In re Noemi B., No. H14-CP05-008118-A (CT 10/20/2005)

• Decision Date: 20 October 2005
• Docket Number: No. H14-CP05-008118-A,H14-CP05-008118-A
• Court: Connecticut Supreme Court
• Parties: In re Noemi B.<SMALL><SUP>1</SUP></SMALL> Opinion No.: 90860

Page 1

Unpublished Opinion

In re Noemi B.¹ Opinion No.: 90860

No. H14-CP05-008118-A

Superior Court of Connecticut

Judicial District of New Britain

Juvenile Matters at Plainville

October 20, 2005

MEMORANDUM OF DECISION

NICOLA E. RUBINOW, JUDGE.

This memorandum of decision addresses an application for continuation of an ex parte Order of Temporary Custody (OTC). That OTC had originally brought before the court in connection with a Families with Service Needs (FWSN) petition filed in early 2005 on behalf of Noemi B., a minor born May 3, 1989. The 2005 FWSN petition had been filed on behalf Noemi B. by a juvenile probation officer (JPO) assigned to work with this minor and her family; the petition's allegations referenced multiple episodes of truancy, lack of compliance with school rules, failure to attend counseling sessions, and the minor child's desire to be engaged in an intimate relationship with her adult boyfriend, David H., instead of attending school or participating in other age-appropriate activities.²

On March 22, 2005, in conjunction with hearing of the FWSN matter, the court (Cohn, J.) issued an OTC in writing and from the bench, finding in both instances that Noemi B. was homeless at the time; that she was in immediate physical danger from her surroundings; that continuation in the home she shared with her mother Diana B. was contrary to the welfare of this minor; arid that temporary care and custody should be vested in the Commissioner of DCF (DCF or the department) pending a hearing at which the order could be confirmed or set aside.³

At a preliminary OTC hearing held on April 1, 2005, Noemi B.'s court-appointed Guardian ad litem (GAL) assigned the petitioning role in lieu of that previously occupied by the minor's probation officer; the GAL thus assumed the burden of proving that there were grounds for continuance of the ex parte OTC.⁴ Noemi B. was represented by counsel; neither Noemi B.'s attorney nor DCF's attorney supported continuance of the OTC, but the minor's biological parents did support the continuance of the OTC. After hearing on that date, DCF made an oral motion to vacate the OTC, based upon the department's argument that the child was uncooperative with the OTC process, and that the department could not provide services to the minor if her whereabouts were unknown. The minor's GAL objected to this motion, which the court denied.

A contested hearing was scheduled, and commenced on April 27, 2005; Noemi B. failed to attend that hearing, although her attorney was present.⁵ On that date, the petitioning GAL moved for a two-week continuance on the matter; this motion was denied based upon the objection of DCF. The GAL that presented evidence in support of continuation of the OTC through testimony from Noemi B.'s mother and Leslie S., a DCF social worker. The GAL delivered her report, stating her opinion that it is in Noemi B's bests interests to remain subject to the OTC, as the minor would be subject to immediate physical harm and danger if she was allowed or permitted to remain in the custody of Noemi B. The GAL was subject to cross examination, pursuant to In re Tayquon H., 76 Conn.App. 693, 705-06, 821 A.2d 796 (2003).

The contested hearing continued on April 28, 2005; once again, Noemi B. was not in attendance, although her attorney was again present at court.⁶ The court ordered counsel to prepare trial briefs discussing the implications, if any, of the interface between the issues related to the common-law concept known popularly as "predictive neglect"⁷ and the legislatively created OTC remedy as provided in General Statutes Sec. 46b-129(b).⁸ On that date, the court entered an interim order requiring DCF to remain the custodian of the child until further order of the court, thus leaving Judge Cohn's initial OTC order in effect.

The GAL has argued that the court maintains the jurisdiction to impose an OTC upon a minor such as Noemi B., ordering DCF to maintain her custody if conditions in the minor's home are unsafe, even though the minor may have absconded and is not available for receipt of services from the child protection agency. Both DCF and Noemi B.'s attorney, acting in the absence of the minor client, have argued that the court was presented with insufficient evidence from which it could infer that Noemi B. was "homeless" and thus subject to an OTC placement with the department.

Subsequently, on June 22, 2005, having reviewed the evidence presented at the contested OTC hearing, and having considered the parties' expressed portions, the court (Rubinow, J.) issued a bench order sustaining the OTC. This memorandum of decision sets forth the court's conclusions as to the applicable claims of law raised by the parties and the factual basis sustaining the OTC, as contemplated by Practice Book §64-1.

I. EVIDENCE PRESENTED, THE ORDERS ENTERED AFTER HEARING, AND THE BASIS THEREFORE

The contested OTC hearing was conducted pursuant to Practice Bock Sec. 33a-7(d) and General Statutes §46b-129(b) and (f).⁹ Accordingly, the subject before the court was limited to the petitioner's claim that there is a continued need for protective custody and care of Noemi B. by someone other than a biological parent, because the minor would be subject to immediate physical danger from her surroundings if returned to the care and custody of such a parent, so that continued removal from such surroundings was necessary to ensure her safety.¹⁰ See §46b-129(b); Practice Book Sec. 33a-6(a); In re Juvenille Appeal (83-CD), 189 Conn. 276, 455 A.2d 1313 (1983). In reaching its determination in this matter, within the confines of the issues presented by §46b-129(b) and (f), the court has also taken into consideration the statutory presumption established by General Statutes §46b-56B. and the best interests of the minor at issue in this temporary custody hearing, as contemplated by General Statutes §46b-1(11), the then applicable version of §46b-56(b), and §46b-121.

Practice Book §32a-3(a) establishes that the applicable standard of proof in this matter is a fair preponderance of the evidence, as the contested OTC hearing is ancillary to a neglect proceeding. In reaching its conclusions, the court has honored this standard, and has fairly and impartially considered all the evidence presented; assessed the weight, if any, to be given specific evidence; and measured the probative force of conflicting evidence; applied the role that there is no legal distinction between direct and circumstantial evidence so far as probative force is concerned: and determined the credibility of the witness as required by law.¹¹ Moreover, the court has drawn such inferences from the evidence or facts established by the evidence it deems to be reasonable and logical, as is the court's prerogative to do in such matters. In re Kristy A., 83 Conn.App. 298, 316, 848 A.2d 1276, cert. denied 271 Conn. 921, 859 A.2d 579 (2004); In re Carissa K., 55 Conn.App. 768, 783, 740 A.2d 896 (1999).

Using these measures, the court finds the following facts to have been proved by a preponderance of the evidence:

Noemi B. was born to Diana B. and David B. on May 3, 1989; she turned sixteen years of age on May 3, 2005, but remains a minor under the laws of this state. In the past, the minor made her primary home with her biological mother. In the spring of 2004, Noemi B. became romantically involved with David H., a male who was a number of years older than her. The minor at the time was exhibiting "runaway" behavior apparently designed to facilitate her cohabitation with David H., over the objection of her mother, who had valid concerns for Noemi B.'s physical safety and well being when she had access to this adult male. Both David B. and Diana B. appropriately sought assistance from DCF at the time, and the department was apprised of Noemi B.'s "runaway" behavior. At the time, neither the mother, the father nor the department was able to compel Noemi B. to engage in counseling to address her apparent errors in judgment and emotional distress.

With DCF's encouragement, as noted above, Diana B. filed a FWSN petition with the Juvenile Court in the spring of 2004, further seeking assistance for her daughter's obvious special needs. The petition was withdrawn upon Noemi B.'s representation that she would cooperate with the reasonable rules of the household. However, the minor's acting-out behavior subsequently escalated. In October of 2004, Noemi B. admitted to her mother that she was regularly consuming alcohol. Diana B. again attempted to engage her daughter in counseling, but the minor refused. (Testimony of Diana B., Leslie S.)

In early 2005, Noemi B.'s school submitted documentation to the Juvenile Court indicating that the child was significantly truant; in response the minor's JPO filed a second FWSN petition. During March of 2005, Noemi B. did not reside at her mother's home; refused to tell Diana B. where she was living; and consistently demonstrated "runaway" behavior. Noemi B. appeared to be very depressed during this period, and conflict between the mother and daughter continued. When Noemi B. appeared at a court hearing on March 22, 2005, Diana B. was able to observe that marks made by a cutting instrument were present on the inner aspect of the minor's left forearm, parallel to the arm along its length. Noemi B. refused to explain to Diana B. how the injurious marks were made. (Testimony of Diana B.) The court reasonably and logically infers from the presence of these lacerations resulted from the minor's self-injurious cutting of her own body, or that they were inflicted upon her by a third party.

As noted above, the court (Cohn, J.) imposed an OTC upon Noemi B. on that date, placing the minor in the custody of DCF, our state's professional child protection agency, pursuant to §46b-129(b). Aware of the minor's propensity for "runaway" behavior, the department placed the minor in a foster home from which she fled after...