IN RE: Avirex R. (2013)

MEMORANDUM OF DECISION

In accordance with the Connecticut General Statute § 46b–124 and Connecticut Practice Book § 32a–7, the names of the parties involved in this case are not to be disclosed and the records and papers of this case shall be open for inspection only to persons having a proper interest therein, and only upon order of the Superior Court.

This case concerns Avirex R. who was born on September 21, 2011.   Avirex's mother is Sara M. (“mother”) and his father is Hector R. (“father”).  The court finds that notice has been given in accordance with the General Statutes and the Practice Book. The court has jurisdiction in this matter.   There is no other action pending in any other court affecting the custody of the child known to this court.

The Department of Children and Families (“DCF”) has moved to re-open the disposition of commitment of Avirex and seeks transfer of guardianship of Avirex to his paternal aunt, Emma G. Mother has objected to the disposition of transfer of guardianship and requests the court to deny the transfer of guardianship and order a reunification plan with mother.¹

This matter was heard by the court on November 1, 2013.   The Department of Children and Families was represented by an assistant attorney general.   The mother appeared for trial and was represented by counsel.   Father did not appear for trial;  however, his position was represented by his counsel.   The minor child was represented by his attorney.

The court heard testimony from the current social worker and the current foster care support worker.   Nine exhibits were admitted into evidence which included two Social Studies, an Addendum to the Social Study, two Status Reports, Running Narrative Documents, mother's Conviction Record, and an Assessment and an Addendum to Assessment from New Hampshire Child and Family Services.   DCF's Motion for Judicial Notice of the previous proceedings in this court was granted by agreement.   Specifically, took judicial notice of the court's Neglect Adjudication of Avirex on March 8, 2012;  the court's (Burgdorff, J.) commitment of Avirex to the custody and care of DCF until further order of the court on March 14, 2012 and;  the court's (Dannehy, J.) approval of the permanency plan of Subsidized Transfer of Guardianship to Paternal Aunt Emma G. on June 27, 2013.   The court also takes judicial notice of the chronology of the proceedings and the entire record of the previous non-delinquency proceedings, including pleadings, petitions, social studies, status reports, evaluations, court memoranda and specific steps.²

The court has reviewed the evidence produced at the hearing, considered the testimony of the witnesses, the history of the file as well as the relevant statutes and case law.   The credible and relevant evidence submitted during the trial reveals the following fact which were proven by a fair preponderance of the evidence.

For purposes of the matter before the court, a history of the file reveals that on September 29, 2011, a Motion for Order of Temporary Custody and a Neglect/Uncared for Petition were filed by the Department of Children and Families (DCF) on behalf of the minor child, Avirex R. The Order of Temporary Custody was granted on September 29, 2012 and thereafter was sustained on October 7, 2011.   Specific steps were ordered by the court on September 29, 2011 as to both respondent parents.   Amended specific steps were ordered by the court on October 7, 2011 as to the respondent mother.   Service was confirmed as to both parents on October 7, 2011.   Thereafter, the respondent mother and father each filed pleas of nolo contendre as to an adjudication of neglect which were accepted by the court.   Disposition was contested by both parents.   That matter was tried to this court on March 8, 2012.   As noted above, this court adjudicated Avirex neglected and committed him to the care and custody of DCF on March 14, 2012.   A Motion for Transfer of Guardianship to the maternal grandmother filed by the respondent mother was also contested and heard by the court on March 8, 2012.   That motion was denied.   Thereafter, the court (Dannehy, J.), as also noted above, approved the Permanency Plan of Subsidized Transfer of Guardianship to paternal aunt Emma G.

Connecticut General Statutes § 46b–129(m) provides that “[t]he commissioner, a parent or the child's attorney may file a motion to revoke commitment, and upon a finding that cause for commitment no longer exists, and that such revocation is in the best interests of the child ․ the court may revoke commitment of such child ․ The burden is clearly upon the persons applying for the revocation of commitment to allege and prove that cause for commitment no longer exists.   Once that has been established, the inquiry becomes whether a continuation of commitment will nevertheless serve the child's best interests.”  (Internal citations omitted.)  In re Patricia C., 93 Conn.App. 25, 30 (2006).  “Generally, questions of custodial placement are resolved by determination of what is in the best interest of the child as shown by a fair preponderance of the evidence.”  In re Halley B., 81 Conn.App. 62, 65 (2004).  “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 best interest in sustained growth, development, well-being and the continuity and stability of its environment.”  In re Karl J., 110 Conn.App. 22 (2008).

Factual Findings

Mother, who is presently 27 years of age, has a Child Protective Services history in New Hampshire involving substance abuse, prostitution, neglect, transience, domestic violence.   The guardianship of her older child was transferred to the maternal grandmother through the Probate Court in New Hampshire where mother currently resides.   She has a history of substance abuse and mental health issues.   The minor child, Avirex R., experienced withdrawal at the time of his birth from opiates that were abused by mother during her pregnancy and which required his hospitalization until October 11, 2011.   Mother also has a history of domestic violence history and the case history reflects a physically violent relationship with Avirex's father, Hector R.

Mother has a criminal history.   She was arrested on January 4, 2012 on a charge of prostitution and interfering with a police officer.   Mother left the State of Connecticut without informing the court.   A warrant was issued in September 2012 for mother's failure to appear in May 2012.   This resulted in her re-arrest on June 27, 2013.   The charges remain pending.   Mother's next scheduled court date is December 13, 2013.

Mother initially engaged in services including methadone treatment at the Hartford Dispensary while residing in Connecticut.   She tested positive for cocaine on January 7, 2012.   She last participated in services there on December 30, 2011.   She missed a scheduled appointment with her clinician on January 19, 2012.   She was referred for services for domestic violence, individual and group counseling at the Wheeler Clinic and signed a release but did not follow up with the referral.   She was discharged for noncompliance.   Mother tested positive for cocaine on March 20, 2012, April 17, 2012, May 18, 2012, May 21, 2012 and May 31, 2012.   Mother was evicted in April 2012 from her home in Connecticut.   She entered Women and Children's Substance Abuse Residential Program at New Life Center in Putnam, Connecticut.   On September 5, 2012, the social worker met with program director to discuss mother's progress at that facility and was informed that mother had been non-compliant with program rules, had problems with appropriate behavior toward staff and clients, and was late to group sessions.   Mother was subsequently discharged from that program on September 9, 2012 for planting her telephone card in another client's room in an attempt to have her kicked out of the program.   Mother then relocated to maternal grandmother's home in New Hampshire where she has resided to the present time.

Mother did self-refer to Manchester Metro Treatment Center in New Hampshire for methadone treatment in September 2012.   Mother's Drug Screens for the period of September 20, 2012 to May 30, 2013 were received by DCF and show mother was negative for illegal substances.   Mother is still presently engaged in substance abuse treatment.

Mother reported to DCF that she was engaging in mental health treatment in New Hampshire at the Mental Health Center of Greater Manchester.   DCF made requests for written reports on three occasions in December 2012 and April 2013.   However, mother would not authorize that provider to release her records so the treatment could not be confirmed by DCF.

DCF requested Child and Family Services (“CFS”) in New Hampshire to conduct a home study assessment of mother and maternal grandmother's home in New Hampshire.   Specifically, DCF asked CFS to determine mother's income, the recent, past or pending criminal history of all members of mother's household, mother's mental health diagnosis and the medications mother is taking.   DCF also requested information as to why the custody of mother's oldest child had not been returned to her and to determine the feelings of mother's step-father and brother as to Avirex moving into their home.   CFS responded with an Assessment dated September 10, 2013.   Mother's home was described to be clean and with sufficient room to accommodate Avirex.   It also reported that mother was engaged with her substance abuse counselor and involved in a medically supervised withdrawal from Methadone.   It confirmed that mother had tested negative for all illegal substances.   It reported that mother was working with Manchester Mental Health Center to address her mental health issues.   The CFS assessor did speak with mother's mental health provider who confirmed that mother was compliant with all recommendations made by her team at the mental health center.   No other information regarding mother's mental health treatment or diagnosis was obtained.   It was reported that mother is actively involved with her church and, according to her pastor, was showing consistent growth and positive changes and that he had no concerns as to her parenting ability.   Subsequently, four follow-up requests were sent by DCF to CFS for more detailed responses to the above noted questions.   A response was issued from CFS on October 18, 2013.   No information was sent with regard to the background criminal checks on the members of mother's household other than the police reported no contact with that residence.   Mother's step-father indicated he was supportive of Avirex coming into the home.   CFS was not able to interview mother's brother due to his unavailability.   Further, CFS was not able to verify mother's source of income other than to make a representation that mother had applied for Social Security Disability benefits.   Mother had not disclosed the basis of her disability claim.   CFS also confirmed that mother refused to disclose any information as to her current mental health diagnoses or medications.

Since relocating to New Hampshire, mother has had twice monthly visitation with Avirex in Connecticut.   Mother travels to Connecticut with maternal grandmother and Avirex's sibling.   Mother is attentive to him and demonstrates appropriate parenting skills during the visits.   All interactions with mother, maternal grandmother and the sibling are positive and appropriate.   Of note, since mother has relocated to New Hampshire, she has not independently requested visits with Avirex.   All visits with him have been requested by maternal grandmother and all visits have been with maternal grandmother.   Further, she has not independently inquired about Avirex's well-being.

Father's counsel represented to the court that father is not opposed to the Motion to Revoke and that he is in agreement with the transfer of Avirex's guardianship to the paternal aunt.

The minor child, Avirex R., is presently two years old.   He was placed with his paternal aunt directly upon his discharge from the hospital on October 11, 2011.   The paternal aunt has been duly licensed by DCF as a foster parent.   She is self-employed and works out of her home providing child care.   She has sufficient income to meet her needs as well as Avirex's and has stable housing.   Her home is well-maintained with sufficient room for Avirex.   A subsidy for her proposed guardianship of Avirex was approved on May 24, 2013.   She continues to meet the minor child's needs and has been compliant with the child's visits with the respondent parents and maternal grandmother and with the child's sibling.   He has bonded with his foster mother and calls her “Mama.” Avirex is up to date medically.   Avirex sees his three half-siblings regularly and has bonded with them.

Turning to DCF's motion to re-open the disposition of commitment and modify the disposition to transfer of guardianship to paternal aunt, the court finds that, in light of the above finding of facts, DCF has met its burden of proving by a fair preponderance of the evidence that the cause for commitment of Avirex no longer exists in that it is no longer in his best interest to continue with the commitment.   Avirex has resided with his paternal aunt since October 11, 2011 a period of over two years.   Avirex is in a stable and loving home and the paternal aunt appears to be devoted to him.   She is committed to providing for Avirex's psychological, social, emotional and medical needs.   He is happy in this placement.   The court further finds that the paternal aunt, Emma G., is a suitable and worthy guardian, and that such a disposition is in Avirex's best interest, and most appropriately addresses his need for permanency.   To disrupt his placement with his paternal aunt would be contrary to his best interest.   Avirex's attorney strongly believes it is in his best interest to transfer guardianship to his paternal aunt.   Father's counsel represented to the court that father also believes it to be in Avirex's best interest to transfer guardianship to his paternal aunt.   While the court recognizes that mother has been successfully engaged in her substance abuse treatment in New Hampshire, the court is troubled by mother's refusal to allow the disclosure of her mental health diagnoses and medications.   Further, mother is clearly not self-sufficient as she relies completely on maternal grandmother for financial and housing supports.   No evidence was presented as to mother's completion of parenting classes.   The court, therefore, further finds that it would not be in Avirex's best interest to consider reunification with mother at this time.

Accordingly, DCF has proven by a fair preponderance of the evidence that a transfer of guardianship to the paternal aunt and foster mother, Emma G. is in Avirex's best interest.   DCF has approved a financial subsidy for this guardianship.   The court finds that the paternal aunt's willingness to serve as Avirex's guardian constitutes a material change in the circumstances of Avirex that obviates the need for his continued commitment.   DCF's motion to re-open the disposition of commitment and transfer guardianship of Avirex to paternal aunt is hereby GRANTED.   It is further ORDERED that the guardianship of the minor child, Avirex, is hereby transferred to his paternal aunt, who the court finds to be a suitable and worthy guardian.   The court ORDERS that the care, custody and guardianship of Avirex be vested in Emma G.

The guardian is encouraged to continue to allow Avirex have visitation and contact with Avirex's mother, grandmother and sibling.   The guardian is to allow such visitation as she deems to be in Avirex's best interest.   The court further directs that any disputes concerning visitation be referred to the Family Session of the Superior Court of competent jurisdiction.

BY THE COURT

Burgdorff, J.

FOOTNOTES

FN1. Mother filed a Motion to Reopen and Modify/Revoke Commitment which was verbally withdrawn at the commencement of the trial..  FN1. Mother filed a Motion to Reopen and Modify/Revoke Commitment which was verbally withdrawn at the commencement of the trial.

FN2. The trial court may take judicial notice of relevant court actions.   In re Amanda A., 58 Conn.App. 451, 452–53 (2000)..  FN2. The trial court may take judicial notice of relevant court actions.   In re Amanda A., 58 Conn.App. 451, 452–53 (2000).

Burgdorff, Mary–Margaret D., J.