In re Cheyenne A.

• Decision Date: 01 August 2000
• Docket Number: (AC 18994)
• Citation: 756 A.2d 303,59 Conn. App. 151
• Parties: IN RE CHEYENNE A.
• Court: Connecticut Court of Appeals

59 Conn. App. 151

756 A.2d 303

IN RE CHEYENNE A.¹

(AC 18994)

Appellate Court of Connecticut.

Argued May 30, 2000.

Officially released August 1, 2000.

Lavery, C. J., and Schaller and Mihalakos, Js. Norman A. Pattis, for the appellants (respondents).

Carolyn A. Signorelli, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Eugene P. Falco, for the minor child.

Opinion

LAVERY, C. J.

The respondent parents (respondents) appeal from the judgment of the trial court terminating their parental rights in their daughter, Cheyenne A. On appeal, the respondents claim (1) that the court improperly determined that a prima facie showing of unexplained injuries constitutes clear and convincing evidence of the cause of those injuries and was evidence sufficient to support the termination of their parental rights under General Statutes (Rev. to 1997) § 17a-112 (c) (3) (C),² and (2) that § 17a-112 violates their due process rights by permitting the state to terminate their parental rights absent a showing of clear and convincing evidence of child abuse. We affirm the judgment of the trial court.

The following procedural and historical facts are necessary for our resolution of this appeal. Cheyenne was born on December 18, 1996. The commissioner of children and families filed a neglect petition with respect to Cheyenne on February 7, 1997. The commissioner subsequently filed a coterminous petition for the termination of the respondents' parental rights on April 25, 1997. The coterminous petition alleged that Cheyenne has been denied by reason of an act or acts of commission or omission by the respondents the care, guidance or control necessary to her physical, educational, moral or emotional well-being pursuant to § 17a-112 (c) (3) (C) and that pursuant to § 17a-112 (d),³ the required one year waiting period before termination could occur should be waived as necessary under the totality of the circumstances surrounding the child to promote her best interest.

The court held trial on numerous days in July through October, 1998.⁴ The court found that in February, 1997, Cheyenne was diagnosed as having seventeen fractures to her posterior rib cage, which were in various stages of healing. According to the testimony of her pediatrician, an emergency room physician and a pediatrician specializing in child abuse, the fractures were caused, mechanically, by severe, sustained compression, which usually occurs when a baby is shaken. The diagnosis was highly suggestive of child abuse. The respondents did not report that Cheyenne had sustained any trauma of a magnitude sufficient to cause her injuries, and brittle bone disease was ruled out as a cause. Medical personnel considered inadequate the explanations offered by the respondents, such as the child's having rolled off a couch. After several months of reflection, advice and reconsideration, the respondents postulated that Cheyenne had suffered her injuries at times she was being cared for by her grandmother.

At the conclusion of trial, the court concluded that under the totality of circumstances, considering the best interest of the child, the one year requirement of § 17a-112 (d) should be waived. See footnote 2. Although the respondents had raised the specter that someone other than they was the perpetrator of Cheyenne's injuries, the court was satisfied by clear and convincing evidence that Cheyenne had been denied by reason of an act or acts of commission or omission of the respondents, the care, guidance or control necessary for her physical well being in that the child had sustained serious, life threatening injuries that were not adequately explained. The court also made the requisite factual findings pursuant to § 17a-112 (e),⁵ now (d), and concluded that it was in the best interest of Cheyenne to terminate the parental rights of the respondents. The respondents appealed.

I

On appeal, the respondents claim first that the court improperly determined that a prima facie showing of unexplained injuries constitutes clear and convincing evidence of the cause of the injuries and is evidence sufficient to support termination of parental rights under § 17a-112 (c) (3) (C). We are not persuaded.

"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. Pandolphe's Auto Parts, Inc. v. Manchester, 181 Conn. 217, 221-22, 435 A.2d 24 (1980). In re Juvenile Appeal (84-3), 1 Conn. App. 463, 478, 473 A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259 (1984). In re Luis C., supra, 166.

"On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991); In re Davon M., 16 Conn. App. 693, 696, 548 A.2d 1350 (1988). 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, [supra, 181 Conn. 222]; 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. State v. Jones, 205 Conn. 638, 660, 534 A.2d 1199 (1987). In re Kezia M., 33 Conn. App. 12, [17], 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Felicia D., 35 Conn. App. 490, 499, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).... In re Eden F., 48 Conn. App. 290, 309, 710 A.2d 771 [(1998), rev'd on other grounds, 250 Conn. 674, 738 A.2d 141 (1999)]." (Internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 835-36, 724 A.2d 546 (1999).

The essence of the respondents' claim is that the language of § 17a-112 (c) (3) (C), stating that "[n]onaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights" applies to the state's burden of production and not to its burden of persuasion. The respondents argue that the statute permits the termination of parental rights on less than clear and convincing evidence in the presence of serious unexplained injuries. The respondents' argument is misguided.

General Statutes (Rev. to 1997) § 17a-112 (c) provides in relevant part that the court may grant a petition to terminate parental rights "if it finds by clear and convincing evidence ... (3) that ... (C) the child has been denied, by reason of an act or acts or parental commission or omission, the care, guidance or control necessary for his physical ... well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights...." Here, the court stated in its memorandum of decision that it was satisfied, by clear and convincing evidence, that Cheyenne had been "denied by reason of an act or acts of commission or omission of the parents, the care, guidance or control necessary for her physical well-being in that Cheyenne has sustained serious, life-threatening injuries that have been inadequately explained."

"The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) State v. Watson, 165 Conn. 577, 595-96, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974). This court has previously dealt with a similar challenge to the termination of parental rights in In re Juvenile Appeal (85-2), 3 Conn. App. 184, 485 A.2d 1362 (1985), in which we stated, "The respondent's final claim is that the court erred in finding that the petitioner proved by clear and convincing evidence that the children had been denied by reason of acts of parental commission or omission the care necessary for their general well-being .... The essence of the respondent's claim in this regard is that direct evidence as to any acts of commission or omission was lacking and that the judgment rested upon speculation and inference.

"While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient. The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned. State v. Cimino, 194 Conn. 210, 211, 478 A.2d 1005 (1984). The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. Dacey v. Connecticut Bar Assn., 170 Conn. 520, 536-37, 368 A.2d 125 (1976). In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture. State v. Festo, 181 Conn. 254, 259, 435 A.2d 38 (1980). In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt. State v. Bember, 183 Conn. 394, 397, 439 A.2d 387 (1981). Insofar as...