IN RE: Maria F. (2010)

MEMORANDUM OF DECISION

STATEMENT OF THE CASE

This case involves neglect petitions filed by the Commissioner of the Department of Children and Families (the commissioner or DCF) for two children, Maria, born in February 2008, and Natalia, born in March 2010.   Both petitions allege that the children were neglected under General Statutes § 46b-120 because they were being permitted to live under conditions, circumstances or associations injurious to their well-being.   The petition for Maria was filed on January 21, 2010.   At that time, the commissioner requested and the court issued an order of temporary custody for Maria.   The order of temporary custody was sustained by agreement on January 28, 2010.   Maria was placed in a licensed DCF foster home where she remains.   The petition for Natalia was filed in March 2010.   At that time, the commissioner also requested and the court issued an order of temporary custody for Natalia.   This order of temporary custody was sustained by agreement on March 25, 2010.   Natalia was placed in a DCF licensed medical complex home where she remains.   The court has jurisdiction over the petitions and is unaware of any other actions involving the custody of the children.

On September 29, 2010, the court held a trial on the petitions.   The children's fathers were non-custodial and were defaulted for failure to appear.   The commissioner was represented by the Attorney General's office.   The children's mother attended the trial and was represented by an attorney.   The children were represented by counsel who also served as their guardian ad litem.   The commissioner seeks an order committing the children to the custody of DCF. The mother seeks an order re-instating her custody of the children.   The children's attorney and guardian ad litem supports the commissioner's position.

“A neglect petition is sui generis, and unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named.   Neglect proceedings ․ consist of two phases:  adjudication and disposition.   In the adjudicatory phase, the trial court must determine if the child is neglected.”  In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999).  “[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault ․ Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons named in the petition;  it is not directed against them as parents, but rather is a finding that the child is neglected ․” (Internal quotation marks omitted.)  In re T.K., 105 Conn.App. 502, 505-06, 939 A.2d 9 (2008);  In re Francisco R., 111 Conn.App. 529, 536 (2008).   The statutory grounds necessary to grant a neglect petition are expressed in the disjunctive, and therefore, in order to grant the petition, the court is only required to find that a preponderance of the evidence establishes one of the petition's claims of neglect.   See In re Brea B., 75 Conn.App. 466, 473 (2003);  General Statutes § 46b-120(8).

As previously stated, neglect trials comprise two parts, adjudication and disposition.   In regard to adjudication, Practice Book § 35a-7 provides:  “(a) In the adjudicatory phase, the judicial authority is limited to events preceding the filing of the petition or latest amendment ․ (b) In the discretion of the judicial authority, evidence on adjudication and disposition may be heard in a non-bifurcated hearing, provided disposition may not be considered until the adjudicatory phase is concluded.”   In regard to disposition, Practice Book § 35a-9 provides that in addition to any mandated social study, “[t]he judicial authority may admit into evidence any testimony relevant and material to the issue of the disposition, including events occurring through the close of the evidentiary hearing ․”

DISCUSSION

IADJUDICATION

On the basis of the evidence, the court concludes that the commissioner has met its burden of proving the petitions' allegations of neglect by a preponderance of the evidence.   The court's specific findings are as follows.

The mother has had a history with DCF since 2003.   This history involved her two oldest children and her problems with substance abuse and mental health.   Her substance abuse and mental health problems have been ongoing and never fully addressed by her.   Specifically, in regard to the mother's mental health, she was diagnosed for major depressive disorder in September 2008 and treated at Optimus Healthcare.   Intensive outpatient therapy was recommended for her, but she did not complete this therapy.   She attended bi-weekly counseling appointments irregularly.

When Maria was born in February 2008, the mother tested positive for PCP. DCF invoked a 96-hour administrative hold which was revoked when the maternal grandmother came from Florida to live with the mother.   However, the mother continued her substance abuse.

On January 18, 2010, the mother went to Bridgeport Hospital while she was pregnant with Natalia.   She was diagnosed with having shingles and was hospitalized for treatment.   She again tested positive for PCP. She was confused or disoriented and expressed concerns about her ability to care for Maria.   She also gave confusing information about where Maria was and who was caring for Maria.   DCF ultimately determined that Maria was in the care of the mother's sister, but the sister indicated that she could not provide extended care for Maria.   On January 18, 2010, DCF executed a 96-hour administrative hold to take custody of Maria.   Thereafter, DCF requested an order of temporary custody and filed the present petition.

The court finds that the commissioner has proven by a preponderance of the evidence that Maria was neglected as defined under General Statutes 46b-120(8)(C) because Maria was exposed to living conditions or circumstances injurious to her well-being that presented both an existing and a potential risk of harm.   See In Re Jermaine, 86 Conn.App. 89, 863 A.2d 270 (2004) (neglect adjudication may be made on the basis of the mother's unaddressed mental health problems and drug abuse);  see also In re Michael D., 58 Conn.App. 119, 124-25, 752 A.2d 1135, cert. denied, 254 Conn. 911, 759 A.2d 505 (2000) (“adjudication of neglect may be based on a potential risk or harm and not just actual harm”).

After her release from the hospital, the mother “continued to abuse substances during her pregnancy with Natalia, testing positive for PCP twice in January 2010.   On the day of Natalia's premature birth in March 2010, the mother again tested positive for PCP. Soon after Natalia's birth, DCF executed a 96-hour administrative hold to take custody of Natalia.   Subsequently, DCF requested an order of temporary custody and filed the present petition.   The totality of the evidence indicates that the mother fails or refuses to appreciate the risks that her substance abuse poses to her children.

The court finds that the commissioner has proven by a preponderance of the evidence that Natalia was neglected as defined under General Statutes 46b-120(8)(C) because she was exposed to living conditions or circumstances injurious to her well-being that presented both an existing and a potential risk of harm.   See In Re Jermaine, supra, 86 Conn.App. 89;  see also In Re Michael D., supra, 58 Conn.App. 124-25.

II

DISPOSITION

“After an adjudication of neglect, a court may (1) commit the child to the commissioner, (2) vest guardianship in a third party or (3) permit the parent to retain custody with or without protective supervision.  General Statutes § 46b-129(j) ․ In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interests of the child.   To determine whether a custodial placement is in the best interest of the child, the court uses its 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.   At trial, the commissioner [has] the burden of proving 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.”   (Citations omitted;  internal quotation marks omitted.)  In re Brianna C., 98 Conn.App. 797 (2006).   If the court issues a disposition order committing a child to DCF, the court is to determine whether DCF made reasonable efforts to keep the child with the parent or guardian.  General Statutes § 46b-129(j).²

The evidence establishes that the mother still has not addressed her mental health and substance abuse issues.   She was unsuccessfully discharged from Project Courage in June 2010 with a recommendation for inpatient treatment for her substance abuse.   No evidence indicates that she attended inpatient substance abuse treatment.

As previously stated, the mother was diagnosed with major depressive disorder and intensive outpatient treatment was recommended.   The mother did not schedule and receive this treatment.   She has attended her therapeutic counseling sessions sporadically.   The mother has also been diagnosed with a life threatening illness and the evidence indicates that she has been inconsistent with taking her prescribed medicine for this illness.

The mother visits with the children twice a week.   At the mother's request, the length of these visits was recently reduced.   The mother resides in subsidized housing and her only source of income is food stamps.   She testified that she has an application for Social Security Disability benefits pending.   The mother's trial testimony was halting and hesitant, and her demeanor was not lucid.   She had difficulty identifying when she last used PCP, ultimately stating that she had not used PCP recently.   She opined that she does not presently have a substance abuse problem.

In summary, the clear weight of the evidence establishes that the mother has ongoing medical and mental health concerns, as well as substance abuse problems.   These problems have not been fully or sufficiently addressed by her and they adversely affect her ability to care for her children.   She does not fully appreciate the seriousness of her drug use or the dangers her drug abuse presents to her children.

DCF has provided the mother referrals for mental health counseling, medication management and substance abuse treatment.   DCF has implemented in-home services which the mother has resisted.   DCF has also provided food and housing assistance.   The court finds that DCF has made reasonable efforts to reunify the mother and the children.

CONCLUSION

Based on a fair preponderance of the evidence, the court concludes that it is not in the best interests of Maria and Natalia to be placed in the custody of their mother.   Based on a fair preponderance of the evidence, the court concludes that it is in the children's best interests to be committed to the care and custody of DCF. The mother and DCF are ordered to comply with the specific steps currently in place, executed in March 2010.   The children's fathers shall submit to paternity tests prior to any visits with the children.

So ordered this 22nd day of November 2010.

STEVENS, J.

FOOTNOTES

FN1. In accordance with General Statutes § 46b-124 and Practice Book § 32a-7, the names of the parties are not disclosed and the records and papers of this case shall be open for inspection only to persons having a proper interest in the matter and only upon order of the court..  FN1. In accordance with General Statutes § 46b-124 and Practice Book § 32a-7, the names of the parties are not disclosed and the records and papers of this case shall be open for inspection only to persons having a proper interest in the matter and only upon order of the court.

FN2. General Statutes § 46b-129(j) states the following in regard to the court's determination about whether DCF has made reasonable efforts for unification upon the issuance of an order of commitment:Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall determine 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..  FN2. General Statutes § 46b-129(j) states the following in regard to the court's determination about whether DCF has made reasonable efforts for unification upon the issuance of an order of commitment:Upon the issuance of an order committing the child or youth to the Commissioner of Children and Families, or not later than sixty days after the issuance of such order, the court shall determine 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.

Stevens, Barry K., J.