In re Antonio M.

• Decision Date: 08 February 2000
• Docket Number: (AC 18812)
• Citation: 744 A.2d 915,56 Conn. App. 534
• Court: Connecticut Court of Appeals
• Parties: IN RE ANTONIO M.

56 Conn. App. 534

744 A.2d 915

IN RE ANTONIO M.¹

(AC 18812)

Appellate Court of Connecticut.

Argued October 18, 1999.

Officially released February 8, 2000.

Landau, Mihalakos and Dupont, Js. David B. Rozwaski, with whom, on the brief, was Sara R. Martin, for the appellant (respondent).

John E. Tucker, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Eric J. Palladino, for the minor child.

Opinion

DUPONT, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights with respect to her child, Antonio M. On appeal, the respondent claims that the trial court improperly (1) found that she committed an act of omission or commission that denied the care, guidance and control necessary for the child's welfare pursuant to General Statutes (Rev. to 1997) § 17a-112 (c) (3) (C), (2) admitted certain hearsay statements in violation of her constitutional right to due process, (3) refused to draw an adverse inference against the petitioner, the commissioner of children and families (commissioner), for failing to call certain witnesses, (4) concluded that the department of children and families (department) had made reasonable efforts to reunify the respondent with the child as required by § 17a-112 (c) (1), and (5) waived the one year requirement of General Statutes (Rev. to 1997) § 17a-112 (d). We affirm the judgment of the trial court.

The trial court found the following facts. The respondent is the mother of Lorenzo M., born July 16, 1992, and his younger brother, Antonio M., born April 28, 1993. The father of the children is deceased. On April 17, 1997, the children were placed in foster care after a referral was made to the department by Lorenzo's school, which reported that Lorenzo had a scar under his left eye and that the child stated that his "mommy" did it. An investigation by the department revealed that the respondent had thrown a shovel at her son after telling him that she would do so if he did not obey her. When the child did not obey, she threw the shovel, which hit him in the face and caused a mark that was visible one month after the incident.

On April 21, 1997, the commissioner filed neglect petitions as to both children, alleging that the children were being permitted to live under conditions, circumstances or associations injurious to their well-being. On that same date, the commissioner secured an ex parte order of temporary custody, which was sustained by the trial court after several days of trial. The trial court ordered that the neglect petitions for the two children be consolidated for trial and that all evidence presented at the temporary custody hearing would be evidence at the neglect trial.

After Antonio was placed in foster care, he immediately began to disclose sexual abuse by his mother. On November 5, 1997, the commissioner amended the neglect petition as to Antonio and filed a coterminous petition for the termination of the respondent's parental rights as to Antonio. The termination petition alleged, pursuant to § 17a-112 (c) (3) (C), that Antonio was being denied, by reason of an act of parental commission or omission, the care, guidance or control necessary for his physical, educational or emotional well-being.

The trial began on June 22, 1998, and lasted two days. The court heard testimony from various witnesses, including a department social worker, a court-appointed psychologist, Lorenzo's primary therapist and Antonio's foster mother. The respondent offered testimony from nine witnesses and testified on her own behalf. Twelve exhibits were introduced into evidence. The court also considered the trial transcripts of the contested order for temporary custody hearing and the exhibits introduced in that trial pursuant to the court's previous ruling.

The trial court first considered the neglect petitions and then considered whether the statutory ground alleged in the termination petition was proven by clear and convincing evidence. The trial court determined by a fair preponderance of the evidence that Antonio and Lorenzo had been neglected and that the respondent permitted the children to live under conditions, circumstances or associations injurious to their well-being. The court ordered Lorenzo committed to the commissioner for one year.²

With respect to the termination petition, the trial court found that the commissioner had proven the statutory ground for termination by clear and convincing evidence. The court made the required findings pursuant to § 17a-112 (d) and concluded that termination was in Antonio's best interest. The court rendered judgment terminating the respondent's parental rights with respect to Antonio on July 31, 1998. The respondent appeals from the judgment of the trial court terminating her parental rights with respect to Antonio.

"Our statutes define the termination of parental rights as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent .... It is a most serious and sensitive realm of judicial action.... To justify the termination of parental rights in the absence of consent, one or more of the grounds set forth in General Statutes § [17a-112 (c) (3)] must be proven by clear and convincing evidence....

"Section [17a-112 (c) (3)] carefully sets out ... [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. [The commissioner], in petitioning to terminate those rights, must allege and prove [by clear and convincing evidence] one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. No all-encompassing best interests standard vitiates the requirement of compliance with the statutory criteria.... In re Michael M., 29 Conn. App. 112, 117-18, 614 A.2d 832 (1992)." (Internal quotation marks omitted.) In re Anna B., 50 Conn. App. 298, 303-304, 717 A.2d 289 (1998).

"The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214,223,660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous....

"On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported. In re Michael M., [supra, 29 Conn. App. 121]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe's Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling." (Internal quotation marks omitted.) In re Denzel A., 53 Conn. App. 827, 831-32, 733 A.2d 298 (1999).

I

The respondent first claims that the trial court improperly found that she had committed an act of omission or commission affecting the welfare of Antonio. We disagree.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part: "The Superior Court, upon hearing and notice as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence ... (3) that ... (C) the child has been denied, by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facia evidence of acts of parental commission or omission sufficient for the termination of parental rights...."

The crux of the respondent's claim is that there was insufficient evidence to support the court's finding that Antonio had suffered serious physical and emotional injury.³ The respondent claims that there was no basis for the allegations of sexual and physical abuse by her or her boyfriend and no basis for testimony concerning sibling fights. She takes exception to the trial court's alleged failure to credit any of the respondent's witnesses, stating in her brief: "The court apparently does not credit any of [the] respondent's witnesses. Although it is the purview of the trier of fact to determine credibility of witnesses, under the facts of this case, the selective allowance of evidence has violated [the] respondent's rights to due process under the law."

It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony. "On appeal, we do not retry the facts or pass on the credibility of witnesses.... It is the quintessential function of the fact finder to reject or accept certain evidence...." (Citations omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn. App. 768, 782, 740 A.2d 896 (1999). In its memorandum of decision, the trial court specifically set forth its reasons for believing or disbelieving certain...