In re Noah B., No. CP00-013544-A (CT 2/16/2005)
|16 February 2005
|Connecticut Supreme Court
|In re Noah B.<SMALL><SUP>1</SUP></SMALL> Opinion No.: 87720.
This memorandum of decision addresses a petition brought to terminate the parental rights (TPR) of Beth A. and Christopher B., the biological parents of Noah B., born August 27, 2000. The Department of Children and Families (DCF or department) filed the TPR petition at issue on June 25, 2003. The original TPR petition against Beth A. alleged her failure to achieve statutory rehabilitation; as she tendered a valid consent to TPR on January 20, 2004, the petition was amended to reflect this ground.2 The TPR petition against Christopher B. alleges the grounds of abandonment, failure to achieve rehabilitation, and lack of an ongoing parent-child relationship. For the reasons stated below, the court finds all matters in favor of the petitioner, and terminates both respondents' parental rights.
Trial of this highly-contested matter took place on various dates during the spring and( summer of 2004; the trial continued in the fall of 2004 when the court (Rubinow, J.) found that the evidence should be opened to ensure that the interests of justice could be served, and that an appropriate opportunity was provided for the full implementation of General Statutes §17a-112(p) when resolving the extant TPR issues.3 The petitioner, the respondent father and the child4 were vigorously represented throughout the relevant proceedings; their counsel submitted thorough and highly analytical briefs, and other appropriate communications which assisted the court in resolving the legal and factual issues presented at trial.5 The parties concur that Noah B. is an "Indian child" as contemplated by Practice Book Sec. 26-1. Accordingly, the Tribe's counsel also participated in the TPR proceedings.6
The Child Protection Session of the Superior Court (CPS), Juvenile Matters, has jurisdiction over the pending case. Notice of this proceeding was provided in accordance with the applicable provisions of the Practice Book. No action is pending in any other court affecting custody of Noah B.
The Court has thoroughly reviewed the TPR verified petition, the TPR social study7 and addendum, and the multiple other documents submitted in evidence which included: curriculum vitae; police reports; records of the Department of Public Safety; court records; reports of psychological evaluations; treatment providers' records; and DCF reports. The court has utilized the applicable legal standards in considering this evidence and the testimony of trial witnesses, who included: DCF workers, a foster care therapist; a court-appointed psychological evaluator, the child's foster mother, the child's treating psychologist, a member of the paternal family's Tribe, Christopher B.'s female companion, and a Connecticut State Trooper.8 No party requested the court to draw an adverse inference from Christopher B.'s failure to testify on his own behalf, and no such inference has been drawn. See generally In re Samantha C., 268 Conn. 614, 842 A.2d 1124 (2004). The court received a report from Noah's GAL by way of his sworn testimony at trial, subject to cross examination. See In re Tayquon H., 76 Conn.App. 693, 705-06, 821 A.2d 796 (2003). Upon deliberation, the court finds that the following facts were proven by more than clear and convincing evidence at trial.9
Christopher B. was born on September 29, 1979. A Tribal member, he dropped out of school in the 11th grade. He has worked as a landscaper and in food service, but has had long periods of unemployment. He receives a regular financial stipend from the Tribe. Christopher B. admits to a long history of smoking marijuana. (Exhibits 1, 20.)
The union of Christopher B. and Beth A. produced one child, Noah B. born August 27, 2000. (Exhibit 1.) DCF and the court have been involved with Noah B. and his parents since the child was but a few months of age. Although he is only four and a half years old, Noah B. has been the subject of three separate ex parte Orders of Temporary Custody (OTC) issued by judges of the Superior. Court; he has been adjudicated a neglected child; and he has been committed to DCF's custody on multiple occasions. Noah B. has been in the care of DCF consistently since August 2002.
A review of the history of the child protection litigation will help place in context the significance of the TPR litigation at issue.10
On November 3, 2000, when Noah B. was just over two months old, it came to DCF's attention that the child had sustained bruises to his head. DCF executed a 96-hour hold and took the child into its custody under the authority of General Statutes §17a-101g. (Testimony of Anne B.) The department filed a neglect petition with the court, alleging that at the time Noah B. was being denied proper care and attention while in the care and custody of his parents; that he was permitted to live under conditions injurious to his wellbeing; that he was abused due to physical injuries inflicted by other than accidental means; and that he presented with injuries which are at variance with the history given of them. Specifically, the department alleged that at the time, Noah B. had bruises to his head and right ear which required medical attention; x-rays of the infant revealed a rib fracture whose etiology neither parent could explain; both parents had failed to protect son and had exposed him to domestic violence; and a physician had opined that bruises were the result of child abuse.11
On November 7, 2000, the court (Mack, J.) granted DCF's application for an ex parte OTC, upon finding that the "child . . . is suffering from serious physical injury, or . . . is in immediate physical danger from [his] surroundings and [that] immediate removal from such surroundings is necessary to ensure the child's . . . safety." On that date, the court issued the first of five sets of specific steps for Christopher B. Among other things, those steps required Christopher B. to participate in counseling at US, a local social service agency; to refrain from substance abuse; to avoid criminal acts which would lead to involvement with the criminal justice system, and to visit the child as often as DCF permits. (Exhibit 15.)
The OTC allegations were litigated through a five-day trial at the Child Protection Session. At the conclusion of these proceedings on December 8, 2000, the court (Frazzini, J.) vacated the ex parte OTC then in effect, but ordered the child returned to the care of Beth A., alone. The court ordered that the child's contact with Christopher B. must be strictly limited and supervised by third parties: Judge Frazzini ruled:
On December 19, 2000, both Beth A. and Christopher B. tendered nolo contendere pleas to the pending neglect petition. Accepting these pleas, the court (Frazzini J.) adjudicated Noah B. to be a neglected child who had been living under conditions injurious to his well being at the time alleged. By agreement of the parties, no commitment was ordered for Noah B.; instead, the alternative disposition allowed the child to remain in his mother's custody with one year of protective supervision by DCF, as contemplated by General Statutes §46b-129(j).12
On January 2, 2001, following the neglect adjudication, the court (Frazzini, J.) executed the second set of specific steps for Christopher B. Among other things, these steps required the respondent father to remain abstinent from drugs; undergo random drug testing; submit to substance abuse assessment and follow recommendations regarding treatment; participate in parenting and individual counseling to address issues related to domestic violence, anger management, parenting skills deficits, and substance abuse; and avoid further involvement with the criminal justice system. (Exhibit 16.)
On February 2, 2001, just three months following the execution of the first OTC, DCF imposed another 96-hour hold upon young Noah. (Testimony of Anne B.) On February 6, 2002, the court (Mack, J.) executed a second ex parte OTC temporarily vesting Noah B.'s custody in DCF, upon findings that while the child was in the care and custody of mother, he was ". . . is in immediate physical danger from [his] surroundings and [that] immediate removal from such surroundings [was] necessary to ensure the child's . . . safety." At the time, DCF alleged that Christopher B. was whereabouts unknown, while the respondent mother was failing to attend to child's health needs. On that date, DCF also filed a Motion to Open and Modify the disposition of protective supervision disposition, moving the court to commit Noah B. to the department's custody.
The court (Mack, J.) imposed the third set of specific steps upon Christopher B. on February 6, 2001, consistent with the OTC of even date. Again, the court ordered the respondent father to participate in parenting and individual counseling to address his issues with domestic violence, anger management, parenting skills deficits, and substance abuse issues. Again, he was ordered to visit with Noah B. as often as DCF permits, to refrain from substance abuse and to eschew violations of the law. (Exhibit 17.)
On February 14, 2001, the court (Mack, J.) sustained the second OTC upon agreement of the parties. Noah B. remained in DCF's custody under this temporary order for seven months. On September 13, 2001, the court (Mack, J.) granted DCF's Motion to Open and Modify Disposition, and committed Noah B. to DCF's custody, so that the child...
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