IN RE: Brianna C. dob 6–16–1996 1 (2012)

MEMORANDUM OF DECISION

I. STATEMENT OF THE CASE

This consolidated action involves a motion for Order of Temporary Custody (“OTC”) and a Neglect Petition pursuant to Connecticut General Statutes (Conn.Gen.Stat.) § 46b–129(b).²  The Neglect Petition alleges that the minor children were neglected within the meaning of Conn. Gen.Stat. § 46b–120.   The parties to this matter are:  petitioner, Commissioner of Children and Families (“DCF” or “Department”);  respondent, biological mother of both children (Brianna C. and Elijah C.) (“Mother” or “Samantha C.”);   respondent, biological father of Brianna C. (“Michael M.”), and John Doe who is listed as the father of Elijah.   The parties were never married, but Michael M. has acknowledged paternity of Brianna C.

Both Samantha C. and Michael M. reside within the State of Connecticut.   This court has jurisdiction over the pending OTC and Neglect Petition proceedings.   No action is pending in any other court affecting the custody of Brianna C. and Elijah C. There is neither evidence nor any claim that the children or either respondent parent has any Native American affiliation, or is related to any Indian Nation.

On October 28, 2011, the Department filed an Order of Temporary Custody.   Pursuant to the applicable subsections of Conn. Gen.Stat. § 17a–101(g), the Department alleged the following statutory grounds in each petition:  (1) that each child was being denied proper care and attention physically, educationally, emotionally or morally;  and (2) that each child was being permitted to live under conditions, circumstances or associations injurious to his or her well-being.

The matter was tried before this Court on November 10, 14, and 15, 2011.   Judicial notice of relevant prior court orders in the administrative file was taken.   See In re Jeisean M., 270 Conn. 382, 852 A.2d 643 (2004);  Guerriero v. Galasso, 144 Conn. 600, 136 A.2d 497 (1957).

The court has fully considered the relevant Connecticut Statutes, applicable case law, all relevant evidence, the demeanor and credibility of all witnesses, and the arguments of the parties in reaching the decision reflected in this memorandum.

After due consideration, the court finds in favor for the Department with respect to all issues.   Therefore, the court sustains the Order of Temporary Custody and adjudicates the children neglected.

II. PROCEDURAL CONTEXT

On October 28, 2011, the Department filed an ex-parte OTC that was granted by the court.   The Department acted pursuant to the provisions of Conn. Gen.Stat. § 17a–101(g).  The Department's primary and immediate reason for the OTC was that the children had been exposed to domestic violence.   The Department also filed Neglect Petitions with respect to both children on October 28, 2011, and named Samantha C., Michael M., and John Doe as the respondents in each petition.   The Department alleged the following statutory grounds in each petition:  (1) that each child was being denied proper care and attention physically, educationally, emotionally or morally;  and (2) that each child was being permitted to live under conditions, circumstances, or associations injurious to his or her well-being.   The Department also attached to the Neglect Petition jurisdictional facts as listed:

“1. Mother has extensive history with the Department with previous adjudications and removal of children from her care.

2. Mother has past substance abuse issues with cocaine and heroin.   She is currently abusing alcohol.

3. Mother has multiple domestic violence arrests and continually violates a full protective order in regards to her boyfriend.   She has been arrested various times for violation of protective orders.

4. Mother is currently on probation and has three pending arrests.

5. Father of Brianna, Michael M., tested positive for marijuana and has refused to engage in substance abuse treatment.

6. Mother has reported mental health issues, but has not engaged in individual treatment.

7. The children have reported that Mother is abusing alcohol and has had contact with her boyfriend despite a no contact order.

8. Father of Elijah is John Doe and his whereabouts are unknown.”

On November 4, 2011, a preliminary hearing on the Order of Temporary Custody was held in accordance with statute before the court (Eschuk, J.).   Both parents were present and represented by their court appointed counsel.   The Department was represented by the Office of the Assistant Attorney General.   The court confirmed abode service of process for the Mother and in hand for the father of Brianna, Michael M. The court made findings of service, notice and jurisdiction with respect to both respondents.   During the proceedings on November 4, 2011, both respondents contested the grounds for the removal of the children and the Order of Temporary Custody.   The Department's motion to consolidate the OTC and Neglect Petition was granted by the court.   The parties stipulated that both the OTC and the Neglect Petition hearings would be held simultaneously on November 10, 2011.

As per Connecticut Practice Book § 33a–7(d), a combined trial of Order of Temporary Custody and Neglect Petition was held on November 10, 14, and 15, 2011.³  Both respondents were present and were represented by their court-appointed attorneys.   The Department was represented by an Assistant Attorney General, and the children's interests were represented by their court appointed attorney.

As per Connecticut Practice Book § 35a–7A, prior to the commencement of testimony, the court ruled that an adverse inference would be drawn if any of the respondents did not testify at trial.

The following witnesses testified on behalf of the Department:

Mr. Joseph Futschik, Family Intervention Center;

Ms. Katie Lerz, social worker for DCF;

Ms. Allison Chance, probation officer for the State of Connecticut;

Ms. Cynthia Sevilla, social worker for DCF.

The respondent father, Michael M., presented the following witnesses:

Mr. Michael M., respondent father;

Ms. Dawn C., sister-in-law of respondent father;

Ms. Debra M., wife of respondent father.

The respondent mother, Samantha C., presented the following witnesses:

Ms. Samantha C., respondent mother;

Paul Woodruff, older stepbrother of the children;

Ms. Cynthia Sevilla, was recalled by respondent's counsel.

Counsel for all parties had the opportunity to examine and cross-examine the witnesses.   The Department offered a total of two documents as full exhibits.   The respondent father submitted a total of seven documents as full exhibits.

The court has fully considered the applicable law, evidence, demeanor and credibility of all witnesses, and arguments of the parties in reaching its decisions in this memorandum.⁴

After due consideration, the court sustains the Order of Temporary Custody and grants the Neglect Petition.

III. FACTUAL ENDINGS (OTC AND NEGLECT ALLEGATIONS)

Having weighed all evidence and assessed the credibility of all witnesses, the court finds the following facts:

1. Brianna C. was born on June 16, 1996, at Waterbury Hospital in Waterbury, Connecticut.

2. Elijah C. was born on December 31, 2000, at Waterbury Hospital in Waterbury, Connecticut.   Elijah suffers from a medical condition called seizure disorder.   He is under the medical supervision of Dr. Bhagarva.   Elijah has been diagnosed with ADHD and is on medication, Oxcarbazepine.

3. Samantha C. is the biological mother of both children.   She resides in Waterbury, Connecticut.   Both children in this proceeding and her son Paul were residing with her at the time the OTC and Neglect proceedings were initiated.

4. Michael M. is the biological father of Brianna C. He was not married to the respondent mother.   He resides in Bristol, Connecticut with his wife Debbi M. and his two daughters, 13–year–old Kasandera and 11–year–old Taylor.

5. John Doe is listed as the father of Elijah C. and has not come forward or contacted the Department regarding his son.   His whereabouts are unknown.

6. The evidence adduced at trial established that on August 21, 2011, the Department received a report through the DCF hotline that respondent father Michael M. was abusing marijuana with his daughter Brianna.   Upon receipt of this information, the Department's investigator, Ms. Anderson, and a caseworker, Ms. Lerz, interviewed Brianna.   Brianna admitted use of marijuana, but denied smoking with her father.   She also confessed that she was aware that her father was smoking marijuana.   Brianna advised the Department workers that the living conditions in her mother Samantha C.'s home had increasingly become a safety concern.   She stated that her mother was having on going contact and consistent fights with Mr. Michael B., mother's estranged boyfriend, despite the existence of a full protective order of no contact.   Brianna advised the workers that her mother's drinking had drastically progressed recently and that her conduct had become violent.

7. On September 16, 2011, Waterbury Police was dispatched to the residence of Michael B. The officer observed several scratch marks on his face and his shirt was ripped off his body.   Michael B. refused any medical attention.   Michael B. provided information that Samantha C., the alleged attacker of this incident, could be found at 35 Kenilworth Street.   The officer could not locate Samantha C. at that address and his phone calls went unanswered.   The officer issued via radio a pick up for respondent mother Samantha C. (State's Exhibit C, at 2.)

8. At trial, the evidence was adduced pertaining to the relationship between respondent mother Samantha C. and her estranged boyfriend Michael B. The petitioner submitted the record of protective orders as a group exhibit consisting of thirty-three pages.   The court notes that there is an extensive history of protective orders and violation of such orders dating back to August 3, 2009 between the two parties.   The court further notes that Samantha C. had protective orders between her and Robert P., a person with whom she had a prior relationship;  the orders date back to December 30, 2004.  (State's group exhibit A.)

9. Allison C., probation officer for State of Connecticut, testified at trial that she is the probation officer for Samantha C. The probation officer credibly testified that Samantha C. was convicted of assault in the third degree against Michael B. on April 30, 2011.   The probation officer further testified she was in the process of writing a violation of probation warrants for Mother due to a new arrest on October 21, 2011.   She testified that Mother was facing a potential jail time for one year, if convicted.   Upon inquiry about the level of risk assessment, Probation Officer responded, “Samantha C. was evaluated on high risk of re-offending again.”   She also testified that Samantha C., in addition to standard conditions of probation of domestic violence, had “special conditions,” including:  (1) Substance abuse, evaluation and treatment;  (2) Cooperation with DCF;  and (3) No threatening and harassing behavior towards Michael B. Probation Officer further testified that Samantha C. had a full protective order and the protected person was Michael B. The order was effective as of the day of the trial.

10. The evidence presented at trial established that on October 17, 2011, Samantha C. and Michael B. both appeared for an initial intake counseling with Mr. Joseph F. at Family Intervention Center in Waterbury, Connecticut.   Mr. Joseph F. credibly testified at trial that the appointment was made under Michael B.'s name but both individuals appeared for the first intake counseling, which lasted for approximately forty-five minutes.   Mr. Joseph F. testified that the issues presented during the interview included, inter alia:  (1) There was an ongoing relationship between the two and both were still involved with each other;  (2) Issues pertaining to distrust and cheating;  (3) Partial Restraining Order;  (4) Financial issues and purchase of home together;  and (5) To engage in counseling with ultimate goal of having a better relationship.   During cross-examination, Mr. Joseph F. was asked, “Did you know that there was a full Protective Order having no contact with Michael B. at the time of the interview?”   He responded, “I was advised by both Samantha C. and Michael B. that there was partial restraining order.”

11. In addition, the evidence was presented at trial that on April 23, 2011, the Waterbury Police were dispatched to the area of 35 Kenilworth Avenue, Mother's place of residence, due to a verbal dispute.   The police report states, “[O]n arrival I met with Samantha C. date of birth (10/14/1970) who said she called police because she and her boyfriend, Michael B. date of birth (10/25/1966), had a verbal dispute.   At this time I observed that [Samantha C.] appeared intoxicated by the strong odor of alcohol coming from her breath and the way she was slurring her speech when she spoke.   There was no sign of physical violence or even dispute in the house.   I also observed there was no physical injuries on [Samantha C.]” (F7–A at 2) (emphasis added).

12. It was also presented at the trial that on April 27, 2011, the Waterbury Police were dispatched to the area of 35 Kenilworth Avenue, Mother's place of residence.   The police report notes, “Upon arrival, this officer encountered a male, later identified as Michael B., date of birth (10/25/66), standing in the front of 35 Kenilworth Street.   Michael B. stated that he resides with his girlfriend, Samantha C., date of birth (10/14/1970).   Both were inside and a verbal argument ensued.   Michael B. walked outside to cool off and take a walk, but Samantha C. followed him outside and the argument continued ․ A query of both subjects through WECC revealed that an active protective order was on file listing Michael B. as the protected person from Samantha C., the subject of the order (MSG# 0319382 Case # U04WCR100394491S NCIC# H115795748).  The original order had been [a] no contact order, ․ prohibiting Samantha C. from imposing any restraint upon the person or liberty of Michael B.” (F6–A at 2) (emphasis added).

13. The full exhibit presented at trial noted that on April 30, 2011, the Waterbury Police were dispatched to the area of 35 Kenilworth Avenue, Mother's place of residence.   The police report notes, “Upon my arrival, I spoke with Samantha C. (10/14/1970) who stated that her boyfriend, Michael B. (10/25/1966), has been threatening her via text messages.   According to Samantha C., the two were involved in physical altercation yesterday evening with each other in Waterbury, where Samantha was the only person to be arrested ․ Samantha stated that Michael has been constantly sending her threatening text messages stating that he was going to beat her up at work and at home ․ I asked Samantha to show me the threatening messages sent by Michael B. but she was unable to show me any at this time ․ [W]hile I was speaking with Samantha, she did not have visible injuries present ․ Samantha was also unable to provide [ ] Michael's cell phone [number] at this time.”   (F4–A at 2.)

14. The evidence adduced at trial established that on April 30, 2011 at 0040, the Waterbury Police were dispatched to 511 Cooke Street (7–11) due to a disturbance complaint.   The police report notes, “Upon arrival, I spoke with complainant, Michael B., (10/25/1966) ․ Michael was offered medical assistance, which he refused ․ [V]ictim services were issued and explained to him ․ I responded to 35 Kenilworth Street, and spoke with Samantha C. (10/14/1970), who stated that she had gotten a little out of control but that she had left ․ [A]s I spoke with her I could smell a strong odor of an alcoholic beverage on her breath ․ I did observe marks on the left side of Michael's face ․ he was also bleeding from one scratch.   NCIC/COLLECT check showed a protective order on file, with [the] condition that Samantha C. shall not assault Michael B. Samantha C. was then placed under arrest and charged with C.G.S. § 53a–181, Breach of Peace in the second degree, C.G S. § 53a–61, Assault in the third degree, and C.G.S. § 53a–223, Criminal Violation of a Protective Order.   Samantha C. was transported to Police headquarters via police vehicle.”  (F5–A at 2, 3.)

15. The court also noted that on June 7, 2011 at 0021 hours, the Waterbury Police were dispatched to 35 Kenilworth for a domestic violence complaint.   The police report states, “The complainant was Michael B. (10/25/1966.)   A pick up was put out for Samantha C., but she was not located ․ Two orders of protections were shown regarding Michael B. and Samantha C. Michael B. is named as a protected party in both orders.   CR10–0394491–S states Samantha C. is not to assault, threaten, harass, follow or interfere with Michael.   CR10–0399087–S states Samantha is not to have any contact with Michael.   By contacting Michael at their shared residence, Samantha has violated both of the conditions set forth in these orders ․ [A]t 0005 hours, police were again dispatched to 35 Kenilworth for domestic violence.”  (F3–A at 1, 2.)

16. The court was provided the Service Agreement/Safety Plan dated August 26, 2011, as a full exhibit, which states that the parent or legal guardian will do the following:  (1) Mother will abide by the full protective order;  (2) No contact with Michael B.;  (3) Mother will engage in individual counseling;  (4) No substance abuse;  (5) Mother will engage Brianna in treatment;  and (6) Mother will ensure all of Elijah's medical needs are met.   The Department of Children and Families representative would provide referrals as necessary.  (F–1.)

17. Ms. Lerz, DCF social worker, credibly testified at trial that on October 26, 2011, she spoke with Brianna and Elijah and learned that Brianna and Mother engaged in a physical altercation the night before.   Brianna further informed the social worker that her Mother was out all day drinking with Michael B. and came home with alcohol.   Ms. Lerz testified that Brianna told her that she dumped out the alcohol, upsetting Mother, which resulted in a physical altercation.   But the social worker noted that she did not observe any visible physical marks on Brianna.   Mother left home that night with Michael B. and Brianna did not see her until the next day.   The social worker also stated she learned from Brianna that Mother was in a car accident on October 22, 2011.   Ms. Lerz further testified that Elijah corroborated Brianna's version of events and that he was scared and crying about his mother's drinking and the conditions at his home.   Ms. Lerz testified that Elijah asserted that he wants his Mother to stop drinking.

18. On October 27, 2011, the Department's social worker, Ms. Lerz, testified that she spoke with Mother who admitted to drinking alcohol because she was feeling miserable and did not know how to deal with her feelings.   Ms. Lerz further stated Mother was amenable to seeking mental health treatment for her anxiety and insomnia.   Mother continued to deny having any contact with Michael B. The social worker further stated that despite Mother's referral to MCCA for her drug and alcohol treatment in August 2011, Mother has not availed herself to participate in the program.

19. Samantha C. testified at trial.   The court listened to her testimony very closely and observed her demeanor.   The court finds that Mother loves her children and is particularly passionate about sending Brianna to Sacred Heart, a private high school in Waterbury, Connecticut.   Mother testified that about three years ago she met Michael B. and became romantically involved with him thereafter.   They had plans to get married.   They purchased a house together but Samantha alone was holding title to the property because Michael B. had bad credit.   Their relationship went sour when Mother found out Michael B. was cheating on her.   Upon revelation of this information, she went into depression and anxiety, which led to increased drinking.   She further testified that she is a recovering heroin dependent and is taking medication called Suboxone twice a day.   She stated that she was seeing a psychiatrist once a month.   Mother was also attending an intensive out patient program for drug and alcohol rehabilitation.   When asked whether there was physical aggression between herself and Brianna on October 26, 2011, she responded, “I was cooking wings and could not find [Jack Daniels].   I asked Brianna if she did anything with it and she denied and refused to come downstairs.   I told her get your butt down here ․ [A]gain she refused.   I held her arm and she grabbed my hairs and pushed me back ․ I was stunned.”   Mother further testified, “Brianna hates me.   She wants to live with her father, who smokes marijuana with her and has a different parenting style and skills than I do ․ I had a Catholic upbringing and spirituality is very important to me.”   During cross-examination, Mother was asked if she was convicted of the crime of prostitution to which she did not provide a cogent response.   Mother was asked how long she has been sober, abstaining from alcohol use, and her response was less than a month.   She volunteered, without prompting or questioning “that in April 2011, the things went bad between me and Michael B. I was drinking out of control.   But now I have no connection with Mike, I am on Suboxone for the past four years.   The Suboxone medication is for heroin treatment.”   Mother was asked, “Did [she] know that it was lethal and deadly dangerous to drink while taking Suboxone?”   She responded, no.   Mother was also inquired during cross-examination if she knew the total number of times she had violated protective orders.   Her response was many.

20. During cross-examination, the respondent Mother was further asked whether she considered herself an addict and an alcoholic.   She responded, “a recovering alcoholic.”   In response to the question of how alcohol use and domestic violence had impacted her children she stated, inter alia, “(1) I do not feel good about myself, low self esteem;  (2) I made bad choices;  (3) I need to meet good people;  (4) I feel stressed, i.e., mortgage payment, two car payments, I have to do it alone etc.;   and (5) I need a good support system.”

21. Mother was pressed upon to answer the question during cross-examination, “How [her] alcohol abuse and an extensive domestic violence has impacted [her] children, especially ten-year-old Elijah.”   She responded, “I started drinking over the weekend, when kids were not home.   I was a super mom, my daughter does not see me that way.   Elijah was kept away from all this by his older siblings, i.e., Brianna and Paul.”

22. While the Neglect trial was in progress and the proceeding was continued over the weekend, at the request of the children's counsel, the court granted the respondent Mother to visit with Elijah, and Father to visit with Brianna.   The visits were to be conducted under the supervision of the Department.   The Department's social worker, Ms. Sevilla, who conducted the visit, testified that Michael B. and his son showed up at the Waterbury Mall where Mother and Elijah had visit.   She further testified that Michael B. told her, “Yes, yes, I know, I should not be here.”   Ms. Sevilla was asked, “How did Michael B. come to know about the time and place of the visit?”   She responded that only the Department and Mother knew of the time and location of the visit.   The Department had no reason to inform Michael B. about the visit.

23. Brianna's father Michael M., his wife, and his sister in-law testified at trial.   The evidence adduced established that Brianna gets along well with her father and his family.   Brianna had resided with her father and attended Bristol public schools during the years 2006–2008 (during the prior child protection proceeding).   Michael M. admitted social use of marijuana, but denied addiction.   During cross-examination, Father was asked whether he was setting a good example for his children by abusing marijuana.   He did not provide any plausible answer.   Father knew Brianna was using marijuana.   Father's employment had been sporadic.   His financial affairs are in a dire state.   He is collecting food stamps, and gas and electricity at his residence have been shut off for months.   His rent is over due for nine months or so.   His wife is waiting to undergo some sort of medical operation and is not employed either.   Michael M. testified that in addition to him, his wife and his daughters are also ready and eagerly waiting for Brianna to come and live with them.   He stated that he is able to provide for Brianna as he is providing for the rest of his family.

24. The children's attorney recommends that Brianna be placed with her father Michael M. He further recommended that in order for Elijah to avoid separation anxiety from his sister, Elijah be placed with Dawn C., Father's sister in-law, who lives upstairs.   Ms. Dawn C. testified at trial that she has a 14–year–old son at home and a 27–year–old daughter who lives in Minnesota.   She offered herself as a resource for Elijah and stated that her son and Elijah can share a bedroom.

The court will provide additional facts as deemed necessary.

IV. ADJUDICATION RE (ORDER OF TEMPORARY CUSTODY)

The Department has asked the court to sustain the OTC pursuant to Conn. Gen.Stat. § 46–129(b).  Connecticut law is clear that, in the context of a hearing for an Order of Temporary Custody pursuant to Conn. Gen.Stat. § 46b–129(b), a finding of immediate physical danger is a prerequisite to the court's entry of temporary order vesting custody of a child in one other than a child's parents.

In the case of In re Juvenile Appeal (83–CD), 189 Conn. 276, 290–91 (1983), the Connecticut Supreme Court held that the burden of proof in a contested OTC proceeding is the fair preponderance of the evidence.  “[T]he burden of proof is always on the State when it seeks to remove children from the home.”  Id. at 295.  “[C]hild's safety pending further proceedings is the primary concern of a temporary custody hearing.”  Id. at 298.

The court finds by a fair preponderance of the evidence that on October 26, 2011, there was a physical altercation between the Mother and Brianna.   By her own admission, Mother stated that she had relapsed to drinking prior to this incident.   In justification of her alcohol abuse, Mother stated that she is “depressed and under a lot of stress.”   As a result of her drinking, both children were exposed to a drastic degree of domestic violence.   As mentioned earlier, her son Elijah confided in social worker Ms. Lerz that he is scared and frightened by his mother's drinking.   Elijah wants his mother to stop drinking and have no contact with Michael B.

Our courts have also considered the risk of potential harm not just the actual harm to children.   See In re Michael D., 58 Conn.App. 19 (2000).

Based on the evidence presented, the court finds by a fair preponderance of the evidence that the children would be in immediate danger of physical injury if they are returned to the custody of Mother at this time, and that continued removal is necessary to ensure the children's safety.   Therefore, pursuant to the provisions of Conn. Gen.Stat. § 46b–129(g) and Connecticut Practice Book § 33a–7, the ex parte order of temporary custody, issued by the court on October 28, 2011, is hereby SUSTAINED, and custody is vested in the Commissioner of Children and Families.

IV. ADJUDICATION RE (NEGLECT ALLEGATION)

The court incorporates by reference here all of the factual findings that it has previously made in this memorandum of decision.

The Department alleges that the children were neglected in that they were not cared for by parents and were permitted to live under conditions injurious to their well-being.   Pursuant to Conn. Gen.Stat. § 46b–129(a), “[T]he Commissioner of Children and Families ․ having information that a child ․ neglected, ․ may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as [would] bring the child ․ within the jurisdiction of the court as neglected ․ within the meaning of section 46b–120.”  “A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named.   Neglect proceedings, as do termination of parental rights cases, consist of two phases:  adjudication and disposition.   In the adjudicatory phase, the trial court must determine if the child is neglected.”  In re David L., 54 Conn.App. 185, 191 (1999).

“[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault.   A finding that [a] child is neglected is different from finding who is responsible for the child's condition of neglect.   Although [Conn. Gen.Stat.] § 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;  [i]t is not directed against them as parents, but rather is a finding that the children are neglected.”  In re T.K., 105 Conn.App. 502, 505–06, cert. denied, 286 Conn. 914 (2008) (citation omitted;  emphasis in original;  internal quotation marks omitted).   See In re Zamora S., 123 Conn.App. 103, 110 (2010).   “Nothing in § 46b–129 requires that the respondent parent in a neglect proceeding have custody for the court to adjudicate a neglect petition.”  In re Jessica S., 51 Conn.App. 667, 672, cert. denied, 251 Conn. 901 (1999).   The statutes and rules of practice ․ do not afford a parent in a neglect proceeding the right to require the trial court to adjudge each parent's blameworthiness for a child's neglect.  In re David L., supra, at 193.

A neglected child is defined as a child who “(A) has been abandoned;  (B) is being denied proper care and attention, physically, educationally, emotionally or morally;  (C) is being permitted to live under conditions, circumstances or associations injurious to his well being;  ․ or (D) has been abused.”   Conn. Gen.Stat. § 46b–120(8).  “ ‘Abused’ means that a child or youth (A) has been inflicted with physical injury or injuries other than by accidental means, [or] (B) has injuries that are at variance with the history given of them.”  Conn. Gen.Stat. § 46b–120(3).

Pursuant to Conn. Gen.Stat. § 46b–129(j), which governs petitions for adjudication of neglected children and the commitment of their custody, and provides that upon finding and adjudging that any child or youth is un-cared for or neglected, the court may commit the child to the Commissioner of Children and Families.  In re David L., supra (emphasis in original).   “[W]hile an adjudication of neglect may lead to removal of a child from parental custody pending investigation to resolution of the child's circumstances, removal is only one of a number of possible disposition after a finding of neglect.   The child may remain with his or her parents under protective supervision ․ Pursuant to § 46b–129(d), the Superior Court has three possible options from which to choose regarding custody of a child found to be neglected:  (1) Commit the child to the Commissioner of Children and Families;  (2) Vest guardianship of the child in a third party until the child reaches the age of eighteen;  (3) Permit the natural parent or guardian to retain custody and guardianship of the child with or without protective supervision.”  In re David L., supra (citation omitted;  internal quotation marks omitted).

Adjudication of child neglect may be based on potential risk of harm and not just actual harm.  In re Michael D., 58 Conn.App. 119 (2000) (“Our statutes clearly and explicitly recognize the state's authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected.   The Commissioner need not show, but need simply allege, that there is a potential for harm to occur.”);  In re Kelly S., 29 Conn.App. 600 (1992).

In the case at bar, there is evidence that suggests that Mother loves her children and desires to have their custody.   As it has been delineated by our court in the matter of In re Christina M., 90 Conn.App. 565, “the issue is not the deep and abiding love of the family members for the child, but whether they have the capacity to provide for his/her needs.”  Id. (Emphasis added.)

The unfortunate reality is that Mother has not availed herself of the treatment opportunities provided by the Department.   She was interested in treatment until after the proceeding was initiated.   At trial, substantial evidence has been presented that Mother has failed to avail herself of the treatment opportunities offered by the Department.   She entered into a Service Agreement dated August 26, 2011 with the Department, inter alia, to engage in individual counseling, no substance abuse, abide by full protective orders, and no contact with Michael B. She did not abide by any of the terms and conditions of the agreement.   Mother was arrested for violation of probation in September 2011.   The criminal court has issued a full protective order:  that she has no contact with Michael B. On October 17, 2011, Mother was attending a counseling session with Michael B. at the Family Intervention Center.   Mother did not disclose either the existence of pending criminal charges or a protective order of no contact.   Instead, she wants to work on improving her relationship with the subject of the protective order.   The court further notes that Mother had been taking Suboxone twice a day for her heroin dependence.   Mother admits that she was sober only for a couple of weeks prior to her relapse to drinking.   This conduct of Mother causes great concern to the court.   The evidence illustrates that Mother does not fully understand the gravity of her conduct and the adverse consequences it has on her children.

The court finds that a substantial amount of evidence was presented at trial that the children have been significantly exposed to domestic violence.   As mentioned above, the Waterbury Police was called at least seven times from April 2011 to July 2011, and was dispatched to Mother's residence.   The conduct of Mother is indicative of her flagrant disregard to the judicial system.   Mother's conduct drastically impacted the children emotionally.   Elijah is very scared and frightened.   The evidence was adduced that Brianna came home at 3:00 AM one night.   Brianna found Michael B. sleeping on the couch and her Mother absent from home.   Upon inquiry and by calling Mother's cell phone, Brianna discovered that Mother was at the casino.   Brianna does not want to live in this set of circumstances.   The court finds the conduct of Mother to be great cause for concern.   This behavior is indicative that the safety and well-being of the children is not of paramount importance to Mother.

Respondent Mother's failure to follow through with recommended treatment and individual counseling, combined with her alcoholism and her protracted pattern and history of criminal protective orders violations, is a fair preponderance of the evidence that she cannot provide a stable home for herself, much less for her children.

Respondent Mother has pending criminal charges, including violation of probation, violation of protective orders, assault in the third degree and breach of peace in the second degree.   These charges carry a possibility of a jail sentence of a year or more.   The outcome of these charges is a prerequisite for this court to avoid additional trauma of removal to these children.

The court draws an inference and gleans through the evidence and testimony that Mother places her material needs before the emotional needs of her children.   She is keen to retain her “Victorian-style, six bedroom home, in an historic district through a continued interaction with Michael B.”

Despite Mother's love and dedication to provide private schooling for Brianna, it is not sufficient in itself to take care of the children.

The court has very carefully and closely considered Michael M., Brianna's father as a custodial parent for her.   The evidence was adduced at trial that he has been trying to acquire Brianna's custody for a number of years.   The court finds that he loves his daughter and she loves him and his family.   The father's financial constraints alone are not a negative factor.   Father claims that he is not addicted to substance abuse.   But neither party has presented any evidence to prove otherwise.   The court had not been provided with any substance abuse evaluation pertaining to father's substance abuse.

The court has heard the testimony, reviewed the record and reached the conclusion that it is not in the best interest of Brianna to be placed with her father.

With respect to each of the two children, the court finds that the Department has proven neglect by a preponderance of the evidence.   Specifically, the court finds that each child was permitted to live under conditions, circumstances and associations injurious to his or her wellbeing, and that each child was denied proper care and attention.

V. FACTUAL FINDINGS RE DISPOSITION

The court incorporates by reference all of the factual findings that it has previously made in this memorandum of decision.

The two children have been placed together in a DCF licensed foster home since the filing of the Order of Temporary Custody and Neglect Petitions on October 28, 2011.

At the time of trial, the Department had not filed any Social Study in support of the Neglect Petition.   However, there was a social worker's affidavit dated October 28, 2011 that was filed with the subject petition.   The court has taken a judicial notice of the entire file.   The court notes that Mother has an extensive history with the Department dating back to the year 1991, presenting issues of substance abuse, inadequate supervision and domestic violence.   It is established that the same children, Brianna and Elijah, were removed from Mother on March 1, 2007.

The court finds from the foregoing evidence that it is not in the best interest of the children that they be returned to the care and custody of Samantha C. and Michael M. at this time.

VI. DISPOSITIONAL ORDERS

Having found that Brianna C. and Elijah C. are neglected children as alleged in the petition filed by the Department, the court further finds by a preponderance of the evidence that it is in the best interest of the said children that they be committed to the petitioner.   It is hereby ORDERED that each child be committed to the care and custody of the Commissioner of the Department of Children and Families.

The court has reviewed and approved “Specific Steps Orders” for each of the respondents, and for the petitioner to make reasonable efforts to facilitate reunification of the children.   The court signed copies of the orders on the date of issuance of this decision.   The Clerk of this court shall ensure that copies of the court's “Specific Steps Orders” shall be sent to all parties and all counsel of record.

The Clerk of the court is further instructed to set dates for the filing of Motion for Review of Permanency Plans and for a hearing on said plans, as required by statutes, and to notify all parties and counsel of same.

SO ORDERED.

M. Nawaz Wahla, Judge

FOOTNOTES

FN2. Connecticut General Statutes section 46b–129(b) provides in relevant part:  “If it appears ․ that there is a reasonable cause to believe that ․ [a] child ․ in immediate physical danger from the child's ․ surroundings, and ․ that as a result of said conditions, the child's ․ safety is endangered and immediate removal from such surroundings is necessary to ensure the child's ․ safety, the court shall ․ issue an order ex parte vesting in some suitable ․ person the child's ․ temporary care and custody ․”.  FN2. Connecticut General Statutes section 46b–129(b) provides in relevant part:  “If it appears ․ that there is a reasonable cause to believe that ․ [a] child ․ in immediate physical danger from the child's ․ surroundings, and ․ that as a result of said conditions, the child's ․ safety is endangered and immediate removal from such surroundings is necessary to ensure the child's ․ safety, the court shall ․ issue an order ex parte vesting in some suitable ․ person the child's ․ temporary care and custody ․”

FN3. Connecticut Practice Book section 33a–7(d) provides in pertinent parts, “upon request, or upon its own motion, the judicial authority shall order a hearing on the order of temporary custody ․ such hearing shall be held on consecutive days except for compelling circumstances or at the request of the respondent.”  (Emphasis added.).  FN3. Connecticut Practice Book section 33a–7(d) provides in pertinent parts, “upon request, or upon its own motion, the judicial authority shall order a hearing on the order of temporary custody ․ such hearing shall be held on consecutive days except for compelling circumstances or at the request of the respondent.”  (Emphasis added.)

FN4. “It is well established that [i]n a case tried before the a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ․ The credibility and the weight of expert testimony are judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible ․ It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any ․ testimony ․ (Citation omitted;  internal quotation marks omitted.)  In re Carissa K., 55 Conn.App. 768, 781–82, 740 A.2d 896 (1999).”  In re Jason R., 129 Conn.App. 746, 772–73, 23 A.3d 18 (2011).   Moreover, “it is within the province of trial court to find facts and draw proper inferences from the evidence presented ․ (Internal quotation marks omitted.)   McKenna v. Delente, 123 Conn.App. 146, 165–66, 2 A.3d 38 (2010).”   McKeon v. Lenon, 131 Conn.App. 585, 597 (2011)..  FN4. “It is well established that [i]n a case tried before the a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony ․ The credibility and the weight of expert testimony are judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible ․ It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any ․ testimony ․ (Citation omitted;  internal quotation marks omitted.)  In re Carissa K., 55 Conn.App. 768, 781–82, 740 A.2d 896 (1999).”  In re Jason R., 129 Conn.App. 746, 772–73, 23 A.3d 18 (2011).   Moreover, “it is within the province of trial court to find facts and draw proper inferences from the evidence presented ․ (Internal quotation marks omitted.)   McKenna v. Delente, 123 Conn.App. 146, 165–66, 2 A.3d 38 (2010).”   McKeon v. Lenon, 131 Conn.App. 585, 597 (2011).

Wahla, M. Nawaz, J.