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In re Egypt E.

Supreme Court of Connecticut

January 10, 2018

IN RE EGYPT E. ET AL.[*]

          Argued September 20, 2017

          Stein M. Helmrich, for the appellant (respondent mother).

          Dana M. Hrelic, with whom were Brendon P. Lev-esque and, on the brief, Scott T. Garosshen, for the appellant (respondent father).

          Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

          Rogers, C. J., and Palmer, Eveleigh, McDonald, Robinson and Espinosa, Js. [**]

         Syllabus

         The respondent parents, M and N, appealed from the judgments of the trial court terminating their parental rights with respect to their two minor children, E and A, on the statutory (§ 17a-112 [j] [3] [C]) ground that their acts of parental commission or omission had denied the children the care, guidance or control necessary for their physical, educational, moral or emotional well-being. M and N brought A to the hospital for a shoulder injury, and it was determined that A had multiple bruises and bone fractures that were consistent with child abuse. The petitioner, the Commissioner of Children and Families, removed the children from the family home, and they have since remained in foster care with a nonrelative. M and N initially gave inadequate and inconsistent explanations for A's injuries, but M later admitted to the police that he had engaged in certain conduct that was consistent with A's injuries. M eventually pleaded guilty under the Alford doctrine to certain criminal charges on the basis of that conduct, but both M and N refused to acknowledge that M was responsible for A's injuries. Although N divorced M in an effort to have the children returned to her, she made daily telephone calls to him while he was incarcerated, in which she professed her love for him, and provided misleading statements, during a court-ordered evaluation, regarding her feelings toward M. In terminating the parental rights of M and N as to both children, the trial court found that the criteria of § 17a-112 (j) (3) (C) had been proven. M and N appealed to this court, which reversed the judgments of the trial court and remanded the cases for a new trial because the record did not clearly indicate that M and N had received proper notice of the finding that reunification efforts were not necessary. On remand, the trial court granted the petitioner's motion to file amended termination petitions alleging, inter alia, that the court previously had approved a permanency plan of termination and adoption. The trial court found that M and N had failed to acknowledge or admit the cause of A's injuries until the conclusion of the second trial on the termination petitions, and, consequently, they had made no plan to keep E safe. In light of these omissions, the trial court concluded that M and N were unable to provide E with the care, guidance, or control necessary for her well-being. M and N appealed, claiming that the trial court improperly terminated their parental rights as to E pursuant to § 17a-112 (j) (3) (C) because there was no evidence that acts of parental commission or omission had caused E to suffer any type of harm prior to her removal from the family home and, therefore, that the termination of their parental rights improperly was based on a finding of predictive harm. Held that the trial court properly found that the criteria of § 17a-112 (j) (3) (C) had been proven as to E on the basis of the postremoval acts of parental omission by M and N: although the plain and unambiguous language of § 17a-112 (j) (3) (C) contemplates the termination of parental rights for harmful acts of parental commission or omission that already have occurred, the filing of the amended petition to terminate the parental rights of M and N established a new adjudicatory date under the relevant rule of practice (§ 35a-7 [a]), and, therefore, the trial court properly considered the harmful acts of parental omission that occurred after the removal of E from the home of M and N, which included their persistent failure to acknowledge the cause of A's injuries and failure to take the therapeutic steps that would prevent a similar tragedy from occurring in the future; furthermore, the omissions of M and N clearly fell within the purview of § 17a-112 (j) (3) (C), as that statute encompasses a broad range of parental behaviors, including those that constitute a failure to protect a child by acknowledging the existence of a dangerous situation, and the evidence was sufficient to establish that the omissions of M and N were harmful to E, who, although physically uninjured, suffered the emotional and psychological trauma attendant to her removal from her biological parents' home, followed by years of foster placement during which she lacked the care, guidance or control of her biological parents and the stability and permanence necessary for a young child's healthy development; moreover, M and N could not prevail on their claim that expert testimony from two psychologists regarding the negative effects that children suffer when deprived of care and guidance from their biological parents was insufficient to establish that E had been psychologically harmed, as expert testimony in termination proceedings is accorded great weight, and M and N provided no reason for this court to conclude that E was not susceptible to this type of trauma in light of other evidence in the record that E specifically was harmed by the extended period of separation from M and N. (One justice dissenting)

         Petitions by the Commissioner of Children and Families to terminate the respondents' parental rights with respect to their minor children, brought to the Superior Court in the judicial district of New Britain, Juvenile Matters, where the court, Frazzini, J., granted the petitioner's motion to consolidate the petitions; thereafter, the cases were transferred to the Child Protection Session at Middletown and tried to the court, C. Taylor, J.; judgments terminating the respondents' parental rights, from which the respondent parents separately appealed to this court, which reversed the judgments of the trial court and remanded the cases for a new trial; subsequently, the cases were tried to the court, Hon. Barbara M. Quinn, judge trial referee, who, exercising the powers of the Superior Court, rendered judgments terminating the respondents' parental rights, from which the respondent parents separately appealed. Affirmed.

          OPINION

          ROGERS, C. J.

         This case chiefly concerns the scope of the ground for termination of parental rights contemplated by General Statutes § 17a-112 (j) (3) (C), regarding acts of parental commission or omission that deny a child the care necessary for the child's physical or emotional well-being.[1] The respondent parents, Morsy E. and Natasha E., appeal[2] from the judgments of the trial court terminating their parental rights as to their two daughters, Egypt E. and Mariam E., after finding that ground proven by clear and convincing evidence. The respondents claim that the court improperly terminated their parental rights as to Egypt because that child, unlike her sister, did not suffer any harm prior to her removal from the respondents' home, which they contend was a necessary predicate for termination of their parental rights pursuant to § 17a-112 (j) (3) (C). The respondents claim, therefore, that the termination of their parental rights improperly was based on a finding of predictive harm, a type of harm not contemplated by § 17a-112 (j) (3) (C). We agree with the respondents that a termination of parental rights pursuant to § 17a-112 (j) (3) (C) may not be based upon predictive harm. Under the unusual procedural circumstances underlying this appeal, however, we conclude that the court properly found that § 17a-112 (j) (3) (C) was proven on the basis that Egypt had been harmed by the respondents' postremoval acts of parental commission or omission. Specifically, because the petitions to terminate the respondents' parental rights were amended, and, therefore, the adjudicatory date was extended to encompass events subsequent to the filing of the original petitions, the court properly considered the conduct following the removal of the children, which had an actual, harmful effect on the well-being of Egypt. Accordingly, we affirm the judgments of the trial court.[3]

         We begin by emphasizing that these cases are before this court for the second time on appeal following a retrial on the termination petitions. On June 1, 2015, the trial court, C. Taylor, J., terminated the respondents' parental rights as to Egypt and Mariam after finding, inter alia, that the petitioner, the Commissioner of Children and Families, had proven by clear and convincing evidence that the respondents' acts of parental commission or omission had denied each child the care, guidance or control necessary for her physical, educational, moral or emotional well-being. In re Egypt E., Superior Court, judicial district of New Britain, Juvenile Matters, Child Protection Session at Middletown, Docket Nos. H14-CP-13010981A, H14-CP-13010982A, 2015 WL 4005340, *16-17 (June 1, 2015). The respondents appealed, challenging the court's findings that reasonable efforts at reunification had been made and that they had been unable or unwilling to benefit from those efforts. See In re Egypt E., 322 Conn. 231, 241-42, 140 A.3d 210 (2016). This court reversed the judgments, reasoning that, although the trial court's additional, unchallenged finding that reunification efforts were not necessary normally would have rendered the matter moot, the trial court record did not indicate clearly that the respondents had received proper notice of that finding, thereby giving them the opportunity to challenge it on appeal. Id., 243-44. We therefore remanded the case for a new trial on the termination petitions to be held no later than the fall of 2016. Id., 244.

         On August 5, 2016, the petitioner moved to amend the termination petitions, seeking to add a new ground for termination, namely, the respondents' failure to rehabilitate; see General Statutes § 17a-112 (j) (3) (B); to supplement her allegations as to reasonable efforts to reunify the respondents and the children, and to add an allegation that, on June 1, 2015, the trial court had approved a permanency plan of termination and adoption, rather than reunification, pursuant to General Statutes (Supp. 2014) § 46b-129 (k).[4] On September 13, 2016, the trial court denied the motion to amend insofar as it sought to add the ground of failure to rehabilitate, but granted it as to the other amendments sought by the petitioner. Accordingly, September 13, 2016, the date of the last amendment, became the adjudicatory date for the petitions.[5] See Practice Book § 35a-7 (a) (in adjudicatory phase of proceedings on petition for termination of parental rights, trial court is limited to considering evidence of events preceding latest amendment of petition); see also In re Romance M., 229 Conn. 345, 358-59, 641 A.2d 378 (1994); In re Mariah S., 61 Conn.App. 248, 254 n.4, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).

         A second trial on the termination petitions was held before a new trial court, Hon. Barbara M. Quinn, judge trial referee, in October and November of 2016. At the conclusion of that trial, the court again terminated the respondents' parental rights on the basis of their acts of parental commission or omission. This appeal followed.

         The following facts, which were found by the trial court, and procedural history are relevant to the appeal. Egypt and Mariam were born in 2012 and 2013, respectively, to Morsy and Natasha. On September 1, 2013, Morsy and Natasha brought Mariam, then about seven weeks old, to the Connecticut Children's Medical Center (hospital) on the advice of their pediatrician. That morning, according to the couple, they had noticed that the infant's right shoulder was inflamed and made a ‘‘ ‘crunching sound' '' when manipulated. Upon examination by a physician's assistant, various testing and the taking of X-rays, it was determined that Mariam had multiple bone fractures, including a ‘‘displaced fracture'' of the right clavicle, two fractures of the left tibia and fractures of the left shoulder blade, left femur and right tibia. Mariam also had several bruises on various parts of her body which, according to the physician's assistant, are suspicious for child abuse when present on a child who is not independently mobile. Mariam was tested for osteogenesis imperfecta, a series of genetic bone diseases. The testing ruled out those diseases.[6]

         Mariam had been in the exclusive care of Morsy and Natasha during the period in which medical professionals deemed the injuries to have occurred. Hospital staff notified the Department of Children and Families (department) and the police department in the town where the family resided about the child's injuries, and representatives of each entity arrived and questioned Morsy and Natasha. Egypt was examined for fractures or other injuries at that time, but none were found.

         On that same day, the petitioner placed a ninety-six hour hold on both children and removed them from the respondents' custody. On September 5, 2013, the petitioner filed petitions alleging neglect and motions for orders for temporary custody, which subsequently were granted. The children have remained in foster care with a nonrelative since that time. The petitioner filed petitions to terminate the respondents' parental rights as to both children, alleging § 17a-112 (j) (3) (C) as a ground for termination, on October 4, 2013.

         At the hospital, and in the days following the discovery of Mariam's injuries, Morsy and Natasha gave inadequate and shifting explanations for those injuries. They first said they knew of nothing that could have caused the injuries, then they suggested that they could have been caused by Egypt, who was then thirteen months old, when she bounced Mariam too vigorously in her ‘‘bouncy seat.'' Subsequently, they offered that something may have happened when the children were in the care of Natasha's father and stepmother for a brief period of time ten days earlier. Neither explanation was consistent with the nature and timing of the injuries.

         During questioning by the police on September 2, 3 and 5, 2013, Morsy initially stated that he had dropped Mariam onto the floor in the family's condominium. Thereafter, he explained that he had dropped her twice while he was on the stairs. Finally, as recounted in a police report, Morsy said that, during the middle of the evening before the family had arrived at the hospital, Mariam had been crying and ‘‘he picked her up under her arms. He said [that] she was facing him, and he had his fingers on her back with his thumbs anterior to her shoulders. At this time, he stated [that] he may have grabbed her too hard, and described her as crying before and after this event. In addition, Morsy . . . reported [that] he placed [Mariam] hard into a bouncy chair onto the floor . . . and indicated [that] he could not recall when this exactly happened. Lastly, Morsy . . . described and demonstrated [that] while he was changing [Mariam's] diaper, he grabbed both [of] her legs, with his thumbs on the anterior distal thighs just above the knees [and] his fingers wrapped around her posterior lower legs, and straightened her legs by pressing down with his thumbs. He said he could not recall when this specifically happened, but admitted he may have done this with more force than he was demonstrating during the interview.'' This explanation, unlike the others, was consistent with Mariam's injuries. Morsy was arrested on October 18, 2013, charged with various offenses, and ultimately pleaded guilty pursuant to the Alford doctrine to two counts of reckless endagement in the second degree.[7] Subsequent to admitting his culpability to the police, however, Morsy recommenced denying any knowledge of how Mariam's injuries had occurred. Natasha, for her part, also refused to acknowledge Morsy's responsibility for the injuries despite his admissions and criminal conviction.

         At the time of the children's removal, Morsy and Natasha were given specific steps to aid them in reunifying with their children. The specific steps directed Natasha, inter alia, to take part in parenting and individual counseling toward the goal of her being able to protect her children. As to Morsy, the specific steps directed him to take part in parenting and individual counseling toward the goals of controlling his anger, recognizing how that anger impacts his ability to care for his children and learning how to protect the children and keep them safe. The respondents chose therapists and participated in the recommended counseling, but, nevertheless, each one continued to deny that Morsy had caused Mariam's injuries.

         In regard to Natasha, the trial court described her progress toward the therapeutic goals as ‘‘negligible.'' Specifically, she ‘‘clung to all other possible explanations for [the injuries], including medical explanations, stating that unless she saw someone injuring her child, she could not know what happened. She expended considerable emotional effort to protect her own feelings for Morsy at the expense of the safety of her children.'' Although Natasha knew that she had not caused the injuries herself, and that Morsy was the only other adult in the couple's condominium when the injuries had occurred, her stated position, according to her counselor, was that she ‘‘ ‘wasn't going to accuse anybody because she didn't see anybody do it and that was pretty much her stance [for] the entire time' the counselor worked with her.'' Natasha took a similar position during a court-ordered psychological evaluation. At the time of the first trial, despite having heard all of the evidence, she refused to believe that Morsy played any role in causing the injuries.

         Natasha divorced Morsy in June, 2014, in an effort to have her children returned to her. Nevertheless, the court found, ‘‘she had made absolutely no progress toward complying with the specific step of learning how to keep her children safe. She repeatedly, throughout the time of Morsy's incarceration, made daily telephone calls to him and professed her love for him.''[8]During her court-ordered psychological evaluation, she misled the evaluator about her feelings toward Morsy and her intention to separate from him. According to the court, Natasha ‘‘pa[id] lip service to the concept of keeping her children safe, '' but she ‘‘has never accepted the need to truly separate herself from Morsy to be able to protect [them] from future harm.''

         Morsy similarly participated in various types of counseling, both prior to and during his incarceration. During that counseling, however, he was unable to acknowledge his role in Mariam's injuries. He was not willing to admit responsibility for the injuries during the first termination trial, at his criminal sentencing or at a subsequent parole hearing.

         On October 14, 2016, the department, in support of the amended termination petitions, alleged the following facts as establishing, in relation to Egypt, the respondents' acts of commission or omission pursuant to § 17a-112 (j) (3) (C): that Mariam had suffered multiple fractures and bruising throughout her body, which were diagnostic for nonaccidental inflicted injuries, while in the exclusive care of the respondents; that the respondents, to date, had not adequately explained and/or acknowledged responsibility for inflicting the injuries or for failing to protect Mariam; that the respondents were unwilling to separate from each other; that Natasha could not provide the care, or a plan of care, to ensure Egypt's safety and well-being; that Morsy admittedly lacked the necessary parenting skills to provide Egypt with safe discipline and structure, or to safely provide for Egypt's emotional needs; that Egypt required continual care by a competent adult who could safely provide structure, discipline and boundaries while also providing a nurturing, trusting and stable environment, and who is capable of placing Egypt's safety above his or her own needs; and that, as a result of the respondents' actions, it has been necessary to remove Egypt from an unsafe, disrupted home environment.

         A six day trial was held on the petitions in October and November, 2016. The court heard the following testimony: the physician's assistant, who first saw Mariam for her injuries on September 1, 2013, described those injuries, the respondents' lack of an adequate explanation for them and the results of the further testing that was ordered; a medical doctor qualified as an expert in child abuse pediatrics, who had consulted with the medical team that had treated Mariam, stated that the infant's fractures were diagnostic for inflicted injuries not caused by normal handling, described the types of blows, bending or forceful manipulation that could have produced the fractures and opined that the injuries were inflicted within the twenty-four hour period preceding the family's arrival at the hospital; two department social workers, who were assigned to the case, described the decisions to invoke a ninety-six hour hold, then to seek temporary custody of the children and eventually to pursue termination of parental rights, given the respondents' incomplete and inconsistent explanations for Mariam's injuries and their failure truly to acknowledge any responsibility for them; two police officers, who had investigated Mariam's injuries and questioned Morsy and Natasha, described Morsy's shifting stories and ultimate admissions, Natasha's lack of an explanation for the injuries and her unusual demeanor and loyalty to her husband; and Natasha's therapist, who confirmed that Natasha, although previously claiming to have separated from Morsy, had rekindled her relationship with him and had never truly acknowledged that Morsy was responsible for Mariam's injuries.

         The trial court also heard testimony from two psychologists, Barbara Berkowitz, Ph.D., a clinical psychologist who had performed the court-ordered psychological evaluation of Natasha, [9] and David Mantell, Ph.D, a forensic psychologist, who testified as an expert witness for the petitioner. When asked to opine on whether reunification of the children with the respondents was appropriate in light of the respondents' failure to acknowledge the cause of Mariam's injuries, which had occurred while she was in their exclusive care, and Natasha's continuing commitment to Morsy, Berkowitz testified that ‘‘if [Morsy] is continuing to maintain his innocence despite his conviction and incarceration . . . and [if] there is no explanation about the injuries, it would be, not just imprudent, but unconscionable to reunify the children . . . [with] the two people that are the [only] two possible perpetrators.'' Berkowitz added that, without acknowledging and admitting the cause of the injuries, treatment of someone like Natasha would be difficult in that ‘‘the treating professional has both hands tied behind his or her back . . . .'' As to the situation when the partner of an abuser is in denial about what occurred, Berkowitz noted that it is ‘‘not a good situation [and is] not safe for the children.''

         Berkowitz proceeded to agree that keeping children away from their biological parents could have adverse effects, and that, all else being equal, the first choice is always to keep families together. When the children's safety is a concern, however, the need to ensure it, unfortunately, can make removal, and the resulting harm, necessary. ‘‘[T]here's always consequences, '' she opined, ‘‘but [you] have to look at what's overall in the best interests of the children.'' When children are not raised by their biological parents, Berkowitz explained, ‘‘there are always clinical issues, '' such as separation and loss issues, self-esteem issues and ...


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