Posts tagged with "alimony"

Court Rules that Evidence of Prior Actions May Be Used to Substantiate Neglect

Evidence of Prior Actions

In an appeal involving Substantiate Neglect, the Court (Cohn, J.), explained that in the context of DCF proceedings, evidence of prior actions may be used to substantiate physical neglect.  In that particular case, the appellant and his wife had a history of engaging in domestic violence, and one of their children reported constant yelling which made her stomach hurt.

During the altercation which gave rise to DCF involvement, the appellant grabbed his wife by the throat and lifted her from the ground.  When the wife got free, the argument moved outside at which time she broke the appellant’s car window with a baseball bat.  The appellant then grabbed the child, placed her inside his car- unrestrained on the center console- and sped away nearly running the mother over.

Support a Substantiation of Physical Neglect

In reviewing the case, the hearing officer first noted that in order to support a substantiation of physical neglect the Department must demonstrate:

(1) the Appellant is a person responsible for the children’s health, welfare or care . . .

(2) the Appellant denied the children proper care and attention and permitted them to live under conditions, circumstances or associations injurious to their well-being; and

(3) the conduct resulted in an adverse physical impact on the children, or the act was a single incident that demonstrated a serious disregard for the child’s welfare.  Based on the evidence presented, the hearing officer found that the child was present in the middle of the altercation; that she was placed in the range of a swinging bat; and that she was thrown into a vehicle which then sped off.

The hearing officer concluded that the appellant’s conduct constituted physical neglect in that he was the child’s father and thus responsible for her care; the child was denied proper care and attention through the appellant’s actions; and the incident demonstrated a serious disregard for the child’s welfare, particularly in light of the fact that she reported there was constant yelling in the house which gave her a stomach ache.

Court Appeal

The appellant argued that the hearing officer erred in substantiating physical neglect in that, among other things, he considered the child’s complaint of stomach aches even though they occurred at other times. He argued that the hearing officer should not have made use of prior incidents to justify a finding of physical neglect arising from the incident at issue.

On appeal, the Court held that prior incidents, even if not substantiated at the time of their occurrence, may be considered by the Department of Children and Families when substantiation is eventually made.  Indeed, “An unsubstantiated allegation does not mean it didn’t happen; it means that, standing alone, the allegation did not rise to the level of legal neglect or abuse and/or the evidence was sufficiently ambiguous that the allegation could not be sustained by a fair preponderance of the evidence.

However, to ignore a pattern of similar allegations in the context of a child protection investigation simply because each one standing alone is not sufficient would be irresponsible and create an unacceptable level of risk to the child.”  Vines v. Dept. of Children and Families, Superior Court, Judicial District of New Britain, Docket No. CV-08-4016779 (November 24, 2008, Cohn, J.).

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner, Attorney Joseph C. Maya for a free initial consultation. He practices in the firm’s Westport office and can be reached at (203) 221-3100 or jmaya@mayalaw.com.

In Educational Neglect Proceeding, Court Rules that “Detrimental Effect” is not Required

In Re Amurah B., Superior Court, Judicial District of Middlesex

In the case of In Re Amurah B., Superior Court, Judicial District of Middlesex, Docket No. M08CP09010939A (March 12, 2010, Rubinow, J.), the Court addressed whether the Department of Children and Families must demonstrate a “detrimental effect” before it can enter a finding of educational neglect.  In that particular case, DCF initially filed petitions alleging that the children were being subjected to educational neglect in that they were not being forced to attend school.  A trial ensued, and after DCF concluded its case-in-chief, the parents claimed it failed to make out a prima facie case with respect to any of the children.

DCF opposed the motion, contending that the evidence was sufficient to prove the children were denied proper educational care and attention in that they did not attend school regularly, and thus were deprived of educational opportunities.  The parents countered, arguing that the children received adequate educational attention, as evidenced by their grades and consistent promotions, and that the Department’s evidence of non-attendance alone could not be sufficient.  The parents contended that in order to satisfy its burden, the state must provide evidence of a detrimental effect on a child.

Connecticut’s Statutory and Common Law Expectations

In considering the parents’ motion, the Court reviewed Connecticut’s statutory and common law expectations for the education of children, noting that education has long been recognized as being fundamental to the well-being of a child. Indeed, education is so important that the state has made it compulsory through an attendance requirement. Pursuant to Connecticut General Statutes § 10-184, “All parents and those who have the care of children shall bring them up in some lawful and honest employment and instruct them or cause them to be instructed in reading, writing, spelling, English grammar, geography, arithmetic and United States history and in citizenship, including a study of the town, state and federal governments.”

To implement this policy, C.G.S.A. § 10-184 further establishes that “each parent or other person having control of a child five years of age and over and under eighteen years of age shall cause such child to attend a public school regularly during the hours and terms the public school in the district in which such child resides is in session, unless such child is a high school graduate or the parent or person having control of such child is able to show that the child is elsewhere receiving equivalent instruction in the studies taught in the public schools.”  Pursuant to Connecticut General Statutes § 10-185, failure to do so is punishable by a fine.

Trial Court

The trial court acknowledged that the Connecticut Appellate Court has not yet ruled as to whether a neglect finding can enter in a case where the parents fail to cause their children to attend school, but the children are nevertheless performing on an average level.  However, it did point out that the Juvenile Courts of Connecticut and other states have granted neglect petitions under similar circumstances.  Ultimately denying the parents’ motion to dismiss, the Court held that in light of the clear and explicit mandate of C.G.S.A. §§ 10-184 and 10-185, the element of “detrimental effect” is not essential to a finding of neglect at the adjudicatory stage.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact Michael D. DeMeola.  He can be reached by telephone at (203) 221-3100 or by e-mail at mdemeola@mayalaw.com.

Court Transfers Guardianship of Child to Maternal Grandmother

Court Case: Department of Children and Families

In a case involving the the transfer of guardianship, the Court granted a mother’s motion to transfer guardianship to the child’s maternal grandmother.  DCF initially became involved in the matter after receiving reports that the parents were engaging in domestic violence and substance abuse.  Although the Court originally entered an order of protective supervision, DCF later invoked a 96 hour hold and sought an Order of Temporary Custody following a subsequent altercation between the parents.  The Court sustained that OTC and the child was committed to the care of the Department.

DCF later moved to open and modify the disposition from a classification of protective supervision to commitment.  The mother filed a motion requesting that guardianship be transferred to the maternal grandmother instead.  Following a two day hearing, the Court ruled in favor of the mother.

The Court’s Decision

In its decision, the Court focused primarily on the child’s relationship with his grandmother.  The Court noted that he had a strong relationship with her from birth, and that they were well bonded to one another.  The Court further noted that when the grandmother offered herself as a placement resource for the child, DCF accepted numerous times during the course of the case.  In fact, with DCF approval, the child actually resided with the maternal grandmother, who was also utilized as a visitation supervisor.

The Court found that the maternal grandmother provided appropriate care for the child, and that the child was emotionally attached to her.  Throughout the course of DCF’s two year involvement in the case, it never claimed that the child received inappropriate treatment from the grandmother.  Based on the foregoing, the Court ultimately found that the grandmother was a suitable guardian and that it was in the child’s best interest to transfer guardianship to her.

Should you have any questions relating to DCF proceedings, or family matters generally, please do not hesitate to contact managing partner, Attorney Joseph C. Maya for a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Despite Father’s Unemployment, Court Awards Support Based on Earning Capacity

Connecticut Superior Court

A Connecticut Superior Court again applied the principle of utilizing a party’s “earning capacity” – rather than actual earnings – to the modification of a support award in post-judgment matrimonial action. In this case the court awards support due to earning capacity. Earning capacity is not an amount that a person can “theoretically earn,” nor is it confined to actual income, but rather it is an amount which an individual “can realistically be expected to earn, considering his skills, age and health.” Weinstein v. Weinstein, 104 Conn.App. 482, 489, 934 A.2d 306 (2007), Elia v. Elia, 99 Conn. App. 829, 833, 916 A.2d 845 (2007).

Weismuller v. Weismuller

In the matter of Weismuller v. Weismuller, (New London J.D. at Norwich), the defendant husband, who represented himself at trial, sought a downward modification of his child support award on the basis that he had become unemployed since the judgment of dissolution.  The Court found that the defendant had previously earned approximately $170,000.00 per year as the chief judge of the Mashantucket Pequot Tribal Court.

Although the defendant was not reappointed when his term came to a close, the Court found his efforts at re-employment to be lacking despite the presentation of employment applications with various government agencies and tribal courts.  The Court instead found that Weismuller, who now sought a modification of his support obligations, failed to prove he had engaged in a good-faith, comprehensive, and meaningful search for employment.

With a thinly-veiled message to the defendant and unemployed individuals elsewhere in this State who seek to modify support orders on that basis, the Court wrote, “While the court understands and appreciates that a highly paid professional may take significant time to return to the workforce, the court concludes that this time is fast approaching.”

Individuals who seek to modify terms of a separation agreement and divorce judgment should first seek the assistance of a well-qualified, experienced family law practitioner.

Should you have questions regarding visitation matters, alimony, or cases involving the Department of Children and Families , contact managing partner Joseph C. Maya at the firms Westport office at 203-221-3100 or at JMaya@Mayalaw.com for a free consultation.

Courts Afford DCF Great Deference on Appeal

Department of Children and Families Case

A decision rendered in a case involving the Department of Children and Families (DCF) demonstrates the extent to which courts defer to the agency’s conclusions when reviewing a matter on appeal. In this particular case, the plaintiffs were the maternal aunt and uncle of two children, ages fourteen and sixteen.  After receiving reports that the children were being physically and emotionally neglected, the Department conducted an investigation, ultimately substantiating the allegations as to both children.  When the plaintiffs learned they were going to be placed on the Central Registry, they requested an administrative hearing.

Abuse Allegations

The hearing officer found that DCF had received several prior reports for this family, ranging from allegations of physical abuse to emotional neglect.  The hearing officer also found that on one occasion, the plaintiffs forced their nephew to sleep on dirty laundry, and on other occasions, locked him out of their home.  At one point, the aunt and uncle stated the nephew was a financial obligation and they did not want him to return to their care.  Shortly thereafter, the plaintiffs agreed to transfer guardianship of the child to the paternal uncle.

The hearing officer upheld the allegations of physical neglect as to the nephew based on his finding that the child had been wrongfully denied access to his home.  The hearing officer also upheld the substantiation of emotional abuse as to the nephew because of an incident in which the plaintiffs took the child’s backpack and school books from him, and because of several inappropriate statements the plaintiffs made about the child to third parties.

Court Decision

In explaining its limited role on appeal, the court stated that it may not retry the case or substitute its own judgment for that of the administrative agency with respect to the weight of the evidence or questions of fact.  Rather, its duty is simply to determine, in view of all the evidence, whether the agency, in issuing its order, acted unreasonably, arbitrarily, illegally or in abuse of its discretion.

The fact that a hearing officer discounted contrary evidence in the record does not affect the validity of the DCF decision. In reviewing the case on appeal, the Court must defer to the agency’s assessment of the credibility of the witnesses and to the agency’s right to believe or disbelieve the evidence presented by any witness, either in whole or in part.

Court Testimony

In light of that standard, the court ultimately held that the testimony and documents produced at the hearing convinced the officer to uphold DCF’s determination. As the Court expounded, “The ‘book bag incident,’ the ‘sleeping on dirty clothes event,’ the plaintiffs’ insults of [the child] given at the hospital and probation office, and the barring from the house for both [children] were in the record.”  Therefore, there was no basis to overturn the hearing officer’s decision.

Should you have any questions regarding DCF cases, or family matters generally, please do not hesitate to contact managing partner, Attorney Joseph C. Maya to schedule a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Court May Intervene to Protect Children from Warring Parents

A decision illustrates the extent to which a court will consider the relationship between a child’s parents when making determinations related to custody and visitation. This decision will involving court intervention will impact custody and visitation. In this particular case, the parties were married for approximately three years and were the parents of one minor child.  Although they were able to obtain a divorce on an uncontested basis, the parties’ relationship eventually deteriorated, resulting in a ten year period of post judgment litigation related to custody and visitation issues.

After hearing evidence on a series of motions, the trial court found that the parent’s relationship was toxic, that they rarely communicated in a civil manner, and that despite engaging in a variety of co-parenting classes, they failed to achieve any success.  The court further found that the mother complained about the father’s parenting without justification.  The guardian ad litem appointed to the case testified that because of the mutual distrust and hostility between the parents, a shared custody arrangement simply would not be feasible.  Rather, she recommended that the father be the primary custodian, noting that he was more likely to foster a relationship with the mother, that the mother micromanaged the parenting of the child and that the mother was unnecessarily critical of the father.

Ultimately formulating orders that deviated from both parent’s respective proposals, the court explained that under Connecticut law, the trial court’s discretion as to custody and visitation is not limited to adopting the specific custodial arrangement sought by the parties.  Indeed, even where parties are in agreement, a court has an independent duty to inquire into custody arrangements as it is ultimately bound by the best interests of the child.  Although the rights, wishes and desires of the parents are a factor to be taken into account, they must be subordinated to the best interest of the child. Ridgeway v. Ridgeway, 180 Conn. 533 (1980).  As this case illustrates, a court can and often will evaluate the relationship between a child’s parents when considering custody related matters, and when necessary, may intervene in the midst of litigation to protect that child from his or her warring parents.

The matrimonial attorneys in the Westport, Connecticut office of Maya Murphy, P.C. have extensive experience handling divorce and custody matters, and assist clients from Greenwich, Stamford, Darien, New Canaan, Norwalk, Westport and Fairfield.  To schedule a free initial consultation, please feel free to contact managing partner, Attorney Joseph C. Maya at (203) 221-3100, or at jmaya@mayalaw.com.

Allegations of Abuse Result in Immediate Termination of Father’s Visitation

Department of Children and Families: Abuse Case

In a case involving the the termination of visitation, allegations that a father physically abused his child resulted in the immediate termination of his right to visitation.  The mother initially reported the alleged abuse in October, 2010.  DCF conducted an immediate investigation, including a forensic examination of the child, which confirmed the report.  Despite the father’s claims that the child was coached during her interview, the Court nevertheless terminated his access with the child per DCF’s recommendation.  The Department later substantiated the allegations of abuse.

Underlying Custody Action

In the underlying custody action, the mother filed a motion for sole custody, which the Court scheduled for trial in October, 2011.  During the hearing, the court appointed Guardian Ad Litem recommended that the father have supervised visitation only.  She also recommended that the father consult a therapist to understand, a) what the child had gone through, b) how he can help her feel secure, c) how he could help her cope with the abuse she sustained, and d) how he should approach a visit when the child was ready.  The G.A.L. further recommended that the father undergo seven to eight months of therapy before commencing visitation.

The G.A.L. also testified that the child was thriving in the mother’s care.  Interestingly, the G.A.L., and presumably the Court, took the parties’ acrimonious relationship into account as well.  Indeed, the Court pointed out that joint legal custody was not recommended because it would keep the parties in constant conflict.

In light of the above, the Court ultimately awarded the mother sole legal and physical custody of the child.  The Court further ordered the father to undergo a clinical evaluation, individual therapy and reunification therapy before the commencement of supervised visitation.

Should you have any questions regarding DCF proceedings, or family matters generally, feel free to contact managing partner, Attorney Joseph Maya to schedule a free initial consultation. He practices out of the firm’s Westport office, and can be reached by telephone at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Court Denies Transfer of Guardianship to Grandmother

In a proceeding involving the transfer of guardianship, the Court (Mack, JTR) denied a mother’s motion to transfer guardianship to the children’s maternal grandmother.  DCF initially became involved in the matter when it filed a Motion for Order of Temporary Custody approximately two months after the first child was born.  It then sought a second Order shortly after the second child was born.  The Court granted the motions, both of which were based upon allegations that the children were the subject of neglect, and the children were eventually committed to the custody and care of the Department.

In reviewing the mother’s motion, the Court first noted that under the circumstances, she had to prove that the maternal grandmother was suitable and worthy, and that the proposed transfer to the maternal grandmother would be in the children’s best interests.  In reviewing the facts, however, the Court concluded that the mother failed to meet her burden.  First, the Court explained that the grandmother suffered from anxiety, and had a history of addiction stemming from two motor vehicle accidents.  At one point, in furtherance of that addiction, the grandmother called in fake prescriptions, which resulted in criminal charges.  Additionally, in 2009, she was arrested for robbery, assault, larceny and disorderly conduct.  The Court further noted that the evidence demonstrated an unhealthy relationship between the mother and maternal grandmother, which included frequent fighting that led to relatively serious injuries to both parties.  The Court found that the grandmother also enabled the mother’s drug habits, which included the use of heroin.

In light of the evidence presented, the Court ultimately held that the grandmother was not suitable and worthy to become the children’s guardian, and that such transfer of guardianship would not be in the children’s best interests.

Should you have any questions regarding DCF proceedings, or family matters generally, please do not hesitate to call managing partner Joseph C. Maya for a free initial consultation. He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

DCF May Rely on the Concept of “Predictive Neglect” to Obtain an Order of Temporary Custody

Clients often assume that in order for DCF to become involved in their life, a situation must arise warranting the Department’s intervention.  Though this is often the case, DCF may also rely on the concept of “predictive neglect,” allowing it to intervene to prevent future harm.

As the Appellate Court explained in a relatively recent decision, “Our statutes clearly and explicitly recognize the state’s authority to act before harm occurs to protect children whose health and welfare may be adversely affected and not just children whose welfare has been affected… General Statutes 17a-101(a) provides:

The public policy of this state is:  To protect children whose health and welfare may be adversely affected through injury and neglect; to strengthen the family and to  make the home safe for children by enhancing the parental capacity for good child care; to provide a temporary or permanent nurturing and safe environment for children when necessary; and for these purposes to require the reporting of suspected child abuse, investigation of such reports by a social agency, and provision of services, where needed, to such child and family.”  (Internal citations omitted)  In re Ja-lyn, 132 Conn App. 314 (2011).

The Court further explained, “The doctrine of predictive neglect provides that “[t]he department, pursuant to Section 46b-120, need not wait until a child is actually harmed before intervening to protect that child… This statute clearly contemplates a situation where harm could occur but has not actually occurred.”  (Internal citations omitted) Id.

In the case cited above, DCF filed a neglect petition and subsequently obtained an order of temporary custody just six days after the child was born.  The trial court concluded that an adjudication of neglect was warranted because, among other things, the mother had a prior history with the department stemming from unresolved anger management issues.

In so holding, the trial court relied at least in part on the testimony of a social worker who stated that the mother had a long history with the department; that she had unaddressed substance abuse and mental health issues; that her other child was already in the Department’s care; that she tested positive for marijuana at the time of the child’s birth; that she had anger management and parenting issues; that the child’s father was incarcerated when the child was born; and that there was a history of domestic violence between the mother and father.

After considering additional evidence supporting the aforementioned findings, and relying on the doctrine of predictive neglect, the Appellate Court concluded that there was sufficient evidence to uphold the trial court’s determination.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner Joseph Maya for a free initial consultation. He can be reached in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.

Court Rules that Father’s Periodic Contact with Children was Insufficient to Refute Claim of Abandonment

In a DCP proceeding involving a claim of abandonment, a Court (Wollenberg, J.) found that a father legally abandoned his children despite the fact that he continued to have periodic contact with them.  DCF initially became involved in the case after filing a Motion for Order of Temporary Custody and a Petition of Neglect.  The Court subsequently sustained the OTC, and the children were committed to the care and custody of the Department.  The mother consented to termination of her parental rights; however, the father objected.  With respect to the father, DCF alleged that he both abandoned the children and failed to rehabilitate.

In addressing the allegations that the father abandoned the children, the Court recounted the applicable legal standard explaining, “This ground is established when the child has been abandoned by the parent in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.  Sporadic efforts are insufficient to negate the claim of abandonment.

The test for determining abandonment of a child for purposes of termination of parental rights is not whether a parent has shown “some interest” in his or her child, but rather, whether the parent has maintained any reasonable degree of interest, concern, or responsibility as to the child’s welfare.”  The Court further explained, “The commonly understood general obligations of parenthood entail these minimum attributes: (1) express love and affection for the child; (2) express personal concern over the health, education and general well-being of the child; (3) the duty to supply the necessary food, clothing and medical care; (4) the duty to provide an adequate domicile; and (5) the duty to furnish social and religious guidance.”

In considering the standard set forth above, the Court found that prior to the children’s removal, the father was not directly responsible for or involved with their care due to his incarceration.  The Court further found that his role in the children’s lives had been very minimal.  Although the father was eventually released from prison, he was inconsistent with visitation, which was emotionally upsetting for the children.  The Court opined that the father had very little insight as to how his failure to visit the children affected them, and that he simply failed to show a level of responsibility necessary to maintain regular and frequent contact with them.  The Court explained, “He does not have a good understanding of his children’s needs or how to properly meet those needs.  He minimizes their needs, believing that his presence alone will alleviate all of their behavioral and emotional issues.”  Among other things, the Court found that the father did not provide financial support for the children; rarely, if ever, sent gifts, cards or letters to the children; never contacted DCF to inquire as to the children’s well-being; never showed an interest in the children’s health or welfare; and failed to establish a proper living situation for the children.

Should you have any questions regarding DCF proceedings, or family matters generally, please feel free to contact managing partner Joseph C. Maya to schedule a free initial consultation.  He can be reached by telephone in the firm’s Westport office at (203) 221-3100 or by e-mail at jmaya@mayalaw.com.