Cynthia A., In re, 4216

• Decision Date: 26 August 1986
• Docket Number: No. 4216,4216
• Citation: 8 Conn.App. 656,514 A.2d 360
• Court: Connecticut Court of Appeals
• Parties: In re CYNTHIA A. *

Page 360

514 A.2d 360

8 Conn.App. 656

In re CYNTHIA A. ^*

No. 4216.

Appellate Court of Connecticut.

Argued June 12, 1986.

Decided Aug. 26, 1986.

Barbara J. Ruhe, Hartford, for appellant (respondent mother).

Judith Merrill Earl, Asst. Atty. Gen., with whom, on brief, were Joseph I. Lieberman, Atty. Gen., Robert W. Garvey, Asst. Atty. Gen., and Kim Knox, Law Student Intern, for appellee (petitioner).

Brian Thomas Walsh, New Britain, for appellee (father).

Before BORDEN, DALY and BIELUCH, JJ.

DALY, Judge.

The respondent mother has appealed from the judgment committing her three year old daughter, Cynthia, to the temporary custody of the commissioner of the department of children and youth services (DCYS), pursuant to General Statutes § 46b-129(d), for the maximum period of eighteen months for placement with the child's paternal grandmother who lived at the time in Puerto Rico. ¹

On January 30, 1985, following a plea of nolo contendere, the trial court found that Cynthia had been neglected by her mother (respondent) and father. ² The state claimed that, on September 1, 1984, the child had suffered burns to 55 percent of her body as a result of being immersed in boiling hot water by a male companion of the respondent. The male companion is not the natural father of Cynthia but is the father of the respondent's two other, younger children. As a result of this incident, the male companion was charged with the offense of injury or risk of injury to a minor.

From the time of Cynthia's birth in July, 1981, until November, 1983, the maternal grandmother greatly assisted in the care of Cynthia, as the respondent and child lived in the home of the maternal grandmother during that time. On two occasions, in 1982 for two months, and in 1983-84 for five months, the respondent sent Cynthia to Puerto Rico to stay with the child's father and paternal grandparents. Upon learning of the child's injury, the paternal grandmother left her home and family in Puerto Rico and came to Connecticut to be with the child. The paternal grandmother visited Cynthia in the hospital, nursed and cared for her upon the child's release, and brought her to the hospital for subsequent treatments. During this time, the paternal grandmother was living in New Britain where the child often stayed or visited with her. During the thirty-seven month period after Cynthia's birth until her hospitalization , the respondent had full responsibility for the care of her daughter for only four months.

Neither the respondent nor the father contested the neglect charges. At the conclusion of the dispositional phase of the proceedings, the trial court committed the child to the custody of DCYS for eighteen months for placement with the paternal grandmother, currently residing in Puerto Rico.

In her appeal, the respondent claims that the trial court erred as follows: (1) in ruling that the petitioner established by a fair preponderance of the evidence that commitment of the minor child to DCYS is in the child's best interests; (2) in denying the respondent's motion to dismiss for the failure of the petitioner to establish by a fair preponderance of the evidence that commitment of the minor child to DCYS is in the child's best interests; (3) in finding that the respondent was not denied her due process rights by the admission of hearsay testimony through the social study summary of facts and the summary of the DCYS worker; (4) in failing to grant the respondent's motion for a psychological evaluation of a nonparty pursuant to General Statutes § 17-38a; (5) in denying the respondent's motion for continuance of the dispositional hearing pending the resolution of criminal charges pending against the respondent's male companion, so as to permit him to testify at the dispositional hearing; (6) in ordering the minor child to be committed to DCYS with placement with the paternal grandmother in Puerto Rico absent efforts to reunify the child and her mother; (7) in terminating de facto the respondent's parental rights by granting the commitment of the child to DCYS for placement in Puerto Rico with the paternal grandmother; and (8) in refusing to grant an administrative hearing in accordance with General Statutes § 46b-129(d) relative to the out-of-state placement.

I

"After a judicial determination that a child is 'uncared for, neglected or dependent' the Superior Court has available three possible options from which to choose regarding custody of that child: (1) to 'commit [the child] to the commissioner of children and youth services'; (2) to 'vest such child's or youth's care and personal custody' in a third party until the child reaches the age of eighteen; or (3) to permit the natural parent to retain custody and guardianship of the child, with or without protective supervision by DCYS. General Statutes § 46b-129(d)." (Footnote omitted.) In re Juvenile Appeal (85-BC ), 195 Conn. 344, 353, 488 A.2d 790 (1985).

The respondent contends that the state failed to substantiate the child's commitment to DCYS by a fair preponderance of the evidence. " '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 that conclusion, to determine whether it is legally correct and factually supported.' " Knight v. Breckheimer, 3 Conn.App. 487, 490, 489 A.2d 1066 (1985), quoting Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 222, 435 A.2d 24 (1980). " 'We cannot retry the facts or pass upon the credibility of the witnesses.' " Pandolphe's Auto Parts, Inc. v. Manchester, supra, 181 Conn. 220, 435 A.2d 24. "It is well established that the trial court is in the best position to determine the credibility of witnesses and the weight to be accorded their testimony." Colonial Bank of Waterbury v. Forish, 6 Conn.App. 289, 291, 505 A.2d 11 (1986); Holden & Daly, Connecticut Evidence § 125(a). "In determining whether the trial court could reasonably conclude as it did on the evidence before it, every reasonable presumption should be given in favor of the correctness of its action." Leo v. Leo, 197 Conn. 1, 4, 495 A.2d 704 (1985).

There was evidence before the trial court that the respondent had cared for Cynthia for only four out of the thirty-seven months prior to her hospitalization for the burn injury. There was ample evidence that the paternal grandmother has exhibited a strong sense of responsibility toward the child and could continue to provide her with a stable and loving environment. The paternal grandmother has maintained a continuous bond with the child through extended visits. She left Puerto Rico, regularly visited Cynthia in the hospital and cared for her needs after her release. The paternal grandmother is an experienced caretaker, having raised a family of her own.

On the other hand, the respondent must bear the responsibility of caring for her two children by her male companion, the alleged abuser of Cynthia. If the child remained with the respondent, the male companion would inevitably come in contact with the abused child. The psychologist, the DCYS social worker and a counselor all were in accord that the DCYS placement with the paternal grandmother in Puerto Rico would be in the best interests of the child. Our review of the record reveals that the state satisfied its burden of proof by a fair preponderance of the evidence. The trial court's conclusion as to the placement of the child with DCYS was, therefore, legally correct and factually supported. See In re Rebecca W., 8 Conn.App. 92, 510 A.2d 1017 (1986).

II

The respondent claims that the trial court erred in failing to grant her motion for dismissal. Practice Book § 302 provides in relevant part: "If, on the trial of any issue of fact in a civil action tried to the court, the plaintiff has produced his evidence and rested his cause, the respondent may move for judgment of dismissal, and the court may grant such motion, if in its opinion the plaintiff has failed to make out a prima facie case...."

If we assume, arguendo, that the motion was appropriate in a dispositional hearing of neglect and timely even though made at the end of the entire testimony, a judgment of dismissal is proper when the trier cannot make a reasonable finding in favor of the plaintiff based on the evidence produced. Hinchliffe v. American Motors Corporation, 184 Conn. 607, 609, 440 A.2d 810 (1981). "The evidence offered by the plaintiff is to be taken as true and interpreted in the light most favorable to him, and every reasonable inference is to be drawn in his favor." Id., 184 Conn. 609-10, 440 A.2d 810. Treating the evidence in that manner, we conclude that the denial of the judgment of dismissal was proper because the evidence not only satisfied the prima facie requirement but also met the state's burden of proof by a fair preponderance.

III

The respondent claims that she was denied her due process rights since extensive hearsay evidence was admitted through the social study summary of facts and the testimony of the DCYS social worker. It should be noted at the outset that in juvenile proceedings certain procedural informalities are constitutionally permissible, allowing, for example, the liberal interpretation of the formal rules of evidence as long as due process standards are observed. In re Juvenile Appeal ( 85-2 ), 3 Conn.App. 184, 190, 485 A.2d 1362 (1985). More importantly, the respondent did not object at the trial to any of the evidence which she challenges on appeal. Indeed, she introduced much of the evidence through cross-examination of the social worker. She can hardly be heard now to complain of its admission.

IV

The trial court denied the respondent's motion requesting that her male friend be ordered to submit to a psychological examination pursuant to General Statutes § 17-38a. ³ By employing the word "may" as opposed to the...