, Construction and Application by State Courts of the Federal Adoption and Safe Families Act and Its Implementing State Statutes, 10 A.L.R.6th 173 (2006).
The 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 Brianna C., 98 Conn.App. 797, 801, 912 A.2d 505, 509, citing In re Juvenile Appeal (83-CD), 189 Conn. 276, 293-95, 455 A.2d 1313 (1983). Reasonableness pursuant to Conn. Gen. Stat. § 46b-129(j) must be viewed in terms of whether the services provided were reasonably expected to address the specific circumstances that gave rise to the concerns regarding the children's safety and well-being. Safety is specifically mentioned in the federal and state statutes that address child protection cases. The safety of the children is of paramount consideration to the court and was pivotal in this case.
IV Findings
The court finds upon a consideration of the testimony, the documentary evidence and the respondent's claims of law, by a fair preponderance of the evidence:
DCF had begun a course of services and programs which they believed addressed this family's needs. These services have been previously itemized. It was conceded in court argument and in mother's application for voluntary services that residential placement was a distinct consideration for Juan, even before DCF contemplated removal of the child.
Further, the respondent mother also concedes in her brief that "Juan was totally unable to keep himself safe from his own autistic behaviors, and his mother, on her own, could not possibly keep him safe, even if she were a perfect parent. (October 23, 2007 testimony, Mayville, Grant-Hall.)" This court has concluded that Juan was not safe in the home.
The respondent mother had been unable to significantly benefit from the counseling services, in-home parenting assistance, and DMR instruction which has been the principle emphasis of the DCF coordinated efforts.
DCF determined that Juan has enormous specialized needs that were not able to be met in the home. A genuine issue of the respondent's protective capacity existed, as well as her ability to acquire necessary skills to aid in the education and instruction of Juan.
The plan offered by the respondent is essentially surrogate parenting in the home by numerous ABA trained persons twenty-four hours a day.
A determination was made by DCF that normal foster care, and even therapeutic foster care homes were not adequate for Juan's care. DCF reasonably determined that residential placement was appropriate to ensure his safety and well-being.
The court finds that reasonable efforts were made to prevent the removal of Juan from the home.