In re Danuael D., (AC 17185)

• Decision Date: 16 February 1999
• Docket Number: (AC 17185)
• Citation: 724 A.2d 546,51 Conn. App. 829
• Court: Connecticut Court of Appeals
• Parties: IN RE DANUAEL D.

51 Conn. App. 829

724 A.2d 546

IN RE DANUAEL D.¹

(AC 17185)

Appellate Court of Connecticut.

Argued November 5, 1998.

Officially released February 16, 1999.

Landau, Schaller and Dupont, Js. Audrey C. Martinsky, for the appellant (respondent mother).

Patricia E. Naktenis, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Opinion

LANDAU, J.

The respondent mother appeals from the judgment of the trial court terminating her parental rights to her child, Danuael D. On appeal, the respondent mother claims that the trial court improperly found that (1) she failed to achieve personal rehabilitation and (2) she denied Danuael D., by reason of an act of parental commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being.² We affirm the judgment of the trial court. On February 8, 1996, the department of children and families (DCF) filed a petition to terminate the parental rights of the respondents³ to their five year old child, Danuael D., pursuant to General Statutes (Rev. to 1995) § 17a-112, as amended by Public Acts 1995, No. 95-238, § 3 (effective October 1, 1995).⁴ The termination petition alleged three adjudicatory grounds with respect to the respondent: (1) failure to achieve rehabilitation,⁵ (2) the child was denied, by reason of acts of commission or omission by the respondent, the care, guidance or control necessary for his physical, educational, moral or emotional well-being,⁶ and (3) there was no ongoing parent-child relationship with respect to the respondent and the child.⁷ The trial on the petition concluded on December 18, 1996, and on April 2, 1997, the trial court rendered judgment, finding that DCF had established by clear and convincing evidence the adjudicatory grounds of failure to achieve rehabilitation and acts resulting in the denial to her son of the care, guidance or control necessary for his physical, educational, moral or emotional well-being. Furthermore, the trial court, in the dispositional phase, found by clear and convincing evidence that it was in Danuael's best interest that the parental rights of the respondent be terminated. This appeal followed.

In a comprehensive memorandum of decision, the trial court set forth the following facts. "Danuael was born on October 29, 1990, the third out of wedlock child born to his then twenty-four year old mildly retarded mother. None of the children share a common paternity. By her own admission, [the respondent] had used drugs during her first two pregnancies (marijuana with [M]; cocaine with [Z]). [Z]'s father ... was abusive toward [M] as well as toward [the respondent].... [I]n late 1989, [the respondent] began living with [the respondent father, L], becoming pregnant with Danuael at the same time that [M] and [Z] were taken into DCF custody following confirmation of physical abuse of both children (multiple unexplained fractures of differing ages; bruises; burns) that was presumably inflicted by [L] and from which [the respondent] appeared incapable of providing protection.... Following a trial, these two children were adjudicated neglected and abused and committed to DCF....

"When Danuael was [approximately] nine months old, DCF ... filed a petition alleging Danuael to have been neglected by reason of two episodes of physical abuse by [L] (a slapped face in May of 1991; a plastic ball thrown at his face, causing a bruise, two months later).... [T]he respondent [and L] moved to dismiss for failure to have established a prima facie case of neglect, as of the adjudicatory date of July 26, 1991. The motion was granted....

"[At some point thereafter, L] was incarcerated for ten months .... Upon his release, despite the permanent loss of her two older children because of abuse by [L], [the respondent] resumed her relationship with him. At one time during this period, [the respondent] moved to New Haven in an effort to be free of his mistreatment of her, but, soon after, returned to Bridgeport to resume cohabiting with him ....

"[The respondent] and [L] and their son, Danuael, were living with [L]'s father when the police were called on April 8, 1994, in response to a report of domestic violence.... [B]oth parents were found to be under the influence of one or more substances, and were required to leave the paternal grandfather's home.... [The respondent] had no place to go, so the child was placed on an emergency basis with DCF, which soon after filed a neglect petition and secured an order of temporary custody....⁸

"In his first three months as a foster child, Danuael had as many placements: First he was placed with the maternal great-aunt ... [but] [a]fter seven weeks the aunt asked for his removal because of his uncontrollable behavior: enuresis [incontinence of urine], encopresis [involuntary defecation], smearing feces, swearing, and overtly sexualized acting out. Two subsequent unrelated foster homes requested his removal in a matter of days. An inpatient assessment at the Hospital of St. Raphael in July, 1994, resulted in a diagnosis that this behavior was a response to extreme, severe psychosocial stressors: Witness to domestic violence against his mother, abuse of his siblings and the subsequent incarceration of his father. In the months following, DCF attempted to follow the hospital's recommendation to secure a therapeutic foster home combined with outpatient services. Two therapeutic foster homes were found, but both requested his removal because of his continued disturbed behaviors. After another inpatient psychiatric hospitalization, he was finally placed at Riverview Hospital on October 20, 1995, where he has remained through the conclusion of this trial.... [Danuael's] principal diagnosis is posttraumatic stress syndrome resulting from the significant trauma experienced when living with his parents, much of which could have occurred even before he became verbal.

"After [L]'s incarceration, [the respondent] became involved with at least one other abusive boyfriend [S]. In testifying on her own behalf, she denied that [S] was a `boyfriend,' although at one time she had arranged for her Social Security benefits to be paid to him as representative payee. [The respondent] admitted that [S] had beaten her, but said this had only happened once, in [October] of 1995, after which she broke up with him. She did not explain the source of the visible injuries on her face noted by Danuael's clinicians during visits of March and April of 1996."

The clinical assessment portion of the memorandum of decision indicates that the respondent "came to visit the first month Danuael was placed at Riverview but was not permitted to see him [because] she was exhibiting extensive bruises from a recent beating at the hands of [S]. [The respondent] appeared unable to understand why she could not see him in that condition. The following month she was permitted to visit even though her face still showed scars which upset her `parentified' son.⁹ In apparent ignorance or indifference to his fear of bathrooms ... [the respondent] took Danuael, during that first visit, into the bathroom and closed the door. Following that visit, the child had nightmares, displayed anxiety, acted out of control and reenacted past trauma using a guttural voice to utter adult swearing with sexual references. Despite appearing on two other visits with visible signs of having been abused (a burn in March of 1996; a bleeding cut the following month), [the respondent] was permitted to visit every month until October of 1996 when all visits were suspended during a planned transition into another therapeutic foster home."

"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, cert. granted on other grounds, 245 Conn. 917, 717 A.2d 234 (1998).

"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). In the adjudicatory phase, the trial court determines whether one of the statutory...