In re Nelmarie O., No. H12-CP03-009343 (CT 2/16/2005)
| Decision Date | 16 February 2005 |
| Docket Number | No. H12-CP03-009343,H12-CP03-009343 |
| Court | Connecticut Supreme Court |
| Parties | In re Nelmarie O.<SMALL><SUP>1</SUP></SMALL> In re Yunelismarie O. Opinion No.: 87743 |
This case involves consolidated coterminous petitions and motion to transfer guardianship.
On September 26, 2003, the Commissioner of the Children and Families (DCF, commissioner or department) filed neglect petitions for Nelmarie O. (D.O.B. March 1, 1999) and Yunelismarie O. (D.O.B. December 7, 2000) alleging that the children were denied proper care and attention, physically, educationally, emotionally or morally; and they were permitted to live under conditions, circumstances or associations injurious to their well-being.
On September 26, 2003, the commissioner also filed termination of parental rights petitions requesting that the parental rights of Nelson O. (respondent father) and Yunelismarie O. (respondent mother) be terminated. The department alleged the following grounds for termination of the parental rights of the respondent mother: Ground C—parental acts of commission or omission; and Ground F—a parental act causing the death or serious bodily injury of another child (Erwin Joel O.) of the parent. The respondent mother's motion to strike Ground F was granted by the court on November 25, 2003. The department alleged the following grounds for termination of the parental rights of the respondent father: Ground C—parental acts of commission or omission; and Ground F—a parental act causing the death or serious bodily injury of another child (Erwin Joel O.) of the parent.
The maternal grandmother, Aida R., filed a motion for intervention, which the court granted on October 30, 2003. She then filed a motion to revoke the order of temporary custody and transfer guardianship of minor child. The court consolidated all the pending matters for trial.
The respondent mother was properly served on September 30, 2003. The respondent father was properly served on October 1, 2003. The court appointed counsel to represent the respondents. Private counsel represented the maternal grandmother. The case was tried to the court on the following dates in 2004: March 23 and 24; April 1 and 5; May 27; June 1, 2, 3, 9, 10 and 16; and September 7, 8 and 9. Through their attorneys, the respondents contested the petitions. All counsel participated in the examination of witnesses. The petitioner called the following witnesses: Julie Miller (Connecticut Children's Medical Center (CCMC)), Officer Jose Oquendo (Hartford Police Department), Yeraly C. (maternal relative), Detective Noemi Cagienello (Hartford Police Department), Dr. Daniel Fisher (CCMC), Detective Andrew Weaver (Hartford Police Department), Felicia Garcia (DCF) Brenda Colon (DCF), Sonia Bultron (Klinberg Safe Home), Ada Rodriguez (Wheeler Clinic), Marie Roman (foster mother), Dr. Kenneth Robson (psychiatrist), and Zaira Reyes (DCF). The intervening maternal grandmother testified herself arid called the following witnesses: Zaira Reyes (DCF), Ada Rodriguez (Wheeler Clinic), and Marcia Brubeck (therapist). The respondents invoked the privilege against self-incrimination and did not testify. Closing arguments were not begun until January 7, 2005, to allow time for all the transcripts to be completed and reviewed. Parties were allowed to submit written closing arguments. Closing arguments were completed on February 4, 2005. Numerous exhibits were admitted into evidence.2
(Internal quotation marks omitted.) In re Clark K., 70 Conn.App. 665, 669-70, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002).
The court's function as the fact finder "is to draw whatever inferences from the evidence or facts established by the evidence it deems to be reasonable and logical." (Internal quotation marks omitted.) In re Christine F., 6 Conn.App. 360, 366, 505 A.2d 734, cert. denied, 199 Conn. 808, 508 A.2d 769 (1986). The court may consider both direct and circumstantial evidence. In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000); see also In re Juvenile Appeal (85-2), 3 Conn.App. 184, 193, 485 A.2d 1362 (1985). "The same evidence certainly can establish more than one ground for termination." (Internal quotation marks omitted.) In re Kezia M., 33 Conn.App. 12, 16, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993). The standard of proof in neglect cases, a fair preponderance of the evidence, is "properly defined as the better evidence, the evidence having the greater weight, the more convincing force in your mind." (Internal quotation marks omitted.) Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).3 Practice Book §32a-3. In a termination action, the standard of proof is clear and convincing evidence. Practice Book §32a-3. "The burden of persuasion . . . in those cases requiring a showing of clear and convincing proof is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist." Dacey v. Connecticut Bar Ass'n., 170 Conn. 520, 537, 368 A.2d 125 (1976).
"It is well established that in cases tried before courts, trial judges are the sole arbiters of the credibility of witnesses and it is they who determine the weight to be given specific testimony." In re Antonio M., 56 Conn.App. 534, 540, 744 A.2d 915 (2000). "It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other." (Citation omitted; internal quotation marks omitted.) In re Carissa K., 55 Conn.App. 768, 782, 740 A.2d 896 (1999). "Although expert testimony may be accorded great weight when it is offered, there is no requirement for expert testimony in termination of parental rights cases." (Internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 400 (2004).
The court finds that it has proper jurisdiction of the matter, notice of the proceeding was provided, and no action is pending in any other court affecting the custody of the children. After due consideration, the court finds in favor of the petitioner and hereby terminates the parental rights of the respondent parents. The court denies the grandmother's motion to transfer guardianship.
The following facts and procedural history are relevant to this decision. The facts were proved by clear and convincing evidence at trial. The child, Nelmarie O., was born on March 1, 1999. The child, Yunelismarie O., was born on December 7, 2000. Their brother, Erwin O., who was then approximately two and a half years old, was pronounced dead on September 26, 2003. On that same date, the court granted an order of temporary custody (OTC), which was sustained by the court on October 3, 2003. On September 26, 2003, the department filed neglect and termination petitions against the respondents.
On September 23, 2003, Julie Miller was working as a family support clinician at Connecticut Children's Medical Center (CCMC). In the late evening, she was paged to the hospital as a result of Erwin O.'s admission. She arrived at the hospital around 11 p.m., and saw Erwin. She noted that he had numerous injuries including a large bruise on his forehead that was swollen, bruises on his right rib cage, a swollen right elbow wrapped with white gauze and bruising on his left shin. He appeared to be pale, malnourished and very thin.
She was responsible for getting the basic psycho-social information necessary to file a DCF-136, Report of Suspected Child Abuse/Neglect. In order to do so, she spoke with the respondent father at the hospital, with Hartford Police Officer Jose Oquendo acting as an interpreter. The respondent father was not handcuffed, and his friend, Angel Cruz, was also present. Miller tried to obtain basic information from the respondent father, including the spelling of Erwin O.'s name, the address where they lived, who else lived there, where the child's mother was, and how Erwin O.'s injuries occurred. The respondent father indicated that he lived on the third floor with Erwin O., Angel Cruz and Angel's mother. He said there were no other children living there. Miller asked him whether he had a girlfriend, and after several inquiries, he finally admitted that he did.
In response to Miller's questions as to how Erwin O. had received the bruise on his forehead, the respondent father said that, on the previous day, Erwin O. had fallen down and hit his head on a glass case at a store. When Miller asked him why Erwin O.'s arm was bruised. swollen and wrapped, the respondent father replied that five days prior, Erwin O. had fallen down the stairs. She asked him about Erwin O.'s mother....
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