In re Jorden R.

• Decision Date: 06 October 2009
• Docket Number: No. 18169.,18169.
• Citation: 293 Conn. 539,979 A.2d 469
• Court: Connecticut Supreme Court
• Parties: In re JORDEN R.<SMALL><SUP>*</SUP></SMALL>

979 A.2d 469

293 Conn. 539

In re JORDEN R.^*

No. 18169.

Supreme Court of Connecticut.

Argued March 24, 2009.

Decided October 6, 2009.

Susan T. Pearlman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellant (petitioner).

Michael J. Melly, for the appellee (respondent mother).

Karen Oliver Damboise, for the minor child.

ROGERS, C.J., and NORCOTT, PALMER, VERTEFEUILLE and McLACHLAN, Js.

ROGERS, C.J.

The primary issue in this case is whether, in termination proceedings under General Statutes (Rev. to 2005) § 17a-112 (j),¹ a trial court can find that a parent is unwilling or unable to benefit from reunification services without first finding that reasonable efforts were made to reunify the parent with her child. The petitioner, the commissioner of children and families (commissioner), appeals from the judgment of the Appellate Court reversing the trial court's judgment terminating the respondent mother's parental rights with respect to her infant son, Jorden R. In re Jorden R., 107 Conn.App. 12, 36, 944 A.2d 402 (2008). The commissioner claims that the Appellate Court improperly: (1) interpreted § 17a-112 (j)(1) to require the department of children and families (department) to prove that it made reasonable efforts to reunify a family before a court can find that a parent is unable or unwilling to benefit from reunification services; (2) substituted its judgment for the trial court's in overruling the trial court's finding that the respondent was unable or unwilling to benefit from reunification services; and (3) concluded that the trial court abused its discretion in excluding from evidence a psychological evaluation of the respondent. We agree with the commissioner and, accordingly, reverse in part and vacate in part the judgment of the Appellate Court.

The record reveals the following procedural history. On July 27, 2005, the commissioner filed a neglect petition on behalf of Jorden. See General Statutes § 46b-129(a). On that same date the trial court granted an ex parte order of temporary custody after finding that Jorden was suffering from serious physical injury and illness, was in immediate physical danger from his surroundings, and that continuation in those surroundings was contrary to his welfare. On October 27, 2005, the commissioner filed a petition to terminate the parental rights of the respondent and Jorden's father. The neglect and termination petitions later were consolidated and tried together. At the end of the trial, the father consented to the termination of his parental rights. On September 26, 2006, the trial court granted the termination petition and terminated the parental rights of both parents. The respondent thereafter appealed from the judgment of the trial court.² On April 15, 2008, the Appellate Court reversed in part the trial court's judgment and remanded the case for a new trial. Id. This court then granted the commissioner's petition for certification to appeal. In re Jorden R., 287 Conn. 921, 951 A.2d 569 (2008).

The following facts, which were found by the trial court or were not contested, are relevant to this appeal. The respondent delivered Jorden, a healthy male child, on June 19, 2005. The respondent was sixteen years old and the father was twenty years old at the time of Jorden's birth. A mere five weeks later, on July 24, 2005, Jorden suffered life-threatening and life-altering injuries, which necessitated the department's involvement in this case. Jorden was admitted to Windham Hospital (hospital) with a skull fracture, head bruising and swelling, a clavicle fracture and anterior chest trauma. Jorden's injuries left him substantially neurologically impaired and placed him at high risk for future developmental problems.³ The hospital staff reported to the department and to the state police that Jorden appeared to have been severely abused.

The department and the state police began investigating Jorden's injuries as an abuse case. The investigations confirmed that Jorden had been abused, but failed to determine conclusively which parent had caused his injuries. Neither parent ever provided an adequate explanation for how he had sustained his injuries. Each parent denied causing the injuries and specifically implicated the other as the abuser.⁴

Jorden's injuries occurred at some point during the night of July 23, 2005, when he was in the exclusive care of his parents. Earlier that day, the father and the respondent, who at the time were living together in the home of the respondent's parents, left Jorden with the respondent's mother while they attended a party where they drank alcohol and smoked marijuana. After the party, at approximately 11 p.m., the couple picked up Jorden and proceeded to the home of the father's grand-mother to spend the night. Upon arriving at the grand-mother's house, the respondent prepared Jorden's formula, took it to the room in the basement in which they were staying and went to sleep. At that point, Jorden appeared normal. The respondent also did not notice anything unusual about Jorden when she woke to feed and change him at approximately 2 a.m.

At approximately 10 a.m. the next day, while the respondent was feeding Jorden, she noticed that his hand twitched at ten to fifteen second intervals. She identified the twitching as a cause for concern and telephoned her mother for advice. The respondent called her mother multiple times because the twitching continued throughout the day. The respondent and her mother eventually agreed to meet for dinner, at which time they would evaluate Jorden.

When the father and the respondent brought Jorden to the respondent's parents' home at approximately 7 p.m., Jorden was twitching actively. The respondent's mother inspected Jorden, noticed swelling in the region of his right temple, and told the parents to take Jorden to the emergency room at the hospital. The respondent and the father complied and brought Jorden to the emergency room—ten hours after the respondent first noticed the twitching. There was testimony at trial that this delay likely compromised Jorden's medical treatment.

Immediately after the couple arrived at the hospital with Jorden, an emergency room nurse realized the baby was having seizures and called for a physician, who observed that Jorden was suffering from clonic tonic seizures, facial and body twitching and eye deviation. Jorden's seizures were related to intracranial injuries, which, according to the medical staff treating him, likely had occurred within the previous twenty-four to forty-eight hours. A hospital emergency room physician opined at trial that Jorden's symptoms were consistent with shaken baby syndrome. The physician stated that Jorden's internal head injuries had occurred either from a blow to the head or from having been severely shaken and that the bruise was the "result of a blow." The physician further noted that the skull and clavicle fractures, coupled with the unexplained mechanics of the injury, were "all red flags for abuse and nonaccidental trauma."

Jorden's injuries were so severe that he was flown by helicopter to Hartford Hospital and then transferred to the Connecticut Children's Medical Center (medical center). Aaron Zucker, the director of the pediatric intensive care unit at the medical center, diagnosed Jorden with a compound skull fracture, subdural hematomas with severe brain dysfunction, early brain swelling and a broken right clavicle. Carol Leicher, a pediatric neurologist at the medical center, testified that Jorden's injuries were the result of intentionally inflicted blunt force trauma. She also concluded that Jorden's injuries were consistent with more than one trauma because one hematoma had the characteristics of fresh blood and the other hematoma showed hemoglobin, indicating that the injuries could not have occurred at the same time and that Jorden had been abused on multiple occasions.

While he remained hospitalized at the medical center, Jorden's condition continued to worsen. Repeated brain scans showed rapidly increasing swelling and worsening of the subdural effusion. An ophthalmologist documented retinal hemorrhages in Jorden's left eye. With the consent of the father and the respondent, the hospital issued a do not resuscitate order for Jorden.

The commissioner subsequently filed the neglect petition and sought temporary custody of Jorden, citing his severe and unexplained physical injuries. See General Statutes § 46b-129(b). In connection with its order granting temporary custody of Jorden to the commissioner, the trial court ordered, and the department thereafter provided to the parents, specific steps to facilitate reunification. See General Statutes § 46b-129(d)(6).⁵ Those steps called for the respondent, inter alia, to "[p]articipate in counseling and make progress toward ... identified treatment goals...." One of those goals was for the respondent to deal with issues such as her own history of abuse by the father and his probable battery of their child. Another specific step called for the respondent to "[o]btain and/or cooperate with a restraining/protective order and/or other appropriate safety plan as approved by [the department] to avoid further domestic violence incidents." Although the respondent facially complied with most of these specific steps, she seriously undermined their overall purpose by maintaining a clandestine relationship with the father, which she hid from her parents, department social workers and her therapist. Moreover, the respondent failed to obtain a protective order against the father until May 17, 2006, a full eleven months after Jorden's injury and hospitalization.⁶

The trial court's factual findings demonstrate that the respondent's relationship with the father had been volatile throughout its course. The couple argued frequently and sometimes violently, most often about the father's drug use and sexual relations...