Opinion
No. H14-CP05-008118-A
October 20, 2005
MEMORANDUM OF DECISION
This memorandum of decision addresses an application for continuation of an ex parte Order of Temporary Custody (OTC). That OTC had originally brought before the court in connection with a Families with Service Needs (FWSN) petition filed in early 2005 on behalf of Noemi B., a minor born May 3, 1989. The 2005 FWSN petition had been filed on behalf Noemi B. by a juvenile probation officer (JPO) assigned to work with this minor and her family; the petition's allegations referenced multiple episodes of truancy, lack of compliance with school rules, failure to attend counseling sessions, and the minor child's desire to be engaged in an intimate relationship with her adult boyfriend, David H., instead of attending school or participating in other age-appropriate activities.
In the spring of 2004, Noemi B.'s mother, Diana B., had filed a FWSN petition alleging that the minor was acting out of control and failing to follow the rules of the home shared by mother and child. This FWSN petition was withdrawn soon thereafter, upon Noemi B.'s representation that she would cooperate with her mother's directions. (Testimony of Diana B.)
On March 22, 2005, in conjunction with hearing of the FWSN matter, the court (Cohn, J.) issued an OTC in writing and from the bench, finding in both instances that Noemi B. was homeless at the time; that she was in immediate physical danger from her surroundings; that continuation in the home she shared with her mother Diana B. was contrary to the welfare of this minor; arid that temporary care and custody should be vested in the Commissioner of DCF (DCF or the department) pending a hearing at which the order could be confirmed or set aside.
Although the minor's homeless status had been presented to the court in the course of hearing the pending FWSN petition, heard on the Delinquency Calendar, the court file reflects that the written ex parte OTC at issue was imposed pursuant to General Statutes § 46b-129(b), relevant portions of which are set forth at footnote 7. The legislature has provided a corollary provision through General Statutes § 46b-149(f), as amended, which enables the court hearing a FWSN petition to "vest temporary custody" of the child at issue "in some suitable person or agency" such as DCF if, among other things, "It appears from the allegations of a petition or other sworn affirmations that there is: (1) A strong probability that the child may do something that is injurious to himself prior to court disposition: [or] (2) a strong probability that the child will run away prior to the hearing . . . " (Emphasis added.) As with its sister statute § 46b-129(b), the temporary custody order issued pursuant to § 46b-149(f) must be the subject of a hearing "held no later than ten days after the date on which a judge signs an order for temporary custody. Following such hearing the judge may order that the child's temporary custody continue to be vested in some suitable person or agency. Any expenses or temporary custody shall be paid in the same manner as provided in subsection (b) of section 46b-129."
At a preliminary OTC hearing held on April 1, 2005, Noemi B.'s court-appointed Guardian ad litem (GAL) assigned the petitioning role in lieu of that previously occupied by the minor's probation officer; the GAL thus assumed the burden of proving that there were grounds for continuance of the ex parte OTC. Noemi B. was represented by counsel; neither Noemi B.'s attorney nor DCF's attorney supported CT Page 13938-eg continuance of the OTC, but the minor's biological parents did support the continuance of the OTC. After hearing on that date, DCF made an oral motion to vacate the OTC, based upon the department's argument that the child was uncooperative with the OTC process, and that the department could not provide services to the minor if her whereabouts were unknown. The minor's GAL objected to this motion, which the court denied.
Practice Book Sec. 33a-7(a) establishes the protocol for the "preliminary hearing on the order of temporary custody . . ."
A contested hearing was scheduled, and commenced on April 27, 2005; Noemi B. failed to attend that hearing, although her attorney was present. On that date, the petitioning GAL moved for a two-week continuance on the matter; this motion was denied based upon the objection of DCF. The GAL that presented evidence in support of continuation of the OTC through testimony from Noemi B.'s mother and Leslie S., a DCF social worker. The GAL delivered her report, stating her opinion that it is in Noemi B's bests interests to remain subject to the OTC, as the minor would be subject to immediate physical harm and danger if she was allowed or permitted to remain in the custody of Noemi B. The GAL was subject to cross examination, pursuant to In re Tayquon H., 76 Conn.App. 693, 705-06, 821 A.2d 796 (2003).
During the course of the OTC hearing, Noemi B.'s attorney admitted that he had not seen or spoken with his client since March 22, 2005.
The contested hearing continued on April 28, 2005; once again, Noemi B. was not in attendance, although her attorney was again present at court. The court ordered counsel to prepare trial briefs discussing the implications, if any, of the interface between the issues related to the common-law concept known popularly as "predictive neglect" and the legislatively created OTC remedy as provided in General Statutes Sec. 46b-129(b). On that date, the court entered an interim order requiring DCF to remain the custodian of the child until further order of the court, thus leaving Judge Cohn's initial OTC order in effect.
See footnote 4.
Our courts have previously acknowledged that "the neglect statutes (§§ 17a-101[a], 46b-120[8] and 46b-129[b]) clearly permit adjudication of neglect based on a potential for harm or abuse and clearly and explicitly recognize the state's authority to act before harm occurs." In re Michael D., 58 Conn.App. 119, 123-24, 752 A.2d 1135, cert. denied 245 Conn. 911, 759 Conn. 505 (2000). Utilizing this principle, "[a]n adjudication of neglect may be based on a potential risk of harm and not just actual harm." (Emphasis added.) In re Michael D., supra, 58 Conn.App. 124-25.
Section 46b-129(b) provides, in relevant part: "[i]f it appears from the specific allegations of the [OTC] petition and other verified affirmations of fact accompanying the petition and application, or subsequent thereto, that there is reasonable cause to believe that (1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or CT Page 13938-eu youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety, the court shall either (A) issue an order to the parents or other person having responsibility for the care of the child or youth to appear at such time as the court may designate to determine whether the court should vest in some suitable agency or person the child's or youth's temporary care and custody pending disposition of the petition, or (B) issue an order ex parte vesting in some suitable agency or person the child's or youth's temporary care and custody. A preliminary hearing on any ex parte custody order or order to appear issued by the court shall be held within ten days from the issuance of such order. Upon the issuance of such order, or not later than sixty days after the issuance of such order, the court shall make a determination 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.
The GAL has argued that the court maintains the jurisdiction to impose an OTC upon a minor such as Noemi B., ordering DCF to maintain her custody if conditions in the minor's home are unsafe, even though the minor may have absconded and is not available for receipt of services from the child protection agency. Both DCF and Noemi B.'s attorney, acting in the absence of the minor client, have argued that the court was presented with insufficient evidence from which it could infer that Noemi B. was "homeless" and thus subject to an OTC placement with the department.
Subsequently, on June 22, 2005, having reviewed the evidence presented at the contested OTC hearing, and having considered the parties' expressed portions, the court (Rubinow, J.) issued a bench order sustaining the OTC. This memorandum of decision sets forth the court's conclusions as to the applicable claims of law raised by the parties and CT Page 13938-eh the factual basis sustaining the OTC, as contemplated by Practice Book § 64-1.
I. EVIDENCE PRESENTED, THE ORDERS ENTERED AFTER HEARING, AND THE BASIS THEREFORE
The contested OTC hearing was conducted pursuant to Practice Bock Sec. 33a-7(d) and General Statutes § 46b-129(b) and (f). Accordingly, the subject before the court was limited to the petitioner's claim that there is a continued need for protective custody and care of Noemi B. by someone other than a biological parent, because the minor would be subject to immediate physical danger from her surroundings if returned to the care and custody of such a parent, so that continued removal from such surroundings was necessary to ensure her safety. See § 46b-129(b); Practice Book Sec. 33a-6(a); In re Juvenille Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983). In reaching its determination in this matter, within the confines of the issues presented by § 46b-129(b) and (f), the court has also taken into consideration the statutory presumption established by General Statutes § 46b-56B. and the best interests of the minor at issue in this temporary custody hearing, as contemplated by General Statutes § 46b-1(11), the then applicable version of § 46b-56(b), and § 46b-121.
Section 46b-129(f) provides that: "Upon request, or upon its own motion, the court shall schedule a hearing on the order for temporary custody or the order to show cause to be held within ten days from the date of the preliminary hearing. Such hearing shall be held on consecutive days except for compelling circumstances or at the request of the parent or guardian." This language is nearly consistent with the language of Practice Book Sec. 33a-7(d), which provides as follows: "Upon request, or upon its own motion, the judicial authority shall schedule a hearing on the order for temporary custody or the order to show cause to be held as soon as practicable but no more than ten days from the date of the preliminary hearing. Such hearing shall be held on consecutive days except for compelling circumstances or at the request of the respondents."
Used in the OTC context, the term "`[i]mmediate' is not synonymous with instantaneous: State ex rel. Lipovsky v. Kizak, 15 Ohio St.2d 27, 238 N.E.2d 777, 779 (1968); Olson v. Ross, 32 N.Y.S.2nd 49, 51 (Sup. 1948); Eckberg v. Belfer, 222 Minn. 450, 24 N.W.2d 851, 852 (1946); but, rather, means at hand, not distant or far apart; People v. Rosenhoover, 70 Cal.2d 39, 72 Cal.App. 533, 540, 447 P.2d 925 (1968); or within a reasonable time . . . `Danger' is defined as `exposure or liability to injury, pain, harm or loss.'" In re Damien G., Superior Court, judicial district of Bridgeport (September 15, 1994, Levin, J.) (1994 PITA Ct.Sup. 2364) ( 12 Conn. L. Rptr. 88), Merriam-Webster's New Collegiate CT Page 13938-ev Dictionary (9th Ed. 1991); Redgate v. Doyle, 123 Conn. 291, 294, 195 A. 196, 198 (1937).
Practice Book § 32a-3(a) establishes that the applicable standard of proof in this matter is a fair preponderance of the evidence, as the contested OTC hearing is ancillary to a neglect proceeding. In reaching its conclusions, the court has honored this standard, and has fairly and impartially considered all the evidence presented; assessed the weight, if any, to be given specific evidence; and measured the probative force of conflicting evidence; applied the role that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned: and determined the credibility of the witness as required by law. Moreover, the court has drawn such inferences from the evidence or facts established by the evidence it deems to be reasonable and logical, as is the court's prerogative to do in such matters. In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied 271 Conn. 921, 859 A.2d 579 (2004); In re Carissa K., 55 Conn.App. 768, 783, 740 A.2d 896 (1999).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000); see also In re Hector L., 53 Conn.App. 359, 366, 730 A.2d 106 (1999). "The probative force of conflicting evidence is for the trier to determine . . . In re Ashley E., 62 Conn.App. 307, 316, 771 A.2d 160, cert. denied 256 Conn. 910, 772 A.2d 601 (2001)." In re Jonathan G., 63 Conn.App. 516, 528, 777 A.2d 695 (2001). "The trial court . . . is not bound by the uncontradicted testimony of any witness . . . and is in fact free to reject such testimony. The trier . . . has the right to accept part or disregard part of a witness' testimony." (Citations and quotation marks omitted.) In re Deana E., 61 Conn.App. 197, 208, 763 A.2d 45 (2000), cert. denied. 255 Conn. 941, 768 A.2d 949 (2001). It is the court's province to determine which expert testimony, if any, is more credible than other expert opinion evidence provided for review. Keans v. Bocciarelli, 35 Conn.App. 239, 241-42, 645 A.2d 1029, cert. denied. 231 Conn. 934, 650 A.2d 172 (1994).
Using these measures, the court finds the following facts to have been proved by a preponderance of the evidence:
Noemi B. was born to Diana B. and David B. on May 3, 1989; she turned sixteen years of age on May 3, 2005, but remains a minor under the laws CT Page 13938-ei of this state. In the past, the minor made her primary home with her biological mother. In the spring of 2004, Noemi B. became romantically involved with David H., a male who was a number of years older than her. The minor at the time was exhibiting "runaway" behavior apparently designed to facilitate her cohabitation with David H., over the objection of her mother, who had valid concerns for Noemi B.'s physical safety and well being when she had access to this adult male. Both David B. and Diana B. appropriately sought assistance from DCF at the time, and the department was apprised of Noemi B.'s "runaway" behavior. At the time, neither the mother, the father nor the department was able to compel Noemi B. to engage in counseling to address her apparent errors in judgment and emotional distress.
With DCF's encouragement, as noted above, Diana B. filed a FWSN petition with the Juvenile Court in the spring of 2004, further seeking assistance for her daughter's obvious special needs. The petition was withdrawn upon Noemi B.'s representation that she would cooperate with the reasonable rules of the household. However, the minor's acting-out behavior subsequently escalated. In October of 2004, Noemi B. admitted to her mother that she was regularly consuming alcohol. Diana B. again attempted to engage her daughter in counseling, but the minor refused. (Testimony of Diana B., Leslie S.)
In early 2005, Noemi B.'s school submitted documentation to the Juvenile Court indicating that the child was significantly truant; in response the minor's JPO filed a second FWSN petition. During March of 2005, Noemi B. did not reside at her mother's home; refused to tell Diana B. where she was living; and consistently demonstrated "runaway" behavior. Noemi B. appeared to be very depressed during this period, and conflict between the mother and daughter continued. When Noemi B. appeared at a court hearing on March 22, 2005, Diana B. was able to observe that marks made by a cutting instrument were present on the inner aspect of the minor's left forearm, parallel to the arm along its length. Noemi B. refused to explain to Diana B. how the injurious marks were made. (Testimony of Diana B.) The court reasonably and logically infers from the presence of these lacerations resulted from the minor's self-injurious cutting of her own body, or that they were inflicted upon her by a third party.
As noted above, the court (Cohn, J.) imposed an OTC upon Noemi B. on that date, placing the minor in the custody of DCF, our state's professional child protection agency, pursuant to § 46b-129(b). Aware of the minor's propensity for "runaway" behavior, the department placed the minor in a foster home from which she fled after staying only three or four days. DCF has thereafter attempted to locate Noemi B., but without CT Page 13938-ej avail. (Testimony of Leslie S.)
A preponderance of the evidence presented at the contested OTC hearing firmly establishes that notwithstanding the court's order for her to remain in DCF custody, Noemi B. voluntarily left continued her relationship with her adult male companion. David H. has bean incarcerated for violation of a Protective Order which prohibited him from having contact with Noemi B.: he is involved with gang-related activities; and he is involved with drugs. Despite her best and sincere efforts, Diana B. has been unsuccessful in providing her daughter with the specialized care and treatment Noemi B. needs in order to understand the imminent physical harm and other dangers she faces by living outside of her mother's secure home, and by remaining sexually involved with David H. or any adult male at this stage of the minor's physical and psychological development. (Testimony of Diana B., Leslie S.) Candidly, the family's DCF caseworker admitted at the hearing that in her professional opinion, Diana B. lacks the resources and capability for controlling Noemi B. She further admitted that it is not safe for Noemi B. to be sleeping or living anywhere other than at her mother's home. Moreover, the DCF social worker clearly and convincingly opined that Noemi B. is not physically safe under the circumstances in which she has chosen to live. When her whereabouts are unknown to her parents or to the department, responsible adults are unable to take appropriate measure to help the minor support herself in a lawful manner; provide her with appropriate food and shelter; and take necessary precautions to assuage reasonable fears that the child is living in an unsafe environment. (Testimony of Leslie S.; see also Report of the GAL.)
When rendering this credible opinion, the DCF social worker acknowledged that in September of 2004, when Noemi B. was fifteen years old, Diana B had locked the doors to her home and refused entry to the minor, in an apparent effort to provide some "tough love" for her daughter. (Testimony of Leslie S.)
Under the totality of the circumstances in this case, the court is constrained to conclude that Noemi B.'s failure to comply with the rules of her mother's home and her unwillingness to reside in that home, coupled with Diana B.'s personal inability to control her teenaged daughter's aberrant conduct, have rendered the minor an individual who is "homeless" and thus "uncared for" within our statutory scheme. Even though her biological mother has attempted to provide a home for this minor, Noemi B. is clearly engaging in self-injurious conduct or otherwise exposing herself to injury caused by third parties; she remains unable or unwilling to avoid falling prey to an adult male who clearly has taken advantage of her. (Testimony of GAL.)
General Statutes § 46b-120(10) provides that "a child or youth may be found to be `uncared for' who is homeless or whose home cannot provide the specialized care that the physical, emotional or mental condition of the child requires."
Thus, the evidence clearly establishes that Diana B. is clearly unable to provide her daughter with the "specialized care that the . . . emotional or mental condition of the child requires." General Statutes § 46b-120(10). Moreover, the evidence clearly and convincingly establishes that DCF is fully aware of the biological mother's limitations with CT Page 13938-ek regard to meeting the minor's specialized needs and physical safety. As Noemi B.'s GAL eloquently argued at the hearing, some responsible authority needs to protect this minor from the imminent risk of physical harm to which she is exposed when she is not living at her mother's home, and when she remains whereabouts unknown. As Diana B. is unable to fulfill this obligation, unable to protect her daughter from the physical harm, it is clear that any expectation continued placement in the minor's home is a dangerous chimera: the evidence abundantly supports the inference that if Noemi B is placed with Diana B. the child will again "runaway," exposing the minor to the dangers of an independent existence which she is ill-prepared to meet given her age and stage of development, and her history of self-injurious behaviors. Thus, continuation in the home is contrary to the welfare of the minor at issue. Moreover, the totality of the evidence permits the ready inference that since Noemi B. refuses to disclose her place of residence, she is more than likely in an environment in which she lacks supervision by any individual identified by DCF or the family as a responsible adult caretaker. Under these circumstances, as well, Noemi B. must reasonably be considered to remain at risk of immediate and continued physical danger from her surroundings. Such criteria meet the explicit elements established by § 46b-129(b) for "vesting in some suitable agency or person the child's or youth's temporary care and custody." In this case, as no family member is capable of keeping Noemi B. physically safe, it falls to the State's professional child protection agency to accept this responsibility, so DCF's abundant resources can be called upon to provide the minor with the services and security she so desperately needs.
The "awesome power of the state" in child protection matters is well-recognized by our courts. See Pamela B. v. Ment, 244 Conn. 296, 310, 709 A.2d 1089 (1998).
DCF and the minor child, through her attorney, have argued that because Noemi B. is not amenable to DCF placement or to the extension of DCF services, the department has no obligation toward his minor individual. Such arguments defy the letter and spirit of our state's child protection scheme, which clearly and explicitly anticipates the government's action and intervention before harm occurs to protect children whose future health and welfare may be adversely affected, in addition providing protection for children whose welfare has already been affected. In re Michael D., supra, 58 Conn.App. 124-25. "[T]he child's safety pending further proceedings is the primary concern of a temporary custody hearing." In re Juvenile Appeal (83-CD), supra, 189 Conn. 298 as cited in In re Kaurice B., 83 Conn.App. 519, 522-23 (2004). Utilizing this measure, upon consideration of the entirety of the evidence, along with the applicable case law and statutory provisions, the court finds that the petitioning GAL has met her burden of proving, by a preponderance of the evidence, the operative allegations of the OTC application.
Accordingly, given the totality of the evidence, the court is CT Page 13938-el constrained to conclude that Noemi B. will be subject to both serious physical injury and immediate physical danger from her surroundings if she is returned to the care and custody of either Diana B. or David B., and that as a result of said conditions, continued removal from such surroundings is necessary to ensure the minor's safety. The cogent, persuasive report delivered by Noemi B.'s GAL fully supports this determination. In reaching this conclusion, the court has found that the preponderance of the evidence fully rebuts the statutory presumption of parental custody, identified in § 46b-56b. Furthermore, in reaching this determination, the court has found that the preponderance of the evidence establishes that, as of the time of this hearing, both Diana B. and David B. lacked the skill, knowledge, commitment and/or capacity to serve their daughter's best interests by continuing to serve as her custodian. In the context of considering the minor's best interests, the court has assumed that Noemi B. desires to continue to live with David H. outside the custody of her mother and/or DCF, as strenuously argued by her attorney notwithstanding the minor's absence from trial. The court has carefully considered the child's ostensible preferences in this case. Under the circumstances presented here, the court must conclude that although Noemi B. may be of sufficient age to form a preference about her living environment, she is clearly not capable of "forming an intelligent preference . . ." as to her own physical safety and well-being. See § 46b-56(b).
Section 46b-56b applies to custody contests involving private individuals and nonparents, such as DCF: In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to "have custody." In this case, the GAL's evidence clearly rebutted the statutory presumption.
Section 46b-56(b) provides, in pertinent part, that: "In making or modifying any order with respect to custody or visitation, the court shall (1) be guided by the best interests of the child, giving consideration to the wishes of the child if the child is of sufficient age and capable of forming an intelligent preference . . ."
It is overwhelmingly apparent in this case that, based upon the credible and reliable evidence presented at the hearing, "that the predicted benefit to (Noemi B.] of [continued] removal outweighs the reasonably predicted detriment from separating the [minor] from [her] parents." In re Zarko H., Superior Court, Juvenile Matters, judicial district of Fairfield at Bridgeport, Docket No. F04 CP99 004139 (August 5, 1999, Brenneman, J.) ( 25 Conn. L. Rptr. 247, 251). Under the circumstances of this case, by a preponderance of the evidence, the court finds that there were no steps short of continued placement with DCF that could adequately address Noemi B.'s needs. See § 46b-129(b). For these reasons, the ex parte OTC has been sustained.
II. THE LEGAL PRINCIPLES GOVERNING THE ISSUANCE OF EX PARTE OTCs ARE EQUALLY APPLICABLE TO THE ISSUANCE OF OTCs FOLLOWING CONTESTED HEARINGS
The minor child and/or the department may argue that Connecticut's OTC statutes contain explicit designations of the factors which must be proved prior to the issuance of an ex parte OTC, but that the GAL-petitioner has not, in this case, met her burden of proving those CT Page 13938-em factors necessary for sustaining a contested OTC. Under the circumstances of this case, the court finds that the GAL-petitioner's abundant evidence establishing that Noemi B. would be in physical danger if she is not placed in DCF's custody serves both to establish the necessary criteria for the underlying ex parte OTC and for the OTC which this court sustained after hearing.
This conclusion is compelled by a close examination of the relevant statutes and Practice Book provisions at issue. Preliminarily, if the court issues an ex parte order, it is required to conduct a preliminary hearing within ten days, provide the parties with the specific steps they must take to address the issues that gave rise to the order and determine whether the department of children and families (DCF or the department) "made reasonable efforts to keep the child or youth with his or her parents . . . prior to the issuance of such order . . ." General Statute § 46b-129(b); see also Practice Book § 33a-6(b) and (d). After conducting the preliminary hearing, "[u]pon request, or upon its own motion, the court shall schedule a hearing on the order for temporary custody . . . to be held within ten days from the date of the preliminary hearing." General Statute § 46b-129(f); see also Practice Book § 33a-7(d). The statute partially specifies the type of evidence that the court may admit at the contested hearing, but neither the statute nor the rules of practice specify the exact standard or burden of proof or the criteria that the court should apply in determining whether to sustain the OTC after the contested hearing.
General Statute § 46b-129(g) expressly provides for the admissability of certain evidence at the contested hearing: "At a contested hearing on the order for temporary custody or order to appear, credible hearsay evidence regarding statements of the child or youth made to a mandated reporter or to a parent may be offered by the parties and admitted by the court upon a finding that the statement is reliable and trustworthy and that admission of such statement is reasonably necessary . . ."
Fortunately, guidance can be gleaned through application of the principles explicated in In re Juvenile Appeal (83-CD), supra, 189 Conn. 276. In that case, the court granted DCF's application for an ex parte order of temporary custody as to the respondent mother's five children after her sixth child died of an unexplained cause. The court then held a hearing on the order, "found probable cause and ordered temporary custody of the children to remain with the [department]." Id., 282. The respondent mother appealed on the grounds that § 46b-129(b)was unconstitutionally vague; that the legislation violated her right to due process; and that the trial court applied the incorrect standard of proof.
At that time, § 46b-129(b) provided in pertinent part "[i]f it appears from the allegations of the petition and other verified affirmations of fact accompanying the petition, or subsequent thereto, that there is reasonable cause to find that the child or youth's condition or the circumstances surrounding his care required that his custody be immediately assumed to safeguard his welfare, the court shall . . . (2) vest in some suitable agency or person the child's or youth's temporary care and custody pending a hearing upon the petition which shall be held within ten days from the issuance of such order . . ."
The Supreme Court determined that § 46b-129(b) was not unconstitutional in that, when read in conjunction with the legislation that provides DCF authority to impose so-called "ninety-six hour holds" on children who face risk of physical harm, the OTC statute similarly allowed "summary assumption of temporary custody . . . only when there is probable cause to believe that the child is suffering from serious physical illness or serious physical injury or is in immediate physical CT Page 13938-en danger from his surroundings, and that immediate removal from such surroundings is necessary to insure the child's safety . . ." (Emphasis in original, internal quotation marks omitted.) In re Juvenile Appeal (83-CD), supra, 189 Conn. 287. The court later refers to this as the "criteria established in § 46b-129(b)." Id., 296. The court also held that "the child's safety pending further proceedings is the primary concern of a temporary custody hearing." Id., 298.
At the time, ninety-six hour holds were governed by General Statutes § 17-38(e), which is now codified within the text of General Statutes § 17a-101g.
Following this legal analysis, however, the Supreme Court further determined that the trial court had indeed applied the incorrect burden of proof and the incorrect standard of proof with regard to the OTC issues. First, the court found that "[t]he trial court's conclusion that the children were `presumptively neglected' impermissibly shifted to the [respondent] the burden of proof to show that the children were not neglected and was therefore, error." Id., 295. Instead, the court held, "the burden of proof is always on the state when it seeks to remove children from the home." Id. Second, the court determined that the "reasonable cause" standard that applies to the issuance of an ex parte order of temporary custody does not apply to subsequent temporary custody hearings. Instead, the court concluded, "[t]he party seeking a change in custody, in this case the state, must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in § 46b-129(b)." (Emphasis added.) Id., 296.
In response to this decision, § 46b-129(b) was amended by P.A. 98-241 to expressly include the criteria that minor at issue must be exposed to physical illness, injury and or danger in order to support the issuance of ex parte orders. See In re Terrence S., Superior Court, Child Protection Session at Middletown. (April 11, 2002, Levin, J.) ( 32 Conn. L. Rptr. 52, 53). The amendment did not, however, address whether the criteria should also be applied at subsequent hearings or the standard of proof that should be applied at such hearings. The present, of amended text of § 46b-129(b) still does not address these issues.
Nonetheless, there are several aspects of the reasoning in In re Juvenile Appeal (83-CD) which clearly establish that the criteria and standards Supreme Court there endorsed as applicable when considering whether to sustain ex parte orders, should also be used when determining whether to sustain an already-issued OTC. First, as the opinion observes, the respondent-mother in that case did not challenge the standards that the trial court applied in issuing the ex parte order. Id., 294. Second, the opinion holds that the terms of then-extant § 46b-129(b) established "a reasonable cause standard of proof for the issuance of ex parte orders of temporary custody, but does not prescribe CT Page 13938-eo the standard of proof required in the second stage of proceedings under that section when an adversary evidentiary temporary custody hearing is held." Id., 296. Third, the opinion holds that "the standard of proof applicable to temporary custody proceedings pursuant to § 46b-129(b) is a fair preponderance of the evidence." Id., 282. And fourth, In re Juvenile Appeal (83-CD) expressly held that " no temporary custody order may issue unless the child is suffering from serious physical illness or serious physical injury or is in immediate physical danger." (Emphasis added.) Id., 298. The Supreme Court thus establishes, through this opinion that all OTC issues should be measured by "a fair preponderance of the evidence" which either establishes, or fails to establish, the issues related to a minor's risk of physical illness, harm and/or danger.
More recently, the Appellate Court reaffirmed some of the In re Juvenile Appeal (83-CD) holdings through its citation of the older case's holding that "[a]t a subsequent hearing on an order of temporary custody, `the proper standard of proof . . . is the normal civil standard of a fair preponderance of the evidence . . . The party seeking a change of custody . . . must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in § 46b-129(b), (Citation omitted.) In re Juvenile Appeal (83-CD) . . ." In re Kaurice B., 83 Conn.App. 519, 522-23, 850 A.2d 223 (2004). Also, as previously noted, § 46b-129(b) has been amended to expressly state that the criteria of exposure to physical illness, injury and/or danger are applicable, at least to ex parte applications. Trial courts have consistently applied these explicit ex parte standards and burden of proof and the physical illness, injury and/or danger criteria in considering whether to sustain an order of temporary custody, in order to effectuate the spirit and intention of both § 46b-129(b) and the venerable In re Juvenile Appeal (83-CD) opinion. Reliance upon these explicit standards provides a practical, predictable, just, and constitutionally sound measure upon which the trial court can assess the quality of proof presented by the petitioning party who seeks to have a minor removed from his or her home, with custody vested in DCF or another third party. Without reliance upon these explicit standards, the trial court faces a void not yet filled by explicit legislation or practice book provisions when ruling in the contested OTC hearings which are expressly prescribed by § 46b-129 after issuance of any ex parte OTC.
See, e.g., In re Tiffany R., Superior Court, Juvenile Matters, Child Protection Session at Middletown Docket No. M08 CP 04 009665 (December 23, 2004, Taylor, J.); In re Sean S., Superior Court, Juvenile Matters, Child Protection Session at Middletown Docket No. T11 CP04 012061 (November 22, 2004, Taylor, J.); In re KaG, Superior Court, Juvenile Matters, Child Protection Session at Middletown. Docket No. F04 CP 04 006376 (July 12, 2004, Rubinow, J.); In re William B., Superior Court, Juvenile Matters, Child Protection Session at Middletown (March 6, 1998, Quinn, J.); and In re Ariana A., Superior Court, Juvenile Matters, Child Protection Session at Middletown (June 26, 1997) Dyer, J.).
General Statutes §, governing orders of temporary custody issued by probate courts, provides an additional basis for concluding that In re Juvenile Appeal (83-CD)'s standards and criteria for ex parte OTCs functionally apply to hearings on motions to sustain orders of temporary custody under § 46b-129(b). Section 45a-607 delineates the circumstances CT Page 13938-ep in which the probate courts can issue an ex parte order of temporary custody: § 45a-607(b) requires that the courts hold a subsequent hearing thereon; § 45a-607(c) provides that "[i]f after hearing, the court finds by a fair preponderance of the evidence (1) that the parent or other guardian has performed acts of omission or commission as set forth in section 45a-610, and (2) that, because of such acts, the minor child is suffering from serious physical illness or serious physical injury or the immediate threat thereof, or is in immediate physical danger, so as to require that temporary custody be granted, the court may order the custody of the minor child to be given to one of the following . . . The fact that an order of temporary custody may have been issued ex parte under subsection (b) of this section shall be of no weight in a hearing held under this subsection. The burden of proof shall remain upon the applicant to establish the applicant's case." § 45a-607(d). "In this respect the [Probate Court OTC] statute resembles the proceedings giving rise to an order of temporary custody set forth in the superior court for child protection matters." In re Carmen M., Superior Court, Juvenile Matters, Child Protection Session at Middletown (July 30, 1997, Foley, J.) ( 20 Conn. L. Rptr. 393, 395). Given the concurrent jurisdiction that probate courts and the juvenile courts have over minors who face physical illness, injury and/or danger, it is reasonable and logical to apply similar standards and criteria when determining whether to sustain ex parte OTC orders after hearing.
General Statutes § 45a-610 provides in pertinent part, that the probate courts may remove a parent as guardian if it finds, by clear and convincing evidence, that, "(3) the minor child has been denied the CT Page 13938-ex care, guidance or control necessary for his other physical, educational, moral or emotional well-being, as a result of acts of parental commission or omission, whether the acts are the result of the parental habits, misconduct or neglect and the parental acts or deficiencies support the conclusion that the parent cannot exercise, or should not in the best interests of the minor child be permitted to exercise, parental rights and duties at the time . . ."
Accordingly, this court has determined that physical illness, injury and/or danger criteria set forth in § 46b-129(b) applies to both ex parte orders of temporary custody and hearings on sustaining such orders and that the burden of proof and standard of proof set out in In re Juvenile Appeal (83-CD) apply to hearings on sustaining such orders. For the foregoing reasons, this court applied the physical illness, injury and/or danger criteria set forth in § 46b-129(b), identified as expressly applicable to the ex parte OTC process, when determining that the GAL-petitioner in this case had met her burden of proving that Judge Cohn's ex parte OTC for Noemi B. should be sustained, and that the minor's custody should remain vested in the Commissioner, Department of Children and Families.
III. THE PRINCIPLE OF PREDICTIVE NEGLECT PROVIDES A VALID BASIS FOR SUSTAINING AN OTC
Noemi B. and/or the department may argue that an ex parte OTC cannot lawfully be sustained on the basis of predicting neglectful or uncaring behavior on the part of a biological parent who is presumed to be the proper custodian for a minor. See § 46b-56b. The court finds that the CT Page 13938-eq principles of predictive neglect provide a valid basis for sustaining an OTC, when returning a minor to the parent's custody will likely expose that minor to physical illness, injury and/or danger.
This conclusion is equally compelled by a close review of the statutes and case law which presently address related issues. As previously discussed in detail, "[a]t a subsequent hearing on an order of temporary custody, `the proper standard of proof . . . is the normal civil standard of a fair preponderance of the evidence . . . The party seeking a change of custody . . . must prove by a fair preponderance of the evidence that custody should be taken from the parent and vested in the commissioner on a temporary basis under the criteria established in § 46b-129(b).' (Citation omitted,) In re Juvenile Appeal (83-CD) . . ." In re Kaurice B., supra, 83 Conn.App. 522-23. Again, the "criteria established in § 46b-129(b)" is that "(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's or youth's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety . . ." General Statue § 46b-129(b).
Although the appellate courts have not expressly determined that an order of temporary custody can be sustained upon a showing of predictive behavior, several factors weigh in favor of such a determination, including the plain language of the statute and our courts' application of the theory of predictive neglect. As to the first factor, General Statutes § 1-2z provides, "[t]he meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered." Section 46b-129(b) plainly states that the first element of the criteria for an order of temporary custody can be satisfied either by showing that a minor "is in immediate physical danger from the child's or youth's surroundings," or by showing that the minor has suffered an actual physical illness or injury. Indeed, in other cases, the department has persistently argued that orders of temporary custody should be sustained on this basis. See, e.g., In re Charde T., Superior Court, Juvenile Matters, Child Protection Session at Middletown, Docket No. U06 CP 05 004939 (March 1, 2005, Crawford, J.); and In re Precious G-B., Superior Court, Juvenile Matters, judicial district of New Haven, Docket No. 90 592 (April 29, 1991, Downey, J).
Furthermore, under Connecticut law, a trial court can grant a petition CT Page 13938-er for neglect on the basis of predictive neglect. Accordingly, for example, "[a]ctual incidents of abuse or neglect are not required in determining that a child is uncared for under the `specialized needs' section of [§ 46b-129] . . . For purposes of commitment of a child to the custody of the commissioner pursuant to § 46b-129, proof of ongoing parental deficiencies is sufficient to satisfy the statute where those deficiencies mean that the child's home is unable to provide the care required for her special needs." In re Kelly S., 99 Conn.App. 600, 613, 616 A.2d 1161 (1992). In addition, as previously stated, through denial of certification, the Connecticut Supreme Court condoned the Appellate Court's determination in In re Michael D. that "[o]ur statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected . . . An adjudication of neglect may be based on a potential risk of harm and not just actual harm." (Emphasis added.) In re Michael D., supra, 58 Conn.App. 124-25. Indeed, in reaching this conclusion, the Michael D. court specifically referred to the immediate physical danger aspect of the § 46b-129(b) criteria and noted that the statute "clearly contemplates a situation where harm could occur but has not actually occurred." (Emphasis added.) Id., 124. See also In re Jermaine S., 86 Conn.App. 819, 830-31, 863 A.2d 720 (2005) (affirming adjudication of neglect based on potential risk of harm, or "predictive neglect"); and In re Jessica A., Superior Court, Juvenile Matters, judicial district of Hartford-New Britain, (June 8, 1990, Brenneman, J.) (comprehensive discussion of application of principle of predictive neglect to neglect adjudications).
Trial courts, have consistently and logically reasoned that the principle of predictive neglect can readily be applied to orders of temporary custody, as the OTC proceeding is a corollary of the neglect proceeding itself. For example, In re Romance M., Superior Court, Juvenile Matters, judicial district of Montville, Docket No. 92051 (February 23, 1993, Silbert, J.), aff'd, 229 Conn. 345, 641 A.2d 345 (1994), in discussing whether predictive neglect could be applied to a neglect petition, the court skillfully reasoned that such an application could be supported on the basis that § 46b-129(b) required that the petitioner file an application for an order of temporary custody with its petition of neglect. "Thus, there is an implication in the statute that evidence sufficient to support an order of temporary custody, i.e., that a child is in immediate physical danger, but not as yet physically harmed, may also be sufficient to support a finding of neglect." Id. Compelling logic and reasoning used by the court in deciding In re Heather L., Superior Court, Juvenile Matters, Child Protection Session at Middletown. Docket No. CP 00 002471 (March 30, 2004, Trombley, J.) also included the CT Page 13938-es pertinent comment that where the respondent parents had a history of neglecting two other children, "[t]he circumstances surrounding [the mother's third child] would have, in the court's view, justified a ninety-six hour hold and an Order of Temporary Custody based on `predictive neglect,' [even though] the department chose not to pursue that course of action."
A brief survey of other trial court decisions has identified several cases in which OTCs were sustained on the basis of imminent potential for physical injury, albeit without an express discussion of the principle of predictive neglect. While not dispositive of the issue, the careful reasonable and legal analysis used in the following cases provided significant guidance for this court: See e.g., In re Charde T., supra, Superior Court, Docket No. U06 CP 05 004939 (order sustained on basis of evidence that respondent allowed a convicted sex offender who had allegedly touched another child inappropriately to live in her home); In re Bryana P., Superior Court, Juvenile Matters, Child Protection Session at Middletown (May 10, 1996, Dyer, J.) (orders confirmed as to two children based on evidence that respondent physically injured one child); and In re Precious G-B.'s, supra, Superior Court, Docket No. 90 592 (order confirmed as to infant who was removed from respondent's care eight days after birth on basis of evidence that infant required special care, mother showed limited ability to understand need for or to provide care and respondents' parental rights had been terminated as to other children).
In In re Catherine H., Superior Court, Juvenile Matters, judicial district of Danbury (September 7, 1994, Doherty, J.) ( 12 Conn. L. Rptr. 426, 428) presents a case in which the reasoned application of the principles of predictive neglect closely simulate those utilized by this court in addressing Noemi B.'s situation. In In re Catherine H., the trial court considered whether it should vacate an ex parte OTC imposed upon two minors who ran away and refused to return to their parents' home. Although the court did not find that the minors had been subject to physical illness or injury, it determined that they would be in immediate physical danger if they were returned to their parents in that "they have the unmitigated resolve not to return to their parents [and] they are . . . ill prepared to fend for themselves in the community at large as teen-age girl runaways. The dangers to teen-age runaways needs no detailed discussion." (Emphasis added.) Id.
The foregoing cases and principles support this court's conclusion that it is not only appropriate, but lawfully necessary, for the determination that in this case, Noemi B.'s OTC and placement with DCF must be sustained on the basis of predictive neglect and/or inability of the parent to meet the minor's specialized needs. As DCF's social worker has admitted, Diana B. cannot control her daughter's aberrant social or self-injurious conduct; the minor's "runaway" behavior is likely to continue to expose her to imminent risk of physical harm without appropriate supervision by a responsible agency or adult; the minor is not physically safe when in her biological mother's custody, and Noemi B. remains "a concern" for the department. (Testimony of Leslie S.) Under these circumstances, the court is constrained to conclude that if she is allowed to remain in Diana B.'s care and custody, Noemi B. will likely be exposed to the physical injury and/or danger which the OTC statutes are designed to prevent. Accordingly, the OTC must be sustained on the basis of "predictive neglect."