In re David W.

• Decision Date: 10 October 2000
• Docket Number: (SC 16113)
• Court: Connecticut Supreme Court
• Parties: IN RE DAVID W.

254 Conn. 676

759 A.2d 89

IN RE DAVID W.¹

(SC 16113)

Supreme Court of Connecticut.

Argued May 30, 2000.

Officially released October 10, 2000.

Norcott, Katz, Palmer, Vertefeuille and Ronan, JS. Benjamin Zivyon, assistant attorney general, with whom were Susan T. Pearlman and Bette L. Paul, assistant attorneys general, and, on the brief, Richard Blumenthal, attorney general, for the appellant (petitioner).

Bradford J. Chaucer, for the appellee (respondent mother).

William R. Kinloch, for the appellee (respondent father).

Mary S. Chromik, for the minor child.

Keely Magyar and Martha Stone filed a brief for the Center for Children's Advocacy, Inc., as amicus curiae.

Opinion

NORCOTT, J.

The dispositive issue in this certified appeal is whether ex parte contact between a court-appointed expert witness and the party on whose behalf that witness testifies requires the per se exclusion of the expert witness' testimony. We conclude that it does not and, accordingly, we reverse the judgment of the Appellate Court.

The petitioner, the commissioner of the department of children and families (department), appeals from the decision of the Appellate Court, reversing the judgment of the trial court. The respondents, the mother and father of David W., claim that the trial court improperly denied the respondent father's motion to strike the testimony of David Mantell, a clinical psychologist, who had been appointed by the court to evaluate the rehabilitation progress of the parents, but who also had ex parte contacts with the department and testified as an expert for the department. The trial court, Foley, J., determined that the appropriate remedy for a party who claims that an ex parte communication has compromised a court-appointed witness' neutrality is to impeach the witness in order to affect the weight given to the witness' testimony. Accordingly, the trial court declined to strike Mantell's testimony. The Appellate Court reversed the trial court, holding that "the court should have granted the motion to strike the testimony of its appointed expert because of the conflict created by his agreement to testify on behalf of the department and also because of the ex parte contacts with counsel for the department." In re David W., 52 Conn. App. 576, 590, 727 A.2d 264 (1999). We granted the department's petition for certification to appeal limited to the following issues: (1) "Under the circumstances of this case, was the trial court required as a matter of law to strike all of the testimony of David Mantell, the court-appointed expert witness?"; and (2) "If the answer to question one is yes, was the error harmful?" In re David W., 249 Conn. 907, 733 A.2d 225 (1999).

The following facts are properly set forth by the Appellate Court. "The child was born to the respondents on July 12, 1993. He was born three months premature, weighing only three pounds nine ounces and remained in the hospital for eighteen days. He was discharged on August 1, 1993, and lived with his parents until September 5, 1993. On that date, he was brought to the hospital after having sustained multiple life threatening injuries: four fractures of the left ribs; a fracture showing interval healing of the right femur; a spiral fracture of the left femur; a distal fracture of the left femur, which appeared to have healed; two recent fractures of the right tibia and fibula; a collapsed lung and multiple bruises and petechiae on the face, neck and chest, probably caused by the child screaming in pain according to the testimony of a physician. The parents had exclusive control and custody of the child immediately preceding his injuries. They offered no reasonable explanation for the injuries sustained by their child.

"On September 8, 1993, the child was discharged from the hospital and placed in the care of the department, which obtained an order of temporary custody on the same date. After a study by the department foster care unit, he was placed with a couple known to the respondents. The child has resided with the couple since December 24, 1993, but the respondents have visited him, as permitted by the department, since that time, either at their home or at the home of the foster parents. On January 11, 1994, the respondents pleaded nolo contendere to the neglect petition that the department had filed. The court, Barnett, J., adjudicated the child to be a neglected child pursuant to General Statutes (Rev. to 1993) § 46b-129 (d)² [now codified at § 46b-129 (j)] and committed him to the department in accordance with that statute." In re David W., supra, 52 Conn. App. 580. After the child was committed, the department initiated proceedings to terminate permanently the parental rights of both respondents.

The following additional facts are pertinent to the resolution of this appeal. Sometime before November, 1993, the trial court appointed Mantell to evaluate the suitability of the respondents as parents in the event that their child was returned to them. The appointment was made pursuant to an agreement of both parties.

Mantell testified that he was asked "`to see a group of four adults and one child, perform psychological assessments and offer an opinion about the psychological character restrictions of the people involved in connection with an infant that had been seriously injured multiple times in order to assist the [department] and the court with the major child protection issue, which was where would it be safe for this child to live and did any of the four adults possess characteristics that potentially endangered the child.'" Id., 592 (Schaller, J., dissenting). Mantell initially received a "`package of materials from the court, and it consisted of the evaluation order, a motion for evaluation by agreement of the parties, the petition, the summary of facts and the social study.'" Id. When asked at trial, "[w]ho contacts you [when acting as a court-appointed evaluator]?" Mantell replied: "`Well, usually it's the court service officer. Sometimes it's the social worker. On rare occasions, it's the attorney. On rare occasions, it's the attorney general. But whoever does it, it's the person that's agreed upon is going to do the job of contacting the evaluator who's to do the court-ordered study and to inform that person that that person has been asked to do this.'" Id. The record does not indicate whether any specific instructions were given to Mantell or who in fact initiated the contact in this case.

Mantell was asked by the court to prepare reports on four occasions. The reports were dated November 27, 1993, March 7, 1994, July 17, 1995, and February 26, 1996. Id. The first three reports preceded the ex parte contact. All four reports were introduced into evidence without objection and neither respondent made a motion to strike the reports. Id.

In September, 1995, Bette Paul, the assistant attorney general assigned to this case, contacted Mantell and asked to meet with him.³ Id., 593. Mantell testified that he was contacted by Paul and asked to complete a developmental assessment of the child, not of the parents. Mantell stated that "`[i]t was [Paul] who called and asked me to do the home study. It was the [department's] social worker who called and asked me to do the follow-up developmentals and collateral contacts.'" Id. There was no evidence offered at trial indicating that the social worker or Paul made any additional requests beyond the home study and developmental contacts. Mantell testified that with respect to the January, 1996 evaluation he conducted, he knew that he was not acting as a court-ordered evaluator. Id. Upon the department's request for an evaluation, Mantell prepared a report of the developmental assessment of the child dated January 23, 1996. This report was marked as an exhibit solely for identification purposes and not introduced as evidence. Id.

At the termination hearing, Mantell testified on direct examination that the option of returning the child to the parents' custody and care was "intolerably risky." He explained that the need to identify who injured the child and a meaningful parental acknowledgment of responsibility for those injuries were priorities for safe reunification. Mantell's testimony mirrored the conclusions of the four reports he had prepared over the course of three years. These reports consistently reflected his concerns regarding the manner in which the multiple serious injuries were inflicted on the child and the crucial need to identify the perpetrators of the child's injuries. The reports also expressed concern that the parents' inability to acknowledge responsibility for the injuries presented ongoing risks for the child. Id., 594-95.

The ex parte contact regarding the developmental assessment was raised during Mantell's direct examination. No motion to strike Mantell's testimony was made by either of the respondents' counsel at that time. Id., 593. During cross-examination, however, the respondent father's counsel questioned Mantell regarding his contact with the department and subsequently moved to strike Mantell's testimony because "`he cannot simultaneously be a neutral person who works for the court and also a witness who works for the state.'" Id., 593-94. The trial court denied the motion to strike, ruling that such conflicts "`[go] to the weight of his testimony.'" Id., 594. The respondent father's counsel subsequently continued his cross-examination, attempting to impeach Mantell by specifically questioning him regarding the dual roles he allegedly undertook.

Additionally, based on the record before this court, it appears Mantell was not given unequivocal instructions concerning contacts with the parties or the court. No evidence was produced in this case indicating that ex parte communications with the court or the parties were prohibited. Id., 595 n.4. In fact, it appears that both parties were unclear as to whether it was permissible to communicate with Mantell....