IN RE: Noella A.1 (2011)

MEMORANDUM OF DECISION

This matter comes to the court by way of two motions, one for out-of-state placement filed on July 8, 2010 by intervening maternal aunt, Jazelle A., regarding Noella A. and Joel S. born November 11, 2006 and October 14, 2007, respectively, to Maelen A. (mother), John Doe (father of Noella) and Dimitri S. (father of Joel), and one for transfer of guardianship to that maternal aunt, Jazelle A. dated June 16, 2010.   The sole issue before this court is whether sending the children to New York under the approved interstate compact on the placement of children (ICPC) for the maternal aunt and maternal uncle is in the best interest of the children, and if so, under what conditions.

The court held an evidentiary hearing on February 23 and 24, 2011.   The court heard testimony from Jazelle A. (maternal aunt), Michele A. (maternal grandmother), Jennifer H. (foster mother) and Thomas Martin (DCF social worker supervisor).   Seven items were entered as full exhibits during the hearing.   Previously this court heard evidence on this matter on September 13, 2010, and December 8, 2010, concerning the ICPC and the permanency plan respectively.

Mother, maternal aunt and maternal uncle were present and represented by counsel during the entire hearing.   Father was not present and counsel moved to withdraw from the matter due to lack of contact with the father.   Counsel's motion was granted on February 23, 2011.   There is no proceeding in any other court regarding the custody of Noella and Joel. This court has jurisdiction.

Procedural History

On July 25, 2009, the Commissioner of the Department of Children and Families (DCF) filed petitions alleging that Noella and Joel were being neglected in that the children were being denied proper care and attention, physically, educationally or morally (C.G.S. § 46b–120(8)(B)) and/or the children were being permitted to live under conditions, circumstances or associations injurious to well-being (C.G.S. § 46b–120(8)(C)).  On August 8, 2009, mother and Dimitri S. entered pro forma denials and John Doe (unknown father of Noella) was defaulted for failure to appear after publication notice was confirmed.   On September 29, 2009, mother pled nolo contendere, father stood silent and the children were adjudicated neglected and an order of protective supervision with mother was entered for six months to March 29, 2010.   Specific steps were ordered for mother who agreed to accomplish those steps.   Specific steps were not ordered for Dimitri S. as a restraining order was in place restricting him from having any contact with mother or the children.   On December 11, 2009, DCF filed a motion for an order of temporary custody for the children which was granted and sustained on December 18, 2009.   On February 23, 2010, the disposition was modified and the children were committed to the custody and care of DCF. On March 23, 2010, Jazelle A. (maternal aunt) and Jason B. (maternal uncle), both from New York, filed motions to intervene.   Maternal aunt's motion was granted on December 23, 2010.   On June 17, 2010, mother filed a motion to transfer guardianship to maternal aunt.   On July 8, 2010, maternal aunt filed a motion for out-of-state placement.   A hearing was held before this court on the motion for out-of-state placement on September 13, 2010 and this court denied the motion without prejudice to be reconsidered when New York had licensed the proposed guardian (maternal aunt).   On September 21, 2010, DCF filed a motion to approve a permanency calling for termination of parental rights and adoption which the court approved on December 8, 2010.   However, the court also ordered that DCF continue to make reasonable efforts to reunify the children with mother.   DCF was further ordered to notify all counsel when maternal aunt was licensed.   On December 10, 2010, mother filed a motion for reconsideration of the motion for out-of-state placement based on the maternal aunt receiving her licensing on November 30, 2010.   The motion was heard on January 11, 2011 and the court found that it had not heard adequate evidence upon which to form a decision as to whether sending the children to New York would be in the children's best interests.   That matter was sent down for hearing on February 23, 2011 to determine whether sending the children to New York would be in their best interest and is the subject of this memorandum of decision.

Finding of Facts:

The court finds the following facts by a fair preponderance of the evidence.   Jazelle A., maternal aunt to both children, resides in the State of New York. The children were removed from mother's custody on December 11, 2009, pursuant to an order of temporary custody (OTC) issued by the Superior Court.   That order was sustained on December 18, 2009.   On February 23, 2010, the children were committed to the commissioner of the department of children and families (DCF).  Jazelle offered herself to DCF as a placement resource in December 2009.²  In January 2010, DCF advised Jazelle that it had requested an interstate compact on the placement of children (ICPC) study be done by New York to establish the appropriateness of Jazelle to be a relative foster care provider to these two children.³  That request, however, was not made until March 2010, following a telephone call from Jazelle's counsel to DCF. In June 2010, she was told by DCF that her home had been approved.⁴  Jazelle asked social worker Ramos (DCF) to seek an expedited foster care license wherein she could be licensed before completing the necessary courses within ninety days (she had already signed up for the appropriate classes) but this request was refused by DCF.⁵ On July 27, 2010, DCF requested a new ICPC study from New York, some seven months after the OTC had been granted.   On November 30, 2010, eleven days short of a year from the OTC, New York issued its approval of Jazelle to be a licensed relative foster care provider under the ICPC.⁶ On December 8, 2010, DCF requested of the court an approval of a permanency plan of termination and adoption.   The court approved that plan but with direction that the department was to continue to make further efforts towards reunification with mother.   On the day of trial in this matter the children had been in a pre-adoptive foster home for a year and four days.   The timetable related to the handling of Jazelle's request to be a placement resource for these children is egregious.

Jazelle lives in upstate New York with her husband, Jason.   They have two children together and Jazelle has two other children, all of whom live together.   The children range in age from nine years to two years.   Her husband is consistently employed as a member of the U.S. armed forces and Jazelle remains at home caring for the children.   In June 2010, the New York department of social services (DSS) found the home to be adequate for the family including Noella and Joel. Previously Jazelle had gone to school to become a certified nursing assistant (CNA) and worked in that capacity at three different nursing homes before beginning her family.   Her historical background included DCF when she was a child.   Her father was physically and emotionally abusive and she was removed by DCF at a young age, eventually being placed in a foster home where she was adopted.   Her adoptive mother became her psychological mother and they enjoy that relationship to this day.   They are in constant communication.   Her younger adoptive sister, also adopted by her psychological mother, is the mother of Noella and Joel. She has not fared as well as Jazelle and is currently incarcerated as the result of conviction of a serious felony and will remain incarcerated for several years yet to come.

The ICPC report from New York on November 30, 2010, is replete with glowing comments about Jazelle and Jason.   In over ten pages of commentary in the study,⁷ the following are but a few of the many sentences relating to them:

“Jazelle and Jason are both easy to talk to and are good listeners.   They are both friendly and are a pleasure to be around.”

“Because they are such good communicators, it is felt that they will be able to successfully communicate their needs, as well as a child's needs to the agency.”

“Jazelle and Jason are able to identify what their strengths are as well as their children's strengths.   Jazelle and Jason are very close and both have a strong attachment to Jazelle's children as well as the children they have together.”

“Jazelle and Jason are able to recognize strengths in their children.”

“Jazelle and Jason are mentally, emotionally and physically healthy.”

“They are financially capable to care for the children and have the beds and dressers already for them.   They are aware and know how to seek professional assistance when needed to meet a need.”

“Jazelle and Jason are willing to work with any service providers necessary to meet the needs of a child placed in their home.”

“They will advocate for a child to get their needs met.   Jazelle and Jason have experience working with the school system already.   They are working with the school for their own children already.”

“Jazelle and Jason are a very caring and loving family.”

Neither Jazelle nor Jason have ever had any DCF or DSS involvement in any state as an adult and they are parenting the four children, ages one to nine appropriately.   The nine-year-old has Attention Deficit and Hyperactivity Disorder (ADHD).   This is being managed well by Jazelle and Jason.

This exhaustive report from New York is not acceptable to DCF. The reason put forth is that at an earlier age Jazelle experienced some depression coming out of an abusive household which caused DCF to act to remove her.   Specifically, DCF states, “On July 27, 2010, after learning about [Jazelle's] mental health history and her lack of compliance with services recommended for her as a teenager, the Department submitted a new ICPC request with the Department's specific questions about [Jazelle's] mental health history ․” ⁸ (Emphasis added.)   The services alleged to be offered were by DCF. It is unreasonable to think that they just learned about the rebellious teenager on July 27, 2010.   Jazelle was born May 24, 1978.   She was in DCF care before adoption.   She is less than two months short of age thirty-four.   Jazelle acknowledges that she began engaging in counseling a couple of years ago and continues as needed to this day.   She is prescribed Prozac and Wellbutrin by her doctor.   Her doctor and therapist communicate with each other.   She currently engages in counseling every other week.   While New York and this court view her actions as a strength, DCF views it as incomplete as to depth of disclosure and a factor in resisting her attempt to gain guardianship of her niece and nephew.   Counsel for the children introduced letters from her medical doctor, her children's medical doctor, and her therapist, all of whom state that she is a fit candidate to receive these children.   Her medical doctor states, “She has no physical or mental conditions that would effect the proper care of a child.   I have no concerns regarding her ability to provide foster care or obtain child custody.” ⁹  Her therapist notes that she has been consistent in her attendance, that her treatment has been trauma based as well as teaching skills linked with stress management.¹⁰

DCF argues that all of this is insufficient because the New York ICPC report author did not speak directly with the doctor or clinician.   When DCF received the ICPC approval and license on November 30, 2010, although Supervisor Martin (DCF) noted it was positive and favorable, he was concerned that it did not address “mental health issues and things like that.” ¹¹  It did not state how New York verified her “mental condition.”   The ICPC author acknowledged to Mr. Martin following Mr. Martin's question, that he had not talked to “the therapist or the psychiatrist,” ¹² implying in his question to the author that there was a psychiatrist involved when in fact there was not.   Jazelle's family physician prescribed the medications she was taking.¹³  Jazelle is a woman raising four children at present, the oldest being nine years of age, and has never had any involvement with DCF in Connecticut after being adopted at a very young age and who has had no involvement with DSS in New York even as she manages an ADHD child in school.   She is now branded by DCF as one whose “mental health” is questioned and therefore it cannot support the requested transfer of guardianship.   DCF's “concern” is, at best, speculation.   There is no negative history to show that she is not a competent, consistent, concerned and proactive caretaker.

However, DCF also points to an incident following an overnight visitation with Jazelle when Noella allegedly told the DCF driver during transport back to her foster home that foster mother hits her or that she was told by Jazelle to say that foster mother hits her.   DCF accuses Jazelle of putting the child up to this behavior.¹⁴  Jazelle denied such behavior on her part and speculated as to what might have happened.   She immediately called the DCF “Hot Line” to advise them that she was the suspect in the scenario, but explained to them her theory that Noella might have asked one of the children what she should do if someone abuses her and in conversation may have been told that she would have to tell DCF immediately.   As a CNA Jazelle is a mandated reporter.   It is not at all clear to the court what happened, who instigated it, or even whether it ever happened at all.   It is clear to the court that there is bad blood between Jazelle and social worker Ramos.   Nothing has been established about the possible inappropriate behavior of prompting a child to make a false accusation by anyone that rises to the level of a fair preponderance of the evidence.

This court is completely satisfied that New York's investigation was thorough and unbiased and that their conclusion that she is fit to parent these children is extremely well documented.   Jazelle is now licensed to be a foster parent in the State of New York. The court finds that Jazelle is a “relative” and “an interested party” who is “suitable and worthy” within the meaning of Practice Book § 35a–20(b) and C.G.S. § 46b–129(j).  That statute goes on to say:  “If the court determines that the commitment should be revoked and the child's or youth's legal guardianship should vest in someone other than the respondent parent, parents or former guardian, or if parental rights are terminated at any time, there shall be a rebuttable presumption that an award of legal guardianship upon revocation to, or adoption upon termination of parental rights by, any relative who is licensed as a foster parent for such child or youth, or who is, pursuant to an order of the court, the temporary custodian of the child or youth at the time of the revocation or termination, shall be in the best interests of the child or youth and that such relative is a suitable and worthy person to assume legal guardianship upon revocation or to adopt such child or youth upon termination of parental rights.   The presumption may be rebutted by a preponderance of the evidence that an award of legal guardianship to, or an adoption by, such relative would not be in the child's or youth's best interests and such relative is not a suitable and worthy person.”  (Emphasis added.)   The sole issue remaining is whether transfer of guardianship to Jazelle is in the children's best interest.

Consistent with its position opposing Jazelle's licensure by New York, DCF opines that transfer of guardianship would not be in the children's best interest.   On September 13, 2010, social worker Ramos testified in a hearing on this matter related to the ICPC that DCF's plan for the children was to place the children with Jazelle in New York as committed children.¹⁵  They were awaiting New York licensure of Jazelle in order to proceed.   A previous home approval had been received by DCF from New York and on June 28, 2010, DCF requested a foster care placement study which resulted in the favorable licensure study of November 30, 2010.   As noted above, on September 13, 2010, social worker Ramos testified that the plan for the children was placement with Jazelle in New York upon receipt of the ICPC approval.¹⁶  On September 21, 2010, one week later, DCF filed a permanency plan of termination of parental rights and adoption, ostensibly by the foster parents with whom the children were placed on February 19, 2010.   No reason was proffered for this abrupt change in plan.   Social work supervisor Martin testified that after the favorable report was received from New York in November 2010, he called them to ask if they had talked to Jazelle's clinician and medical doctor directly.   Yet DCF had already made up its mind that it would leave the children with the pre-adoptive non-relative foster family where they had been placed for some ten months while ostensibly waiting for licensure of Jazelle.   Were this not the case the children could have been placed with Jazelle shortly after June 7, 2010 under temporary permit giving her ninety days to complete the courses needed for licensure, just as Jazelle had requested but was refused by social worker Ramos or her superiors, and the permanency plan could have remained placement with maternal aunt.   June 7th was the date New York originally approved Jazelle's home and was only awaiting the criminal and social services background check which was received shortly thereafter.   It is difficult for the court to understand how this scheme carried out by DCF was in the best interest of the children.

The meaning of “best interest of a child” has been addressed in many cases and can be summarized by considering the child's interests in sustained growth, development, wellbeing, and continuity and stability of [his or her] environment.   The court must consider the age of each child, the educational, medical, psychological (and sometimes psychiatric) needs of the child, the relationship that may exist between the child and a sibling or other related child or children, both biological and psychological, the relationship with current caregivers and prior caregivers, the length of time the child has been in care and where, the current stability of the child or lack of it, and the various bonds the child has with various interested parties.   This list is not exhaustive but is a good starting point when analyzing the situation to determine what is in the best interest of the child.   Deeds, misdeeds, circumstances or events cannot cause the court to rule without consideration of the child's best interest at present.   How it might have ruled had the deeds, misdeeds, circumstances or events not happened is not relevant to the issue at hand.   What might have been in the child's best interest at the inception of the case may no longer be in his or her best interest today.¹⁷

The court heard testimony from Jennifer H., pre-adoptive foster mother.   The children were placed in her care and the care of her husband on February 19, 2010.   In addition to her testimony the court received into evidence her written statement dated December 23, 2010, which was made a full exhibit.   Noella is currently four years and four months of age.   Joel is three years and five months of age.   Jennifer noted in her testimony that the children arrived into her care with certain difficulties.   Living in the home with Jennifer and her husband are Jennifer's seventeen-year-old daughter who is a senior in high school and has enlisted in the U.S. Air Force.   Her fourteen-year-old twins live with their father, Jennifer's former husband.   Upon her daughter entering the Air Force there will be no other children living in the home.¹⁸  There are, however, five grandchildren of Jennifer and her husband but it is not clear whether some or any of them live in the local area.   Noella and Joel are their first foster children.¹⁹  Jennifer presented to the court as a very sincere, thoughtful, and loving foster parent.   She is clearly bonded to both children as they are to her.   They have been in her care for a year and two months.   When the children arrived in care they presented with problems which would be expected of them under the circumstances of their removal.   Jennifer notes both in her testimony and in Exhibit 2 which she authored that “they had no concept of boundaries, schedules or how to live with others.” ²⁰  She noted that they did not tolerate change well.   This was evidenced when Jennifer used a three-day respite care program and returned to grossly inappropriate behaviors by both children.   It took several weeks for them to return to more appropriate behavior.   She credits this with their becoming secure again.   When they went to visit Jazelle overnight Jennifer reports that when they returned they did not sleep well and misbehaved in daycare where they spend each weekday.   Noella is in counseling through DCF one hour a week which seems to be helping.   No report was received into evidence from the counselor.   Jennifer states that Noella and Joel both showed signs of separation anxiety ²¹ but no evidence was introduced to verify such a diagnosis.   DCF indicates that, “Joel is identified as a special education student with language delays and behavioral issues.” ²²  Joel is three.   There is no supportive evidence for that diagnosis.   Jennifer noted that the children did not want to visit Jazelle and would act out after such a visit.   They also acted out after Jennifer used respite care until she was taught how to prepare the children for change, after which they were fine with going to respite care.   But there is no showing that the children were equally prepared for visits with Jazelle, which obviously could have been of enormous value to the children before a visit.   It is clear to the court that Jennifer was and is not in favor of any visits with Jazelle.  “I would not encourage any visits with the aunt or the aunt's family simply because of Noella's reaction.   I would not put her in that position.²³

The children are very young.   They have progressed well under Jennifer's care, which is precisely what is supposed to happen during foster care.   But there is no showing that the same progress could not be made under Jazelle's care, and they would be with their cousins in an equally secure, safe, caring and nurturing environment.   The fact that the children have a love for their foster parents and a bond with them does not mean that the same love and bond cannot be effected by their extended family.   Jazelle has a rebuttable presumption of suitability and worthiness and this court has found her to be suitable and worthy.   The court cannot find that placement with Jazelle would not be in their best interests but for the current bond with foster parents which developed during unnecessary delays in the handling of this case.   The court cannot find that the children would not be able to develop the same bond with their aunt and her family.   And the court cannot reason that because it would be difficult for the children to make the transition to their family it should not happen.   The children can make that transition.   The legislative intent speaks loudly in C.G.S. § 46b–129(j) that unless the court finds that it would not be in the best interest of children to be with family, that is where they should be.   This court cannot find that the children cannot make the transition, albeit with some difficulties, but those can be addressed by counseling and support from all quarters.   The court has been given no reason to find that their sustained growth, development, well-being and stability will not occur in Jazelle's care.   The children are young, their formal education is just entering the beginning stage, and their medical and psychological needs can be met just as well in either location.   The court's role is to implement legislative intent as reflected in the language of the statute.   Where, absent legislative intent, two options are viable, the court may choose either.   But where the legislature has spoken, especially with the clarity enunciated in § 46b–129(j), the court does not have that option.

On February 24, 2011, DCF through counsel filed a motion to open the evidence which was granted on that date.   It states in part as follows:  “The Department wishes the Court to know that the New York State Interstate Compact Office has just indicated that it would not object to Joel and Noella being placed with Jazelle and Jason A[ ․ ], through an order transferring guardianship to [Jazelle and Jason], as long as the Court's order included a term of six months of protective supervision during which time Connecticut would retain jurisdiction.”   In any change, Noella and Joel are going to need services to address that change in a meaningful and therapeutic way, and DCF involvement for six months can be most helpful to them if DCF responds in a quick and meaningful way.

The permanency plan of termination of parental rights and adoption is modified to transfer of guardianship.   The commitment to DCF is vacated.   The motion to transfer guardianship of Noella A. and Joel S. to Jazelle A. is granted, subject to six months protective supervision by DCF operating through DSS for Saratoga County, New York. Specific steps are to be drafted by DCF and counsel for Jazelle, the resulting document then to be submitted to this court for approval not later than four working days from the date of this memorandum of decision.   DCF is directed to initiate immediate therapeutic steps to assist the children in the transition by effectively preparing them first and following through when the transfer occurs.   Said transfer shall be accomplished on or before April 8, 2011.

Mack, J.T.R.

FOOTNOTES

FN2. FTR, 2–23–11 @ 10:31:45.  [FTR (For The Record) is the recording facility of the court reporter which digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time.].  FN2. FTR, 2–23–11 @ 10:31:45.  [FTR (For The Record) is the recording facility of the court reporter which digitally records the testimony of a witness while noting the time of the utterance by hour, minute and second during that day's trial and which can be replayed by the court in chambers at any time.]

FN3. FTR, 2–23–11 @ 10:34:10..  FN3. FTR, 2–23–11 @ 10:34:10.

FN4. FTR, 2–23–11 @ 10:36:34..  FN4. FTR, 2–23–11 @ 10:36:34.

FN5. FTR, 2–23–11 @ 10:37:27..  FN5. FTR, 2–23–11 @ 10:37:27.

FN6. Exhibit A..  FN6. Exhibit A.

FN7. Exhibit A..  FN7. Exhibit A.

FN8. Exhibit 1..  FN8. Exhibit 1.

FN9. Exhibit B..  FN9. Exhibit B.

FN10. Exhibit BB..  FN10. Exhibit BB.

FN11. FTR, 2–23–11 @ 2:28:11..  FN11. FTR, 2–23–11 @ 2:28:11.

FN12. FTR, 2–23–11 @ 2:28:36..  FN12. FTR, 2–23–11 @ 2:28:36.

FN13. FTR, 2–23–11 @ 11:21:37..  FN13. FTR, 2–23–11 @ 11:21:37.

FN14. FTR, 2–23–11 @11:12:20 and 11:13:24..  FN14. FTR, 2–23–11 @11:12:20 and 11:13:24.

FN15. FTR, 9–13–10 @ 12:18:32..  FN15. FTR, 9–13–10 @ 12:18:32.

FN16. FTR, 9–13–10 @ 12:18:27..  FN16. FTR, 9–13–10 @ 12:18:27.

FN17. See In Re Shanaira C., 297 Conn. 737, 763 (2010)..  FN17. See In Re Shanaira C., 297 Conn. 737, 763 (2010).

FN18. FTR, 2–23–11 @ 1:02:50..  FN18. FTR, 2–23–11 @ 1:02:50.

FN19. FTR, 2–23–11 @ 1:00:47..  FN19. FTR, 2–23–11 @ 1:00:47.

FN20. Exhibit 2..  FN20. Exhibit 2.

FN21. Exhibit 2..  FN21. Exhibit 2.

FN22. Exhibit 1..  FN22. Exhibit 1.

FN23. FTR, 2–23–11 @ 12:54:40..  FN23. FTR, 2–23–11 @ 12:54:40.

Mack, Michael A., J.T.R.