In re Egypt E., 19643

• Citation: 322 Conn. 231,140 A.3d 210
• Decision Date: 21 July 2016
• Docket Number: No. 19643 , No. 19644.,19643
• Court: Supreme Court of Connecticut
• Parties: In re EGYPT E. et al.

322 Conn. 231

140 A.3d 210

In re EGYPT E. et al.^*

No. 19643

No. 19644.

Supreme Court of Connecticut.

Argued May 3, 2016.

Decided July 21, 2016.^**

Dana M. Hrelic, with whom was Brendon P. Levesque, Hartford, for the appellant in Docket No. SC 19643 (respondent father).

Michael D. Day, Plainville, for the appellant in Docket No. SC 19644 (respondent mother).

Michael Besso, Hartford, with whom, on the brief, were George Jepsen, attorney general, Benjamin Zivyon and Tammy Nguyen–O'Dowd, assistant attorneys general, for the appellee in both cases (petitioner).

James W. Lux, for the minor children in both cases.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

EVELEIGH

, J.

The respondent father, Morsy E., and the respondent mother, Natasha E., filed separate appeals from the judgments of the trial court terminating their parental rights as to their minor children, Egypt E. and Mariam E. On appeal, the respondents claim that the trial court improperly terminated their parental rights to their minor children¹ pursuant to General Statutes (Rev. to 2013) § 17a–112 (j)

.² As a threshold matter, the petitioner, the Commissioner of Children and Families, ³ asserts⁴ that this court lacks subject matter jurisdiction to hear the respondents' appeals because the respondents did not appeal from the judgments of the trial court terminating their rights as to their minor children on the ground that reunification efforts were not required under General Statutes (Rev. to 2013) §§ 17a–112 (j)

and 17a–111b (b).⁵ After a thorough review of the record, we conclude that, due to a clerical error at the trial court, the record is not sufficiently clear to determine whether the respondents were properly notified of the basis of the trial court's judgments such that they could properly appeal from its determination that the petitioner was not required to make reunification efforts pursuant to §§ 17a–112 (j)

and 17a–111b (b). Accordingly, because the clerical error at the trial court implicates both the integrity of the trial court's record keeping and the due process rights of the respondents to appeal from the judgments of the trial court terminating their parental rights, we must remand the matter for a new trial.

The following facts, as found by the trial court, and procedural history are relevant to the disposition of this appeal. On September 1, 2013, the respondents brought Mariam to the Connecticut Children's Medical Center (hospital) for treatment of a right shoulder injury. Mariam was seven weeks old at that time. An examination of Mariam revealed multiple injuries to her shoulders, legs, stomach, and nose, including six bone fractures. The respondents did not provide an explanation for these injuries. Suspecting abuse, the physician assistant who examined Mariam notified the petitioner. On the same day, while Mariam was still in the hospital, the petitioner took Mariam and Egypt into custody pursuant to an emergency ninety-six hour administrative hold. See General Statutes (Rev. to 2013) § 17a–101g.

On September 5, 2013, the petitioner filed neglect petitions alleging that the minor children were being permitted to live under conditions, circumstances, or associations injurious to their well-being. On October 4, 2013, the petitioner filed petitions to terminate the respondents' parental rights to their minor children on the basis of certain alleged acts of parental commission or omission denying the minor children care, guidance, or control necessary for their well-being. See General Statutes (Rev. to 2013) § 17a–112 (j)(3)(C)

. The respondents denied these allegations. The trial court subsequently consolidated the neglect and termination petitions for the purpose of trial.

On June 5, 2014, approximately six months before the trial commenced, the petitioner filed a “motion for finding of no reunification efforts” pursuant to § 17a–111b

. Specifically, the petitioner sought a finding, pursuant to § 17a–111b (b)(1)(B), that no reunification efforts were required on the basis of the severe physical abuse of Mariam. Four days later, the petitioner filed a motion to review the permanency plans for the minor children. The trial court reserved judgment on these motions until after trial.

On June 1, 2015, after a nine day trial, the trial court rendered judgments granting the neglect and termination petitions in accordance with a written memorandum of decision. With respect to the neglect petition on behalf of Mariam, the court made findings, principally based on the unexplained cause of Mariam's injuries, that Mariam was abused in that she sustained physical injuries by “nonaccidental means,” was “denied proper care and attention, physically, educationally, emotionally or morally,” and had been “permitted to live under conditions, circumstances or associations injurious to her well-being.” With respect to Egypt, the court found that she was neglected under the doctrine of predictive neglect on the ground that she lived in the same home where Mariam had sustained her injuries.⁶

With respect to the adjudication phase of the termination proceedings, the trial court determined that the petitioner had proven, by clear and convincing evidence, all of the elements necessary to terminate the respondents' parental rights as to the minor children. First, the trial court found by clear and convincing evidence that the petitioner had made reasonable efforts at reunification pursuant to § 17a–112 (j)(1)

, and that the respondents were unable or unwilling to benefit from such efforts. Additionally, the trial court found that both respondents had committed an act of commission or omission that denied the minor children the care necessary for their well-being.⁷ See General Statutes (Rev. to 2013) § 17a–112 (j)(3)(C). Regarding the dispositional phase, the trial court concluded that there was clear and convincing evidence that it was in the minor children's best interests to terminate the respondents' parental rights. See General Statutes (Rev. to 2013) § 17a–112 (j)(2). Finally, the trial court found that “further efforts at reunification are not appropriate for [the respondents] with regard to [the minor children].” The respondents timely appealed.⁸

On the same day as it issued the memorandum of decision terminating the parental rights of the respondents, the trial court also granted the motion to review the permanency plans. In its order, the trial court adopted the factual findings and case history from its memorandum of decision. Additionally, among other findings, the trial court found “by clear and convincing evidence that further efforts to reunify [the respondents] with either child are not appropriate.” The next day, the trial court executed orders on a standard Judicial Branch form entitled “Co-termination of Parental Rights and Appointment of Statutory Parent/Guardian” with respect to each of the minor children. In these orders, the trial court noted, by checking the appropriate boxes, that it found by clear and convincing evidence that the petitioner made reasonable efforts to reunify the respondents with their minor children and that the respondents were unable or unwilling to benefit from reunification efforts. The trial court did not check the box on either order labeled, “[r]easonable efforts to reunify are not required ... because the court determined at a hearing in accordance with [§] 17a–111b ... or determined at a trial on the petition that such efforts are not required.”

On that same day, the trial court granted the petitioner's “motion for finding of no reunification efforts” noting as follows: “See [c]ourt's written order [on the] motion to review permanency plan dated [June 1, 2015].” There is no indication on the order that it was ever sent to the parties. This order was not, however, included in the trial court file, which was certified by the trial court clerk on June 26, 2015, and delivered to the appellate clerk's office on July 2, 2015. Instead, the certified copy of the trial court file includes an unexecuted order sheet attached to the petitioner's “motion for finding of no reunification efforts.” Furthermore, a printed copy of the electronic docket for these matters dated June 26, 2015, shows that neither the petitioner's motion nor the court's order had been entered by the trial court clerk.

Indeed, at oral argument before this court, there was some confusion as to whether the trial court had granted the petitioner's “motion for finding of no reunification efforts.” Counsel for both of the respondents indicated that this motion was not granted. Counsel for the petitioner indicated that there was some ambiguity as to whether the trial court had granted the motion because “the record does not reflect any endorsement of that motion one way or another,” but the trial court's statements in its memorandum of decision “in effect” granted the motion.

After oral arguments were heard on May 3, 2016, this court ordered the trial court as follows: “Pursuant to [Practice Book] § 60–5

, the trial court is hereby ordered to complete the court record by responding to the following question: ‘In its judgments granting the termination of parental rights petition[s] [as to the] respondents, did the trial court pursuant to either [§] 17a–111b or [§] 17a–112 (j), hold that reunification efforts were not required for [the] respondents.’ ”

The trial court responded to this court's order for articulation as follows: “In its [June 1, 2015] decision, the trial court found that the credible evidence put forth in this matter clearly and convincingly established both that [the petitioner] made reasonable reunification efforts for the [respondents], and that neither [of the respondents] was either able or willing to benefit from § 17a–112 (j)(1)

efforts.

“In its discussion of reunification efforts pursuant to federal law, the trial court also found, by clear and convincing evidence, that further efforts at reunification...