IN RE: Robert H. (2010)

DECISION ON ORDER OF TEMPORARY CUSTODY

This is a decision on whether to sustain an Order of Temporary Custody (OTC) issued by this court (Epstein J.) on July 29, 2010.

1. PROCEDURAL HISTORY

Robert H., the child who is the subject matter of the OTC, was born to Tara Y. on July 24, 2010.   Shortly after his birth the Department of Children and Families (hereafter “DCF” or “the department”) invoked a ninety-six-hour hold and subsequently applied for and was granted an ex parte OTC. The preliminary hearing took place on August 6, 2010 when the court (Schuman J.) granted a motion for paternity testing for Mr. H. Mr. H indicated his intent to contest the OTC (if he had standing to do so) and waived his right for the matter to be heard within ten days.   A Motion to Consolidate the Hearing on the OTC with the adjudicatory portion of the Neglect Petition was denied (Schuman J.).   The Hearing on the OTC was scheduled for October 1, 2010.

On September 22, 2010 the court received the results of DNA testing and Mr. H was found to be the father of Robert.

The Hearing on the OTC was postponed to October 15, 2010.

On October 15, 2010, mother agreed to sustain the OTC. A Hearing was rescheduled to October 25, 2010 as to father.

The Hearing to contest the OTC as to father took place on October 25, 2010 and November 2, 2010.   The court heard testimony from Kimberley Rinko, a social worker at St. Mary's Hospital, Michele Baribault and Sara Velez (now Sara Vega) DCF social workers and Chris Desrocher of the Morris Foundation.   All witnesseswere called initially by the department but the court also called Ms. Velez, the affiant on the initial OTC affidavit.   The court also considered one exhibit (State's Exhibit D).  In addition, after testimony and discussion, the parties agreed that the court could take judicial notice of Ms. Vega's social worker affidavit filed in support of the application for the OTC and dated July 28, 2010.

Counsel for the department, for the father and the attorney-GAL for the child vigorously examined and cross-examined the witnesses but declined to make final argument or submit briefs.   Mother's Attorney was present but did not participate.

2. FINDINGS

The court made the following findings:

1.  Robert H. was born on July 24, 2010 at St. Mary's Hospital, Waterbury, Connecticut.

2. Robert H's parents are Tara Y. (mother) and Barry H. Jr. (father).

3.  Father's paternity was confirmed by DNA testing.

4. Father and mother lived together prior to Robert's birth and so each were (potentially) custodial parents.

5. Testing at the hospital shortly after Robert's birth showed that Robert had cocaine in his blood.

6. Mother also tested positive for cocaine when she gave birth to Robert.

7. A report was made to the DCF ‘Hotline’ (a '136 report) on July 25, 2010 by Kimberley Rimko, a social worker (and mandated reporter) employed by St. Mary's Hospital, Waterbury, Connecticut indicating that Robert tested positive for cocaine at birth as did mother.

8. In April and/or on May 10, 2010 Father was referred by the Department to the Early Intervention Group, a ten-week drug treatment course at the Morris Foundation.   After attending four sessions of this program father and the DCF social worker agreed that he should engage instead with the ‘Family Based Recovery’ program (FBR), an in-home treatment program.

9. Father and mother had an intake with FBR on July 8, 2010.

10. Father tested positive for cocaine on July 8, 2010. (as did mother).

11. Father cancelled an appointment with the program on July 12, his next scheduled appointment.

12. Father was a ‘no-show’ for the next scheduled appointment on July 13, 2010 and did not call to cancel.

13. Mother and father were living together prior to and during the month of July.

14. Mother admitted to the hospital social worker that she had ingested cocaine on July 23, 2010 at a party prior to giving birth but said father was unaware of her doing so.

15. Father reported that he had not been home during the time mother ingested drugs and was not aware that she had done so.

16. Father's breathalyzer and urinalysis results were negative for drugs on July 19, 20, 22 and 23 prior to Robert's birth.

17. DCF took a ninety-six-hour hold on the child on July 26, 2010 from the hospital.

18. Mother agreed to sustain the OTC on October 15, 2010.

3. DISCUSSION

For a court to sustain an Order of Temporary Custody it must find that the petitioner has proved by a fair preponderance of the evidence that the child would be subjected to immediate physical danger if returned to the care and custody of the parent or parents and that continued removal was necessary to ensure his safety.   Such a finding may be made on the basis of predictive circumstances if, for example, the child is currently safe-for example, in a hospital-but would be exposed to such risks if released to the parent or parents.

The [petitioner], pursuant to [§ 46b-120], need not wait until a child is actually harmed before intervening to protect that child ․ This statute clearly contemplates a situation where harm could occur but has not actually occurred.   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.   (Emphasis added;  internal quotation marks omitted.)

In re Jermaine S., supra, 86 Conn.App. 831.

The 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.

In re T.K., 105 Conn.App. 502 cert. denied, 286 Conn. 914 (2008).

The court otherwise has to consider the circumstances in place at the time the OTC was taken and cannot consider subsequent history.

The facts of this case involve a new-born child and parents who have a history of drug abuse.   Although the court agreed not to take into consideration any history of the father prior to the decision of May 17, 2010 vacating an Order of Temporary Custody ¹ in relation to a sibling of this child in the care of this father ² and mother, it can and will note that in its decision vacating the OTC that court (Baldwin J) clearly warned these parents that “illegal drugs or the excessive use of alcohol are two of the primary causes of significant danger to children.”

Notwithstanding that warning, father attended only four weekly sessions at the Morris Foundation's Early Intervention Group between May 10 and July 8. For reasons that were not made clear to the court he was permitted by the department to change to another program in July. While he argued strenuously that he was not discharged from the Morris Foundation program as unsuccessful but because he had elected to change to another program and so did not attend the weekly sessions this is a matter of semantics.   The fact is that between May 17, 2010, his intake date at the Morris Foundation program and July 8, 2010, when he did the intake at the ‘Family Based Recovery'(FBR) program (a total of just over eight weeks) he had attended only four sessions.   Perhaps unsurprisingly he tested positive for cocaine on July 8, 2010 at his intake for the latter program.

Even when he had done his intake for the FBR he was a no-show on July 12 and 13 (despite the fact that this was a home-based program).

While it is correct that father's testing on the four dates he could be tested between July 8 and July 23 were negative, it is also accurate that his sobriety is of short duration, his commitment to the FBR treatment program unproven, and that Robert would have been totally dependent on his caregivers on his discharge from the hospital.   A child of that age requires his caregiver to be alert to his every need.   Since mother has sustained the OTC she has agreed that Robert would have been subjected to immediate physical danger if returned to her care and custody, and so Robert would have had to rely entirely on father.   Given father's on-going substance abuse issues and less than full cooperation with the new substance abuse treatment program he was involved with, the court finds by a fair preponderance of the evidence that Robert would have been subjected to immediate physical danger if returned to the care and custody of his father on his discharge as a new-born and that continued removal was necessary to ensure his safety.

ACCORDINGLY the Order of Temporary Custody as to Robert H. (date of birth July 24, 2010) having been previously sustained by agreement as to mother, is sustained as to father.

Robert will remain in the custody of the Department of Children and Families until further order of this court.

ESCHUK, J.

FOOTNOTES

FN1. Counsel prevailed on the argument that since the court had found that the child who was the subject matter of the earlier OTC was not in imminent physical danger the facts of that case were irrelevant..  FN1. Counsel prevailed on the argument that since the court had found that the child who was the subject matter of the earlier OTC was not in imminent physical danger the facts of that case were irrelevant.

FN2. Mr. H. was subsequently determined not to be the biological father of that child-though he had acted in that capacity at the time of the hearing..  FN2. Mr. H. was subsequently determined not to be the biological father of that child-though he had acted in that capacity at the time of the hearing.

Eschuk, J.