IN RE: Anthony A.1 (2011)

DECISION ON CONSOLIDATED ORDER OF TEMPORARY CUSTODY AND THE ADJUDICATORY PORTION OF THE NEGLECT PETITIONS

1

BRIEF HISTORY

On December 27, 2010 the Department of Children and Families (hereafter DCF or ‘the department’) received a referral from Waterbury Hospital that a five-month-old, Jayden C. (date of birth July 11, 2010) had been transported by ambulance to the hospital with head injuries suspicious of traumatic brain injury.   He was subsequently transported by LifeStar helicopter to Connecticut Children's Medical Center (CCMC) in critical condition.   The department was advised that an attending physician at Waterbury Hospital had diagnosed the injuries as abusive head trauma (in layman's terms ‘shaken baby syndrome’).   DCF also learned that hospital personnel had discovered older healing trauma to Jayden's brain.   That diagnosis was confirmed by Dr. Nina Livingston at CCMC.

Based on the information from the attending physicians the department took an administrative (‘ninety-six hour’) hold on Jayden and his older half-sibling Anthony A. (date of birth December 19, 2008), who resided in the same household.

An ex parte Order of Temporary Custody (OTC) was obtained by the department on December 29, 2010 in relation to both children.   At the preliminary hearing on January 4, 2011, the hearing on the OTC was consolidated with the adjudicatory portion of the neglect petitions filed by the department on both children on December 29, 2010.   The consolidated hearing took place on three consecutive court days;  January 13, 14 and 18, 2011.

Jennifer C, mother of both children (hereafter ‘mother’) and Timothy A., acknowledged father of Anthony, attended all court dates.   Both were represented by counsel.   The children's attorney/Guardian ad Litem attended and participated fully in the examination of witnesses.   The father of Jayden C. (hereafter ‘David Unknown’) did not attend.   Notice to him of the hearing on the OTC and the Petition was by publication in the local newspaper.

A Motion to bifurcate the trial was filed by mother at the commencement of the hearing arguing that the father of Anthony might hear evidence relating to Jayden if he was permitted to participate in a proceeding relating to both children.   The court denied the motion on the basis that it was not timely filed.

The court heard testimony from Christopher Loesche and Jamie Farnham (DCF social workers), Dr. Nina Livingston, Medical Director of Hartford Regional Child Abuse Services,² Alba H., maternal grandmother of both children, Anthony's father (hereafter Timothy A.) and his fiancee, Michele P. Mother and Timothy A. were advised that the court could draw an adverse inference from their decision not to testify pursuant to Practice Book Section 35a-7A and mother elected not to testify.³  The court also received and considered six exhibits filed by the petitioner consisting of two social worker affidavits and four medical reports on Jayden, and two exhibits, both police reports, filed by mother.   All exhibits were admitted as full exhibits by agreement.

II

FINDINGS AND DISCUSSION

The court has considered the testimony and exhibits presented by the parties.   The court has found all relevant facts proven by at least a fair preponderance of the evidence unless otherwise stated.

Jennifer C. is the mother of both children involved in these proceedings:  Anthony A. whose date of birth is December 19, 2008 and Jayden C. whose date of birth is July 11, 2010.

Anthony's acknowledged father is Timothy A.

The identity of Jayden's father is not known to the court.   Mother has identified him by the first name of ‘David.’   There is no evidence that ‘David’ has ever been involved in his son's life.

At all relevant times, mother lived with her sons in the same house as her parents.   This is a three-family home.   The maternal grandparents occupy the first floor.   Anthony's bedroom is also on the first floor.   Mother and Jayden occupied a basement apartment, most recently with her boyfriend, Luis C. The basement apartment can be accessed from the first floor apartment via internal stairs and is next to an area where maternal grandmother does laundry.   The court understands that the basement area is part of the maternal grandparents' residence and may not be technically a separate residence, though it includes a kitchen and bedroom and is separated from the grandparents' laundry area by at least one wall.   Anthony moves between mother and grandparents freely and is looked after by both although it seemed to the court that the grandparents may be the primary caregivers of the child.

Timothy A. lived with mother for a period of time both before and after Anthony's birth, at the home of the maternal grandparents and elsewhere, but separated from mother about five months after Anthony's birth.   Timothy A. testified that he and mother were arguing ‘pretty frequently’ at the time of the separation and that he felt it best to separate.   He testified that he had offered to keep Anthony.   Mrs. H. testified that Timothy A. had been abusive towards her daughter.   The court was shown police reports (Mother's Exhibits 1 and 2] from 2008 and 2009 indicating that mother had called the police complaining that Timothy A. had been abusive to her.   Timothy A. responded that he had not even been aware that the complaints to the police had been made until months later.   He did confirm that he and mother had argued frequently and that he thought it best to separate ‘before things escalated.’   When finally arrested he testified that he chose to resolve the case by participating in the Family Violence Education Program ⁴ and that he completed it successfully.   It is not necessary for the court to determine the reason for the parties' separation but notes that the split was not amicable and that each parent made allegations against the other.⁵

Timothy A. was uncertain when he had last seen Anthony.   He estimated that it was ‘about 5 1/2 months before December 2010.’   He recalled that mother was pregnant when he last visited-which suggests it was prior to July 11, 2010, Jayden's birth date.   Timothy A. testified that he had visited with Anthony no less than once a week before ceasing to do so.   He found the visits unsatisfactory because he was generally not permitted to take Anthony out of the living room and that he had only been permitted to take him to the Park once or twice.   He testified that the reason he stopped visiting was because he was concerned that maternal grandparents might become volatile and he feared being arrested.   He agreed that he had not applied for visitation through any legal proceedings though said he was thinking about doing so.   He denied the suggestion made by mother through her counsel that the reason he did not visit was because he was in arrears with his child support.

He was aware that his younger sister had visited Anthony on a couple of occasions but had not discussed her visits with her.

It was clear to the court that the relationship between Timothy A. and (at least) maternal grandmother, Mrs. Alba H., is strained.⁶  Mrs. H. testified that the last time Timothy A. saw Anthony was when the child was 5 months old, in contrast to his claim that it was about five months ago.  (The court cannot explain the discrepancy unless Mrs. H. was simply not informed by her daughter that Timothy A. was visiting his son.)   Mrs. H. also claimed that Timothy A. was abusive towards her daughter.   Mrs. H. and Timothy A. were involved in a minor verbal confrontation when visiting Anthony at DCF.⁷

The court heard that mother had been with Luis C. for approximately a year and that he had moved into the basement apartment when Jayden was 1 1/2 to 2 months old.   Mrs. H. testified that Mr. C. had always interacted well with Jayden, Anthony and his own young nephews.   She denied that she had ever seen him treat any child roughly or that she had ever heard mother admonishing him about the way he handled Jayden.   Anthony spent much of his time with his maternal grandparents whom he called ‘Momma’ and ‘Poppa.’   It is clear that the maternal grandparents at least co-parented Anthony with his mother.

No concerns have been expressed by anyone about Anthony's health.

On December 27, 2010 at about 12:43 a.m., DCF received a referral to their ‘Hotline’ from Waterbury Hospital.

Dr. Benedetto, a treating physician at Waterbury Hospital, reported that Jayden had been brought into the Emergency Room at about 11:45 p.m. Mother reported that he woke up screaming and could not be quieted and then went limp, at which point she called 911.   On admission to the Emergency Department Jayden was examined and a CT scan was obtained which showed that Jayden had sustained subdural hemorrhaging ⁸ in the brain.   Dr. Benedetto reported that he had been intubated and sent by Lifestar helicopter to CCMC.

Once at C.C.M.C. he was examined by Dr. Livingston and her colleagues.

Dr. Livingston reported that “Jayden is a five-month-old infant who presented with sudden limpness, seizure and altered respiration at home.   Evaluation has revealed acute and chronic subdural haematomas and unilateral multilayer retinal hemorrhages extending to the ora serrata.”  [Petitioner's Exhibit F, p. 3.]

Dr. Livingston's testimony was supplemented by medical reports admitted by agreement as full exhibits.   She confirmed that the medical diagnosis of Jayden was that he had suffered abusive head trauma.⁹  The injuries were not consistent with any other explanation, such as a fall from a changing table.   The injury sustained was life-threatening.

It was Dr Livingston's opinion, based on the history given by mother to the hospital when she described Jayden's symptoms prior to calling 911 that he had suffered a seizure as the result of the injuries he had sustained.

A CT scan had found evidence of more than one subdural haematoma.   The most recent was between 6 and 12 hours old and caused the seizure.   However, there was also evidence of earlier bleeding which suggested that he had suffered at least one previous episode of head trauma ¹⁰ prior to the injury for which he was seen at CCMC. It was Dr Livingston's opinion to a reasonable degree of medical probability that the earlier injury or injuries were also the result of abusive head trauma.

Jayden has undergone procedures to relieve the swelling in his brain.

Dr. Livingston further testified that Jayden's prognosis was uncertain because of his age but he was likely to have some permanent neurological damage and vision issues.   A report dated January 11, 2011 indicates that his potential for speech development is uncertain “and it is not clear if Jayden will eventually walk.   He remains at risk for spastic quadriparesis and for severe epilepsy.”  [Petitioner's Exhibit F.]

The police told Dr. Livingston that Luis C. had admitted shaking Jayden violently shortly before the child went limp.   Mr. C. is said to have stated that mother was not present when this happened and that she was not aware of what he had done.  [Petitioner's Exhibit F, p. 3.] Social Worker Farnham's Affidavit [Petitioner's Exhibit A] includes a statement reporting that the Waterbury Police told her that Mr. C. had reported that mother had previously “cautioned him in appropriate handling of Jayden” [Id. paragraph 3] but that mother had denied doing so.

It is important to note that the court was not shown any such confession statement.   While it clearly exists, the extent to which the court can consider any purported admissions is limited.   Criminal defendants have been known to recant admissions for a variety of reasons.

Social worker Loesche who spoke with Mr. C. and mother at Waterbury Police Department at 4:15 and 4:50 a.m. respectively, documented that both mother and Mr. C. had given him a different history which denied any violent handling of the child.   Mr. Loesch also spoke to Mrs. Alba H., the maternal grandmother, at 3:25 a.m. He reported that Mrs. H. had told him that she had been present at about 10:30 p.m. on the previous evening for about ten minutes in mother's apartment when

the baby woke up crying (which she heard and saw) and Luis picked up the baby out of the crib.   Grandmother stated she saw the baby and he appeared fine.   She stated Luis told the mother the baby was crying when mother was in the kitchen.   Grandmother stated mother made the baby a bottle and Luis was still holding the baby.   Grandmother stated Luis told mother something was wrong with the baby.   Grandmother stated the baby's body appeared limp, his arms stiff, and his eyes rolled back.   She stated she put the baby on the couch and then ran upstairs to tell Grandfather.

* * *

Grandmother stated she was in mother's apartment for about ten minutes prior to the baby waking up and she reported she witnessed the entire incident.   She denied anyone accidentally or intentionally hurt the baby yesterday or in the past.

[Petitioner's Exhibit B, paragraphs 4.]

In contrast to the Affidavit filed by Mr. Loesche [Petitioner's Exhibit B] the court understood Mrs. H. to say in her testimony that she was in the basement doing laundry next to her daughter's apartment (i.e. not with her daughter and Luis C.) immediately prior to the 911 call and did not see anything prior to being alerted to the problems with Jayden.

The court found Mr. Loesche to be a credible reporter and accepts his account of the conversations he had with mother and Mrs. H.

On the early morning of December 28, the department was faced with serious unexplained injuries to Jayden.   Those injuries were determined to be non-accidental.   Jayden's caregivers (in the persons of mother and Mrs. H.) gave no reasonable explanation for the injuries.

In view of Jayden's injuries and the lack of explanation it was appropriate for the department to take a ninety-six hour hold on both Jayden and on Anthony, another very young child in the residence.

In sustaining an Order of Temporary Custody the court must consider whether continued removal is necessary to ensure each child's safety.

Mother argues that since the injuries to Jayden were inflicted exclusively by Mr. C. then his absence from the home would end the need to remove either child.   The court cannot agree.

The court finds by at least a fair preponderance of the evidence that the injuries suffered by Jayden were non-accidental, that is that they were inflicted on him by somebody.   The court also accepts that non-accidental injuries were inflicted on more than one occasion.

The only people having regular access to Jayden were mother, Mr. C., Mr. and Mrs. H. and Anthony.   Other than visits to his pediatrician there is no evidence that any other person had access to him.   Given Jayden's age and lack of mobility the court finds that the perpetrator must have been a member of the Household.

The court accepts Dr Livingston's testimony that the injuries could not have been inflicted by a two-year-old.

Since Mr. C.'s statement is not before this court it is not possible for the court to determine conclusively ¹¹ on the basis of the evidence before it, that the injuries to Jayden were inflicted by, or exclusively by, Mr. C. In addition, the court has limited information as to whether the earlier injury or injuries detected by the hospital have been explained by Mr. C.-or anyone else.¹²

The accounts of both mother and grandmother to Mr. Loesche exculpated Mr. C. During the Hearing Grandmother seemed to the court very reluctant to accept the possibility that Luis C. might have inflicted the injuries.   Mother did not testify but her statements to Jamie Farnham suggest that she continues to protect Mr. C. and that she still is in denial that he might be responsible for Jayden's injuries.   It is unclear to the court that either mother or grandmother even truly accepts the medical evidence that these injuries are non-accidental.   Grandmother spoke of how she felt Jayden ‘wasn't like other babies' when he was born and described him being ‘stiff.’   She testified that she had raised these concerns with Jayden's pediatrician on two occasions but said she was reassured by the pediatrician on each occasion.   The court has no means of evaluating that testimony.

On the available testimony, the court finds by at least a fair preponderance of the evidence, Jayden's injuries are life-threatening and were non-accidental.   With that finding, it follows that the court finds that mother failed to protect Jayden, and that her continued reluctance to accept the evidence that his injuries are non-accidental makes her an inappropriate caregiver for her sons.

Whoever inflicted the injuries, there was at least a lack of supervision and care of the child which proved nearly fatal.   Any other child in that Household especially one as young as Anthony is at risk because of his age, lack of verbal skills and lack of visibility in the community.

III

DECISION ON THE ORDER OF TEMPORARY CUSTODY.

Accordingly the court finds that continued removal is necessary to ensure each child's safety and sustains the Order of Temporary Custody in respect to both Jayden and Anthony.

THE COURT DECLINES TO VEST THE OTC FOR ANTHONY IN TIMOTHY A.

The department has invited this court to vest the OTC of Anthony in his father, Timothy A. The court declines to do so at this time.

While the court accepts that there may have been good reasons for Timothy A. not to pursue contact with his son for the past several months,¹³ there seems to have been little or no effort to find out how the child was doing during that period, or to put visitation issues on a more solid basis.   The court heard that Anthony's aunt, Timothy A.'s younger sister, did visit Anthony, that Timothy A. did not discuss her visits with his sister.   There was, therefore a hiatus in the relationship between father and son that spanned nearly a quarter of the child's life.

The court heard from Timothy A. and his fiancee, Michele P. and is not persuaded that either has any significant experience in looking after a two-year-old.   In addition, the court was advised that, if the child were to be placed with his father Ms. P. and her parents would assume the obligations of caring for Anthony while Timothy A. is at work.¹⁴  Ms. P.'s mother has reportedly told the department that she would be willing to accept the placement of the child with her family-but neither she, nor Mr. P., have made themselves available to the child's Guardian ad Litem-or, indeed, to the court-to confirm that willingness.

The bedroom that Timothy A. testified had been readied for Anthony is currently used for another visiting child and was not a new commitment of a room to Anthony.¹⁵  The P.s may prove to be very appropriate as resources for Anthony but since Timothy A. indicated that he hoped to work 40 hours a week, that could mean that the P.s would be caring for Anthony during most of his waking moments.   The court is not satisfied that it has enough information as to the P.'s attitude or plans to determine that it would be in Anthony's best interests to vest the OTC in father.

The court is also concerned, given the extent of animosity it detected between mother's family and Timothy A., that visitation between Anthony and his mother and grandmother would be problematic if Anthony were to reside with father.

The court further notes that although Anthony is pre-verbal, mother's household is clearly bilingual, as is his current foster placement.   The court has heard no testimony about the P.'s household but notes that father said he was unable to understand maternal grandmother when she spoke in Spanish.

The court wishes to hear further testimony as to whether it would be in Anthony's best interests to place him with a father who could be absent during most of his waking hours, whom he has not seen regularly for over five months and in a household that is may not be bilingual.

Accordingly, the court will defer any placement decision to the dispositional phase of the neglect petition and vests the temporary custody of both children in the department.

IV

ADJUDICATION OF NEGLECT

When deciding whether neglect has occurred the court may only consider evidence limited to events preceding the filing of the petition (Practice Book section 35a-7a).   In considering whether the petitioner has sustained his burden of proving by a fair preponderance of the evidence that each child was neglected or uncared for the court may consider the same evidence as that presented to sustain the Order of Temporary Custody.

The court finds by a fair preponderance of the evidence, as set out above, that Jayden suffered serious and non-accidental injuries inflicted on more than one occasion by a member of the household.

The court further finds that mother and other caregivers failed to protect Jayden from such injuries and continue to deny the culpability of the individual who has purportedly admitted at least some of those injuries.

“Evidence that the child has been abused or has sustained a non-accidental injury shall constitute prima facie evidence that shall be sufficient to support an adjudication that such child is uncared for or neglected.”   General Statutes § 46b-129a(4).

An adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault.   A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect.   Although section 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 so named in the petition;  it is not directed against them as parents, but rather is a finding that the children are neglected.

In re Zamora S., 123, Conn.App. 103, 110 (2010) See also In Re Joseph W., 121 Conn.App. 605 (2010).

Based on the credible and probative testimony and documentary evidence that has been provided, the court finds that Jayden is a neglected child on the following grounds:  that he was abused and has physical injuries inflicted by other than accidental means;  that he was denied proper care and attention and that he was permitted to live under conditions and circumstances injurious to his well being.

The court further finds that Anthony is a pre-verbal child who is a member of the same household as a child the court has found to be abused, who is not visible to the community and who was completely dependent on the same caregiver(s) who failed to protect Jayden.

Accordingly the court adjudicates Anthony as a neglected child on the basis that he was permitted to live under conditions injurious to his well being.

The court will hear such further testimony as the parties wish to present on the dispositional phase of the Hearing on the Neglect Petition.

THE COURT FURTHER ORDERS:

1. A psychological and interactional evaluation of Anthony, mother and Timothy A. to assist it in determining what disposition would be in the child's best interests.  (The court is not ordering the evaluation of the maternal grandparents at this time as they are not parties to the case.)

2. The department is to investigate the maternal grandparents as possible resources for Jayden and Anthony if they seek to be considered as such.   The court reaffirms the Specific Steps previously ordered by this court and notes that it is implicit in the Specific Steps that cooperation with the department is necessary to facilitate the offer of services for reunification.

ESCHUK, J.

FOOTNOTES

FN2. Dr. Livingston was qualified, by agreement, as an expert in pediatric medicine and the identification of child abuse and neglect..  FN2. Dr. Livingston was qualified, by agreement, as an expert in pediatric medicine and the identification of child abuse and neglect.

FN3. It should be noted that the court also advised mother of her Fifth Amendment right to remain silent because of the possibility that there might be an on-going criminal investigation involving her, notwithstanding information that Luis C., mother's boyfriend, had been charged with injuring Jayden and had signed a statement of admission..  FN3. It should be noted that the court also advised mother of her Fifth Amendment right to remain silent because of the possibility that there might be an on-going criminal investigation involving her, notwithstanding information that Luis C., mother's boyfriend, had been charged with injuring Jayden and had signed a statement of admission.

FN4. The court takes judicial notice that this is a diversionary program available to first time offenders.   Successful completion leads to a dismissal of the charges.   Participation does not equate to an admission of guilt..  FN4. The court takes judicial notice that this is a diversionary program available to first time offenders.   Successful completion leads to a dismissal of the charges.   Participation does not equate to an admission of guilt.

FN5. Mother claimed that Timothy A. had been violent towards her.   Timothy A. claimed he left because mother was abusing alcohol.   Neither allegation was substantiated.  FN5. Mother claimed that Timothy A. had been violent towards her.   Timothy A. claimed he left because mother was abusing alcohol.   Neither allegation was substantiated

FN6. The court did not hear from maternal grandfather and so cannot determine what his attitude is towards Timothy A..  FN6. The court did not hear from maternal grandfather and so cannot determine what his attitude is towards Timothy A.

FN7. The confrontation allegedly occurred when the mother and her parents were leaving a visit with Anthony and Timothy A. and his fiancee were arriving for their visit..  FN7. The confrontation allegedly occurred when the mother and her parents were leaving a visit with Anthony and Timothy A. and his fiancee were arriving for their visit.

FN8. A subdural hematoma is a type of intracranial hematoma (blood clot or clots) that occurs when a blood clot forms underneath the skull..  FN8. A subdural hematoma is a type of intracranial hematoma (blood clot or clots) that occurs when a blood clot forms underneath the skull.

FN9. i.e. that the injuries had been inflicted on him rather than being the result of an accident..  FN9. i.e. that the injuries had been inflicted on him rather than being the result of an accident.

FN10. Dr. Livingston reported “I discussed MRI results with Dr. Butler of neuroradiology on 12/28/10.   Residual intracranial blood after surgical drainage appears subacute (approximately 2-4 weeks old) with some possibly more acute blood in the posterior fossa that is not well characterized on the study” [Petitioner's Exhibit D]..  FN10. Dr. Livingston reported “I discussed MRI results with Dr. Butler of neuroradiology on 12/28/10.   Residual intracranial blood after surgical drainage appears subacute (approximately 2-4 weeks old) with some possibly more acute blood in the posterior fossa that is not well characterized on the study” [Petitioner's Exhibit D].

FN11. The court takes judicial notice that Mr. C. has entered a not guilty plea in his criminal case..  FN11. The court takes judicial notice that Mr. C. has entered a not guilty plea in his criminal case.

FN12. The court is aware that Social Worker Farnham's affidavit (Petitioner's Exhibit A paragraph 3) stated that:  “According to Sergeant Napiello, Mr. C. had also reported that Jennifer Cruz previously cautioned him in inappropriate handling of Jayden.”   However, not only is it unclear whether that is included in the ‘confession statement’ or what the context of the remark was but mother denied that had happened..  FN12. The court is aware that Social Worker Farnham's affidavit (Petitioner's Exhibit A paragraph 3) stated that:  “According to Sergeant Napiello, Mr. C. had also reported that Jennifer Cruz previously cautioned him in inappropriate handling of Jayden.”   However, not only is it unclear whether that is included in the ‘confession statement’ or what the context of the remark was but mother denied that had happened.

FN13. The period was described as 5 1/2 months by father and nearly a year and a half by maternal grandmother.   The court prefers father's testimony, given his description of mother's pregnancy on the last visit.   Father said he did not visit because he wanted to avoid trouble.   Mrs. H. ascribed it to non payment of child support..  FN13. The period was described as 5 1/2 months by father and nearly a year and a half by maternal grandmother.   The court prefers father's testimony, given his description of mother's pregnancy on the last visit.   Father said he did not visit because he wanted to avoid trouble.   Mrs. H. ascribed it to non payment of child support.

FN14. A. testified that he hoped or expected to work 40 hours a week..  FN14. A. testified that he hoped or expected to work 40 hours a week.

FN15. The dedication of a room for Anthony by the P.s could be seen as circumstantial evidence of their commitment to him..  FN15. The dedication of a room for Anthony by the P.s could be seen as circumstantial evidence of their commitment to him.

Eschuk, Cara F., J., J.