IN RE: Kelsey M. (2010)

MEMORANDUM OF DECISION

The matter is now before the court for purposes of disposition subsequent to a finding of neglect by this court.   These proceedings were held on December 7, 2009 and then continued to the dates of December 28, 2009, January 25, 2010, March 12, 2010, and March 15, 2010 for further testimony of witnesses.

PROCEDURAL HISTORY

The children were removed from the parents' home pursuant to an order of temporary custody on February 2, 2009.   That order was sustained after a full hearing at the Child Protection session at Middletown on March 3, 2009 (Olear, J.).   Through her attorney the mother appealed the court's decision.   Judge Olear's ruling was recently upheld on April 20, 2010 by the Appellate Court.   In Re Kelsey M. et al., 120 Conn.App. 537.   Specific steps were ordered for purposes of reunification on March 13, 2009 (Simon, J.).   Father's fifth attorney was allowed to withdraw on July 23, 2009 after the court, Santos, J., advised the father that it would not appoint yet another attorney from the panel of state paid attorneys if it granted the request.   Father advised the court he intended to hire private counsel.   However he never did and represented himself from that point forward.   At this point the court must, for the record, describe the nature of the father's self representation.

After it became clear that the father intended to represent himself, before and after the trial started he was asked on numerous occasions by the Assistant Attorney General to file an appearance so that he could receive all evidentiary material.   He refused.   At one point the Assistant Attorney General filed a motion to order the father to file an appearance.   Father fought the request.   This court explained to the father the importance of filing an appearance.   He would not sign the appearance form.   Father insisted that because he was not an attorney he would not file an appearance.   It became clear during the hearing he hoped to portray himself for future courts as ineffective and bewildered.   Nothing can be further from the truth.   Father was properly prepared each day of testimony with a comprehensive list of hand written questions to ask witnesses.   He was articulate and had an appropriate grasp of the court procedures.   Although at times the father asked questions not germane to the issue of disposition he was able to accept the court's rulings and continue with his cross-examination.   The father's calculated attempt to have the court view him as confused and non-understanding of the proceedings is without merit.   It was a charade.   He knew exactly what he was doing.   Every opportunity was given to father to hire his own attorney after his inability to cooperate with court appointed counsel.   He chose to proceed without counsel and should not now be rewarded for his feigned lack of acuity.

The attorney for the mother attempted to withdraw on the eve of trial, however, after a canvas by the court the motion was denied.

The adjudication phase proceedings were held on November 2nd and 9th, 2009.   An adjudication of neglect was entered on December 7, 2009.

During the dispositional hearing the court received or heard evidence in the form of testimony from the following:  Nawkia Wright, security officer at the Department of Children and Families (DCF) Manchester office;  Alexandra Markette, safe home case manager;  Dr. Kelly Rogers, forensic psychologist;  Dyshawn Thaymes, DCF social worker;  Jan Tesini, Institute of Living (IOL) treatment manager in adolescent center;  Shannon Wiggins, DCF social worker;  Betty Fornier, DCF supervising social worker;  Janet Starr, Martin Elementary School social worker;  and the only witness called by the respondent parents, Dr. Christian M. Flynn, board certified psychiatrist.   The court also received documentary evidence including Dr. Kelly's psychological evaluation of the children, dated September 4, 2009;  DCF social studies and addendums;  running narrative reports regarding visitation;  and a letter from Dr. Flynn.

DISCUSSION

After an adjudication of neglect, a court may pursuant to General Statutes § 46b-129(j)

1. commit the child [children] to the Commissioner of DCF;

2. vest guardianship in a third party;  or

3. permit the parent to retain custody with or without protective supervision.

In determining the disposition phase of the neglect proceedings, the court must decide which of the various alternatives are in the best interest of the children.

To determine whether a custodial placement is in the best interest of the child, the court uses it's broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being and in the continuity and stability of (the child's) environment.  In Re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004).

At trial it is the burden of the petitioner, DCF, to prove by a fair preponderance of the evidence that it is in the child's best interest to be committed to the commissioner rather than to remain with the respondent.   See Id., 65.

During the dispositional hearing the court may consider evidence and events up to and including the close of the evidentiary hearing.   P.B. § 35a-9.   The court heard oral arguments, reviewed and considered the testimony and exhibits, and closing arguments.   The parties submitted proposed orders.

The court had the opportunity to view and determine the credibility of the parties and the witnesses.   The court has considered carefully the statutory criteria set forth in the Connecticut General Statutes, as well as, applicable case law in reaching the orders that issue from this memorandum of decision.   All findings are made by a fair preponderance of the evidence.

From the beginning, this case, through and including the last day of testimony, has been noted for the complete and total lack of cooperation by these parents.   They have resisted every attempt by DCF to be reunified with their children.   Even their court ordered visitation, which remains under the supervision of DCF, is an event marked by the parents' attempts to mock DCF in the presence of the children.   They will not speak to DCF unless it is to complain of a conceived insult.   They have not provided DCF or the court with any information regarding employment.   They will not allow DCF into their home.   They will not provide DCF with any releases to obtain information regarding mental health issues.   After the court order granting DCF temporary care and custody the parents refused to sign authorization for the children's school records or to provide clinical services on their behalf.   The court had to intervene.   They refused to participate in any psychological evaluation.   They will not participate in any services offered by DCF. During the trial the parents, in particular the mother, repeatedly made facial and arm gestures to indicate their disgust and perceived lack of credibility of witnesses.   They were warned on numerous occasions by the court to stop said behavior.

The father summed up his feelings about the case during his closing arguments.   He did not say that he loved his children;  he did not say that he wanted them home;  he did not present a plan for reunification.   He stated that DCF was out of control.   That this case was about his civil liberties being violated.   That his religious freedom was being challenged.   He claimed there was no justice due to the relationship between DCF and the court.   His clear purpose was to obfuscate and diminish the role he and his wife have played in this sad saga.

This case is about the mother's unresolved mental health issues and the father's denial of even the existence of her problems.   There is an abundance of evidence to substantiate the mother's mental health needs.   Except for the testimony of her medication management psychiatrist that she is compliant with her medication regime there is no other indication that she is addressing her documented issues.   The father persists in his claim it is all a lie.   This case is not about religious freedom as the father nakedly claims without presenting a scintilla of evidence to support his remarks.   It is about two children, ages 9 and 11, whom have special needs, and want to return home.   These parents have done nothing to accommodate their reunification with the children.   The respondents have chosen to keep themselves separated from their children because of their falsely held convictions that in the “court of public opinion,” they will be vindicated.   While they pursue this alleged “injustice” to them, the children's needs are being met in a non-relative foster home because the parents refuse to provide any relative resources.   Even more uncomprehensible to the court, the parents refuse to participate in third-party supervised visitation at a neutral site preferring to attend supervised visits with DCF at their office which is an event marked by hostility and the need for the intervention of security staff.   The parents have placed the children in the role of pawns in a contest of defiance with DCF and the court.

This is a tragic case.   The court can only hope the parents see beyond their distrust of the system and move in the direction of reunification in a manner that benefits the children.   Unfortunately, if they do not the children will be relegated to seeing their parents in a sixteen by sixteen foot room under the watchful eye of supervisors for the remainder of their childhood.   The children deserve better.   This is not their fault.   The parents must accept responsibility for their behavior and make the necessary changes in their lives to benefit the needs of their children.

DISPOSITION

At this phase the court is guided by the best interests of the children.   It has considered evidence up to the last date of the trial.   The court has taken into account the facts stated above as well as the facts put forward during the hearing.   The court finds:

1. that continuation or resumption of residence with the parents is contrary to the welfare of the children;  and

2. that DCF made reasonable efforts to prevent the continued removal of the children from the parents' care as well as (2) provide for the opportunity for the children to live in their home.

Accordingly, the court finds it is in the best interest of the children to commit them to the care and custody of the Department of Children and Families until further order of the court subject to the following orders:

1.  Mother and father shall comply with the specific steps signed by the court this day and attached to this decision.   DCF and the parents shall move forward towards reunification.

2. Visitation shall continue pursuant to the present schedule of one day per week/one hour per visit.   Said visitation shall take place at a third-party visitation/reunification service to be paid for by DCF. DCF and parents shall comply with the agency recommendations regarding frequency, duration of visits and reunification plan.

3. Mother to continue with her medication management sessions with Dr. Christian Flynn.

4.  Mother to participate in a psychiatric evaluation with a doctor to be chosen by the court after reviewing a list of three names from both mother and DCF. Mother shall comply with any recommendations including further counseling as deemed necessary.

5. Parents shall cooperate with recommendations of children's therapists.

6. Parents shall sign releases for current and future service providers.

7. Father shall provide DCF with employer information and income.   DCF shall only contact employer with court approval.

8. Parents to cooperate with home visits by any third-party visitation agency seeking reunification.   DCF shall be permitted to accompany visitation/reunification agency on said home visits.

9. Father shall participate in a psychological evaluation and comply with said recommendations if any.

SO ORDERED

Simon

Judge of the Superior Court

KELLER, J.

Simon, Jorge A., J.