IN RE: Ny-Asia H. (2010)

MEMORANDUM OF DECISION

On December 10, 2009, a neglect petition and OTC petition were filed simultaneously by DCF. The neglect petition alleged denied proper care and attention, as well as conditions injurious to well-being.   The OTC petition alleged immediate physical danger from surroundings and was granted ex parte.   Service was found for both petitions on mother and two putative fathers on December 18, 2009.   Paternity tests were ordered on both putative fathers on said date and a contested OTC hearing was scheduled for December 28, 2009.   At the request of DCF, a guardian ad litem was appointed for mother, by agreement.   Judge Epstein granted DCF's motion to consolidate the hearing, on the adjudicatory phase of the neglect petition, with the contested hearing on the OTC.

The contested hearings were held on December 28, 2009, January 4, 2010, January 7, 2010, January 14, 2010, January 21, 2010 and January 26, 2010.   Mother, on January 21, 2010, denied neglect petition.   On January 26, 2010, one of the putative fathers was found not to be the father, vis-a-vis the paternity test, and he was allowed to withdraw from the proceedings (in which he had not participated).   It was agreed upon by all parties that transcripts be ordered with a due date of Monday, February 8, 2010 and proposed findings of fact would be due on March 1, 2010 at noon.

On February 26, 2010, a motion for finding that second putative father be excluded from paternity was granted by the Court, as a result of his paternity test.   On March 24, 2010, attorney for second putative father withdrew from the proceeding, albeit after participating throughout the contested hearings.

TESTIMONY

DCF's first witness was an ongoing services treatment worker assigned to mother from February 2009 to November 18, 2009.

WORKER ASSIGNED TO MOTHER, DCF

Mother had her first Form 136 filed against her on June 27, 2008, because mother was babysitting for a minor who was found wandering unattended on a Waterbury street.

A second Form 136 was filed on December 18, 2008, by a Waterbury teacher, who overheard mother making comments that she wanted to get rid of her child and she made gestures of shaking him.   The investigation that followed provided the form 136 was not substantiated (see State Exhibit M), this being dated February 4, 2009.   However, the case was transferred to ongoing services, as an open case, to get services for Ny-asia's brother, Damonte.

On June 18, 2009, DCF informed mother that she posed a risk to the health, safety, or well-being of children;  that they recommended she be placed on a registry.   Also, in June 2009, DCF filed neglect and OTC proceedings against mother on behalf of Damonte.

On July 24, 2009, mother allowed an OTC by agreement, which alleged imminent danger because of person (mother's sister) in the home.   DCF remains in temporary custody of Damonte at this time.   Furthermore, mother had a guardian ad litem appointed for her in the case of Damonte, as well as her current proceedings with Ny-asia.

The mother and Damonte were residing with maternal grandmother, mother's sister with her child and mother's siblings, the entire time of witness's involvement.   DCF had concerns with mother's sister, as her son had sustained two unexplained leg fractures.   Maternal grandmother, at that time, had concerns with mother's parenting ability.

DCF also had concerns with the heavy human traffic in the house when DCF made their visits.   A worker observed mother giving a lollipop to her nine-month old, whereby he started to choke.   Mdther's parenting expectations were for a much older child, and she needed prompting on what toys were appropriate, as well as getting down on the floor to play with him.

Further testimony was elicited that mother's sister was not to have any contact with Damonte.   She was, however, present at his birthday party;  present at the hospital when Ny-asia was born, and there was ample evidence that she continued to live at home with her mother, where mother of Damonte and Ny-asia resides.

Mother, herself, is on probation for two criminal cases:  risk of injury and criminal impersonation, to which charges she pled guilty as a youthful offender.   She received 18 months execution suspended, two years probation with special conditions of community service, attendance at parenting classes, attendance at school and work, plus random urinalysis.

According to the witness, mother made slow, minimal progress during supervised visits.   In addition to probation conditions, DCF referred mother to CJR and Boys and Girls Village (the ISP provider), CJR for diversion group four days a week and Boys and Girls Village for parenting.

She completed Common Sense Parenting on August 17, 2009.   The ISP “recommendation was that mother would have to have some kind of ongoing support to parent Damonte.   She would not be allowed to do it herself, or able to do it herself.”

Mother did not attend CJR for four days a week-not compliant.   Also, WellPath, a parenting aide, was set in place when the child was in the home.   That program was not successful, and she did not attend all of these programs.

The witness conducted home visits to see if mother's sister was residing elsewhere, but the sister was not at the address given and admitted that she still lived with grandmother and mother, plus siblings.

On cross-examination, the service treatment worker admitted that prior to the removal of Damonte, Ny-asia brother's the Form 136, was unsubstantiated, however, services were in place.   The home visits from February 9, 2009 through May 2009 were all satisfactory and mother's case was closed with DCF. There were no concerns about Damonte and services were in place on May 20, 2009.

In June 2009, mother's sister's child was removed under an OTC and Damonte was also removed under an OTC.

Worker was aware that mother is limited cognitively.   She saw her for home visits and then for supervised visits for two hours twice a week beginning in June after Damonte's removal from home.   She witnessed inappropriate parenting, such as giving lollipops to 9-month old and giving soda to the child, also, interaction needed prompting, cues were necessary on bottle feeding, and mother treated the child as a much older child.

Mother graduated from high school in June 2009, receives $500 a month from social security, but does not know why.   She does not work and relies on her mother for support.   She depends on her whole family for support.   Damonte's father is a minor and is not providing financial support.   In addition, DCF provides her with bus passes.

Grandmother has, from September 1997 through March of 2006, two substantiations and three unsubstantiations, so she is not a resource for relative custody.

During one of the visits, mother had an empty bottle of Hennessy in her room.   The home was messy, no room for a crib and several unidentified persons were present, including one with past DCF case.   Damonte's sleeping arrangements included sleeping in bed with grandmother and mother.

Health Information Specialist., Boys and Girls Village The second DCF witness to testify was a health information support specialist for Boys and Girls Village, who was the keeper of the records.   Based on her testimony, Exhibit A was introduced as a full exhibit.   Grandmother of Ny-asia signed a release to have Boys and Girls Village release information to DCF concerning mother.   It is a business record kept by DCF.

School Psychologist, Waterbury Schools

The third witness for petitioner DCF was a licensed school psychologist for Waterbury public schools.   Her duties primarily are cognitive testing, IQ, behavior rating scales, as well as PPT and IEP paperwork.   Grandmother also signed a release to DCF on 12-18-08, which was good for 180 days, releasing the information to DCF.

State's Exhibit C was introduced as a business record, subject to DCF proving that the privileged document was received within the 180 days.   The exhibit was an Individual Education Plan (IEP) for mother while at State Street School.   The witness testified that all students at State Street School have an IEP created because they also need special education services.

State's Exhibit D, school psychological assessment was offered, as grandmother had signed a release dated 6-8-09.   Exhibits C and D both related to State Street School.   The reasons for the reports are to determine if child continues to be eligible for special education services-a re-evaluation-and it is also performed when a student is leaving or graduating.

Mother's full IQ was 65, which puts her in the first and second percentile.   The purpose for the psychological assessment (besides continuing eligibility for services) is to assist in planning for an appropriate educational program.   It does not assist client in regards to child care.   It is an educationally-based only assessment.   It has nothing to do with parenting skills.

Social Worker, Waterbury Hospital

The worker met mother in hospital when Ny-asia was born.   She was told of mother's past history.   Mother told worker of another child being removed by DCF. She told her about her sister's abuse/neglect case and they talked about the pros and cons of sister being present at hospital.

Worker filed Form 136 with DCF after viewing the prenatal records and also reviewed case with DCF.

Program Manager, Boys and Girls Village

The case was opened and services started on June 18, 2009 and finished on July 23, 2009.   Mother was placed in intensive safety planning, as well as intensive family preservation services.   The program lasted five weeks.   It is family preservation after children are removed, and it is 14 hours of face-to-face contact per week.

The worker stated that, at the end of the program, the worker did not recommend reunification until mother had a consistent display of parental skills.   Further, the mother should seek out services for her limitations.   All in all, ISP spent 31.5 hours providing services over a five-week period.   Lastly, it was also stated in the report that mother is limited with a second-grade reading level.

While mother was compliant and never missed a scheduled visit with worker, there was high traffic in home, which is an unreasonable safety factor.   Mother continued to display adolescent behavior.   Another safety factor, not resolved, was parental knowledge of developmental stages.

Social Worker for Mother, DCF

On the fourth and fifth day of the trial, the second DCF treatment social worker for Damonte testified that she was assigned the case on Nov. 19, 2009 and is still assigned, now to both children, Damonte and Ny-asia.   The case was an out-of-home case for Damonte.

She stated that physical neglect was substantiated against mother, as she cannot provide proper supervision to Damonte.   Minimum progress was made by mother for reunification while working on the program to reunify.   Mother was on probation for risk of injury, and mother has limitation to properly supervise, also traffic.   As of 12-28-09, DCF did not know where sister was residing.   The sister was accused of and pled guilty to causing fractures to her son's legs.   Damonte still is under an order of OTC. Mother went to family intervention center for mental health/anger management and impulsive behavior.

STATUS OF PROGRAMS:

1) CJR for individual and group counseling-sporadic attendance, but discontinued due to not being pregnant and reaching age 18.

2) Intensive Safety Planning Program (ISP) at Boys and Girls Village.

3) Wellpath Program-parent aid program.

4) Family Intervention Center-counseling for mental health, anger management and impulsive behavior-she missed many of these sessions.

Mother told worker that house was unsafe and that she wanted to move out and find her own apartment.   Worker observed mother at least once a week at DCF office with both children present.

Ny-asia's nose was stuffed and mother wanted to blow into the child's nose to unclog it on 12/21/09.

Neglect adjudication evidence goes to the date of the filing of the petition, which was 12-10-09, but judge can allow further evidence, as long as subject is the same as of the date of filing.   Mother's sister stayed at hospital for two nights when Ny-asia was born.

DCF does not feel, at this time, that the child Damonte should be reunified with mother because no service provider has recommended reunification.   Only mother's sister was arrested regarding injuries to her son, no one else was convicted.   Both Damonte and Ny-asia are in same foster home.

Ny-asia was born on 12-5-2009, and there was no substantiation of physical neglect against mother in regard to Ny-asia.   Mother was never offered apartment by DCF, nor referred to housing.   Impulsive behavior was resolved.   Judicial authority was found on the OTC motion that reasonable efforts to prevent removal were made by DCF.

On further cross-examination, social worker observed mother's cognitive limitation in parenting and inability to protect children, and keep her sister away.   Mother received disability income monthly from social security until 12/28/09.   Sister was still on grandmother's lease.   Mother did not contest OTC for Damonte.   Attorney Hallum represents both Damonte and Ny-asia.

Mother has been offered many programs/supervised visits.   On top of the many concerns DCF has for both children, mom is non-compliant with her programs, and to date, father is unknown after two were disqualified by paternity testing.

Investigator, DCF

On day three, an investigative social worker for DCF who was assigned to mother testified.   On June 3, 2009, the witness assisted another worker with handling mother's sister's case involving the child with two fractures in left leg.   The worker visited the house, then visited mother in hospital where she also met Damonte.   A 96-hour hold was issued that night for Damonte:  injuries unknown, sustained to a younger child in the home and unknown who caused those injuries.   Also 96-hour hold was issued for Jahzire, Damonte's first cousin, who sustained the leg fractures.

The investigator then interviewed everyone in the home (four persons), and prepared the affidavit for the OTC for Damonte, in support of temporary custody.   Mother of Damonte was 17 years old and grandmother (her mother) was the legal guardian.

The investigator worked on this case for two weeks.   Child had two breaks to the leg on two separate occasions within a two-week period.   Investigators substantiated against mother pertaining to her child Damonte and mother's sister, as to her child Jahzire.

For Damonte, substantiation was physical neglect and emotional neglect;  for Jahzire, physical abuse.   Exhibit Q was entered as a DCF business record.   The witness also testified that a person who is alleged to be abusive or neglectful can be substantiated against on both counts, if he/she is entrusted with the care of a child at any given time.

Because mother's sister recanted, it gave DCF cause, at least partially, to substantiate against mother.   Physical abuse is an actual injury sustained by the child.   Physical neglect is the condition and circumstances that a child is living in.   Emotional neglect is how those conditions might emotionally affect the child.

In Damonte's case, the emotional neglect was that the household was very chaotic, mother had many emotional outbursts, anger outbursts, and the environment was not safe.   In addition, there was a bald spot on Damonte's head from neglect.   This was based upon interviews of four people in grandmother's household, mother's history and her school records.

Investigator, DCF

On the fifth day of trial, January 21, 2010, another investigator for DCF testified.   The witness was assigned to mother on December 7, 2009, to perform, among other tasks, a risk and safety assessment.   The investigator, who is still assigned to mother, performed the assessment and concluded the situation “unsafe,” based on mother's failure to protect her own child from mother's sister, as well as prior investigations, and mother's pattern of behavior.   She further stated that relatives were presented as resources but were not viable.   Also, during her investigation, it was reported that an unrelated woman and child were temporarily living in grandmother's house.

Social Worker, Waterbury Schools

On January 4, 2010, school social worker for State Street School testified that she became acquainted with mother four years ago.   She was referred to State Street School from Wilby as she needed a smaller environment.   She observed that mother and grandmother were very argumentative, with raised voices.

The witness was present when a teacher at State Street School filed a Form 136 with DCF. Up until graduation, mother qualified for special education services under emotional disturbance classification.   The witness was at a meeting and was concerned that mother's son Damonte would fall from a folding chair that the three-month-old child was placed upon, so she offered to hold the child during the meeting.   She witnessed incidents of acting-out behavior.   When asked if mother could care for a baby, the witness testified that mother:

․ does the best she can with what she's got I don't know that she has the ability to always take care of herself and I would have concerns that she might struggle with the responsibility of caring for another individual.

Mother has made inappropriate verbalizations to boys, sexual talk and vulgarity.

Mother's Special Ed Teacher, Waterbury Schools

On January 4, 2010, a special education teacher at State Street School testified that mother was in her class the last academic year, 2008-09.   During a class, mother was speaking to another student that she was frustrated with her newborn and made a motion of shaking, as if she had shook her baby.   She also said that she was angry.   A Form 136 was then filed because of mother's inability to deal with frustration.   In other situations in school, when frustrated, mother would act aggressively and lash out at a person physically.

Further, mother complained that her mother (grandmother) could help her more and that she wanted to give the baby away.   Up to and including graduation in June 2009, mother continued to qualify for special education under emotionally disturbed.

Mother's Sister

On the final day of trial, the aunt testified (mother's sister) and gave an address different from that of her sister.   She said that she lived with her aunt and her four children, and that she was on that lease.   She had stayed overnight at grandmother's house, but as to how many times, she said, “I don't know.   I can't say.”

Sister's Social Worker, DCF

The last witness to testify was a treatment social worker for the aunt, the mother of Jahzire.   She had been assigned to the aunt since June 2009.   She visited the aunt at her Naugatuck address on one occasion, and also at the Cooke Street home in August of 2009.   The worker also saw the sister on January 12, 2010, at the Naugatuck address.   Sister confirmed to worker that an incident took place that could have led to Jahzire's injuries.   And that was because she was angry at Jahzire's father.   Sister pled guilty to risk of injury and assault two.   The worker instructed an IFP worker to go to Naugatuck for unannounced visits, and they have worked with the mother's sister.

Worker further stated that four times before January 12, 2010 she attempted to visit the Naugatuck location and sister was not there.   The sister was on the lease in Waterbury with mother on December 9, 2009.

PREDICTIVE NEGLECT

The following is a list of cases in which courts discussed the issue of whether an adjudication of neglect can be based on predictive neglect, or potential harm.   Generally, the courts rely on General Statutes § 46b-120(9), which was previously codified at General Statutes § 46b-120(8).

General Statutes § 17a-101(a) explicitly recognizes 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.   Preventing these anticipatory measures by the judiciary, when they can be based on verifiable information from reliable sources, would undermine the public policy of the state.

It is neither consistent with statutory and case law, nor reasonable, to prevent a judge from protecting an unmarried child if harm is reasonably predictable.   Although the department still bears the burden of proof, the inability of a court to consider predictive neglect or injury as a basis for committing a child to the department's custody would create and improper balance between family integrity and the child's safety.

In re:  Matthew O., No. H14-CPO7-009061 at 7670 (Conn.Super.Ct.Juv. Mar. 24, 2010)

Prior neglect need not be established in a case Where the doctrine of predictive neglect is applicable:

Our statues 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.   In re Michael D., 58 Conn.App. 119, 124, 752 A.2d 1135 (2000), cert. denied, 254 Conn. 911, 759 A.2d 505 (2002);  see also In re T.K., 105 Conn.App. 502, 513., 939 A.2d 9, cert denied, 286 Conn. 914, 945 A.2d 976 (2008)

In re Elizabeth K., No. U06-C009-006724-A at 5327

(Conn.Super.   Ct. Child Prot. Sess. Mar. 20, 2009)

Courts have long been supportive of neglect adjudications which are, in effect, based on the prediction that the parent would neglect the child based on the parent's prior conduct or mental illness and the danger such conduct would present to a child left in her care.  In re Valerie D., 223 Conn. 492, 613 A.2d 748 (1992);  In re Kelly S., 29 Conn.App. 600, 616 A.2d 1161 (1992).   No court is required to leave a child in the custody of a parent who is clearly incapable of providing even basic care for the sole purpose of demonstrating that he will suffer actual harm.  In re Kelly S., supra 615.

In re Eric A., at 167221, 16722 (Conn.Super.Ct.Juv. Dec. 28, 1999)

In addition to the manual and statutes there is, of course, a well developed body of case law addressing parameters for findings of abuse and neglect, as well as cases addressing circumstances when the defendant may act prophylactically, See, e.g., In re Stephen M., 109 Conn. Apr. 644, 651 arid n. 11;  953 A.2d 668 (2008) (citing “doctrine of predictive neglect”) In re T.K., 105 Conn.App. 502, 513, 939 A.2d 9 (“[t]he doctrine of predictive neglect is grounded in the state's responsibility to avoid harm to the well-being of a child, not to repair it after a tragedy has occurred”), cert. denied, 286 Conn. 914, 945 A.2d 976 (2008);  In re Michael D., 58 Conn.App. 119, 123, 752 A.2d 1135 (“[o]ur statues clearly permit an adjudication of neglect based on a potential for harm or abuse to occur in the future”), cert. denied, 254 Conn. 911, 759 A.2d 505 (2000)

In re Elizabeth K., No. UO6-C009-006724-A at 5327 (Conn.Super.Ct. Child Prot. Sess. Mar. 20, 2009)

In Jermaine S., the appellate court also explained the concept of predictive neglect:  “Our 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' ․ The commissioner took preventive actions in this case.   The respondent mother had a serious and long-term history of drug abuse and did nothing to remedy her drug abuse problem.   She also suffered from substantial mental health problems for which she continually refused treatment.   Our review of the record leads us to conclude that there was at least a potential for neglect to occur in the near future ․” Id., 831.

In re Jesse W. at 13132, 13133 (Conn.Super.Ct.Juv. Sep. 22, 2005)

ORDER SUSTAINING ORDER OF TEMPORARY CUSTODY

The Court finds that based on the evidence presented to the Court, at the time of the entry of the ex parte OTC on December 10, 2009, it was more probable than not that Ny-asia would have been in immediate physical danger from surroundings.   The order of temporary custody is sustained, based on a fair preponderance of the evidence.

The Court further orders specific steps for reunification for respondent mother that were submitted with the December 10, 2009 OTC.

ADJUDICATION THAT CHILD WAS NEGLECTED PRIOR TO THE FILING OF THE DCF PETITION

DCF has established by a fair preponderance of the evidence that Ny-asia was neglected as of December 10, 2009, the date of the neglect petition.   The Court can reasonably predict, by a fair preponderance of the evidence, that if Ny-asia were returned to mother's care, the child would be denied proper care and attention, and would be exposed to conditions, circumstances, and associations injurious to her well-being.

The evidence relied upon included the following:

1) Respondent mother was on probation for risk of injury to a child.

2) Physical neglect was substantiated against mother by DCF because she cannot provide proper supervision for her children.

3) An alleged perpetrator had caused factures to another child residing in the home where respondent mother lives.   Mother's sister pled guilty to risk of injury and assault two, as a youthful offender, for this crime.

4) It was unknown where sister resided, but on the date of the petition, her name was included with the Waterbury Housing Authority for grandmother's lease.

5) Mother made minimal progress for reunification for many of her programs.

6) Mother has cognitive limitations that affect her ability to supervise her children.

7) Continuing human traffic going in and out of apartment in which respondent mother resides.

8) First child, Damonte, was under an OTC agreed to by mother.

9) Father unknown, two “putative fathers” were disqualified by paternity tests during trial.   No paternal resource available for child.

10) No maternal relative placement is possible because no one qualifies under DCF guidelines.

Ny-asia is hereby adjudicated neglected as to her status as a child.

BY THE COURT

The Honorable Thomas F. Upson, Judge

Upson, Thomas F., J.