Christine F., In re

Decision Date04 March 1986
Docket Number4375,Nos. 3814,s. 3814
Citation6 Conn.App. 360,505 A.2d 734
CourtConnecticut Court of Appeals
PartiesIn re CHRISTINE F. *

James W. Auwood, for appellant (mother of the minor child).

Barry J. Ward, New London, for appellant (father of the minor child).

Judith M. Earl, Asst. Atty. Gen., with whom, on brief, was Joseph I. Lieberman Atty. Gen., for appellee (Department of Children and Youth Services).

Jefferson Hanna III, Madison, for minor child.

Before HULL, BORDEN and DALY, JJ.

BORDEN, Judge.

These are the combined appeals of two parents from the trial court's judgment terminating parental rights in their five year old daughter. Both challenge the sufficiency of the evidence upon which the judgment is based. In addition, the mother assigns as error the trial court's failure to make adequate written findings pursuant to General Statutes § 17-43a(d). The father assigns as error the trial court's conclusion that the best interest of the child warrants a waiver of the requisite one year waiting period mandated by General Statutes § 17-43a(b) and (c). The father also claims that the trial court's judgment violates the public policy of this state. 1 We find no error.

Between January and July, 1984, the department of children and youth services (DCYS) received four referrals concerning this child, who is the youngest of three children of these divorced parents. Both of the other two children had been adjudicated neglected and committed to the custody of DCYS at separate times in the past. On July 23, 1984, DCYS received a sexual abuse referral from a social worker at a Norwich hospital where the child had been physically examined. The child was admitted to the hospital and, the following day, DCYS initiated coterminous child neglect and parental termination petitions and obtained an order of temporary custody. See General Statutes §§ 17-38a, 46b-129 (temporary custody) and 17-43a(e) (coterminous petitions). Because the present appeals are from the judgment of termination of parental rights, we will not further address the adjudication of neglect other than to note that the trial court made the requisite preliminary finding that the child was uncared for and neglected. See In re Juvenile Appeal (84-AB), 192 Conn. 254, 267, 471 A.2d 1380 (1984).

The parental termination petition alleged, pursuant to General Statutes §§ 45-61f(f)(2) and 17-43a(b)(3), that the child has been denied by reason of an act or acts of parental commission or omission, the care, guidance or control necessary for her physical, educational, moral or emotional well-being. 2 In addition, the termination petition alleged, pursuant to General Statutes § 17-43a(c), that the stated reason for termination of parental rights has existed for less than one year but that the totality of the circumstances surrounding the child indicate that a waiver by the court of the one year requirement is in the best interest of the child. The particulars alleged in the petition include that the child has been sexually molested on more than one occasion, including July 23, 1984, and that the mother has been unable to protect the child from sexual molestation. It was also alleged that the mother is unable to control the child's behavior, that she threatens the child and yells obscenities at her, and that both parents are intellectually limited.

On November 15, 1984, the trial court issued a memorandum of decision, finding by clear and convincing evidence that the child was uncared for and neglected, that the child has been abandoned by both parents in the sense that each parent has failed to maintain a reasonable degree of interest, concern or responsibility for her welfare, 3 and that the child has been denied by reason of acts of both parental commission and omission, the care, guidance and control necessary for her physical, educational, moral and emotional well-being. The court also found that the totality of the circumstances surrounding the child warrants a waiver of the requisite one year period as provided in General Statutes § 17-43a(b) and (c). Finally, the court found that termination of parental rights was in the best interest of the child. Accordingly, the trial court rendered judgment terminating the parental rights of both parents, and appointed the commissioner of DCYS as statutory parent for the purpose of placing the child for adoption.

I

The issues raised by the respondents in this appeal focus our attention upon the requirements of General Statutes § 17-43a(b), (c) and (d). 4 Because the issue raised by both parents regarding the sufficiency of the evidence upon which the judgment is based; General Statutes § 17-43a(b); overlaps with the claims of the mother regarding the adequacy of the court's written findings; General Statutes § 17-43a(d); and the claim of the father regarding violations of public policy; General Statutes § 17-38a(a); these issues will be addressed together.

The evidence presented during the two days of hearings included the testimony of a hospital pediatrician, a psychologist, who evaluated the family members for purposes of these proceedings, two DCYS case workers, a neighbor who has been acquainted with the family members for a number of years, the child's father and a foster mother. Documentary evidence introduced at trial included hospital records, the psychologist's written report and the written reports of the DCYS case workers. On the basis of this evidence, the trial court found that both parents are of borderline mental ability. The mother was found to experience difficulty coping with moderate disruptions and is easily overwhelmed by problems. Her own needs take priority. She is easily frustrated to a high degree. She has a live-in boyfriend with whom she fought and argued violently; she experienced beatings from this man and would transfer her frustrations into verbal assaults upon the child. She lived for a period of time in a one room apartment with rabbits, cats and dogs; the animals were allowed to void in this room. A neighbor had taken the child to live with her on some twenty occasions for days at a time, once extending to a period of three months. The court also found that the father has an alcohol problem and has difficulty caring for his own needs. The child was found to have been exposed to inappropriate sexual activity and the father was found to have been involved as a participant in that activity. On appeal, both parents claim that these latter findings regarding sexual activity and the father's participation in it, in particular, are not supported by clear and convincing evidence. The mother has raised this issue because this finding is one of the predicates to the finding that she is unable to protect the child from further abuse.

The pediatrician who examined the child testified that he observed peripheral irritation in the vaginal and perineal area and a one centimeter opening in the center of the hymenal ring which indicated a possibility of manipulation. He further testified that during the course of the examination, the child made statements to him which indicated that the father had fondled her. These statements were consistent with the physical condition that the pediatrician observed. On cross-examination, the pediatrician testified that he was unable to formulate an opinion that it was more probable than not that the child's condition was related to sexual abuse. He also testified that a child can be touched in a sexual manner without showing any physical results of that touching.

The evaluating psychologist testified that the child's reactions during testing "really indicated" to him that there had been sexual abuse. On cross-examination, he testified that the child's test responses did not identify the father, as opposed to the mother's boyfriend, as the cause of the abuse. The child did, however, exhibit strong negative reactions to the father which the psychologist observed.

On appeal, the parents argue that because this expert testimony did not exclude, to a reasonable degree of medical probability, the hypothesis that the child's injuries were accidental, the evidence was legally insufficient to establish the cause of the sexual abuse. This argument is unavailing for several reasons.

First, it erroneously assumes that this evidence was the only available evidence regarding the causation of sexual abuse. Our review of the record indicates that the child made statements to the foster mother and the neighbor which indicated that the father had inappropriately touched her. In addition, the neighbor found pornographic pictures in the child's possession which the child stated her father had given her. The child made similar statements to a DCYS case worker. Thus, the available evidence allowed the trial court, as the finder of fact, to draw inferences which were consistent with either culpability or innocence on the part of the father. The trial judge, in such a situation, is not required to select those inferences which favor one finding over the other; State v. Dumlao, 3 Conn.App. 607, 616, 491 A.2d 404 (1985); merely because the clear and convincing evidence standard of proof is greater than the civil preponderance standard. See Id. "The rule is that the [trial court's] function is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." Id., 616-17, 491 A.2d 404. We find no error in the reasoning or logic of the trial court based upon the totality of the evidence.

Second, the parents' claims of error regarding the sufficiency of the evidence unduly emphasize the weight to be accorded the failure of the physician and psychologist to formulate opinions as to the cause of the sexual abuse. The fact that those experts did not formulate opinions as to the ultimate issue of causation is undoubtedly significant. This fact alone does not, however, render the balance of...

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