IN RE: Noelia M.1 (2013)

MEMORANDUM OF DECISION ON NEGLECT PETITIONS

PROCEDURAL HISTORY

On March 30, 2012, the petitioner, the commissioner of the department of children and families (“DCF”), filed petitions regarding the three minor children, Noelia, Yanilie and Ivelia M., claiming that they were subjected to statutory neglect.   DCF also filed motions for orders of temporary custody.   On March 30, 2012, the motions for orders of temporary custody were granted.   On May 2, 2012, the orders of temporary custody were sustained absent objection.   The children remain in the temporary custody of DCF and have been placed with non-relative foster parents.   The children's maternal grandmother has intervened in order to be heard regarding disposition or placement.   A guardian ad litem was appointed for the two younger girls through Children In Placement.   Presently, Noelia is fifteen years old, Yanilie is twelve years old and Ivelia is nine years old.

The children have different fathers.   On April 24, 2012, the court confirmed service of the petitions on the children's fathers and entered defaults against them for their failure to appear.   On June 28, 2012, the court granted DCF's motion to amend the petitions.   The amended petitions claim that the children have been permitted to live under conditions, circumstances or associations injurious to their wellbeing because of “maltreatment including but not limited to malnutrition, sexual molestation or exploitation, deprivation of necessities, emotional maltreatment or cruel punishment.”   Many of the allegations focus on the mother's boyfriend (whom the children refer to as their stepfather).   More specifically, the jurisdictional facts of the petitions allege that:

fourteen-year-old Noelia disclosed that [the boyfriend] had been sexually abusing her since her thirteenth birthday;

Noelia reported that [the mother] and [the boyfriend] told her to lie and say the allegations were not true.  [The mother] and [the boyfriend] stated if she did not lie [the mother] and her siblings would lose everything and be homeless;

Yanilie disclosed [that the boyfriend] masturbated numerous times in her and her siblings presence;

Despite the service agreement put in place [the mother] allowed [the boyfriend] access to the children.

DCF seeks to have the children adjudicated neglected and for the children to be committed to its custody.   The attorneys for the children and the guardian ad litem support DCF's position.   The mother requests that the petitions be denied.   She also filed a motion to modify the order of temporary custody to allow a transfer of the children's custody to the maternal grandmother.   Alternatively, if neglect is found, the mother and grandmother seek a transfer of the children's custody to the grandmother.   The adjudication of DCF's petitions and the mother's motion were consolidated for trial.   The trial was held over six days in December 2012.   Closing arguments were held on March 26, 2013, after the parties filed post-trial memoranda.

As explained below, the court finds that DCF has proven by a preponderance of the evidence that the children have been subjected to statutory neglect and that it is in the children's best interests to be committed to the custody of DCF.

DISCUSSION

IADJUDICATIONA

Neglect proceedings are comprised of two parts, adjudication and disposition.   During the adjudicatory phase, the court determines whether the child was neglected.  General Statutes § 46b–120(6) provides in relevant part:  “[A] child or youth may be found ‘neglected’ who ․ (B) is being denied proper care and attention, physically, educationally, emotionally or morally, or (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth ․”

[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault.   A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect.   Although [General Statutes] § 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 ․” (Citations omitted;  internal quotation marks omitted.)  In re T.K., 105 Conn.App. 502, 505–06, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).

During the trial, the court heard evidence on the issues of adjudication and disposition.   In adjudicating the neglect petition, however, the court's consideration is limited to evidence relevant to events preceding the filing of the petition or applicable amendment.   See Practice Book § 35a–7.   As the petitioner, DCF bears the burden of proving the allegations of the petition and the relief that it seeks by a fair preponderance of the evidence.   See Practice Book § 32a–3.

B

The following facts were established at trial by a fair preponderance of the evidence.   Many of these facts are undisputed.²

In 2005, the mother and the boyfriend began their relationship, and the mother began to reside in his home with the children.   The boyfriend became the primary provider for the family.   The family's residence with the boyfriend has continued since 2005, with one exception.   In 2011, the mother left him and moved to Kansas to live with Noelia's father.   The father physically abused the mother, and as a result, she and the children returned to the boyfriend's home in Connecticut.

In March 2012, Noelia ran away from home.   The boyfriend called the police to report her missing.   Officer Arroyo responded to the home, meeting with the mother and the boyfriend.   After leaving the home, Officer Arroyo was informed that Noelia had been located at her aunt's house.   The officer proceeded to the aunt's home and found both the aunt and Noelia visibly upset.   Noelia reported to the aunt and the officer that soon after she had turned thirteen (or about a year earlier), the boyfriend began to sexually molest her.   She stated that he had touched her breasts and vagina with his hands, with the last incident occurring about two weeks earlier.   Noelia told the officer that she told her mother about this abuse, but her mother told her to remain quiet about what had happened because the boyfriend was the one providing for the family.

The officer called an ambulance in order for Noelia to go to St. Vincent's Hospital and to receive a medical examination.   The aunt accompanied Noelia to the hospital.   While the ambulance was leaving, the mother arrived, and she went to the hospital too.   At the hospital, Noelia was examined by Nurse Loiz. As part of this examination, Noelia again explained that since she turned thirteen years old, the mother's boyfriend molested her by touching her breasts, and her vagina and anus.   The last incident had occurred about two weeks earlier.   While Noelia was at the hospital, the nurse spoke to Noelia three different times in order to evaluate the specifics and consistency of her story.   The story remained the same.   Noelia also disclosed to the nurse that she had told her mother about the abuse, but her mother did not believe her and was very angry with her.   When the mother arrived at the hospital, she spoke to both the officer and the nurse.   She insisted that Noelia was lying about the alleged abuse and that she did not want Noelia examined.   She was very angry and aggressive.   The nurse requested security to intervene and to escort the mother to the waiting area in order for the examination to be completed and for DCF to be contacted.

Ms. Alston, a DCF careline social worker, arrived at the hospital and interviewed Noelia and her mother.   The mother stated that she was aware of two, unrelated and unsubstantiated allegations of sexual abuse involving the boyfriend and other children.   She was convinced, however, that these allegations were untrue and that Noelia was lying about her claims of abuse.   During Alston's interview of Noelia, Noelia continued to maintain her claims, but she stated that she was not afraid to go home if the boyfriend was not there.   The mother agreed to a written safety plan in which the boyfriend would leave the house, the mother and children would return, and the mother would not allow him to have contact with the children pending the investigation.   Exhibit 5. This agreement was subsequently modified so that the boyfriend could return to the residence and the mother and the girls would reside with a family member.   Exhibit 4.

Several days after Noelia ran away, the children were interviewed at the home by Mr. Block, a DCF regional investigation social worker.   The mother refused to allow him to interview the children privately, and they were interviewed separately in the mother's presence.   The mother told Block that she believed that Noelia's biological father had been in contact with Noelia through Facebook, although she had not personally seen the Facebook communications.   She stated that Noelia's father had encouraged Noelia to make up the claims against the boyfriend in order to get the boyfriend out of the home.   Noelia corroborated this explanation.   She explained that she had communicated with her father on Facebook.   In these communications, the father convinced her to make the claims against the boyfriend so that her father and mother would be able to reconcile.   Pursuant to Block's request, the mother indicated that she would print these communications and provide them to him.   During their interviews with Block, the children denied receiving any physical discipline and reported that they felt safe in the home with the mother and the boyfriend.

Subsequently, Block interviewed the boyfriend.   He denied Noelia's claims of abuse.   He reported that he took the family into his home about seven years earlier when they were in dire need.   He explained that he and the mother even reconciled after she left him to reside in Kansas with Noelia's father.   He explained that he and the aunt drove to Kansas to bring the family back to his home after the mother was physically abused by the father.   Pursuant to the service agreement, he had been staying at a hotel.   He indicated that he would comply with the service agreement.   He admitted that he watched the children on evenings when the mother works.

On March 27, six days after Noeila's hospital admission, a multi-disciplinary forensic interview took place.   During this interview, Noelia again stated that she made up the story that the boyfriend had abused her.   She explained that she made up the abuse allegation because she was scared about getting into trouble for running away.   She further stated she had communicated with her father on Facebook, and he had urged her to make up the story in order to get the boyfriend removed from the home.

The next day, Block spoke to the aunt.   She expressed continuing concerns about the allegations and provided Block access to Noelia's Facebook account.   There were communications between Noelia and her father, but there were no entries from the father encouraging her to make any accusations against the boyfriend.

Block then went to Noelia's school with a colleague to speak to her again.   During this meeting, Noelia told Block that she denied the abuse because her mother and the boyfriend told her to lie to DCF and the police.   The mother told her that if she did not deny the story, the family would lose everything and would be homeless because the boyfriend pays all their bills.   Noelia explained that her mother told her to tell DCF and the police that her father told her to make up the allegations.   Noelia reasserted her claim that the abuse began soon after her thirteenth birthday.   She stated that the boyfriend would enter her room at night while her mother was at work and sexually abuse her by penetrating her vagina and anus with his finger.   She also claimed that he had rubbed his penis against her and had masturbated on her.   She reported that she would try to fight him off, but he would force himself on her.   The last incident occurred about three weeks ago.   She told Block that several months ago, she wrote a letter to her mother disclosing the abuse, but her mother did not believe her and tore the letter up.   Noeila stated that she was afraid of both her mother and the boyfriend.   As to her sisters, Noeila stated that she did not believe that the boyfriend had touched either of them in a sexually inappropriate manner.

Additionally, Noeila told Block that her mother and the boyfriend had been picking her and her sisters up from school daily in his car in violation of the service agreement.   Some days earlier, the police had also come to the house on a report that the boyfriend was at the home in violation of the directives that he have no contact with the girls.   Noeila explained that the police did not find him at the house because he was hiding in a second-floor apartment.

Noeila also explained that the only television in the home is in the boyfriend's bedroom.   She reported how there were occasions when the girls would be in his room watching television and he would place his hands in his genital area under a blanket and move them in a furtive manner.

Later that day, Block interviewed the younger sisters at the school.   Yanilie stated that the boyfriend had never sexually touched her or exposed himself to her, but that he made her feel uncomfortable.   When asked to explain, she said that when she and her sisters watched television in his bedroom, he would touch himself under his covers, and make hand movements and “grunting” sounds.   She said this conduct made her feel weird, and she knows that his behavior is wrong.   Yanilie reported that she told her mother about this behavior of the boyfriend.   According to Yanilie, the mother told her she was lying and not to talk about the incident again.³  Yanilie also stated that she was afraid of both her mother and the boyfriend.   During Block's interviews with Ivelia, she denied any concerns about living in the home, but confirmed that the boyfriend had been picking the girls up after school with her mother.

When the mother arrived at the school, she became agitated that the children were being interviewed and demanded that they be released to her.   She was interviewed by Block and advised about the accusations made by the children.   The mother denied all the claims.   The mother was again interviewed by the police the next day.   She again denied the allegations of abuse and denied being informed about any abuse as alleged by Noeila and Yanilie.   In regard to Noelia's claim that she wrote a letter to the mother disclosing the boyfriend's behavior, the mother stated that Noelia did write her a letter about a week before she ran away, but the letter was to the boyfriend telling him that she wanted to live with her father.   The mother explained that she discussed this letter with Noelia and then threw it away in anger.

On April 4, 2012, forensic interviews were conducted with each of the girls.   During Noelia's interview she reiterated her previous allegations about the boyfriend's conduct, but also alleged anal intercourse for the first time.   Yanilie and Ivelia both confirmed that there were instances when the boyfriend masturbated in their presence while they watched television in his bedroom.   See n.3.

As previously stated, DCF took custody of the children pursuant to orders of temporary custody that were filed on March 30, 2012, and sustained on May 2, 2012.   Since DCF acquired custody of the children, they have resided in therapeutic foster homes and have received therapy at the Sterling Center.   Noelia and Yanilie have been diagnosed with post traumatic stress disorder.   Exhibit 20, p. 5. The children's emotional conditions, treatment and progress were reviewed by the court previously.   See Memorandum of Decision on the Respondent Mother's Motion for Permission for Children's Testimony and on the Petitioner's Motion for Permission to Use Children's Statements in Lieu of Testimony, filed October 31, 2012.  (“Memorandum of Decision.”)   Summaries of the children's therapy sessions were presented to the court at the prior hearing and were again marked as full exhibits for the trial.

Except in one significant respect, Noelia's description of the boyfriend's sexual assaults remained fairly consistent during her treatment sessions.   She again stated that the boyfriend began to sexually abuse her soon after her thirteenth birthday and that the assaults continued to occur two to three days a week.   She explained that among her worst memories are those about the beatings and when the boyfriend first came to her room during the night.  “She recalled [him] coming to her room when [her mother] was at work, uncovering her, touching her, masturbating, leaving, closing the door and acting the next day as if nothing happened.”   Exhibit 16, p. 3. She explained that he would uncover her whole body and use a tissue to wipe himself after masturbating.   Exhibit 31–1, p. 7. Noeila reported how she told Yanilie about the abuse.   Yanilie's therapist, Ms. Fox, separately reported that Yanilie disclosed to her that Noeila told her that the boyfriend was molesting her.⁴  Noelia also reiterated that her mother made her lie about the abuse in order for the family to remain with the boyfriend.   She again described the incidents when the boyfriend masturbated while the girls were in his bedroom.   She also reiterated how she wrote a letter to her mother about the abuse, but the mother did not believe her, threw the letter away and failed to provide her with any support or protection.

However, Noelia's therapist, Ms. Borecka, noticed that her descriptions about the sexual abuse omitted any mention about the anal rape that she reported at the April 4, 2012 forensic interview.   When Borecka asked her about this omission, Noelia explained that she lied about the anal rape.   When asked why she told this lie, she explained that “it was the only way I [could] keep me and my sisters safe and also in order to have a better life.”   Exhibit 30, p. 9.

Based on the treatment summaries, the court previously summarized Noelia's emotional condition when she started therapy as follows:

Noelia presented as frightened, distressed and distraught.   As described in the June 2012 treatment summary, she appeared “quite repressed and traumatized.”  [Exhibit 31–1, p. 3.] She would curl down in her chair and rock.   Her distractibility was very high in that she was not able to concentrate on one topic, and she had difficulty finishing her sentences.   She also had difficulty sleeping and experienced nightmares about her mother and stepfather coming to kill her.  Id., 5. She would keep the light on at night and would keep the television on to help her sleep.   When Borecka suggested that her mother may not have known about any abuse involving the boyfriend, [“Noeila burst into tears and stated her mother was hitting the girls just as [the boyfriend] did and Noeila told her about the sexual abuse and mom told her to recant.”]  Id., 6.

On several occasions during the treatment sessions, Noeila expressed fear of her mother and about returning to her mother's care.   Indeed, Noeila expressed very disconcerting fearfulness without any direct trigger or provocation.   For example, her difficulty with sleeping was related to her feelings of insecurity and fear.   Noelia's foster mother reported that “she was sleeping in the living room on a sofa to assure the girls that they are safe.”  Id., 6. Noeila also expressed extreme concern or preoccupation about the safety of her younger sisters.   The June 2012 treatment summary states “the concern for her siblings protects her from breaking down emotionally because she feels she needs to be strong for her sisters.”  Id., 3.

Memorandum of Decision, supra, 5–6.

Yanilie's treatment summaries indicate that she is extremely guarded and unwilling to discuss or process her family experiences or history.   She “has difficulty communicating verbally and has difficulty with expressing her emotions and feelings ․ When challenged to explore her history [or process] her feelings related to the past she shows discomfort and hesitation.”   Exhibit 17, p. 2. Her foster mother reported that Yanilie “oftentimes rocks, cries and does not want to talk to her.”   Exhibit 30, p. 6. Yanilie's most consistent disclosure about her family history is her expression of fear.   For example, when asked to explore her home life her only response was, “I didn't feel safe.   I was scared.”   Exhibit 17, p. 2. When asked what made her scared, she curtly replied, “[the boyfriend.]   That he would yell a lot.   That he would hit us.   He would hit us with a belt.   It was a brown belt.   I got hit.   I don't like talking about it.”   Exhibit 17, p. 3. When asked how she felt about seeing her mother and the boyfriend, she responded that she didn't “ever want to see [them].”  Id. She explained that “I think they're bad.”  Id. She stated that even being asked about seeing them again made her “scared.”  Id. When asked if she would be willing to testify in court, her response was no “[b]ecause it's dangerous.  [The boyfriend] or my mom might do something bad.   They might hurt us.   They might try to hurt us in the court room.”  Id. When asked if she would have this concern even if there were a lot of people in the courtroom, she replied, “Yes.” Id.

Based on the treatment summaries, the court previously summarized Yanilie's emotional condition when she started therapy as follows:

She presented as depressed and repressed.   She was withdrawn and not articulate.   Indeed, particularly for her age, she was very timid and verbally inhibited.   She mostly communicates with facial or physical expressions.   Engaging her during therapy sessions is challenging because she is so quiet and insecure.   Yanilie states that “she loves her mom, but doesn't want to live with her or visit her at this time.”  [Exhibit 32–2, p. 2.] She blames her mother for being removed from her mother's care, but for now, she wants to continue to remain in foster care.   As she explained, “I am safe and [the foster mother] doesn't hit me or yell at me.”  Id.

Memorandum of Decision, supra, 6–7.

In regard to Ivelia's treatment sessions, she too experiences difficulty talking about her family history without discomfort and fear.   She also expresses conflicting feelings about her mother.   For example, during several sessions she stated that she loves and misses her mother, and at another, she stated that she wishes that her mother had never been born.   She also vacillates about whether or not she wants to return to her mother's custody, except that she is very consistent and adamant that she does not want to return to her mother if the boyfriend is present.   She states that the boyfriend “was not nice.”   Exhibit 15, p. 2. “I did not like him ․ When I did something wrong in school ․ he [would] hit me [on] my legs and butt.   My legs were bruised.   He hit me with his belt.”  Id. When asked if there was anything good about the boyfriend her response was “no.”  Id., 3.

All three children associated their fear and dislike of the boyfriend with his physical discipline.   As previously stated, Ivelia reported that “he hit me, my legs and butt.   My legs were bruised.   He hit me with his belt.”  Id. She stated that he had a belt with each of the girls' names on it.   Ivelia also reported that her sisters got hit too, “usually once a week.   Once I got hit two days in a row.”   Exhibit 18, p. 3.

Noelia also expressed concerns about her and her sisters being hit.   She reported an incident when her mother washed Ivelia after she had been physically disciplined by the boyfriend and that the mother would blame Ivelia “for causing the abuse and [accuse Ivelia] of wanting the stepdad to leave.”   Exhibit 31–1, p. 2. Noelia explained that if Ivelia “would curl down he would pull her up by her hair and keep hitting her.”  Id. Noelia recalled a beating “she received for writing her name on a piece of paper which infuriated the stepfather.”  Id. Noelia explained that “he hit me over my head with a stick and I didn't even see the blood until my mom saw it.   She took me to the bathroom to wash it and she was like, ha, ha, ha that's what you get.   I don't know what was the reason.   He just would hit us.”   Exhibit 30, p. 6.

Although Yanilie has not described the specifics of any physical discipline, she has reported that she and her sisters were hit.   As previously stated, she explained that “he would hit us.   He would hit us with a belt.   It was a brown belt.   I got hit.   I don't like talking about it.”   Exhibit 32–2, p. 10.

The children's disclosures indicate that the mother was aware of the physical discipline being inflicted by the boyfriend.   The evidence does not indicate that she intervened in any way.   Indeed, according to the children's reports, the mother also engaged in physical discipline.   As reported by Noeila:  “My mom would only hit us sometimes.  [The boyfriend] would beat us until we bled.   She would hit us with a hand and he would hit us with a hanger and a belt all in one spot ․ it bled.”   Exhibit 16, p. 4. Ivelia reported that “mom hit us a lot because we did bad in school.   She hit us on our bottoms.”   Exhibit 15, p. 3. When Yanilie was asked if she wanted contact with her mother, her response was, “No, I don't feel safe around her.   I feel safe around [my foster mother] but not my real mom.   I don't feel safe around my mom or [the boyfriend].   I'm not ready.   I know my real mom will scream at us a lot or hit us if we get in trouble.”   Exhibit 17, p. 3.

The fear that the children associate with the boyfriend and their home environment is further exemplified by them witnessing the family dog, a Chihuahua, being bludgeoned to death in their bathroom bathtub by the boyfriend.   Noelia and Ivelia mentioned the experience during their therapy sessions.   During several sessions, Ivelia became particularly distraught when she recalled the incident.  “During Ivelia's disclosure of this incident to her therapist, she cried so heavily she fell to the floor in a fetal position.   Noelia and Ivelia described how the boyfriend beat the dog with a large stick until he was ‘barking blood’ and ‘bleeding out of his nose.’  [Exhibit 31–1, p. 2;  Exhibit 33–3, p. 2.] Ivelia stated that she tried to stop him, but he pushed her away.  [There is no evidence that the mother attempted to intervene in this assault on the dog or shield the children from witnessing it.]   Ivelia recalled her mother ‘putting the dog's bloody body into a plastic bag and telling the girls to throw the dead dog into the garbage.’  [Exhibit 33–3, p. 2.]” Memorandum of Decision, supra, 8.

In summary, all the girls expressed apprehension about returning to their mother's custody because of their concern that she would not protect them from the boyfriend.   Noelia and Yanilie stated that they would not believe any claims by the mother that she would leave him or protect them.⁵  In this regard, during her therapy sessions, Noelia again made statements indicating that the mother violated the service agreement.   She reiterated her prior disclosure that the girls were with the boyfriend at the family home when he hid upstairs to avoid the police, who were investigating a report that he was at the home.   Exhibit 30, p. 8. She recalled how “mom once brought the girls to visit him and to have a dinner together and then they went back to [a cousin's house].”  Id. Yanilie also reported how the mother snuck the boyfriend out the backdoor of the home during a visit from the DCF social worker who had advised the mother that he should have no access to the children.   Exhibit 32–2, p. 2.

C

Based on the information presented at the trial, the court finds that DCF has proven the following claims by a fair preponderance of the evidence, and by doing so, DCF has also established that the children have been subjected to statutory neglect.

The boyfriend sexually molested Noelia.   He did not commit the anal rape as she alleged at the April 4, 2012 forensic interview, but he began to sexually molest her after her thirteenth birthday by coming into her room in the evenings when the mother was at work, undressing her, sexually touching her and masturbating.   The boyfriend also masturbated in the girls' presence when they were in his bedroom watching television.   According to the evidence, he avoided exposing himself by committing this act under the bed covers, but nevertheless, on numerous occasions, he exposed the children to this conduct, which can only be described as obscene and injurious to their well-being.   The boyfriend also exposed the children to unhealthy violent acts as evidenced by his excessive, physical beatings of the girls and his brutal slaying of the family dog.

The mother was aware of the boyfriend's abusive behavior regarding the children, denied it and failed to protect the children from it.   Before Noelia ran away, the evidence is conflicting about whether the mother was aware of the boyfriend's deviant sexual behavior involving the girls.   The mother denies any such knowledge, as she denies that any such conduct took place.   The more credible evidence, however, indicates that she was made aware of the boyfriend's conduct.   Both Noelia and Yanilie report that they told their mother about his inappropriate behavior, but she refused to believe them and discouraged them from talking about it.   Noeila reported an incident when the boyfriend masturbated in front of the girls and the mother while they were watching television.   According to Noelia, “her mother grabbed the stepfather and took him upstairs and started arguing with him about it.”   Exhibit 23, p. 9.

There is no dispute that the mother became aware of the allegations of sexual abuse after Noeila ran away.   The mother then either failed or refused to believe the claims, and she became extremely angry and agitated about the disclosures.   She insisted that Noelia's biological father prompted Noelia to make the allegations against the boyfriend during Facebook communications.   According to Noelia's statements, the mother concocted this story involving the father.   The court credits these statements made by Noelia.   It is undisputed that there were no Facebook discussions between Noelia and her father where he asked Noelia to make accusations of sexual abuse against the stepfather as claimed by the mother.   The court concludes that the most rational and credible view of the evidence is that the mother and the boyfriend pressured Noelia to recant her claims against the boyfriend, and the mother forced her to say that her biological father was involved.   The mother wanted Noelia to lie to the police and to DCF in order to protect the boyfriend and to avoid disruption of the perceived family security being provided by him.   Furthermore, the mother was certainly aware of the excessive physical discipline and violence inflicted on the children by the boyfriend.   The court also credits the children's reports that even after the mother made the written safety plan with DCF and agreed to keep the children away from the boyfriend, she failed to comply with this agreement.   The mother's failure and refusal to protect the children from the boyfriend's abuse constitute evidence of neglect.  In re Noel M., 23 Conn.App. 410, 419, 580 A.2d 996 (1990) (neglect found based on the mother's disbelief of the child's sex abuse claims and her return to the perpetrator's home with the child).

D

The mother maintains that the evidence fails to prove that any physical or sexual abuse occurred in the home.   As the trier of fact, the court is charged with evaluating the evidence.   In this particular case, neither the mother nor the children testified, and therefore, much of the crucial evidence is provided through reports about their statements.   Evaluating the credibility of this evidence involves a sensitive consideration of the reasonableness or plausibility of the statements, as well as the statements' consistency or constancy.   In making this evaluation, certain statements may be considered in relation to other statements made by the speaker or in relation to other evidence that may be either undisputed or proven.   The court may appropriately consider the context of the statements and whether the circumstances provide a motivation for veracity or falsity.   The mother is correct that, in evaluating credibility, the court should consider the fact that a declarant has provided false information, and when the court finds that a declarant has made false statements, the court may disbelieve other statements made by her, but the court is not required to do so.  “The rule is that the [trier's] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical.”  (Internal quotation marks omitted.)   State v. Estrada, 71 Conn.App. 344, 350, 802 A.2d 873, cert. denied, 261 Conn. 934, 806 A.2d 1068 (2002).   In evaluating these considerations, and rejecting the mother's positions, the court particularly notes the following.

In regard to the boyfriend's physical abuse, the mother claims that the law does not preclude corporal punishment by a parent or guardian, and for this reason, the boyfriend's discipline of the children did not constitute abuse.   See generally General Statutes § 53a–18(1) (“A parent, guardian or other person entrusted with the care and supervision of a minor ․ may use reasonable physical force upon such minor ․ when and to the extent that he reasonably believes such to be necessary to maintain discipline or to promote the welfare of such minor ․”).  This case does not require the court to engage in an extensive examination of the parameters of legally appropriate physical discipline.   See Lovan C. v. Dept. of Children & Families, 86 Conn.App. 293, 860 A.2d 1283 (2004).   The court merely concludes that the excessive and routine beatings with a belt or a hanger that caused bleeding, bruising and trauma as inflicted on the children by the boyfriend in this case rise to the level of child abuse under Connecticut law.   See id., 299 (“Limits on the right of parents to punish their children do ․ exist.   The common law rule and the provisions of [General Statutes] § 53a–18(1) require that the use of physical force administered upon a minor child be ‘reasonable.’  ․ Whether that limit has been reached in any particular case is a factual determination to be made by the trier of fact.”  (Internal quotation marks omitted)).

The mother also relies heavily on Noelia's false claim of anal rape and Noelia's other defiant or problematic behaviors to insist that she lacks credibility and that all her reported claims against the mother and boyfriend should be rejected.   In regard to the disclosures made by Yanilie and Ivelia regarding the boyfriend, the mother argues that they too should be rejected because they all emanate from Noelia's overbearing control over her sisters.   As addressed below, the court finds the mother's positions to be implausible.   The allegations on which she relies to support her contentions are either unbelievable or unsupported.

There is no dispute that Noeila made inconsistent statements regarding the boyfriend's behavior.   She recanted and then reasserted her claims of sexual abuse.   She also alleged in very graphic detail how the boyfriend committed an anal rape and subsequently admitted that this claim was fabricated.   Contrary to the mother's emphasis, however, the court finds particularly relevant not only the existence of these false statements, but also the reasonableness of Noeila's explanations for making them in relation to the totality of the evidence.   Noelia recanted her claim that she was sexually abused by the boyfriend, but, as she explained, and the court has found, her retraction was prompted by pressure from her mother.   She reasserted these claims against the boyfriend in order to acquire protection for both herself and her sisters from the abuse they were subjected to while in their mother's care.

Similar motivations to protect herself and her sisters prompted Noeila to allege that the sexual assaults were even more horrendous than they actually were.   As Noeila explained to her therapist, “It was the only way I [could] keep me and my sisters safe and also in order to have a better life.”   Exhibit 16, p. 7. The false rape allegation was made by Noelia after the safety plan was executed and violated by the mother, after she had been forced by her mother to recant her initial claims, and when she had to confront the fear of being returned home to face her mother's anger and the boyfriend's abuse.   As explained by her therapist, the false allegation could be fairly characterized as a “cry for help.”   Exhibit 16, p. 9. Noelia expressed both guilt and remorse about making the false accusation (see Exhibit 16, p. 7;  Exhibit 41, p. 2), but she has maintained her other accusations against the boyfriend.   As noted by her therapist, the totality of Noelia's representations indicates that her other descriptions of the boyfriend's conduct have been particularly consistent.   Exhibit 16, p. 8. Indeed, the reason Noelia's therapist confronted her about the anal rape allegation was because this was the one allegation she omitted from the other accusations she reported during her therapy sessions.

Additionally, significant aspects of Noelia's accusations have been corroborated by her sisters.   Noelia stated that she told Yanilie that the boyfriend was molesting her.   Yanilie confirmed that she was so informed during her own therapy sessions.   All three girls reported about the boyfriend's inappropriate conduct while they watched television in his bedroom.   All three girls also reported his excessive use of physical discipline and their fear about being returned to his care.   The mother contends that Yanilie and Ivelia's claims of fear of and abuse by the boyfriend are all false and emanate from Noeila's “control” over them.   This contention is without evidentiary support.

Furthermore, the mother's position that there were no concerns in the home prior to the filing of the petitions provides no explanation for the girls' undisputed emotional trauma, which their therapists have documented and treated.   The evidence establishes that when the girls began therapy, they were fearful, distressed and traumatized.   Noeila and Yanilie have been diagnosed with post traumatic stress syndrome.   Yanilie reportedly exhibits symptoms of this syndrome “as she will throw herself on the floor and wall, cradle herself in a ball, and rock back and forth or shut down.”   Exhibit 20, p. 5. When Noelia's therapist suggested that the mother did not know about the boyfriend's sexual abuse, Noeila “burst into tears.”   When Ivelia described the boyfriend's brutal beating of their family dog, she cried so heavily that she fell to the floor in a fetal position.   The children's first foster mother reported that in light of the children's feelings of insecurity and fear, she found it necessary to sleep “in the living room on a sofa to assure the girls that they are safe.”   Exhibit 31–1, p. 6. The court has found that the “children present emotional conditions that may be fairly described as very fragile and sensitive.”   Memorandum of Decision, supra, 8. Contrary to the mother's apparent contention, the children's emotional conditions are neither contrived nor vacuous.   These conditions are real and serious.   They support the claims that the girls were physically and emotionally abused and they evidence the existence of neglect in the home.

II

DISPOSITION

“After an adjudication of neglect is made, a court may (1) commit the child to the commissioner, (2) vest guardianship in a third party or (3) permit the parent to retain custody with or without protective supervision.  General Statutes § 46b–129(j) ․ In determining the disposition portion of the neglect proceeding, the court must decide which of the various custody alternatives are in the best interest of the child.   To determine whether a custodial placement is in the best interest of the child, the court uses its broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of the child's environment.”  (Citation omitted;  internal quotation marks omitted.)  In re Ja-lyn R., 132 Conn.App. 314, 323–24, 31 A.3d 441 (2011).   In determining the appropriate disposition order, the controlling consideration is the child's best interests.  Id.

The mother does not seek an order returning the children to her custody.   Criminal proceedings are pending against her, and a protective order has issued from the criminal court precluding her from having contact with the girls.   Nevertheless, even if there were no protective order, a fair preponderance of the evidence shows that a return of the children to the mother's custody would not be in the children's best interests based on this court's findings and the recommendations of the girls' therapists.   The mother has not shown an appreciation of the abuse inflicted upon her children.   Consequently, she also has not shown an appreciation of the trauma caused by this abuse or the need to protect the children from it.

The mother seeks an order transferring custody of the children to the maternal grandmother.   DCF argues that the appropriate disposition is a commitment of the children to its custody.   The court agrees with DCF.

Since the order of temporary custody, the children have been placed in therapeutic foster homes.   The girls have also received regular, individual therapy sessions.   Their progress has been guarded and gradual, with a goal of stabilization.   In determining the order of disposition, two key concerns are the children's emotional status and the need to avoid a disruption of their therapeutic progress.   Noeila and Yanilie have consistently and adamantly maintained that they are not emotionally prepared to reside with their grandmother.⁶  They express fear that the grandmother will not protect them from having contact with the boyfriend.   Although Ivelia has recently vacillated about whether she would like to reside with her grandmother, she too is adamant about being afraid of the boyfriend and not wanting any contact with him.   The evidence also indicates the close bond of the girls, and thus, the need for them to be together at any placement.

The grandmother testified that she has enrolled in programs to help her care for the girls, and she emphasizes that their placement with her would be part of their “home community.”   She also testified that she now better understands the girls' allegations of abuse and she would endeavor to keep them away from the boyfriend.

The grandmother further testified that during her recent visit with the children she understood that they wanted to reside with her.   Especially as to Noelia and Yanilie, this testimony sharply contrasts with what the children reportedly told their therapists and the guardian ad litem.   See Exhibit 45, p. 3. Furthermore, the children's therapists have recommended that at this time there should be no contact between the girls and any family member, including the grandmother, unless the contact is part of the girls' trauma therapy.   The grandmother has only recently started to see the girls for this purpose, and the girls' therapists have not expressed any opinions suggesting that these therapeutic visits have so progressed that transfer of the girls' custody to the grandmother would be medically appropriate or advisable.

As previously stated, in determining a custodial placement, the court must exercise its “broad discretion to choose a place that will foster the child's interest in sustained growth, development, well-being, and in the continuity and stability of the child's environment.”  (Internal quotation marks omitted.)  In re Ja-lyn R., supra, 132 Conn.App. 323–24.   In evaluating the considerations bearing on the custodial placement in this case, the court concludes that the clear weight of the evidence supports an order committing the children to the custody of DCF. The children have been stabilized in a therapeutic foster home.   The foster parents have support services in place to assist with an effective maintenance of the placement.   The improvement of the girl's emotional conditions has been gradual and incomplete.   The evidence simply does not indicate that it would be in the girls' best interests to disrupt the security and stability that they have achieved at their present placement by a transfer of their custody to the grandmother.   The evidence does not indicate that the grandmother is presently prepared to meet or address the multiple challenges presented by the three girls as a result of the trauma that they have experienced.

CONCLUSION

In conclusion, the court finds that DCF has proven by a fair preponderance of the evidence that the children have been subjected to statutory neglect and that it is in the children's best interests to be committed to the custody of DCF.

Therefore, the court rules in favor of DCF on the petitions.   The court denies the mother's motion to modify the order of temporary custody.   The court denies the mother and the grandmother's request to transfer custody of the children to the grandmother.

An order issues committing the children to the custody of DCF.

So ordered this 6th day of May 2013.

STEVENS, J.

Presiding Judge

Bridgeport Juvenile Court

FOOTNOTES

FN2. The court notes that criminal charges are pending against the mother relating to events of this case, and the mother declined to testify during the trial.   No adverse inference is made against the mother for not testifying, as the court concludes that such a finding is unnecessary for the resolution of the disputed facts.   The court also notes that the children did not testify as a result of the court's finding that testifying would be emotionally harmful to them.   See Memorandum of Decision of the Respondent Mother Motion for Permission for Children's Testimony and on the Petitioner's Motion for Permission to Use Children's Statement in Lieu of Testimony, filed October 31, 2012.  (“Memorandum of Decision.”)   During the trial, statements from the children were admitted into evidence through agreements of the parties or exceptions to the hearsay rule.   Additionally, although the applicability of the residual exception to the hearsay rule under § 8–9 of the Code of Evidence was preliminarily addressed in the court's Memorandum of Decision, the residual exception to the hearsay rule was not utilized during the trial..  FN2. The court notes that criminal charges are pending against the mother relating to events of this case, and the mother declined to testify during the trial.   No adverse inference is made against the mother for not testifying, as the court concludes that such a finding is unnecessary for the resolution of the disputed facts.   The court also notes that the children did not testify as a result of the court's finding that testifying would be emotionally harmful to them.   See Memorandum of Decision of the Respondent Mother Motion for Permission for Children's Testimony and on the Petitioner's Motion for Permission to Use Children's Statement in Lieu of Testimony, filed October 31, 2012.  (“Memorandum of Decision.”)   During the trial, statements from the children were admitted into evidence through agreements of the parties or exceptions to the hearsay rule.   Additionally, although the applicability of the residual exception to the hearsay rule under § 8–9 of the Code of Evidence was preliminarily addressed in the court's Memorandum of Decision, the residual exception to the hearsay rule was not utilized during the trial.

FN3. In her post-trial memorandum, the mother notes that the children never actually used the word “masturbation.”   This is the word the interviewers or therapists used to characterize the girls' description of the boyfriend's behavior.   The mother argues that the children may have merely been describing that the boyfriend was “scratching or adjusting himself.”   The court finds the mother's characterization of this evidence incredible.   The court finds that a preponderance of the evidence establishes that the boyfriend masturbated in the presence of the children..  FN3. In her post-trial memorandum, the mother notes that the children never actually used the word “masturbation.”   This is the word the interviewers or therapists used to characterize the girls' description of the boyfriend's behavior.   The mother argues that the children may have merely been describing that the boyfriend was “scratching or adjusting himself.”   The court finds the mother's characterization of this evidence incredible.   The court finds that a preponderance of the evidence establishes that the boyfriend masturbated in the presence of the children.

FN4. Ms. Fox's July 2012 treatment note (Exhibit 32–2, p. 5) indicates that “Yanilie reported that her sister [Noelia] had told her what had happened with her and her stepdad.   When asked if she could share what she was told, Yanilie stated:  She said he would always touch her on her legs, give her hugs and follow her around a lot.   She would tell me in the morning that he went to her room at bedtime.   My mom was at work at a factory.”  Id. When asked why she was removed from her home, Yanilie explained:  “Because of what happened to my sister.   She ran away because of what my stepdad did to her.   He used to touch her in the wrong spot.   On her parts that aren't suppose to be touched by guys.”  Id..  FN4. Ms. Fox's July 2012 treatment note (Exhibit 32–2, p. 5) indicates that “Yanilie reported that her sister [Noelia] had told her what had happened with her and her stepdad.   When asked if she could share what she was told, Yanilie stated:  She said he would always touch her on her legs, give her hugs and follow her around a lot.   She would tell me in the morning that he went to her room at bedtime.   My mom was at work at a factory.”  Id. When asked why she was removed from her home, Yanilie explained:  “Because of what happened to my sister.   She ran away because of what my stepdad did to her.   He used to touch her in the wrong spot.   On her parts that aren't suppose to be touched by guys.”  Id.

FN5. For example, when Noelia was asked by her therapist if she wanted to return to her mother's care, she replied, “No. Even if she says she is not with [the boyfriend] she is not telling the truth.   She will be with him.   She will let us be hit again.”   Exhibit 30, p.6. Yanilie provided the following response when advised that her mother had stated that she was not with the boyfriend anymore:  “we don't believe her.   I know she might be with him still.”   Exhibit 32–2, p. 7..  FN5. For example, when Noelia was asked by her therapist if she wanted to return to her mother's care, she replied, “No. Even if she says she is not with [the boyfriend] she is not telling the truth.   She will be with him.   She will let us be hit again.”   Exhibit 30, p.6. Yanilie provided the following response when advised that her mother had stated that she was not with the boyfriend anymore:  “we don't believe her.   I know she might be with him still.”   Exhibit 32–2, p. 7.

FN6. For example, the treatment summaries indicate that Noelia stated that “she does not feel safe in Bridgeport and she does not feel she and her sisters are safe even with their family members because people are intimidated by her stepfather and his cousins.   Noelia expressed fear that her mother will ‘take back’ her younger sisters and they will be abused again.”   Exhibit 31–1, p. 7. When Yanilie was asked if she wanted contact with her grandmother, her response was “No. I don't want to see anyone.   My grandma, my aunt, my mom, my uncle ․ For me I'm not ready to see them yet.”   Exhibit 17, p. 3. “One concern reported by the children is that [the boyfriend] is routinely at [the grandmother's] home.”   Exhibit 20, p. 6. An additional issue is whether the grandmother will prevent the mother from having access to the children in compliance with the existing protective order and the recommendations of the girls' therapists..  FN6. For example, the treatment summaries indicate that Noelia stated that “she does not feel safe in Bridgeport and she does not feel she and her sisters are safe even with their family members because people are intimidated by her stepfather and his cousins.   Noelia expressed fear that her mother will ‘take back’ her younger sisters and they will be abused again.”   Exhibit 31–1, p. 7. When Yanilie was asked if she wanted contact with her grandmother, her response was “No. I don't want to see anyone.   My grandma, my aunt, my mom, my uncle ․ For me I'm not ready to see them yet.”   Exhibit 17, p. 3. “One concern reported by the children is that [the boyfriend] is routinely at [the grandmother's] home.”   Exhibit 20, p. 6. An additional issue is whether the grandmother will prevent the mother from having access to the children in compliance with the existing protective order and the recommendations of the girls' therapists.

Stevens, Barry K., J.