IN RE: Nasya S.1 (2011)

MEMORANDUM OF DECISION

This matter comes to the court by way of a motion to transfer guardianship filed on January 20, 2011 by Kayla S. (mother) regarding Nasya S. and Jayden S. born March 21, 2009 and March 29, 2010, respectively, to Kayla S. (mother), Juan L. (putative father of Naysa) and John Doe (father of Jayden).   Mother is requesting that guardianship of the two children be transferred to Dawn Z. (maternal grandmother).   DCF and counsel for the children both objected to the transfer of guardianship and the matter was set down for trial before this court.

The case was tried before this court on March 14, 16 and 18, 2011.   The court heard testimony from Dawn Z. (maternal grandmother), Christopher I., Officer Gregory J. McCarthy (Groton Town Police), Erin E., Deborah Simon (Intercommunity Mental Health), Dr. Kelly F. Rogers, Ph.D., Kristien Mattson (DCF social worker) and Julie Hoagland, MSW. Twenty-one items were entered as full exhibits during the trial.

Mother, represented by counsel and maternal grandmother were present during the entire trial.   Both fathers were defaulted for failure to appear and were not present for the trial.   There is no proceeding in any other court regarding the custody of Nasya and Jayden.   This court has jurisdiction.

Procedural History

On May 28, 2009, the Commissioner of the Department of Children and Families (DCF) filed a neglect petition alleging that Nasya was being neglected in that she was being permitted to live under conditions, circumstances or associations injurious to well-being.  (C.G.S. § 46b–120(8)(C)) On June 30, 2009, DCF filed a motion for order of temporary custody for Nasya which this court (Driscoll, J.) granted and sustained on July 9, 2009 by agreement.   Mother and putative father, Sherman A., entered pro forma denials.²  On December 1, 2009, mother entered a plea of nolo contendere and Nasya was adjudicated neglected and committed to the Department of Children and Families.   John Doe was defaulted for failure to appear.   On February 10, 2010, DCF filed a motion to open and modify the disposition from commitment to protective supervision.   The court granted the motion on February 26, 2010 and Nasya was returned to mother under protective supervision for one year.   On May 21, 2010, DCF filed a neglect petition on Jayden alleging that Jayden was being denied proper care and attention, physically, educationally, emotionally or morally (C.G.S. § 46b–120(8)(B)) and/or the child was being permitted to live under conditions circumstances or associations injurious to well-being (C.G.S. § 46b–120(8)(C)) by mother and putative father Thomas J. On May 27, 2010, DCF filed a motion to open and modify the disposition from protective supervision to commitment on Nasya.   On June 3, 2010, DCF filed a motion for order of temporary custody on Nasya and Jayden which was granted.   In regards to Nasya, one Juan L. was named as putative father.   On June 11, 2010, the motion for order of temporary custody was sustained by agreement of mother and Thomas J. Juan L. did not appear for the hearing.   The court ordered a paternity test on Thomas J. and the matter was continued to July 23, 2010 for the motion to open and modify disposition on Nasya, for plea for father Juan L., and for the results of the paternity test on Thomas J. On August 26, 2010, the court found that Thomas J. was not the father of Jayden.   The court ordered a John Doe publication for father of Jayden.   On September 7, 2010, both Juan L. and John Doe were defaulted for failure to appear, the motion to open and modify the disposition for Nasya was granted and both Nasya and Jayden were committed to the Department of Children and Families.   On January 20, 2011, mother filed a motion to transfer guardianship of her two children to Dawn Z., maternal grandmother.   DCF and child's counsel objected to the motion and the matter was set down for trial and is the subject of this memorandum.   On February 15, 2011, DCF filed a motion for approval of a permanency plan of termination of parental rights and adoption.   The court approved this plan concurrent with a plan of transfer of guardianship on April 26, 2011.   On March 29, 2011, DCF filed a petition for termination of parental rights which is currently pending and not the subject of this memorandum.

Finding of Facts:

The court finds the following facts by a fair preponderance of the evidence.   This trial constituted a dispositional hearing regarding these two children after an adjudication of neglect and commitment to DCF (9–7–10) by way of a motion filed by mother to transfer guardianship to Dawn Z., maternal grandmother (hereinafter “MGM” or “Dawn”).   Mother has the burden of proving that Dawn is suitable and worthy and that transfer to her would be in the children's best interest.   Dawn sought to intervene in this matter but that motion was denied by the court, (Driscoll, J) on January 4, 2011.   DCF and counsel (and guardian ad item) for the children object to the motion.   The children are currently placed in a non-relative “legal risk” (pre-adoptive) home.   The permanency plan is termination of parental rights and adoption.   Termination of parental rights petitions have been filed on March 29, 2011, the scheduling of which awaits the disposition of the instant motion by this memorandum of decision.

Dawn testified that in 1999 she was involved in two motor vehicle accidents resulting in what has become a longstanding back injury for which she has taken a great deal of medication.   She currently takes medication and gets a cortisone injection on occasion.   She acknowledges as her only mental health issue some anxiety for which she sees a counselor, Maureen McMann of United Community and Family Services (UCFS) on a regular basis.³  She denies any substance abuse problems currently, but acknowledges such problems in 2003.⁴  By that time she had become addicted to the medication and supplemented the amount of medication by calling in her prescriptions illegally, using her position working for doctors authorized to write such prescriptions.   She was caught and arrested and prosecution was pursued by the state.   This arrest does not appear in Exhibit # 9 but she readily acknowledged it.   She took steps to address her addiction by engaging the Southeastern Council on Alcoholism and Drug Dependence (SCADD) outpatient program for which she received a certificate of completion.⁵  She went through detoxification and then intensive outpatient treatment three times a week for six months.   She asserts that this resolved her substance abuse problems.

She acknowledged criminal involvement at age eighteen or nineteen by way of a Larceny VI. In fact, she was twenty, and was sentenced to six months incarceration, execution suspended with one year probation.⁶  She also acknowledged “a sixth degree larceny” ⁷ in 2009.   This, however, was the result of a very successful plea bargain with a prosecutor.   The original charges were Robbery III, Assault III, Larceny VI, and Disorderly Conduct.⁸  She testified that “the security guard threw me down and I pushed back.” ⁹  The arresting officer, Gregory McCarthy, however, testified as follows about this shoplifting attempt at Big Y supermarket on November 4, 2009:  “On video tape she is shown resisting his [the security officer] efforts to try to stop and talk to her and keep her in the store.   She violently pulls away from him and then exits the store.   Q. Was there any additional information with respect to when the loss prevention person was outside of the store any report of aggressive behavior on the part of [Dawn]. A. Yes. He reported that he followed her outside the store through the Big Y parking lot and near a Starbucks store he was still on the phone with 911 when she turned and he stated she elbowed him intentionally in the mouth area.” ¹⁰  Although the arresting officer did not notice any injuries to Dawn, she testified that she went to the emergency room.   Dawn was convicted by plea of Larceny VI and Disorderly Conduct, receiving a sentence of ninety days, execution suspended, concurrent, and one year probation.   Dawn was also convicted for Disorderly Conduct in 2006, and was sentenced to ninety days, suspended with a conditional discharge.   This incident involved a fight with mother, not an infrequent event.   Mother has sustained injuries from these altercations including a split lip, scratches and bruises, a black eye, bumps on her head and facial lacerations.¹¹  Although some of these fights were not without provocation by mother, mother's very serious mental health issues would cause one to expect such behaviors by mother and one would expect that Dawn would respond in a more therapeutic manner than to engage in a full scale brawl.   Mother has been in Natchaug Hospital, Riverview Hospital, Klingberg Family Center, Connecticut Valley Hospital, and various other programs and venues.¹²  Clearly she has enormous problems.   Dawn's solution to situations of provocation from any source gives the court pause.

Dawn, apparently as well as she could, acknowledged her criminal background, and that of her husband of approximately ten years with whom she resides.   His record spans three pages and includes such crimes as Robbery I, Robbery II, (forty-two months to serve) Operating Under the Influence (twice), Drinking while Driving, Larceny VI, Criminal Impersonation, Possession of Drugs (21a–279c) and Drug Paraphernalia (21a–279d), Robbery I and Robbery II (10 years, 3 years to serve), Failure to Appear I, Failure to Appear II (twice), and various other lesser misdemeanors.   He was most recently released from incarceration on July 9, 2010.   Dawn spoke lightly of these and her own transgressions as she testified that “in spite of our shortcomings we are wonderful parents and always have been ․” ¹³

In October 2010, mother met with Deborah Simons, LCSW, related to an assessment being done of mother for treatment.   Ms. Simons testified as follows:

“Kayla (mother) told me that her mother (Dawn) had a drug problem, that she used heroin and abused Oxycontin.   And there was one particular day that she told me about that I was concerned about that I discussed with the DCF worker, which was, there was a visit over the summer I don't remember which month July or August, a supervised visit at McDonalds.   Kayla said her mother was with her.   Her mother told her that she had some heroin and when the children left they would be shooting up together and Kayla was talking about how bad she felt about how being so addicted that her mind was on the drugs during the visit and how hard and painful it was to say goodbye to her children but as soon as they left she couldn't wait to go in the bathroom with her mother and her mother shot her up with heroin and they both shot up.” ¹⁴  The record is replete with Dawn's inappropriate and enabling actions with mother as a young girl.   Exhibit 7, an investigation protocol of Dawn by DCF in 2003, is a horror story of inappropriate behaviors by her when mother was only fourteen years old, particularly pages 6 of 12 through 10 of 12.   In fact, DCF had involvement with Dawn by way of child protective services as far back as 1995.

Dawn's connection with the children has been limited.   Nasya was born on March 21, 2009, and Jayden on March 29, 2010.   On June 30, 2009, Nasya came into DCF care by way of an order of temporary custody.   She was subsequently committed to the commissioner of DCF. On February 26, 2010, Naysa was returned to mother with protective supervision.   Jayden was born March 29, 2010.   On June 3, 2010, a motion for temporary custody as to both was granted to DCF and both came into care where they have been to the date of this memorandum.   Dawn was given visitation of the children twice a month.   A letter from DCF social work supervisor Morse to Dawn dated November 1, 2010, sums up the relationship between Dawn and the children from multiple perspectives.   Although it is contained in Exhibit 3 it is recited here in its entirety because of its reflection of the relationship that exists between Dawn and the children still of very tender years:

I am writing to you in regards to visitation with your grandchildren.   As you know, the Department was unable to consider you as a placement resource for your grandchildren due to past child protective services and criminal history in your household.   However, since Nasya's first removal in 2009, the Department has allowed you to visit with your grandchildren during their time in DCF's care.

Maintaining family connections is one of DCF's goals in all cases, and it is clear to me that you share a bond with the children.   However, issues have been brought to my attention which raise concerns over the appropriateness of allowing you to continue to visit with the children.   Over the past summer, you attended a pediatric appointment for the children with Kayla [mother] and the foster parent, and both the visitation provider and the foster parent expressed concerns about your behavior during that appointment.   At that time, DCF determined that if you were able to maintain appropriate behavior during visits, you would continue to be offered this time with the children.   However, it has also been brought to my attention that you continue to struggle with substance abuse issues.

The Department is responsible for maintaining the children's safety in our care, while we make efforts to support Kayla in achieving her case goals in order to work towards reunification with the children.   Given the fact that you continue to struggle with substance abuse issues, I cannot support continued visitation of the children with you.   This is due to the children's safety, as well as the fact that the Department cannot see you as a positive resource for your daughter if you are not stable yourself.   Therefore, effective immediately, you will no longer be allowed to attend visits with the children.   The visitation provider will be notified of this change;  and if you arrive at a visit, you will be asked to leave.   The attorney of record for this case will also be notified of this change.

Sincerely, (etc.)” 15

Dispositional Orders:

This court cannot and does not find that Dawn is suitable and worthy to become the guardian of these two children within the meaning of C.G.S § 46b–129(j), and further cannot find that such a transfer of guardianship would be in the best interest of the children.

The motion to transfer guardianship of Nasya and Jayden to Dawn is denied.

Mack, JTR

FOOTNOTES

FN2. On August 25, 2009, Sherman A. was found not to be the father of Nasya.   On September 22, 2009, publication was ordered for John Doe..  FN2. On August 25, 2009, Sherman A. was found not to be the father of Nasya.   On September 22, 2009, publication was ordered for John Doe.

FN3. Exhibit # B..  FN3. Exhibit # B.

FN4. FTR, 3–14–11 @ 10:49:13 ․ [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.].  FN4. FTR, 3–14–11 @ 10:49:13 ․ [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.]

FN5. Exhibit # C..  FN5. Exhibit # C.

FN6. Exhibit # 9..  FN6. Exhibit # 9.

FN7. FTR, 3–14–11 @ 10:52:00..  FN7. FTR, 3–14–11 @ 10:52:00.

FN8. Exhibit # 9..  FN8. Exhibit # 9.

FN9. FTR, 3–14–11 @ 11:36:23..  FN9. FTR, 3–14–11 @ 11:36:23.

FN10. FTR, 3–14–11 @ 1:46:38 to 1:47:16..  FN10. FTR, 3–14–11 @ 1:46:38 to 1:47:16.

FN11. Exhibit # 11..  FN11. Exhibit # 11.

FN12. Exhihit # 10..  FN12. Exhihit # 10.

FN13. FTR, 3–14–11 @ 10:56:17..  FN13. FTR, 3–14–11 @ 10:56:17.

FN14. FTR, 3–14–11 @ 2:13:11 to 2:14:14..  FN14. FTR, 3–14–11 @ 2:13:11 to 2:14:14.

FN15. Exhibit 3..  FN15. Exhibit 3.

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