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In re Mariana A.

Court of Appeals of Connecticut

April 18, 2018

IN RE MARIANA A.[*]

          Argued January 31, 2018 [**]

         Procedural History

         Petition by the Commissioner of Children and Families to terminate the respondents' parental rights with respect to their minor child, brought to the Superior Court in the judicial district of Hartford, Juvenile Matters, where the respondent father was defaulted for failure to appear; thereafter, the matter was tried to the court, Hon. Robert G. Gilligan, judge trial referee; judgment denying the petition, from which the petitioner appealed to this court. Affirmed.

          Andrei V. Tarutin, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general, for the appellant (petitioner).

          Karen Oliver Damboise, for the appellee (respondent mother).

          Joshua Michtom, assistant public defender, for the minor child.

          Alvord, Prescott and Bear, Js.

          OPINION

          PRESCOTT, J.

         The petitioner, the Commissioner of Children and Families, appeals from the judgment of the trial court denying her petition to terminate the parental rights of the respondent parents, Jane A. (mother) and Johnny B. (father), with respect to their minor child, Mariana A. The petitioner claims that the court improperly (1) concluded that she had not met her burden of proving by clear and convincing evidence that the mother had failed to rehabilitate in accordance with General Statutes § 17a-112 (j) (3) (B) (i), and (2) failed to analyze properly whether the father had abandoned Mariana pursuant to § 17a-112 (j) (3) (A). We disagree with the petitioner's claims and, accordingly, affirm the judgment of the trial court.

         The record reveals the following relevant facts and procedural history, as set forth by the trial court in its memorandum of decision, or that otherwise are undisputed in the record. The mother was raised by her aunt in Puerto Rico, but frequently traveled between Puerto Rico and Connecticut. She completed her high school education, attending adult education classes while pregnant with Mariana but is unable to work due to epilepsy. She receives social security disability benefits and food stamps. She became pregnant with Mariana in 2007 while in Puerto Rico but returned to Connecticut when she was two months pregnant.[1] She currently lives with her unemployed boyfriend, Christian G., with whom she has another child, Alexis. Alexis was born on November 30, 2015.[2]

         There is limited information regarding Mariana's father. He lives and works in Puerto Rico. He never has seen Mariana in person, although, after she was placed in foster care, he sent her a photograph of himself and has spoken to her on the telephone. At times, he has paid child support to the mother for Mariana, beginning several months after the Department of Children and Families (department) became involved with the family.[3]

         In February, 2014, Mariana's kindergarten teacher reported to the department that Mariana had come to school with a bloody lip. Although Mariana initially told her teacher that her mother had slapped her while walking her to school because she had been ‘‘mouthing off, '' she later said to department investigators that she cut her lip when she fell while jumping on her mother's bed. After concluding its investigation of the incident, the department was not able to substantiate any allegations of physical abuse.

         Four months later, in June, 2014, the department received a second call from Mariana's school indicating that she again had reported to school with minor injuries, this time on her nose. Although there were visible marks on the skin of Mariana's nose, the skin was not broken. When asked about her nose, Mariana explained that her mother's boyfriend, Christian G., whom she referred to as ‘‘father, '' had bitten her. Mariana nevertheless gave no indication to school officials that she was afraid to return home. When contacted by the department, the mother explained that Mariana had fallen while jumping on a couch. Mariana was taken to a hospital where she was examined independently by two physicians. Each of the physicians concluded that it was not possible to determine the cause of the marks on Mariana's nose and that the marks were too small to be submitted for a forensic dental examination. The physicians did not observe any other questionable marks or bruises on Mariana. On July 24, 2014, following its investigation of this second incident, the department issued a report substantiating allegations of abuse and neglect against Christian G.

         On September 23, 2014, the petitioner filed a neglect petition that alleged both physical abuse and neglect of Mariana. In addition to citing the incidents involving Mariana's bloody lip and injured nose, the petition contained allegations that (1) Mariana had been exposed to domestic violence between the mother and Christian G., [4] (2) Christian G. abused substances and was permitted to be alone with Mariana, and (3) the mother refused to engage in services offered by the department unless ordered to do so by a court.

         The mother pleaded nolo contendere with regard to the neglect petition, but only as to the neglect allegation that Mariana was ‘‘being permitted to live under conditions, circumstances or associations injurious to [her] well-being.''[5] On December 30, 2014, the court, Burgd-orff, J., accepted the plea and adjudicated Mariana neglected. The court ordered that Mariana remain in the mother's custody subject to a six month order of protective supervision by the department. On April 9, 2015, the court, Dannehy, J., extended the order of protective supervision for an additional six months at the request of the department, which sought to have additional time to oversee the mother's compliance with treatment services. The mother signed a service agreement/safety plan with the department in which she agreed, inter alia, that Christian G. would leave her residence and have no contact with Mariana.

         On June 3, 2015, Mariana's therapist reported to the department that Mariana had arrived for a therapy session with ‘‘two faint but visible marks on her face.'' Mariana told the therapist that Christian G. had slapped her. When the mother was told what Mariana had reported, she stated that Mariana was a liar. Later that same day, the department went to the mother's home to investigate the report. Christian G. was there when investigators arrived, which was in violation of the service agreement/safety plan. He explained that he was present only to clear his name with respect to Mariana's claim that he had slapped her. According to the investigator's report, which was admitted at trial and quoted by the trial court, ‘‘the [department] social worker requested the mother to wake Mariana so she could be interviewed. When awakened, Mariana immediately went to Christian G. and sat in his lap. The [child] appeared to be very bonded to Christian and would not talk with [the social] worker at all. [The social worker] observed Mariana's face and did not see the marks that were reported by the [therapist].'' Before she left, the social worker had the mother sign another service agreement/safety plan indicating that she would not allow unsupervised contact between Christian G. and Mariana, and that she would not permit Christian G. to return to her home.

         On June 5, 2015, on the basis of the June 3, 2015 incident, the petitioner filed for an ex parte order of temporary custody, which the court, Burgdorff, J., granted. On June 8, 2015, the petitioner filed a motion to open and modify the disposition of protective supervision, rendered as part of the earlier neglect adjudication, to an order of commitment to the petitioner. The court, Lobo, J., at a preliminary hearing on June 10, 2015, consolidated the hearing on the order of temporary custody with the hearing on the petitioner's motion to modify disposition.

         On June 29, 2015, following that hearing, the court, Dannehy, J., rendered a decision granting the petitioner's motion to modify disposition and finding that commitment to the petitioner was in Mariana's best interest. The court found under the fair preponderance of the evidence standard that the petitioner had established an ‘‘ongoing pattern of abuse'' involving both the mother and Mariana, and that ‘‘the fact that the mother continues to minimize or deny indicates that she has no insight into [Christian G.'s] behaviors.'' The court further found that the mother had violated her service agreements with the department, which required that she not permit Christian G. to have contact with Mariana or to reside in her home. The court, however, made no express findings regarding any specific instances of abuse of Mariana or her mother by Christian G. Mariana was removed from the home and eventually was placed by the department into foster care with her maternal great aunt.[6]

         Judge Dannehy subsequently approved the department's permanency plan of termination of parental rights and adoption. On September 22, 2016, the petitioner filed the petition for termination of parental rights at issue in this appeal. The sole adjudicatory ground asserted with respect to the mother was that she had failed ‘‘to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, [she] could assume a responsible position in the life of the child . . . .'' General Statutes § 17a-112 (j) (3) (B) (i). With respect to the father, the petition alleged, pursuant to § 17a-112 (j) (3) (A), that Mariana had been abandoned because he allegedly had ‘‘failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child.''

         Following a trial, the court, Hon. Robert G. Gilligan, judge trial referee, issued a memorandum of decision on July 13, 2017, denying the petition. The court made initial findings that the department made reasonable efforts to locate both parents and, having accomplished the same, made reasonable efforts to reunify them with Mariana.[7] Despite the findings of reasonable efforts by the department, the court nonetheless concluded on the basis of the totality of the evidence admitted at trial that the department had failed to meet its burden of demonstrating by clear and convincing evidence the adjudicatory ground for termination asserted in the petition against each of the parents.

         The court first addressed the petitioner's claim that the mother had failed to demonstrate a sufficient level of personal rehabilitation such that, within a reasonable period of time, she would be able to assume some responsible position in Mariana's life. The court recognized that the mother's involvement with the department arose as a result of suspected physical abuse of Mariana as well as intimate partner violence between Christian G. and the mother. The court acknowledged the petitioner's argument that the mother continued to adhere to her belief that Mariana had lied about being abused by Christian G. and that her steadfast adherence amounted to conclusive evidence that she had failed to gain the needed insight and ability to care for Mariana. The court also considered the mother's arguments that there was insufficient evidence corroborating Mariana's inconsistent reports of the cause of her injuries, and, therefore, the mother's beliefs that her daughter had lied and that Christian G. was not an abuser were not unreasonable under the circumstances and cannot provide a sufficient basis for the termination of her parental rights.

         The court made no findings on the basis of its review of the record as to whether Christian G. ever had physically injured Mariana. Although the court took judicial notice that Mariana had been found neglected in a prior proceeding, it also noted that the mother had entered a nolo contendere plea only with respect to the allegation that Mariana had been permitted to live in conditions injurious to her well-being, not as to the abuse allegations, which were never adjudicated in the underlying neglect proceedings. The court's recitation of the underlying history demonstrates the lack of any specific findings by a court that Christian G. caused Mariana's various injuries. For example, there was never any substantiation of abuse with respect to the bloody lip incident. The physicians who examined Mariana's nose were unable to determine the cause of the visible marks observed by the school and also did not observe any evidence of physical mistreatment. With respect to Mariana's reporting that Christian G. slapped her on June 3, 2015, the court highlighted that the department's investigator did not observe the reported marks on ...


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