IN RE: Zhane B. (2010)

MEMORANDUM OF DECISION

HEARING ON EX PARTE ORDER OF TEMPORARY CUSTODY MOTION TO MODIFY PROTECTIVE SUPERVISION TO COMMITMENT

The Department of Children and Families (DCF) seeks an Order of Temporary Custody and a modification of an existing Order of Protective Supervision to an Order of Commitment with respect the named five Children.   After hearing the Court found that DCF had failed to prove by a fair preponderance of the evidence that Children were in imminent danger of harm and vacated the Ex Parte Order of Temporary Custody issued on March 29, 2010 (Prestley, J.).

The Motion to Modify was supported by the testimony of the DCF Social Worker and the Court took Judicial Notice of the Study in Support of a Motion to Open and to Modify Commitment, dated January 12, 2010, and filed on January 19, 2009.   The Motion alleged that Mother “failed to comply the specific steps ordered on September 15, 2009;  was discharged from individual therapy unsuccessfully and is receiving no medication;  has not consistently and timely met the children's physical, educational, medical and emotional needs;  has not complied with necessary mental health treatment [ ․ for Ashadae and Syann];  has not kept Children up to date medically;  has not responded to concerns reported by Syann's and T-Kai's school;  and has relied on inappropriate caretakers to supervise the Children.”   DCF also alleges that commitment is in the Children's best interest.

The Study in support of the Motion consists of an analysis of Mother's compliance with her Specific Steps.   Mother has successfully completed some steps but not others.   Most of her requirements have been met.   She has seven children some of whom have children.   The Department is concerned about the possibility that her older children endanger the younger ones when they visit the home.   Furthermore DCF has legitimate concerns about the use of marijuana in the house by her older children, and Ahymyr's Father.   The Social Study reports that over a long period of testing Mother has demonstrated that she does not use illegal substances.

The Court shares the concern, but does not believe that these issues will be solved by commitment of the five Children to DCF. The Court agrees that the older children who are in and out of the home present a challenge for Mother and act in ways that disrupt the home and create an unhealthy atmosphere for the others.

DCF expresses concern about the educational progress of the Children and the fact that some have poor attendance records.   One Child has missed seventeen days of school and some are not doing well and need special support.   DCF reports that Mother has not done as much as she should to support their educational goals.   The Court is persuaded that the education issues can (and should with the help of DCF) be solved without the removal of the Children from Mother's care.

The critical goal is for DCF to provide Mother with the support services she needs to assure their educational success.   DCF has not proven by a fair preponderance of the evidence that Commitment of the named Children is in their best interest or necessary to provide the help and support that Mother and they need.

On balance the Court DENIES the motion to modify the order of protective supervision to an order of commitment.

Hon. Thayer Baldwin, Jr.

Baldwin, Thayer, J.