In re Brea B.

• Decision Date: 11 March 2003
• Docket Number: (AC 22790).
• Court: Connecticut Court of Appeals
• Parties: IN RE BREA B.

75 Conn. App. 466

816 A.2d 707

IN RE BREA B.¹

(AC 22790).

Appellate Court of Connecticut.

Argued November 18, 2002.

Officially released March 11, 2003.

Foti, Dranginis and West, Js. David J. Reich, for the appellant (respondent mother).

Maureen D. Regula, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Eliot D. Prescott, assistant attorney general, for the appellee (petitioner).

Geraldine M. Menn, for the minor child.

Opinion

WEST, J.

The respondent mother² appeals from the judgment of the trial court terminating her parental rights with respect to her minor child. On appeal, the respondent claims that (1) the evidence was not clear and convincing that there is no ongoing parent-child relationship, (2) the court improperly found that she did an act of commission or omission within the meaning of General Statutes § 17a-112 (j)(3)(C) and (3) the evidence was not clear and convincing that the physical injury she inflicted on the child was not accidental. We affirm the judgment of the trial court.

The following facts and procedural history underlie the respondent's appeal. The child was born on April 13, 1990. At the time of the child's birth, the respondent was a twenty-one year old single mother who had just left active duty with the United States Marine Corps. She lived with her great aunt and relied heavily on relatives to help her raise the child during the first five years of her daughter's life.

On January 18, 2000, when the child was nine years old, the respondent attacked the child with a large hunting knife, planning to kill her. During the attack, the respondent stabbed the child at least seven times. The child suffered deep puncture wounds and lost a considerable amount of blood. She struggled with her mother and succeeded in calling 911 for help. At the urging of the police officer who answered the child's telephone call, she fled the house and subsequently was brought by ambulance to a hospital. While undergoing treatment at the hospital, the child repeatedly expressed her fear that her mother would attempt to kill her again.

The respondent was charged with attempt to commit murder, assault in the first degree and risk of injury to a child. The respondent claimed that her actions were the result of a drug induced psychosis. She was acquitted by reason of mental disease or defect.

The petitioner, the commissioner of the department of children and families, secured an order of temporary custody and, on January 21, 2000, filed a petition to terminate the parental rights of the child's parents. The petition subsequently was amended to include several grounds for termination that inadvertently had been left unchecked on the standard petition form. The amended petition alleged that it was in the child's best interest to terminate the respondent's parental rights because "[t]he child has been denied, by reason of an act or acts of commission or omission . . . by the [respondent], the care, guidance or control necessary for her physical, educational, moral or emotional well being," and because [t]here is no ongoing parent/child relationship with respect to the [respondent] that ordinarily develops as a result of the [respondent] having met on a continuing, day to day basis, the physical, emotional, moral or educational needs of the child and to allow further time for the establishment or re-establishment of the parent-child relationship would be detrimental to the best interests of the child." During the termination proceedings, the respondent again claimed that her actions were the result of a drug induced psychosis. The court found that there was considerable support for that position in the opinions of the court-appointed psychiatrist who examined the respondent in connection with the criminal proceedings and who subsequently testified during the termination hearing. Nevertheless, the court also found that the petitioner had proved by clear and convincing evidence each of the grounds relied on in the petition for the termination of the respondent's parental rights. The respondent's parental rights were terminated on September 10, 2001. This appeal followed.

I

"Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . 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. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling. . . .

"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.. . . In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights [under General Statutes § 17a-112 (j)] 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." (Citations omitted; internal quotation marks omitted.) In re Gary B., 66 Conn. App. 286, 289-90, 784 A.2d 412 (2001).

General Statutes § 17a-112 (j)(3)(D) provides that the court may grant a petition to terminate parental rights if it finds by clear and convincing evidence that "there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day to day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child. . . .

"This part of the statute requires the trial court to undertake a two-pronged analysis. First, there must be a determination that no parent-child relationship exists, and second, the court must look into the future and determine whether it would be detrimental to the child's best interest to allow time for such a relationship to develop. . . . In considering whether an ongoing parent-child relationship exists, the feelings of the child are of paramount importance. . . . The ultimate question is whether the child has no present memories or feelings for the natural parent. . . . Feelings for the natural parent connotes feelings of a positive nature only." (Citations omitted; internal quotation marks omitted.) In re Jonathon G., 63 Conn. App. 516, 525, 777 A.2d 695 (2001). Where the child's feelings toward the parent are ambivalent, there must be a finding that "no positive emotional aspects of the relationship survive." In re Jessica M., 217 Conn. 459, 470, 586 A.2d 597 (1991). The respondent claims that the court's finding that there was no ongoing parent-child relationship is not supported by clear and convincing evidence. The respondent argues that the evidence shows, to the contrary, that she met the child's physical, emotional, moral and education needs during, at a minimum, the three years...