IN RE: Alexis W.* (2012)

Memorandum of Decision on Order of Temporary Custody

On October 24, 2012, the Commissioner of the Department of Children and Families (“DCF”) made application for an ex parte Order of Temporary Custody (“OTC”) of Alexis W., a minor child born July 18, 1996, which order was issued by the court on October 24, 2012 (Dannehy, J.).

A preliminary hearing on the OTC was held on November 2, 2012 at which respondent mother, Ida M. (“Mother”) appeared, was represented by court-appointed counsel and was advised of her rights.   Counsel and a guardian ad litem were appointed for the minor child Respondent father, Donald W. (“Father”), was served by publication of notice in a newspaper having a general circulation in Raleigh, North Carolina, his most recent reported whereabouts.   Father failed to appear at the preliminary hearing.   DCF simultaneously filed a petition alleging that Alexis is neglected in that she is being denied proper care and attention and being permitted to live under conditions injurious to her well-being.

Mother exercised her right to contest the OTC at an evidentiary hearing pursuant to Practice Book § 37a–7d and Connecticut General Statues §§ 46b–129(b) and (f) which hearing was conducted on November 6, 2012.   The court heard testimony from DCF social worker Stephanie Carvalho, DCF Investigator Milagros DeJesus and Mother.   The court also heard testimony from DCF clinical social worker Yvonne Tafuto who testified that she has reviewed Alexis' psychological history in preparation of the CANS for potential residential placement and services for Alexis.   Although Ms. Tafuto testified that she reviewed two prior psychological evaluations of Alexis, she acknowledged that she had no personal contact and only a telephone discussion for “about 15 minutes.”

The applicable standard of proof in this matter is a fair preponderance of the evidence.  Practice Book § 32a–3(a).   In reaching the conclusions set forth in this memorandum of decision, the court has considered the relevance and weight of the properly admissible evidence presented and assessed the credibility of the witnesses.   The court has also drawn such inferences from the evidence as deemed to be reasonable and logical in the court's determination.  In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied 271 Conn. 921, 859 A.2d 579 (2004).

DCF alleges that the removal of Alexis was necessary to protect her from immediate physical danger and that she would be in immediate physical danger from her surroundings if permitted to remain or return to Mother's care and custody.

DCF bases its contention that Alexis was, and continues to be, in immediate physical danger from her surroundings, in part, on incidents which have occurred or were alleged to have occurred since 2008 when DCF first became involved with the family.   The DCF records include twelve recorded concerns, however eleven were unsubstantiated and closed.   The substantiated case led to an OTC on February 25, 2011 following which Mother pled nolo contendere to a neglect petition pertaining to Alexis and her sister and the disposition was six months protective supervision by DCF. Whatever the situation was at the time, the protective supervision expired without extension on February 8, 2012.

DCF also claims that Alexis reported that she has been taken to The Institute of Living for treatment of mental health episodes thirteen times since she was thirteen years old, but DCF overlooks the fact that Alexis was brought by Mother to IOL for treatment.

Counsel for DCF stressed that Alexis has exhibited “runaway” behavior on two occasions.   Both instances, however, occurred while Alexis was placed at the Miller House in Manchester under DCF's care.   Moreover, it was acknowledged that in both cases, Alexis was responsibly returned to the Miller House by Mother and her husband.

Counsel for Alexis reported that Alexis wants to go home.   Alexis' counsel advocated for the OTC to be vacated and for Alexis to be returned to her Mother's custody.   Alexis' guardian ad litem reported that during his interview of Alexis she expressed her wish to return home.   She also stated that if returned home she would be willing to participate in individual therapy and family therapy.   However, Alexis' guardian ad litem is skeptical of her sincerity as he professed he would be of the expressions of any 16–year–old wishing to return home.   In sum, Alexis' guardian ad litem advocated for the court to sustain the OTC and expressed his opinion that services would be more effective in a residential placement.

“Connecticut law is clear that, in the context of a hearing for an order of temporary custody pursuant to § 46b–129(b), a finding of immediate physical danger is a prerequisite to the court's entry of a temporary order vesting custody of a child in one other than the child's parents.  In re Juvenile Appeal (83–CD), 189 Conn. 276, 290–91, 455 A.2d 1313 (1983).   As our Supreme Court has explained, § 46b–129(b) limits the utilization of a “temporary custody order to those situations in which the child or youth's condition or the circumstances surrounding [her] care require that [her] custody be immediately assumed to safeguard [her] welfare.”  Id., 288.   This is because “[p]etitions for neglect and for temporary custody orders ․ are particularly vulnerable to the risk that judges ․ will be tempted, consciously or unconsciously, to compare unfavorably the material advantages of the child's natural parents with those of prospective adoptive parents [or foster parents].”  (Citations omitted;  internal quotation marks omitted.)   Id., 292.   Therefore, where there is no “substantial showing ․ made at the temporary custody hearing that ․ [a child] ․ would be in immediate physical danger if [he or she] were returned to the [respondent's] home ․ [i]t [is] error for the court to grant ․ temporary custody” in one other than the child's parents.  Id., 289–90.”  In re Chronseca D., 126 Conn.App. 493 (2011).

Our courts have consistently noted that it is both a fundamental right and the public policy of our State to maintain the integrity of the family and to preserve the rights of parents to maintain custody of their children unless there is a substantial showing that state intervention is necessary to ensure a child's safety.   In the present case, there are numerous concerns about Alexis' behavior and need for services.   DCF has failed to show that there are no steps short of placement with DCF that could adequately address Alexis' needs and ensure her safety from immediate physical danger.

Having considered the admissible evidence submitted, along with the applicable case law and statutory provisions, the court finds that the Commissioner of DCF has not met her burden to prove, by a preponderance of the evidence, the allegations of the OTC application and the court is constrained to find that there was no “substantial showing” of immediate physical danger, as required under § 46b–129(b).  Accordingly, the OTC is vacated and custody of Alexis is to be returned to Mother.

Although the court finds that DCF has not sustained the statutory burden for removal of Alexis from her home, “[T]he child's safety pending further proceedings is the primary concern of a temporary custody hearing.”  In re Juvenile Appeal (83–CD), supra, 189 Conn. 298 as cited in In re Kaurice B., 83 Conn.App. 519, 522–23 (2004).   In this matter, the Commissioner has filed a neglect petition which is pending and DCF will have the opportunity to produce additional testimony and more substantial evidence that Alexis is neglected or uncared for which may lead to intervention by DCF to address any issues of concern for Alexis' safety.

In accordance with the foregoing, the court re-affirms the specific steps previously ordered and orders the following additional steps for strict and prompt compliance by Mother.

1. Mother is to immediately provide DCF releases for information from all of Alexis' historical medical providers and therapists, provide all releases and documentation necessary to complete the CANS pertaining to Alexis.

2. Mother is to cooperate with all individual therapy for Alexis, family therapy and counseling and the recommendations of the therapists.

So ordered.

Gilligan, JTR

*In accordance with Connecticut General Statutes § 46b–142(b) and Practice Book § 32a–7, the names of the parties involved in this case are not disclosed.   The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Superior Court.

Gilligan, Robert G., J.