IN RE: Sebastian T. (2011)

MEMORANDUM OF DECISION

This matter is before the court for the purpose of determining the visitation status between the children and their maternal cousin, Tanya K., a 41–year–old single woman, who is a permanent placement resource, pursuant to a motion for visitation filed by the attorney for the children.   The Department of Children and Families (DCF or Department) had objected to any further continuing out of state contact between children and the cousin due to alleged non-compliance on the part of the cousin with court imposed orders.   The attorney for the children is seeking conformity with prior court ordered visitation as well as further contact between the cousin and children after the final court ordered March 2011 out-of-state visit to the cousin's home.

The contested hearing was held on March 4, 2011, during which the court received certain documents and heard evidence in the form of testimony from the following witnesses:  Sasha Gilbert, DCF social worker;  Chris Cardella, therapeutic foster home worker, Tanya K., maternal cousin;  and Shelia H., the children's mother.   The court had the opportunity to observe the demeanor of and evaluate the testimony and credibility of the witnesses.   Although the court did not allow closing arguments due to end-of-day time restraints (the matter had been originally scheduled for only two hours during the morning session but carried over for an additional three hours in the afternoon), said arguments would not have shed any further light on the issue due to the polar opposite positions adopted by the parties as made clear to the court during testimony.   None of the parties objected to not giving a closing argument.

Due to the Department's desire to stop further visitation between the cousin and children in Tennessee, which had been previously ordered by the court, and the guardian ad litem/children attorney's request to continue said visits and to add additional visits, the hearing morphed into a combined motion for visitation and modification of visitation proceeding.

The court has carefully considered the court file, the testimony of the witnesses, the exhibits admitted into evidence, and the statutory criteria regarding visitation, modification of previous orders as well as the all encompassing best interest of the children.   Accordingly the court finds the following facts by a fair preponderance of the evidence.

The children were placed in the care of the Department by an order of temporary custody on June 16, 2009, while they had been under an order of protective supervision with their mother, originally entered on March 3, 2009, after a finding of neglect.   This marked the third time in the children's short life that they had been removed from their mother's care.   Father has had little if any involvement with the children and has not participated in any services.   Said order was sustained and then vacated when the children were committed to the Department on June 26, 2009.   The children were then subsequently placed in a non relative foster home where they remain.

Sebastian is presently 9 years old and Summer is almost 8 years old.

DCF filed a Termination of Parental Rights petition (TPR) on January 4, 2010.

The Department became aware of the maternal cousin's desire to be considered as a resource for the children prior to February 2010.   After a judicial pre-trial DCF initiated an inter-state study of the cousin's home in Tennessee and by agreement allowed her to participate during mother's regularly scheduled visitation.   That understanding was approved and entered as an order of the court on June 11, 2010, at which time the aunt had been participating in visits for over four months.   On that same day additional orders were entered which expanded the mother's visitation access time with the children.

On August 3, 2010, the court ordered the maternal cousin to participate in a psychological evaluation, including a monitored interaction between her and the children.   The court was informed on that date that the Tennessee Department of Children's Services (TDCS) had not yet completed their investigation.

On September 23, 2010, the cousin and DCF were notified by TDCS that the cousin's home had been approved as a foster home.   This approval also allowed her to have children with mild to moderate emotional, behavioral or physical needs placed in her home.

Thereafter, by agreement the children participated in an out of state visitation with the maternal cousin in Tennessee from November 24th until the 28th, 2010.   During this visit the cousin did not administer Summer's prescribed ADHD medication, which the child takes two times per day.   As a result the child was disruptive at the airport for her return flight home.   This concern was addressed by the court, Simon, J., on December 17, 2010, prior to the second out-of-state visit, when it was made clear to the cousin, who participated in the hearing by way of a teleconference call, that she must give the child her medication.   The cousin, a homeopathic practitioner, agreed to abide by the court order.   At this hearing the court added an additional visit between the cousin and children for March 2011.

The children visited the cousin's home from December 23, 2010 until January 4, 2011.   When the children returned, it was determined that Summer had not been administered one of her pills.   The cousin provided the Department with the requested medication log and explanation for not giving the child the pill.   The testimony does not indicate that she intentionally refused to provide the child with her medication.

By agreement between parties, and without court order, the children were provided an extra visit with the cousin for a third time from January 15th until the 18th.   The child returned with one pill not administered.   The testimony does not substantiate that any wrong doing was involved.   The aunt forgot to give Summer the pill and apologized for the mistake.

During this same visit the cousin allowed the mother to be in the home when the children arrived from Connecticut on Saturday the 15th, in violation of the court order that the mother participate in only two supervised visits with the children during this period of time, which were to take place on Sunday and Monday.   Also, the children and the mother accompanied the cousin while the cousin was presenting a seminar at a local hotel.   This seminar, for which the aunt was paid by the participants to teach, was scheduled long in advance of the visit.   During the seminar the mother and children were in a private bedroom which was part of the suite where the seminar was held.   Entry to the room was only available through the area where the seminar was being taught.   Mother could not leave the room without being seen by the cousin.   However the cousin did not maintain eye sight supervision since the door to the room was not always opened.   As to both incidents the cousin was not forthcoming with the Department when questioned by them.   The Department considers these to be severe violations.   There were no other safety issues.   Although these incidents are of concern to the court, the evidence does not support a conclusion of egregious behavior or gross negligence on the part of the aunt.   At worst, the cousin gave the mother's children an additional four hours of supervised visitation on Saturday and believed she was doing the right thing by keeping the children and their mother in the same hotel room where she was teaching a class to a group of 8 to 10 individuals.

Mr. Cardella, the foster care worker who provides services to the present foster family, does not at this time support the children's move to Tennessee.   He believes that support services need to be in place to assist the cousin with the emotional and behavioral need of Summer prior to any change in the children's placement.   He also believed the cousin should have had participated in parenting classes as well.   He testified he made these recommendations to DCF in the summer of 2010.   Mr. Cardella testified that it was the responsibility of the Department to put these services into place before the visits were initiated.   The Department did not pursue his recommendations.   They did not explain why they did not provide these services.   Mr. Cardella also questioned the timing of the cousin's request seeking guardianship of the children.   However he was not aware of when she first contacted the Department seeking to be a placement resource.   Mr. Cardella was aware that the Department did not agree with the court order allowing the children to visit the aunt in Tennessee.

The cousin supports the future reunification of the mother with the children when the mother can demonstrate that she has rehabilitated herself.   She supports the mother's

move to Tennessee, which has taken place, to be nearer to the children and other family support resources.

Mother has successfully completed psychiatric care and is currently involved in individual counseling.   She is fully employed and has maintained sobriety.

The non-relative foster care home has provided exceptional care to these children.

DISUSSION

This case demonstrates an unfortunate example of the inability of the Department of Children and Families to understand the future emotional stability of these children due to its insistence on non-relative foster care placement rather than sending them to live with a family member whom has been approved to meet their emotional and behavioral needs.   The Department proffered testimony from Mr. Cardella making it clear to the court that DCF did not agree with the placement of the children with the maternal cousin.   The fact remains that for over a year DCF did not provide the maternal cousin with any parenting classes or educational support to understand the emotional needs of Summer.   From this and other testimony the court can only conclude that DCF only grudgingly complied with the court ordered out of state visits while it pursued the parents' termination of parental rights without any intention of working in good faith to place these children with their aunt.   It would appear that a decision was made within DCF to thwart the intention of the court to have these children live with their cousin by scrutinizing the visitation in an attempt to acquire sufficient evidence so as to halt the continued visitation between the cousin and the children.   It is the hope of this court that such a scenario is not true.   That would be beneath those entrusted with the health and welfare of children committed to their care to act in such in an inappropriate manner.   This behavior is not in the best interest of the children and is contrary to what should be a department philosophy to place children with family members if they are able to demonstrate appropriate care giving skills.   The alleged abuses cited by DCF regarding the cousin are benign.   They do not rise to the level of a substantial change of circumstances.   Clearly the cousin should have been more honest with the Department regarding her lapses of supervision.   However these indiscretions do not in and of themselves appear to a reasonable basis to deny the cousin the opportunity to care for these children.   There is no evidence that the children were harmed in any manner during their visits with the cousin.   To the contrary, they enjoyed the visits and are looking forward to being placed with their cousin and having the opportunity to be near their extended family.

Certainly the children's mother has not yet demonstrated that she is prepared to care for these children.   She has admitted such during her testimony.   But her failures should not paint her family with the same brush.   The Tennessee Department of Children Services has determined the cousin to be a fit and responsible resource for the children.   In the end, it is in the best interest of the children to be raised by good-intentioned and loving family members rather than good-intentioned and loving non-relative foster parents.   It is in the best interest of the children that their visits with the aunt continue.   Accordingly:

DISPOSITION

The following orders may enter.

1. The Department's request to halt the March 2011 out of state visit is denied.   The Department shall arrange for an extended weekend visit between the maternal aunt and the children in Tennessee taking into consideration the children's schooling and foster parent schedule.

2. The children's attorney's motion for continued visitation is granted.   The Department shall arrange for the children to visit the maternal cousin in Tennessee during their April school vacation from Saturday the 16th to Saturday the 23rd.

3. The Department shall also arrange for an out of state extended weekend between the maternal cousin and the children during the month of May but said trip will take place prior to May 21st taking into consideration the children and foster parents schedule.

4. The Department shall be responsible for all expenses associated with said travel on behalf of the children for March, April and May.

5. Mother shall maintain her weekly supervised visitation schedule as previously ordered whether they occur in Connecticut or while the children are in Tennessee.   Mother shall be responsible for any expenses associated with traveling to Connecticut to visit the children.

6. While in Tennessee mother's visits shall take place between 11AM and 7PM for a period of no more than four hours per day, two times per week.

7. All visits in Tennessee shall be supervised by the maternal aunt or a DCF approved family member.   The Department shall not unreasonably delay or withhold approval of a family member.

8. Mother shall not reside in cousin's home during children's weekend visits.

9. Maternal cousin shall administer all medications ordered for the children by their treating physicians as provided to DCF.

10.  Maternal cousin shall not administer any homeopathic medication to children during their visits.

11. Maternal cousin shall continue to keep a log of administered medication provided to her by DCF.

12.  Maternal cousin shall allow the children to call their foster parents each day between 7PM and 8PM while visiting her in Tennessee.

13. DCF and the foster parents shall allow the children to speak with maternal cousin on every Tuesday, Friday and Sunday of every week between 6PM and 8PM. Maternal cousin shall be responsible for initiating the call and any expenses associated with calls to the children.

14. The Department shall immediately contact a parenting program in Tennessee near the maternal aunt's home and enroll maternal aunt in said program.   Maternal aunt shall cooperate with participation in this parenting program.   The Department shall be responsible for any expenses associated with this program.

15. The Department and maternal aunt shall cooperate with a referral by Mr. Cardella to an agency near the maternal aunt's home that can assist the maternal aunt with understanding the special needs of Summer.   The Department shall be responsible for any expenses associated with this program.

16. Maternal aunt shall sign any release so that DCF may confirm her participation in any court ordered program.

SO ORDERED

Simon, Judge

Simon, Jorge A., J.