IN RE: Tatianna M.-E. (2013)

MEMORANDUM OF DECISION

Neglect petitions concerning Tatianna M.-E. (d.o.b. May 21, 2009) and Lilliana M.-E. (d.o.b. December 18, 2011) were filed by the Department of Children and Families (DCF) on March 22, 2013.   DCF alleges that both children were denied proper care and attention physically, educationally, emotionally or morally, and that they were permitted to live under conditions, circumstances, or associations injurious to their well-being.

Crystal M.-E. is the mother of both children, and Joshua E. is their father.   The parents are married to each other, although they are separated, and an action for the dissolution of their marriage is pending.   Crystal M.-E. is a member of the Mohegan Tribe of Indians of Connecticut.   Joshua E. is a member of the Mashantucket Pequot Tribal Nation.   Tatianna and Lilliana are registered members of the Mohegan Tribe, and are eligible for enrollment in the Mashantucket Pequot Tribe.   The children have never lived on a tribal reservation.   Each girl is considered to be an “Indian Child,” as that term is defined by 25 U.S.C 1903.   The Indian Child Welfare Act (ICWA) applies to this involuntary child welfare proceeding.  (See:  25 U.S.C.1902, et sequitur.)

Pursuant to the provisions of 25 U.S.C.1911(b), this court has concurrent jurisdiction over this matter with the Mohegan and Mashantucket tribal courts.   Appropriate notices were sent to both tribes in accordance with 25 U.S.C.1912, and both the Mohegan Tribe of Indians of Connecticut, and the Mashantucket Pequot Tribal Nation, appeared by counsel in this proceeding.   Neither tribe requested that the case be transferred to a tribal court.

A neglect trial was held before the undersigned on October 21, 2013.   DCF was represented by an assistant attorney general.   Both parents were present at trial with their counsel.   The interests of Tatianna and Lilliana were represented by their court-appointed lawyer.¹  As noted, counsel for the Mohegan and Mashantucket Pequot tribes appeared and participated in the trial.

At the outset of the proceeding, Crystal M.-E. submitted a written plea of nolo contendere to the allegation that the children were permitted to live under conditions, circumstances or associations injurious to their well-being.   The court conducted a canvass, and found that the mother's no contest plea was knowingly, voluntarily, and understandingly made, after the adequate and effective assistance of highly competent counsel.   Inasmuch as Joshua E. was still contesting the neglect allegations, the court conditionally accepted the mother's plea, and indicated that the factual basis for the plea would be determined after consideration of all the evidence presented at trial.

The undersigned has carefully considered all of that evidence, and finds that the facts referred to below were proven by a preponderance of the evidence.²

FACTUAL FINDINGS (ADJUDICATION)

DCF filed the neglect petitions after one-year-old Lilliana suffered a fractured right arm while in the care of Joshua E. (Petitioner's Exhibit D, p. 7).   The injury occurred sometime between approximately 5:30 p.m. on January 2, 2013 and 1:30 a.m. on January 3, 2013.   Crystal M.-E. and Joshua E. were still living together then, and the mother went out that evening at around 5:30 p.m. to play bingo with friends.   Joshua E. remained home with both children.   There was credible evidence that Lilliana was not injured, or in pain, prior to the mother's departure.

At 2:32 a.m. on January 3, 2013, Joshua E. brought Lilliana to the emergency room at Backus Hospital in Norwich, where x-rays revealed “a midshaft spiral fracture of the child's right humerus bone.”  (Petitioner's Exhibit I, p. 3.)

The nature of the injury, and Joshua E.'s explanations about its possible cause, led Backus Hospital personnel to suspect child abuse.  (Petitioner's Exhibit I, p. 3.) The hospital notified DCF, which assigned intake social worker Ashton Hurd to respond there.  (Id.) The Connecticut State Police were notified by DCF. (Petitioner's Exhibit D, p. 2;  Petitioner's Exhibit G.;   Testimony of Detective Brett Langevin.)

Lilliana's arm was splinted and placed in an arm sling.  (Petitioner's Exhibit I, p. 3.) She was given 190mg of Tylenol Pediatric Elixir (acetaminophen) at 3:15 a.m. (Id.) Backus Hospital subsequently decided to transfer the child by ambulance to the SCAN Unit ³ of Connecticut Children's Medical Center (CCMC) in Hartford for a skeletal survey, and further evaluation.  (Id.)

Joshua E. offered two possible explanations about Lilliana's injury.   He initially told Backus Hospital personnel that the child woke up in her crib around 1:15 a.m. and was crying, so he went in to pick her up.   He reported that Lilliana was on her stomach and her right arm was sticking out between the crib's vertical slats.   Joshua E. claimed that he did not initially notice Lilliana's arm sticking out between the slats, and he felt the tension of her arm caught in the slats when he removed her from the crib.  (Petitioner's Exhibit D, p. 113;  Petitioner's Exhibit G. p. 1;  Testimony of Ashton Hurd;  Testimony of Joshua E.;   Petitioner's Exhibit K.) Joshua E. also told Ms. Hurd, and testified at trial, that Lilliana did not appear to be in extreme pain after he took her out of the crib.  (Petitioner's Exhibit K;  Testimony of Joshua E.) He also testified that when he picked up the child and felt resistance, he did not know then that he had hurt Lilliana.   However, he subsequently observed that Lilliana was not using her right arm, and was crying and uncomfortable, so he brought her to Backus Hospital.  (Petitioner's Exhibit G., p. 1;  Petitioner's Exhibit K.)

Personnel at Backus Hospital suspected that the father's explanation was inconsistent with the nature of the child's injury.  (Petitioner's Exhibit I, p. 3.) Ms. Hurd questioned the plausibility of Joshua E.'s account, because she believed that a significant amount of force was necessary to cause the fractured bone.  (Petitioner's Exhibit K;  Testimony of Ashton Hurd.) When the social worker questioned Joshua E. further about the etiology of Lilliana's injury, he reported that earlier in the evening he had been playing with Lilliana prior to putting the children to bed.   Joshua E. told Ms. Hurd that he had held Lilliana by the arms and was swinging her around, and jostling her back and forth.  (Testimony of Ashton Hurd;  Petitioner's Exhibit K.) In his sworn statement to the State Police, Joshua E. also stated:  “I was shaking Lilliana while I was playing with her, but not in a violent way.   When I was shaking her she let out a little cry and I stopped but I did not notice her acting any different ․ after this.   I put both kids to bed around 8:00 p.m.” (Petitioner's Exhibit G.)

Lilliana was transferred to CCMC, where she was treated by Irsal Cabahug, an Advanced Practice Registered Nurse assigned to the hospital's SCAN unit.   (Petitioner's Exhibit A, Testimony of Mr. Cabahug.)   Mr. Cabahug, who holds a master's degree in nursing, and is a forensic nurse clinical specialist, testified as an expert at trial.  (Petitioner's Exhibit C.) A copy of his evaluation report was also introduced into evidence.  (Petitioner's Exhibit A.)

Mr. Cabahug testified credibly that Lilliana sustained an oblique fracture of her right humerus.   A skeletal survey conducted at CCMC revealed no other past or present bone injuries.   Mr. Cabahug credibly opined that Lilliana's fractured arm bone was caused by “torsional twisting.”   The evaluation at CCMC did not suggest a bone disorder or other medical cause for the fracture.⁴  (Petitioner's Exhibit A, p. 3.)

Mr. Cabahug testified credibly, and wrote in his report, that he questions Joshua E.'s possible explanations for Lilliana's injury.   He believes that the father should have been able to identify when and how the injury happened, because the child would have been in significant pain around the time when her arm was fractured.  (Testimony of Mr. Cabahug, Petitioner's Exhibit A, p. 3.) “At the time of Lilliana's injury, I would expect a significant trauma event with significant pain behavior that would not escape notice from a caregiver.”  (Petitioner's Exhibit A, p. 13.)   Mr. Cabahug also testified, and wrote in his report, that the fractured bone was suspicious for “inflicted injury” and would not have been caused by “normal handling” of the child or “normal play.”  (Testimony of Mr. Cabahug, Petitioner's Exhibit A, p. 3.) The court found Mr. Cabahug's testimony and written report to be credible evidence.

Detective Brett Langevin of the Connecticut State Police testified at trial.   He investigated Lilliana's injury.   Detective Langevin testified credibly that Joshua E. gave a written statement to another trooper, as part of the investigation.   Detective Langevin found Joshua E. to be cooperative, and not evasive.   Joshua E. told him that Lilliana might have been injured when he removed her from the crib, or earlier in the evening, when he was playing with her.   The father told Detective Langevin that he believes it more plausible that the child's injury was caused when he was playing with her earlier in the evening.   The Connecticut State Police has concluded its investigation of Lilliana's injury and has closed the case without an arrest.

During his testimony, Joshua E. testified that he did not observe Lilliana to be in great pain after he played with her prior to 8:00 p.m., or after he removed her from the crib at 1:15 a.m. He testified that he was unaware that he had injured the child after either occurrence.   Joshua E. testified that he consistently gave the same information about the night in question to everyone with whom he spoke.   He testified that he initially related the details about removing the child from the crib, and later provided the information about his playing with Lilliana, after Ms. Hurd inquired if anything else might have possibly caused the child's injury.

The DCF social study indicates that neither parent has a criminal record, and that they both deny any incidents of domestic violence in their relationship.   (Petitioner's Exhibit D, p. 4, 8, 9;  Petitioner's Exhibit K.) The social history is devoid of any claim that either Crystal M.-E. or Joshua E. have substance abuse or mental health problems.   Both parents deny such problems.   (Petitioner's Exhibit D, p. 4 and 8.) No evidence was introduced at trial that either of the respondents have previously been accused of neglecting or abusing Lilliana or Tatianna.   Counsel for DCF represented at trial that the basis for the neglect petition pertaining to four-year-old Tatianna was the fact that she resided in the same household with Lilliana and both respondents on January 3, 2013 and was “similarly situated” (e.g., exposed to the neglectful conditions that resulted in her sister's injury).

DISCUSSION AND FINDINGS (ADJUDICATION)

Joshua E. denies that Lilliana and Tatianna have been neglected.   The father contends that the injury to Lilliana was accidental and occurred either as a result of his play with the child, or her entanglement in the wooden slats when he removed her from the crib.   DCF did not allege abuse in this proceeding.

It was not proven at trial that Joshua E. intended to hurt Lilliana, or acted with other malevolent intent.   However, the absence of such factors does not preclude a finding of parental neglect with respect to Lilliana.

The court credits the testimony of Irsal Cabahug that Lilliana's injury was not caused by “normal handling” or “normal play.”   The court concurs that the father's inability to pinpoint exactly when and how the injury occurred is suspicious, because the child would have experienced significant pain, which Joshua E. should have noticed, when her arm was fractured.   Mr. Cabahug's expert opinion about the foregoing was supported by the credible evidence that Lilliana received a dose of Tylenol Pediatric Elixir at Backus Hospital at 3:15 a.m., prior to her transfer to CCMC.

Crystal M.-E. pled no contest with respect to the counts of conditions injurious as to each child.   Her pleas of no contest on that count were conditionally accepted by the court.   The court finds that there is a sufficient factual basis for her plea with respect to Lilliana.   That plea is accepted, and a neglect adjudication on that count may enter as to her.⁵  Since the court does not find that neglect was proven as to Tatianna, Crystal M.-E.'s plea is hereby vacated as to that child only.

The court finds from all the evidence presented that Lilliana's injury was inflicted by Joshua E. It remains uncertain whether the child's fractured arm bone was caused by the father playing too roughly with the child, from his improper removal of Lilliana from the crib when her arm was still between the slats, or from some other act, or actions, by the father.   Under any of the foregoing scenarios, the court finds that Joshua E. acted with excessive forcefulness and roughness, and failed to provide proper care and attention for this one-year-old child, who was injured as a result.   The court finds that Lilliana was denied proper care and attention physically on or about January 3, 2013, and was exposed to conditions, circumstances or associations injurious to her well-being on that date.   As to the father, Joshua E., a neglect adjudication as to both counts specified in the petition pertaining to Lilliana, is made by the court.

The court does not find that DCF has proven that four-year-old Tatianna was neglected.   The child has never been injured, and no probative evidence was presented which sufficiently establishes that she was neglected by either parent.   Given the lack of prior child protection, domestic violence, mental health or substance abuse histories by either parent, the court does not find that she is “similarly situated,” or that the doctrine of predictive neglect applies.   The neglect counts alleged with respect to Tatianna are hereby DISMISSED.

FACTUAL FINDINGS (DISPOSITION)

Since the incident last January, Joshua E. has cooperated with a safety plan under which he resided away from Crystal M.-E. and the children.  (Petitioner's Exhibit D, p. 11, Testimony of Ashton Hurd.)

After an initial period of time when he had no contact with his daughters, Joshua E. began supervised visits with Tatianna and Lilliana.  (Id.).  Initially, his visits with the children were supervised by the Mashantucket Pequot Tribe.  (Id.).  Subsequently, supervised visits have taken place at the home of the maternal grandparents.  (Id., p. 12.)   A DCF social study indicates that the father has visited frequently and consistently, and that all visits have gone well.  (Id., p. 11–12.)

Crystal M.-E. and the two children resided for a time in Canterbury at the home of the mother's parents.  (Id., p. 17.)   She and the children now live in Norwich.   Crystal M.-E. has no criminal record, and no history of substance abuse, mental health or domestic violence problems.  (Id., p. 4.) The mother holds a certified nursing assistant's license and is employed at a surgical facility in Waterford.  (Id.).

Crystal M.-E. filed an action for dissolution of marriage at Superior Court in Norwich last summer.  (Petitioner's Exhibit F.) That court issued pendente lite orders awarding her sole custody of Tatianna and Lilliana.  (Id.) That court also granted Joshua E. visitation as follows:

“[Joshua E.] shall have visitation with the minor children at [Crystal M.-E.' s] discretion, but may be limited by Department of Children and Families allowance.”  (Id.).

Joshua E. is employed as a specialty cook by the Mashantucket Pequot Tribal Nation at the Foxwoods Casino and lives in Norwich.  (Id., p. 8.) He has successfully completed parenting education instruction conducted by Catholic Charities.  (Id., p. 12.)   As noted previously, he has no criminal record and, prior to this case, no previous involvement with the child protection system.   He has no history of substance abuse, mental health or domestic violence issues.

Tatianna is four years old.  (Id., p. 9.) She is up to date medically and dentally.   The DCF social study reports that she responds “positively to both of her parents and grandparents,” and does not indicate any neglect or abuse by her parents.  (Id.) Lilliana will turn two years of age on December 18, 2013.   (Id., p. 10.)   She also responds “in a positive manner towards both parents and grandparents.”  (Id.) The DCF report noted that she “is an active child who loves to smile and play with her sister,” and that “there are no recommendations for services by the pediatrician.”  (Id.)

At the conclusion of trial, DCF's lawyer recommended that the neglect petition be dismissed without commitment or protective supervision.   The other counsel do not object to this recommendation.

DISCUSSION

This case involves a significant fracture injury to a one-year-old child who was in the care of her father at the time it was suffered.   The specific cause of that injury remains unclear.   However, the court has found that Lilliana was injured as result of her improper and neglectful handling by Joshua E. on the date of occurrence.

Nearly 10 months have passed since then.   Both parents have cooperated with a safety plan, and supervised visits.   Joshua E. has completed parenting instruction.   Crystal E. has sole custody of Tatianna and Lilliana, pursuant to the pendente lite orders of the Superior Court in Norwich in the dissolution action.   The children have positive relationships with both of their parents.   DCF does not believe that Lilliana's commitment or protective supervision is necessary.

Given the length of time that has transpired since Lilliana's injury, and the present status of both respondents, and their children, this court will not issue dispositional orders in this case.   The petitions are DISMISSED.

Because a dissolution action is still pending before the Superior Court in Norwich, the undersigned will send a copy of this decision, under seal, to the Clerk of said court, with a request that it be placed in the parties' dissolution file, for consideration by the court there in connection with any final custody or visitation orders pertaining to the parties' dissolution.

SO ORDERED,

BY THE COURT

DYER, J.

FOOTNOTES

FN1. The attorney for the minor children participated during the morning session of the trial, and informed the court of his position.   He asked to be excused from attendance at the afternoon session because his presence was required at another court.   With the agreement of all parties and counsel, his participation during the afternoon portion of the trial was excused by the court..  FN1. The attorney for the minor children participated during the morning session of the trial, and informed the court of his position.   He asked to be excused from attendance at the afternoon session because his presence was required at another court.   With the agreement of all parties and counsel, his participation during the afternoon portion of the trial was excused by the court.

FN2. Counsel for DCF indicated prior to the commencement of evidence that, in the event of a neglect adjudication, DCF was not seeking dispositional orders of commitment, or protective supervision.   Because removal of the children to foster care was not being sought, the clear and convincing evidence standard and determination of damage finding mandated by 25 U.S.C.1912(e) does not apply.   The parties stipulated that the court's adjudicatory findings could be based upon a preponderance of the evidence..  FN2. Counsel for DCF indicated prior to the commencement of evidence that, in the event of a neglect adjudication, DCF was not seeking dispositional orders of commitment, or protective supervision.   Because removal of the children to foster care was not being sought, the clear and convincing evidence standard and determination of damage finding mandated by 25 U.S.C.1912(e) does not apply.   The parties stipulated that the court's adjudicatory findings could be based upon a preponderance of the evidence.

FN3. SCAN stands for “Suspected Child Abuse and Neglect.”.  FN3. SCAN stands for “Suspected Child Abuse and Neglect.”

FN4. CCMC did recommend that Lilliana be seen on an out-patient basis for a follow-up genetic evaluation.   This did not occur..  FN4. CCMC did recommend that Lilliana be seen on an out-patient basis for a follow-up genetic evaluation.   This did not occur.

FN5. The court does not make an adjudication finding as to Crystal M.-E., on the neglect count that Lilliana was denied proper care and attention.   That count, as to Crystal M.-E., is dismissed..  FN5. The court does not make an adjudication finding as to Crystal M.-E., on the neglect count that Lilliana was denied proper care and attention.   That count, as to Crystal M.-E., is dismissed.

Dyer, Richard W., J.