Opinion
No. K09-CP11-012604 A
March 7, 2011
MEMORANDUM OF DECISION
This matter concerns the interests of Julian R., a child who was born on December 19, 2010, and who has been in the temporary custody of the Department of Children and Families (DCF) since shortly after his birth. The child's parents are Andria H. and Enrique R. is the putative father. The mother and father are not married to each other.
On February 8, 2011, DCF filed an ex parte motion for an order of temporary custody, and neglect petitions. The court (Driscoll, J) found after ex parte review that Julian was "in immediate physical danger" from his surroundings and ordered that the child's temporary care and custody be vested with DCF. The case was transferred from Waterford to Willimantic for a contested hearing on March 2, 2011. A motion to amend the factual allegations and to consolidate the temporary custody hearing with the neglect petition was granted without objection. All of the allegations in this case are based on the theory of "predictive neglect."
The doctrine of "predictive neglect" has previously been enunciated by the Appellate Court. "Our statutes clearly permit an adjudication of neglect based on potential for harm or abuse to occur in the future. General Statutes § 17a-101(a) provides: The public policy of this state is: To protect children whose health and welfare may be adversely affected through injury and neglect . . . By its terms, § 17a-101(a) connotes a responsibility on the state's behalf to act before the actual occurrence of injury or neglect has taken place." In Re Michael D., 58 Conn.App. 119 (2000). See also: In Re Jermaine S., 86 Conn.App. 819 (2004).
Our Appellate Court also noted in its In Re Michael D. decision: "General Statutes § 46b-120(8) provides that a child or youth may be found `neglected' who . . . (C) is being permitted to live under conditions circumstances or associations injurious to his well being. . . . The department, pursuant to the statute, need not wait until a child is actually harmed before intervening to protect the child. General Statutes § 46b-129(b) permits the removal of the child from the home by the department when there is reasonable cause to believe that (1) the child . . . is in immediate 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 . . . This statute clearly contemplates a situation where harm could occur but has not actually occurred." (Internal quotation marks omitted). In Re Michael D., supra, p. 124
Connecticut's case law is also very clear that a neglect finding may issue against a non-abusive parent who knowingly exposes his or her children to contact with a dangerous individual. In Re Jorden R., 293 Conn. 539, 562 (2009), citing: In Re Antonio M., 56 Conn.App. 534, 543 (2000); In Re Lauren R., 49 Conn.App. 763, 771-72 (1996); and In Re Felicia D., 35 Conn.App. 490 (1999).
The court finds the following facts by a fair preponderance of the evidence.
1. The minor child Julian was born on December 19, 2010, at a hospital in Brooklyn, N.Y. At the time of his birth his mother and, the likely father of the child, Enrique, had traveled to New York to stay with Enrique's brother and his wife, Diana Wiederhold. The purpose of the visit was to enable the child to be born away from the scrutiny of the Connecticut Department of Children and Families (DCF).
2. Andrea, the child's mother, will be twenty-nine years of age on March 14, 2011. She reported to a court-appointed psychiatrist, Marvin Zelman, M.D., (Exhibit C) that she was raised in an exceptionally violent household. Her parents never married, they separated when she was six. Her father was violent whether he was drunk or sober. She said as a result of the discordant lifestyle, she became mean to people and often engaged in fights with other girls. She recalls being beaten by her sisters and her father. She left school at age 15, worked as a deck hand on a ferry and began using marijuana, Ecstasy and LSD. At age 19 she became pregnant with her first child. At aged 22, she became pregnant with her second child. As a result of neglect, mental health issues and domestic violence issues she became involved with DCF and eventually lost custody of the children. She told the psychiatrist that she refused to fulfill DCF requirements and DCF petitioned to terminate her parental rights. On the date set for trial Andrea consented to the termination of her parental rights to the two children on April 16, 2009.
Andrea's third child was born on January 14, 2009. The father of that child is Enrique R. That child was removed from Andrea's care due to allegations of neglect, unresolved mental health issues and chronic domestic violence. It is presently the subject of a termination of parental rights contested final hearing scheduled for later this month.
3. Enrique is or is not the father of Julian. He claims he is the father. The child shares his last name. Enrique fathered Andrea's third child. But Andrea, burning the candle at both ends, in an effort to deflect the notion that she is still involved with the abusive Enrique, testified in court that she is unsure who the father is since she was in Florida at the time of conception and the child may not be his. She testified that she is no longer involved with him. That may mean she is not involved with him while he is presently incarcerated. She has told DCF many times in the past that she is no longer involved with him. Andrea knows that DCF will not reunify her with her children as long as she remains in an active relationship with him. This court ordered a paternity test. The court is satisfied that Andrea is not a truthful person, that facts are a matter of convenience for her and, that although bright and articulate, she is not an accurate reporter. The court notes that there was credible testimony that she told Enrique's brother and his wife that Enrique was the father and that she sought refuge with his family in New York for the birth of the child.
4. Following the birth of the child, Andrea, Enrique and the infant stayed at the home of Enrique's brother or in a shelter in New York. Diana testified that other than breast-feed, she did not interact with the baby. Diana said that Andrea was in New York to deliver the child because "Those crackers keep taking my kids."
On or about December 24, 2010, Andrea left the child in the care of Diana Wiederhold and Enrique's brother. Andrea returned to Connecticut. She returned to New York on January 21, 2011, for the day, to obtain "birth control" from a New York clinic. Diana testified there was no interaction with the child. She just came "to get birth control and WIC," according to Diana.
The next time Andrea came was on February 5, 2011, when she came to New York without notice to take the child. Andrea showed no gratitude to the brother and Diana for taking care of the child for six weeks. Diana was distraught and cried. Andrea said the only reason you want the child is for the welfare benefits. Diana said she wasn't on welfare. Diana said she didn't know what to do. She called DCF to alert them to the situation.
5. Andrea returned to Connecticut. She continued her day-time job as a receptionist in New London. DCF knew of her employment and sought to interview her. Andrea refused to provide any information about the child and would not tell the social worker her home address. She was fully uncooperative with DCF.
6. Having reviewed the psychiatric reports and psychologist reports, including the report of Dr. Krulee, this court finds that, Dr. Krulee's report notwithstanding, Andrea has chronic, long-standing, unresolved mental health issues. She has been historically involved in a domestically violent relationship with Enrique which she admitted to the psychiatrist. While she denies currently being involved with Enrique, the court finds that she is still actively involved in a relationship with him. Neither of them has adequately addressed issues of anger management nor domestic violence. They are both prone to violence as a form of expression.
The court finds that Andrea refused to disclose the birth of the child, actively hid his birth from the child protection authorities, lied to the police about his birth, and was completely uncooperative with the authorities attempting to ensure the safety and welfare of the child. She has a long-standing history of parental insufficiency. She is wholly uncooperative in obtaining needed services. An infant child in her care is at imminent risk of danger or harm.
Based on all of the evidence presented in the present matter, this court further finds that the doctrine of predictive neglect applies to the facts in this case. The court finds as proven that Julian R. was in immediate danger of physical injury from his surroundings at the time of his removal, because the child's residence with Andrea would have exposed him to the possible danger of exposure to domestic violence and the mother's mental unpredictability and poor judgment. The order vesting temporary custody of Julian with the Commissioner of DCF is hereby sustained for those reasons.
Also for the reasons recounted above, the court further finds that the petitioner has proven both of the grounds alleged in the neglect petition by a preponderance of the evidence as to both respondents.
Accordingly the court finds that commitment of the child is warranted and is in the best interest of the child. DCF has been unable to make reasonable efforts to avoid removal since the child's birth due to the active deceit by the mother and the incarceration of the father.
It is hereby ORDERED that the minor child, Julian R., be, and hereby is, committed to the custody of the Commissioner of the Department of Children and Families. The court adopts the specific steps previously ordered as final steps. They have been previously provided to both respondents. The court service officer in Waterford shall review new final specific steps as necessary with the parties and all counsel at the time of the next court hearing.
SO ORDERED.