In re Sheneal W. Jr

• Decision Date: 22 January 1999
• Citation: 728 A.2d 544
• Court: Connecticut Superior Court
• Parties: (Conn.Super. 1999) IN RE SHENEAL W. JR., ET AL. <A HREF="#fr1-*" name="fn1-*">*

728 A.2d 544 (Conn.Super. 1999)

IN RE SHENEAL W. JR., ET AL.^*

SUPERIOR COURT OF CONNECTICUT, JUVENILE MATTERS

January 22, 1999

Memorandum on respondents' motion to strike petition to terminate their parental rights filed by petitioner department of children and families.

I

INTRODUCTION

FOLEY, J.

This is an action for the termination of the parental rights of Erika T., the female biological parent of the minor children, Sheneal W. Jr., born July 4, 1995, and Queshon M., born February 5, 1998. The petition also seeks to terminate the parental rights of Rameik H., the putative male biological parent of Sheneal W. Jr.¹, and the parental rights of Allandus M., the putative male biological parent of Queshon. The petition to terminate parental rights was filed by the commissioner of the department of children and families (DCF) on September 18, 1998.

The petition is based upon a new ground for termination as set forth in Public Acts 1998, No. 98-241, which, in part, adds a new subsection, General Statutes 17a-112 (c) (3) (F), to allow the Superior Court to terminate a parent's rights if "the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent." (Emphasis added.) Section 18 of Public Act 98-241 provides that this portion of the act shall take effect on July 1, 1998.

As will be hereafter described, the petitioner, DCF, maintains that an act of assault, causing serious bodily harm to another child of the parent, occurred on or about September 26, 1997. The ground became effective July 1, 1998 and the petition to terminate parental rights was filed on September 18, 1998. The respondents² have filed a motion to strike the petition on the grounds that the petitioner cannot retrospectively apply this legislation to facts and circumstances which occurred before the statute's effective date. Counsel have each filed memoranda in accordance with Practice Book 10-39. After consideration of the facts and the law, the motion to strike is denied. II

FACTS

DCF became involved in this case in June, 1997, upon the complaint of a neighbor who maintained that the children's mother, Erika, had been observed striking another child of the mother, Akire M., born March 5, 1997. The neighbor said that Erika yanked the child forcefully by the arm, threw the child "at least a yard," called the baby degrading names, stated she wished she never had the baby, left the child unattended and allowed the child's older siblings to hit and pinch the child. The report noted that the child's father was incarcerated.

On September 26, 1997, the child was brought to the local health center where the child, on exam, appeared to be blind and deaf. The child had been previously examined ten days earlier, and was neither blind nor deaf at that time. A thorough medical examination of the child revealed cataracts of the eyes and tears of the retina that appeared to have been caused by abusive trauma, fractures to the right ulna and both clavicles, which were at least a month old, rib fractures and recent femur fractures which were most diagnostic of child abuse. The medical director of the child abuse assessment team concluded that these were serious injuries and that the child would risk further child abuse or death if returned to the mother's care.

Akire's father was interviewed at the prison where he is now incarcerated. He indicated that the mother had recently brought the child to the prison to visit him. The child had sores on his legs. Erika, the mother, told the father that she had beaten the child with her keys, she cannot deal with Akire's crying, she wished she never had him, she wanted a girl, she thought the child was ugly and that she wished him to be dead. The father said that he had seen the mother throw the child and be verbally abusive to the child in his presence. The father did not report the mistreatment to any authorities or attempt to take any protective action to safeguard the child.

As a result of Akire's serious, life-threatening injuries, DCF sought and obtained orders of temporary custody. The three children, Akire, Sheneal and Queshon have been in foster care since September 27, 1997.

III

MOTION TO STRIKE

"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaints . . . to state a claim upon which relief can be granted . . . [The court] must take as true the facts alleged in the plaintiff's complaint and must construe the complaint in the manner most favorable to sustaining its legal sufficiency. . . . If facts provable in the complaint would support a cause of action, the motion to strike must be denied." (Citations omitted; internal quotation marks omitted.) Peter-Michael, Inc. v. Sea Shell Associates, 244 Conn. 269, 270-71, 709 A.2d 558 (1998).

IV

ANALYSIS OF CONNECTICUT LAW

The respondent argues that the petition for termination of her parental rights should be struck because the facts alleged in the petition occurred prior to the effective date of Public Act 98-241 8, and thus that act cannot, as a matter of law, be retrospectively applied in order to effectuate the termination of her parental rights. In response, the petitioner argues that the legislature intended to apply the new ground to the present case.

The case law of our state with respect to statutory construction has been well defined. This court is guided by the following principles.

A Substantive Legal Rights Are Presumed to be Applied Prospectively

"Whether to apply a statute retroactively or prospectively depends upon the intent of the legislature in enacting the statute. . . . In order to determine the legislative intent, we utilize well established rules of statutory construction. Our point of departure is General Statutes 55-3, which states: No provision of the general statutes, not previously contained in the statutes of the state, which imposes any new obligation on any person or corporation, shall be construed to have retrospective effect. The obligations referred to in the statute are those of substantive law. . . . Thus, we have uniformly interpreted 55-3 as a rule of presumed legislative intent that statutes affecting substantive rights shall apply prospectively only. . . . This presumption in favor of prospective applicability, however, may be rebutted when the legislature clearly and unequivocally expresses its intent that the legislation shall apply retrospectively. . . . Where an amendment is intended to clarify the original intent of an earlier statute, it necessarily has retroactive effect. . . . We generally look to the statutory language and the pertinent legislative history to ascertain whether the legislature intended that the amendment be given retrospective effect." (Citations omitted; emphasis in original; internal quotation marks omitted.) Colonial Penn Ins. Co. v. Bryant, 245 Conn. 710, 718-19, 714 A.2d 1209 (1998).

B The Rule of Prospective Application of New Statutes Is a Presumption, not a Rule of Law

"It is important to note at the outset that the mere fact that a statute is retrospective does not itself render it invalid. . . . Thus, General Statutes 55-3 . . . establishes a rule of presumed legislative intent . . . rather than a rule of law." (Citations omitted.) Schieffelin & Co. v. Dept. of Liquor Control, 194 Conn. 165, 174, 479 A.2d 1191 (1984).

C It Is Necessary to Understand the Legislative Intent and the Policy Sought to be Implemented

"Our fundamental objective is to ascertain and give effect to the apparent intent of the legislature. . . . In seeking to discern that intent, we look to the words of the statute itself, to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Sears, Roebuck & Co. v. Board of Tax Review, 241 Conn. 749, 758-59, 699 A.2d 81 (1997).

The legislative history and the circumstances surrounding the enactment of this new ground for termination of parental rights are very clear for two reasons, first, Senator Donald E. Williams, Jr., co-chair of the judiciary committee, announced the legislative policy that this bill was designed to implement. On May 5, 1998, after moving for the adoption of this bill, Williams stated: "This bill addresses requirements of the Federal Adoption and Safe Families Act. . . . That act requires the state to develop and expedite the permanent placement of children and to insure the safety of children. This bill will expedite court review of child abuse cases and encourage permanent placement of children at the earliest possible date." 41 S. Proc., Pt. 9, 1998 Sess., p. 2665.

The second reason that makes the meaning and intent of the new ground very clear is that, the language tracks, in nearly identical language, the federal law. Public Law 105-89, the Adoption and Safe Families Act of 1997, 111 Stat. 2115, codified in title 42 of the United States Code, states this similar language in at least two provisions. The Social Security Act, which is the operative federal document relating to foster care and child protection was amended by the Adoption and Safe Families Act (42 U.S.C. 671 (a) [15]) to eliminate the need for child protection agencies to make reasonable efforts to reunify parents with children under circumstances where "(i) the parent has subjected the child to aggravating circumstances (as defined by State law . . . (ii) the parent has . . . (IV) committed a felony assault that results in serious bodily injury to the child or another child of the parent. . . ."

The second provision, 103 of the Adoption and Safe...