In re Egypt E.

• Decision Date: 10 January 2018
• Docket Number: SC 19913, (SC 19914)
• Citation: 175 A.3d 21,327 Conn. 506
• Court: Connecticut Supreme Court
• Parties: IN RE EGYPT E. et al.

327 Conn. 506

175 A.3d 21

IN RE EGYPT E. et al.^*

SC 19913, (SC 19914)

Supreme Court of Connecticut.

Argued September 20, 2017

Officially released January 10, 2018^**

Stein M. Helmrich, for the appellant (respondent mother).

Dana M. Hrelic, with whom were Brendon P. Levesque and, on the brief, Scott T. Garosshen, Hartford, for the appellant (respondent father).

Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Rogers, C.J., and Palmer, Eveleigh, McDonald, Robinson and Espinosa, Js.^***

ROGERS, C.J.

This case chiefly concerns the scope of the ground for termination of parental rights contemplated by General Statutes § 17a–112 (j) (3) (C), regarding acts of parental commission or omission that deny a child the care necessary for the child's physical or emotional well-being.¹ The respondent parents, Morsy E. and Natasha E., appeal² from the judgments of the trial court terminating their parental rights as to their two daughters, Egypt E. and Mariam E., after finding that ground proven by clear and convincing evidence. The respondents claim that the court improperly terminated their parental rights as to Egypt because that child, unlike her sister, did not suffer any harm prior to her removal from the respondents' home, which they contend was a necessary predicate for termination of their parental rights pursuant to § 17a–112 (j) (3) (C). The respondents claim, therefore, that the termination of their parental rights improperly was based on a finding of predictive harm, a type of harm not contemplated by § 17a–112 (j) (3) (C). We agree with the respondents that a termination of parental rights pursuant to § 17a–112 (j) (3) (C) may not be based upon predictive harm. Under the unusual procedural circumstances underlying this appeal, however, we conclude that the court properly found that § 17a–112 (j) (3) (C) was proven on the basis that Egypt had been harmed by the respondents' postremoval acts of parental commission or omission. Specifically, because the petitions to terminate the respondents' parental rights were amended, and, therefore, the adjudicatory date was extended to encompass events subsequent to the filing of the original petitions, the court properly considered the conduct following the removal of the children, which had an actual, harmful effect on the well-being of Egypt. Accordingly, we affirm the judgments of the trial court.³

We begin by emphasizing that these cases are before this court for the second time on appeal following a retrial on the termination petitions. On June 1, 2015, the trial court, C. Taylor , J. , terminated the respondents' parental rights as to Egypt and Mariam after finding, inter alia, that the petitioner, the Commissioner of Children and Families, had proven by clear and convincing evidence that the respondents' acts of parental commission or omission had denied each child the care, guidance or control necessary for her physical, educational, moral or emotional well-being. In re Egypt E. , Superior Court, judicial district of New Britain, Juvenile Matters, Child Protection Session at Middletown, Docket Nos. H14-CP-13010981A, H14-CP-13010982A, 2015 WL 4005340, *16–17 (June 1, 2015). The respondents appealed, challenging the court's findings that reasonable efforts at reunification had been made and that they had been unable or unwilling to benefit from those efforts. See In re Egypt E. , 322 Conn. 231, 241–42, 140 A.3d 210 (2016). This court reversed the judgments, reasoning that, although the trial court's additional, unchallenged finding that reunification efforts were not necessary normally would have rendered the matter moot, the trial court record did not indicate clearly that the respondents had received proper notice of that finding, thereby giving them the opportunity to challenge it on appeal. Id., at 243–44, 140 A.3d 210. We therefore remanded the case for a new trial on the termination petitions to be held no later than the fall of 2016. Id., at 244, 140 A.3d 210.

On August 5, 2016, the petitioner moved to amend the termination petitions, seeking to add a new ground for termination, namely, the respondents' failure to rehabilitate; see General Statutes § 17a–112 (j) (3) (B) ; to supplement her allegations as to reasonable efforts to reunify the respondents and the children, and to add an allegation that, on June 1, 2015, the trial court had approved a permanency plan of termination and adoption, rather than reunification, pursuant to General Statutes (Supp. 2014) § 46b–129 (k).⁴ On September 13, 2016, the trial court denied the motion to amend insofar as it sought to add the ground of failure to rehabilitate, but granted it as to the other amendments sought by the petitioner. Accordingly, September 13, 2016, the date of the last amendment, became the adjudicatory date for the petitions.⁵ See Practice Book § 35a–7 (a) (in adjudicatory phase of proceedings on petition for termination of parental rights, trial court is limited to considering evidence of events preceding latest amendment of petition); see also In re Romance M. , 229 Conn. 345, 358–59, 641 A.2d 378 (1994) ; In re Mariah S. , 61 Conn. App. 248, 254 n.4, 763 A.2d 71 (2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).

A second trial on the termination petitions was held before a new trial court, Hon. Barbara M. Quinn , judge trial referee, in October and November of 2016. At the conclusion of that trial, the court again terminated the respondents' parental rights on the basis of their acts of parental commission or omission. This appeal followed.

The following facts, which were found by the trial court, and procedural history are relevant to the appeal. Egypt and Mariam were born in 2012 and 2013, respectively, to Morsy and Natasha. On September 1, 2013, Morsy and Natasha brought Mariam, then about seven weeks old, to the Connecticut Children's Medical Center (hospital) on the advice of their pediatrician. That morning, according to the couple, they had noticed that the infant's right shoulder was inflamed and made a " ‘crunching sound’ " when manipulated. Upon examination by a physician's assistant, various testing and the taking of X-rays, it was determined that Mariam had multiple bone fractures

, including a "displaced fracture" of the right clavicle, two fractures of the left tibia and fractures of the left shoulder blade, left femur and right tibia. Mariam also had several bruises on various parts of her body which, according to the physician's assistant, are suspicious for child abuse when present on a child who is not independently mobile. Mariam was tested for osteogenesis imperfecta, a series of genetic bone diseases. The testing ruled out those diseases.⁶

Mariam had been in the exclusive care of Morsy and Natasha during the period in which medical professionals deemed the injuries to have occurred. Hospital staff notified the Department of Children and Families (department) and the police department in the town where the family resided about the child's injuries, and representatives of each entity arrived and questioned Morsy and Natasha. Egypt was examined for fractures or other injuries at that time, but none were found.

On that same day, the petitioner placed a ninety-six hour hold on both children and removed them from the respondents' custody. On September 5, 2013, the petitioner filed petitions alleging neglect and motions for orders for temporary custody, which subsequently were granted. The children have remained in foster care with a nonrelative since that time. The petitioner filed petitions to terminate the respondents' parental rights as to both children, alleging § 17a–112 (j) (3) (C) as a ground for termination, on October 4, 2013.

At the hospital, and in the days following the discovery of Mariam's injuries, Morsy and Natasha gave inadequate and shifting explanations for those injuries. They first said they knew of nothing that could have caused the injuries, then they suggested that they could have been caused by Egypt, who was then thirteen months old, when she bounced Mariam too vigorously in her "bouncy seat." Subsequently, they offered that some-thing may have happened when the children were in the care of Natasha's father and stepmother for a brief period of time ten days earlier. Neither explanation was consistent with the nature and timing of the injuries.

During questioning by the police on September 2, 3 and 5, 2013, Morsy initially stated that he had dropped Mariam onto the floor in the family's condominium. Thereafter, he explained that he had dropped her twice while he was on the stairs. Finally, as recounted in a police report, Morsy said that, during the middle of the evening before the family had arrived at the hospital, Mariam had been crying and "he picked her up under her arms. He said [that] she was facing him, and he had his fingers on her back with his thumbs anterior to her shoulders. At this time, he stated [that] he may have grabbed her too hard, and described her as crying before and after this event. In addition, Morsy ... reported [that] he placed [Mariam] hard into a bouncy chair onto the floor ... and indicated [that] he could not recall when this exactly happened. Lastly, Morsy ... described and demonstrated [that] while he was changing [Mariam's] diaper, he grabbed both [of] her legs, with his thumbs on the anterior distal thighs just above the knees [and] his fingers wrapped around her posterior lower legs, and straightened her legs by pressing down with his thumbs. He said he could not recall when this specifically happened, but admitted he may have done this with more force than he was demonstrating during the interview." This explanation, unlike the others, was consistent with Mariam's injuries. Morsy was arrested on October 18, 2013, charged with various offenses, and ultimately pleaded guilty pursuant to the Alfo...