HERMAN AND GLENDA
You might think that for DCF to file a neglect petition regarding a child, it must have at least some evidence that you actually abused or neglected that child.
You would be mistaken.
Under the doctrine of “predictive neglect”, a child may be taken solely on the basis of what the parents are alleged to have done previously, even though there has been no harm alleged to the child in question. Lawyers were previously referred to In Re Michael D., 752 A. 2d 1135 (2000), which clearly states that DCF need not wait until a child is harmed before the child may be removed. It is enough to show that there is a “potential for abuse.”
This is clearly good policy in general. In the Michael D. case, the mother, who had a minor child, was living with a known child sexual offender. She was aware of the situation, and did nothing to remedy it. “Neglect”, as the Court stated, “may be based on a potential risk of harm and not just actual harm.”
As might be expected, DCF has taken this case to full advantage. Therefore, even if no one has alleged that you abused or neglected a child, you are never safe if you have a prior DCF history. The case of Herman and Glenda is instructive.
Herman and Glenda (not their real names) had two older children who had been removed by DCF. They fought the removal, had a four-day trial, and lost. They were still hoping to get the children back.
Then Glenda got pregnant. DCF told the hospital to notify them when the baby was born. The hospital did that, and DCF promptly seized the baby. At this point, Herman hired me to help him get the child back. Glenda had a court-appointed lawyer, and the baby did also.
The child had been seized on an OTC (order of temporary custody), under the theory of predictive neglect. Unlike most other OTC’s, there was in this case:
1. No allegation of bad prenatal care. In fact, the care was good.
2. No allegation of substance abuse.
3. No allegation of domestic violence.
4. No allegation that the baby was harmed in any way.
5. No allegation that sexual predators were in the wings.
What there was, however, was the prior removal of the two older children. The case, then, was nothing about the baby, but was a total rehash of the removal of the older children.
The evidence was a DCF affidavit, which included the following:
1. The parents had been living with the maternal grandmother, who had an open DCF case.
However, DCF failed to mention that the open case was due to close shortly. The social worker did admit this on the witness stand.
2. The mother had once been living with a registered sex offender, who was currently in prison.
However, DCF failed to mention that he was no longer a part of the mother’s life in any way. The social worker admitted on the stand that she had no evidence to the contrary.
3. The two older children had been removed earlier, due to domestic violence in the home.
However, DCF failed to mention that the domestic violence was between the grandmother and an uncle, who was arrested and no longer lives in the home. The social worker admitted on the stand that she had no evidence to the contrary, and that she had made no attempt to verify that information.
4. The two older children had been removed for “failure to thrive.” The State’s expert witness pediatrician wrote that one child seemed to have failure to thrive, and one had “longstanding failure to thrive.”
The problem, however, was that the records of the children’s regular pediatrician, who had cared for them since birth, contained not one word – not a word – of failure to thrive. In fact, to the contrary, the pediatrician’s records indicated that the children were doing well. Office notes of the final visit, before the children were removed, included: “Well appearing, non-toxic, active, alert, no distress, well hydrated, smiling throughout the examination.”
I wondered how the pediatrician’s records did not count at the removal trial. Further, I wondered how the State’s expert had found “longstanding” failure to thrive, when the regular pediatrician had found none at all.
I was astounded to find out that, at the prior trial, both the State’s expert and the pediatrician had testified. But the State’s expert’s affidavit was admitted into evidence, while the pediatrician’s records were not. The mother told me that she had personally gotten the pediatrician’s records and gave them to her court-appointed lawyer, but that lawyer neglected to introduce them into evidence.
I have since asked that lawyer, three times, why she did not introduce the records. She has refused to answer. She has not denied that she got the records. I suspect that the reason was laziness, compounded by low State payments. However, I don’t think she has any idea of how she harmed the parents.
At the trial for removal of the baby, I tried to get the pediatrician’s records entered into evidence. DCF objected, and the Judge sustained the objection. The reason: the prior trial had “settled” the issue of failure to thrive, and it could not be reopened. (Lawyers call this “collateral estoppel”).
I vehemently objected, but to no avail. I appealed to the court’s sense of justice, as removal of a baby was at issue. Still unavailing.
The social worker, on the stand, took no responsibility for failing to mention the pediatrician’s actual records in her affidavit.
5. One of the older children had been removed another time, due to injuries intentionally inflicted upon her. The parents had blamed the babysitter.
However, DCF failed to mention that the babysitter in fact pled guilty to child abuse, and was sentenced to a year in jail. The parents were never charged with the injury. The social worker did admit this on the witness stand. As to why she failed to mention it in her affidavit, she had no answer.
On the basis of this affidavit, the Court authorized removal of the baby.
At trial, the Court sustained the removal. I have read and re-read the Court’s decision, and still cannot understand it.
All of the prior “predictive neglect” allegations were bogus. There was no abuse or neglect of the baby even alleged.
The worst current allegation was that the parents, in visiting with the older children, had sometimes been uncooperative with the visiting supervisors. This is unfortunate, but hardly unprecedented; and certainly did not justify the removal of the baby.
Predictive neglect is indeed a powerful tool.
And, of course, the prior lawyer had never told the parents that if they ever had another baby, it was likely that DCF would act to remove the baby right from the hospital. Had she done so, we might have been able to utilize preemptive-strike techniques against removal of the baby. We never got that chance.
This lawyer, needless to say, is still practicing Juvenile Law with a State contract.
It almost seems silly to mention one other fact. DCF Policy 46-3-19.1 requires that DCF include exculpatory evidence, and relevant information favorable to the parents, in its affidavits. That was simply ignored. DCF Policy 46-3-5 states that supervisors must ensure that social workers follow proper procedures, and submit affidavits to the legal staff for review prior to filing. That was also ignored. The Court let DCF get away with this, on the grounds that DCF policies are “internal matters”, not legal statutes.
Meantime, the baby was removed, although no harm to her had been alleged.
This office supports the general theory of predictive neglect. We should not wait until an innocent baby is injured or killed before taking action. However, when the removal is based almost entirely upon tainted information, it cannot be fair.
But it is the law. Or was, until June 28th, 2012.
On that date, the Connecticut Supreme Court, in a unanimous 8-0 decision, revised the standard for predictive neglect. In Re Joseph W., Jr., 305 Conn. 633 (2012). The architect of the successful appeal is my good friend, Atty. David W. Reich, of Middletown, CT. I had only a minor role in suggesting a few ideas for oral argument.
It remains to be seen how much effect Joseph W. will have, but some aspects will be positive. Before the decision, all DCF had to do, literally, was to introduce evidence of a prior case and say “It’s going to happen again.” The parents had an almost impossible burden of disproving that, and of course most Judges would bend over backwards to protect innocent children.
After the decision, the parents at least have a chance. In a predictive neglect case in the future, DCF must do two things:
1. DCF must show that if the child remained in the present situation, then it is more likely than not that the child would be neglected.
2. More importantly, DCF must persuade the Court to make the above finding with regard to each parent who contests the DCF petition and wants to raise the child.
The practical result is that the Court can no longer simply say “the child is in danger” based on what happened with previous children. Now, the Court must find fault with regard to each parent who intends to independently raise the child. In other words, it gives a parent a fighting chance to show that it is less likely than not that the child would be neglected if left in his or her care.
If the parents intend to raise the child together, or if the court does not believe that they will live apart, then it can treat the parents as a single unit. However, a parent who wants an independent start can at least get meaningful evidence into court.
I said earlier that it remains to be seen how much effect this will have. If both parents had had a hand in the prior neglect, then this decision might not help them very much. However, the decision does force DCF to present evidence against the parent regarding the new child, rather than simply rehashing the old allegations regarding the prior child.
As usual, if you are in this situation, it is best to
seek the advice of a qualified lawyer.
The absolute worst thing to do is to ask the social worker for legal advice.