Jessica M., In re, 16478

Decision Date30 June 1998
Docket NumberNo. 16478,16478
Citation49 Conn.App. 229,714 A.2d 64
CourtConnecticut Court of Appeals
PartiesIn re JESSICA M. *

Linda Pearce Prestley, Assistant Attorney General, with whom, on the brief, were Richard Blumenthal, Attorney General, and Susan T. Pearlman, Assistant Attorney General, for appellant (petitioner).

David Brian Carr, West Hartford, for appellee (respondent mother).

Eric Onore, Manchester, for appellee (respondent father).

Before LANDAU, SPEAR and FRANCIS X. HENNESSY, JJ.

LANDAU, Judge.

The petitioner, the commissioner of the department of children and families (department), appeals from the judgment of the trial court dismissing its petition to terminate the parental rights of the respondent parents pursuant to General Statutes (Rev. to 1995) § 17a-112 (b), 1 entitled "Termination of parental rights of child committed to commissioner."

The department appealed from the dismissal of the petition claiming that the trial court improperly found that the department had failed to prove, by clear and convincing evidence, sufficient grounds for an adjudication of termination of parental rights, specifically, failure to achieve rehabilitation and acts of commission and omission, and that it was not in the best interests of the child to terminate parental rights pursuant to § 17a-112 (b). After a review of the record and briefs, and after hearing from the parties at oral argument, we conclude that the trial court properly dismissed the petition to terminate the rights of Jessica's parents.

The following facts are relevant to this appeal. Jessica was born on October 29, 1990. One month later, Jessica's pediatrician notified the department that Jessica had suffered injuries to her head and that her parents' explanation was not consistent with the injury, a fractured skull with a small amount of brain swelling. Jessica's mother later admitted having hit the child with her hand. Jessica's father knew of the incident. In December, 1990, the department obtained temporary custody of Jessica and filed coterminous petitions of neglect and termination of parental rights as to Jessica's parents.

On March 15, 1991, the department withdrew the termination petition, and Jessica was adjudicated neglected and committed into department custody and placed in foster care. Jessica was returned to her parents in October 1991. From that time until the summer of 1992, the department provided protective services for Jessica in her family home. On June 5, 1992, the department petitioned to revoke Jessica's commitment. 2 The department closed its file on Jessica because its expectations concerning her parents were successfully met.

Three and one-half years later, Jessica came to the attention of the department again. In March, 1995, the mother took Jessica and left the marital home. The mother sought help at a battered women's shelter where she reported spousal abuse and that she had hit Jessica in the head again. She also reported that the father had beaten Jessica with a belt. The coordinator of the shelter reported suspected child abuse to the department. Upon investigation, a department employee noted bruises on Jessica's back, buttocks and legs. The department again obtained custody of Jessica, placed her in foster care, and once more filed a coterminous petition of neglect and termination of parental rights. 3 At the time of trial, Jessica was living with a foster family and her parents were separated. Trial was held on several days between September 29, 1995, and April 22, 1996. The trial court heard testimony from Jessica's foster mothers, from the respondents and from other relatives, department case workers and two psychologists, whose reports were also admitted as evidence. 4 The trial court also took judicial notice of the court files of both the 1990 and 1995 proceedings.

The trial court first considered the neglect petition and then considered whether either of the two statutory grounds alleged in the termination petition were proved by clear and convincing evidence. The trial court found by a fair preponderance of the evidence that Jessica was neglected for injuries the parents inflicted on her in March, 1995. The court ordered Jessica committed to the department for one year.

With respect to the termination petition, the court took judicial notice of the 1990 file and found that, as part of that proceeding, Jessica had been adjudicated neglected. See General Statutes (Rev. to 1995) § 17a-112 (b)(2). The trial court also found with respect to the 1995 proceeding that the department had not made reasonable efforts to reunite the family for a period of not less than one year. See General Statutes (Rev. to 1995) § 17a-112 (b), (c) and (d)(2). 5 The trial court opined that, because the parents had successfully achieved rehabilitation in the past, they would again benefit from the intensive services of the department. The court dismissed the termination petition on both grounds alleged, i.e., failure to achieve rehabilitation and parental acts of omission and commission. The trial court also ordered the department to provide the parents with intensive rehabilitation services and additional supervised visitation. See Practice Book § 1046.1, now Practice Book (Rev.1998) § 33-12. 6

The department raises four issues on appeal: the trial court improperly (1) relied on dispositional evidence for adjudication, (2) concluded that the parents would benefit from rehabilitative services, (3) found that the allegations were not proven by clear and convincing evidence, and (4) concluded that termination of parental rights was not in the best interests of the child. 7

" 'Termination of parental rights' means the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent or parents...." General Statutes § 45a-707 (8). "Termination of parental rights is 'a most serious and sensitive judicial action.' " In re Barbara J., 215 Conn. 31, 44, 574 A.2d 203 (1990). "Since termination of parental rights is the ultimate interference by the state with the natural rights of parents in their children, resulting in everlasting severance of the legal relationship, and usually the permanent separation of parent and child as well, courts must require strict adherence to the statutory standards." In re Migdalia M., 6 Conn.App. 194, 203, 504 A.2d 533, cert. denied, 199 Conn. 809, 508 A.2d 770 (1986).

On appeal, "[w]e will overturn such a finding of fact only if it is clearly erroneous in light of the evidence in the whole record." In re Romance M., 229 Conn. 345, 353, 641 A.2d 378 (1994). "[G]reat weight is given to the judgment of the trial court because of its opportunity to observe the parties and the evidence." (Internal quotation marks omitted.) Rummel v. Rummel, 33 Conn.App. 214, 221, 635 A.2d 295 (1993). " 'We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. Rather, we focus on the conclusion of the trial court, as well as the method by which it arrived at the conclusion, to determine whether it is legally correct and factually supported.' " In re David E., 4 Conn.App. 653, 656, 496 A.2d 229 (1985). "[O]n review by this court every reasonable presumption is made in favor of the trial court's ruling." In re Felicia D., 35 Conn.App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994). Our review of the complete record reveals the trial court's decision was factually supported and legally correct.

I

The department first claims that the trial court improperly considered dispositional evidence during the adjudicatory phase of the termination proceedings. This claim lacks merit.

A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn.App. 353, 360, 664 A.2d 1168 (1995). "In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child." Id. "In the discretion of the court, evidence on adjudication and disposition may be heard in a nonbifurcated hearing, provided disposition may not be considered until the adjudicatory phase has concluded." Practice Book § 1042.1(4), now Practice Book (1998 Rev.) § 33-3(b); see also In re Jose C., 11 Conn.App. 507, 508-09, 527 A.2d 1239 (1987).

In this case, the trial court properly conducted a nonbifurcated trial and rendered a decision on the adjudicatory phase of the termination proceeding. The trial court wrote two memoranda of decision, one dismissing the petition and one in response to the department's motion for articulation, that indicate that the court's adjudicatory decisions are based on events that took place prior to the department's March, 1995 petition to terminate the rights of Jessica's parents. Specifically, the trial court found that the department did not prove nor did it request the trial court to waive the requirement that it made reasonable efforts to reunite the family for a period of not less than one year. The department's ability to rehabilitate the parents following Jessica's commitment in 1991 also militated against termination of their parental rights in 1996. The trial court stated in response to the motion for articulation: "If their past behavior is the best predictor of the parents' future behavior, these parents would find intensive rehabilitative services as [the department] provided them in 1991 beneficial to rehabilitation now." The parents' prior successful rehabilitation and the mutual love and bonds between Jessica and her parents are the...

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