IN RE: Cielo V. (2011)

MEMORANDUM OF DECISION

Cielo V. (Hereinafter Child or Cielo) was born to Catherine V. (Hereinafter Mother) on September 21, 2009.   DCF invoked a 96–hour hold on November 16, 2010, followed by an Order of Temporary Custody.   At the time of DCF's action Child and Mother were living with Child's putative father, Jayo J. (Hereinafter PF).

DCF's concern arose from Mother's request that an upstairs tenant take care of Child while she went out for ten or fifteen minutes.   PF works as a taxi driver and was working on the night in question.   As time went on without Mother's return the sitter sought PF who did not respond to her knocks on his door.   On his return to home he went to sleep without concern that Child was asleep in Mother's bedroom.   Child's caretaker called DCF because she considered that Child had been abandoned.   Her concern for the Child confirms that Mother had chosen a responsible caretaker in her absence.

On December 2, 2010, DCF agreed to place Child with PF retaining the authority of its Order of Temporary Custody and understanding that Child would have continuing contact with his Mother.   Child remained in PF's custody from that date through the hearing of its Motion for Finding that PF was not Child's biological father on April 7, 2011.

The petition alleged that Child had been abandoned had been permitted to live under conditions, circumstances or associations injurious to his well-being.   Child was in DCF care for two weeks after which he was returned to the care of PF where he remains to this day.   Child has lived with Mother and/or PF for all but thirteen days of his life.   As of the date of this opinion he will have lived with them through his most crucial bonding period.

Intentional abandonment of a child under the age of six years can result in a fine of not more than $500.00 and imprisonment of not more than five years.   (C.G.S.Sec.53–23) For the purpose of Sec. 45a–717(g)(2)(A) abandonment of a child exists when a parent has abandoned a child “in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.”   Failure to return to pick up a child placed temporarily with an able caretaker does not meet the required standard.   Leaving Child with an able caretaker overnight does not meet the standard of abandonment.   DCF failed to prove by a fair preponderance of the evidence that Mother (and certainly not PF) abandoned Child.

OTC PETITION

On November 17, 2010, DCF filed its petition alleging that Child “is in immediate physical danger from surroundings.”   The Court, (Eschuck, J.) found grounds supporting the requested OTC and found that “reasonable efforts to prevent or eliminate the need for removal of said Child were not possible,” and set an initial hearing date on November 24, 2010, and ordered appropriate notice to the parties.   On December 2, 2010, the Court ordered that temporary custody of Child be vested PF with the agreement of all parties.   The Child remains in PF's custody as of the date hereof.

EXHIBITS

The Court admitted eight exhibits offered by DCF and three exhibits offered by Mother.   DCF's exhibits included:

1. An amended Social Study in support of the Neglect Petition.   Information on Mother was obtained from PF. He reported that Mother is a native Puerto Rican.   She has never married or served in the military.   She did not graduate from high school.   She does have a seizure disorder, but for the last year has been seizure and medication free.   Mother was arrested for prostitution and possession of narcotics in 2007and has a history of substance abuse with periods of sobriety.   As a child she suffered from physical neglect, physical and sexual abuse, emotional neglect, and family violence.

2. A redacted Social Worker's affidavit that testified to Mother's history of substance abuse and prostitution;  PF's willingness to care for Child, although his name was not on the birth certificate and he could offer no relative resources.

3. A Waterbury Police Department case incident report (Ex. C–1) reiterated that the volunteer custodian took care of the Child and called the police when she was unable to contact either Mother or PF;  noted that PF is not on Child's birth certificate;  reported that Mother's drug of choice is crack cocaine and that she would return to the home when “she came down from the high”;  the Police called DCF and the agency dispatched Investigative Social Worker Kevin J. to the case.   DCF decided to remove Child on a ninety-six-hour-hold;  and found that home conditions were adequate for Child.

4. A redacted police incident report dated 11–15–10 that reiterated the above findings.

5  & 6. Two investigative protocols.  (A) The protocol dated 9/25/09 identified the following pertinent facts:  Cielo was Mother's second child and a “healthy full term baby.”   The first was born in Florida and resides with father in Florida.   She suffered from post-partum depression and acknowledged a history of trauma and drug abuse.   No current concerns were identified.   In Connecticut Mother's record shows an arrest for prostitution.   The investigation showed that her home was appropriate and adequately equipped to provide adequate care for Child.   The CASE DECISION DISPOSITION stated that “Case decision was made not to substantiate the allegation of Physical Neglect due to what appeared to be proper childcare, adequate food, shelter, and clothing, which present appropriate environmental conditions for the child.”   The allegations were unsubstantiated.

The second investigative protocol focused on PF's clearly expressed desire to maintain his defacto responsibility to raise Child.   PF, an African–American, reports that he had a normal childhood and maintains a good relationship with his extended family.   He finished high school and earned an associate's degree in Hotel and Restaurant Management.   He was married and divorced and currently is a self-employed cab driver.   He is financially able to support Child and Mother.   He does not have a criminal record.   The Court placed Child with PF at DCF's request under the authority of a granted Order of Temporary Custody and DCF has not removed Child from PF's custody.

7. Putative Father cooperated with a paternity test, which test established that he is not the biological parent of Child, a fact that did not change his desire to serve as Child's father.   DCF placed Child with PF in early December and he has successfully cared for Child through the date of trial.   All of the documentation indicates that PF has sufficient support caring for Child from his Mother and Sister.   On the day of hearing Father agreed to formally acknowledge that he is Child's Father and signed such an acknowledgment.

8. Father also cooperated with a psychological evaluation.  (Exhibit G.) Dr. Balducci identified some potential concerns about Father's plans to be Father and primary caretaker for Child, but concluded that he, “ ․ appears to have the capacity to meet [ ․ Child's] needs at present since that young child's needs are largely of a physiological nature ․ He also appears able at present to meet the additional needs of [ ․ Child] such as for physical safety and economic security.   It will be more of a struggle for [ ․ PF] as his child's needs grow increasingly complicated and challenging, such as the need for [ ․ acceptance, greater autonomy and a sense of himself as a distinct, unique individual, and to strive to achieve successes in his own right and of his emotional needs since he prefers intellectualizing issues and problems rather than acknowledging, accepting and managing strong feelings and unsettling emotions.   As a result, [ ․ PF] is likely to take a matter of fact and emotionally detached approach as to difficulties and expressions of differences for [ ․ Child] that will lack sufficient empathy and appropriate concern.”   The Court believes that this final observation ignores the extended family's role in Child's care and the possibility of Mother's rehabilitation.

9. Mother's personal history is summarized in a clinical summary prepared by Project Safe and dated March 18, 2011.  (Exhibit I) The agency reports that, “Client is currently unemployed, 11th grade education.   Client intends to obtain her GED/Diploma ․ presents as 0X3, thinks clearly and concisely, her memory is intact, her mood and affect are appropriate;  she shows no signs of psychosis, cognitive limitations/impairments detected, denies current SI/HI, or cutting episodes.”   The Court notes that Mother was not living with family at the time of this evaluation and that she was apparently working on her rehabilitation.   Father and his extended family were caring for Child and Mother was working toward reunification with the family.

10. DCF prepared a Status Report immediately prior to the hearing of its petition to commit Child to the care of DCF. The report concluded that PF is Child's psychological father;  and that he “has the capacity to meet [ ․ Child's] needs.”   The concerns raised by his evaluator is that in the future PF might not be able to manage Child's “increasing complicated and challenging” needs and that “[ ․ PF] is likely to take a matter of fact and emotionally detached approach to issues and problems rather than acknowledging, accepting, and managing strong feelings and unsettling emotions.”   With respect to Mother, DCF reports that prior to the hearing Mother had returned to the area and began to work on maintaining sobriety.   DCF reports that Mother “participated in a substance abuse evaluation (MCCA) and referred to twice weekly treatment groups, a weekly women's recovery group, and a weekly relapse prevention group.   As of March 21, MCCA reported that Mother has been attending her groups regularly and her urines have been negative.

In light of this recent history DCF requests that the Order of Temporary Custody vested in PF be revoked and that custody of Child revert to DCF.

Mother offered three exhibits:  two clean urine tests dated 3/9/11 and 3/18/11, and one clinical summary and one drug test confirming PF's representation that he is not involved with drugs.

ORDERS

Based on testimony at hearing and the exhibits offered to the Court, the Court cannot find a reason that Child should be removed from the care being provided to him by PF and his supportive resources.   The Court heard no significant evidence that Child is currently at risk.   PF has been the primary caretaker with the help of his extended family and has a suitable home in which to raise Child.   Mother is working to shed the consequences of her recent relapse and the Court heard no evidence that since her return, she has acted in any way that would threaten child's safety.   PF has an extended family that shares the burden of care.   The Court concludes that removal of Child from his secure and appropriate home would not be in his best interest.

NOW THEREFORE the Court DENIES DCF's request to alter the current orders and status by vesting the OTC in the Department of Children and Families;  and

Furthermore, the Court GRANTS PF's Motion to be cited into this matter as a necessary party and Child's psychological parent.

Hon Thayer Baldwin, Jr. JTR

Baldwin, Thayer, J.