In re Tayler F.

• Decision Date: 28 October 2008
• Docket Number: No. 28345.,28345.
• Citation: 958 A.2d 170,111 Conn.App. 28
• Court: Connecticut Court of Appeals
• Parties: In re TAYLER F. et al.<SMALL><SUP>*</SUP></SMALL>

958 A.2d 170

111 Conn.App. 28

In re TAYLER F. et al.^*

No. 28345.

Appellate Court of Connecticut.

Argued March 20, 2008.

Decided October 28, 2008.

Jon D. Golas, Manchester, for the appellant (respondent mother).

Benjamin Zivyon, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, Jason M. Lobo and Stephen G. Vitelli, assistant attorneys general, for the appellee (petitioner).

Sheila A. Huddleston, with whom were John H. Beers and, on the brief, Emily H. Wagner, Hartford and Laurie A. Sullivan, Stamford, for the minor children.

McLACHLAN, HARPER and LAVERY, Js.

McLACHLAN, J.

The respondent mother¹ appeals from the judgments of the trial court finding that her two minor children were neglected. She claims on appeal that the court improperly admitted (1) testimony regarding whether the children should testify in court, (2) hearsay evidence of the children's statements, the statements of the children's father and other persons' statements, and (3) evidence of the children's credibility. Although we agree with the respondent that some of the evidence admitted was hearsay subject to no exception to the rule against hearsay, the admission of that evidence was harmless in light of the substantial evidence that was admitted properly during trial. Therefore, we affirm the judgments of the trial court.

The following facts and procedural history are relevant to the resolution of the respondent's appeal.² The respondent and the father divorced in 2001 and shared custody of their two minor children, Tayler F. and Nicholas F.

On December 7, 2004, an incident occurred between the respondent, her live-in boyfriend, William B., and the children when Tayler was eleven years old and Nicholas was nine years old. During the incident, the respondent was sitting on a couch when William B. disciplined Tayler by physically putting his hands on her shoulders, walking her to her bedroom and locking her in. As a result of the confrontation, Tayler did not want to remain in the respondent's house and the respondent was so upset that she did not know what to do. Tayler's maternal grandmother, Bonnie R., picked up the children for the evening to "let things rest and calm down a little bit."

On December 8, 2004, the father contacted the Enfield police department and related Tayler's account of the events. Officer Gregory Skop investigated the father's complaint by interviewing the father, the two children the respondent and William B. Tayler told Skop that she did "talk back" to William B. on December 7, 2004, and that he became angry with her, grasped her by the upper arms, walked her to her bedroom and told her not to leave her room. Tayler also stated that William B. did not injure her, but she heard him say, "f___king bitch," as he walked away from her door.

Tayler also reported that several months earlier, William B. and his friend, Chico, were drinking heavily at the respondent's house. Late that night, Tayler heard William B. screaming, came out of her room and saw William B. and Chico physically fighting. Tayler stated that she is always scared of William B. and sometimes afraid of the respondent. When asked to explain her statement, Tayler became physically upset and began to tear up.

Skop also interviewed Nicholas on December 8, 2004, and Nicholas became visibly upset and began to cry when asked about domestic violence in the respondent's home. Nicholas reported that he had seen the respondent kick William B. and had seen William B. slap and hit her. Skop stopped the interview so that he could calm Nicholas down.

Officer Skop did not initiate criminal charges against anyone as a result of his investigation, but he did report the results of his investigation to the department of children and families (department). Karen Dupuis, a department social worker was assigned to investigate the allegations of substance abuse, domestic violence, emotional abuse, physical abuse and neglect. Dupuis interviewed the father, the minor children and the respondent on December 10, 2004.

In her interview with Dupuis, Tayler reported that the respondent and William B. fight a lot. Tayler also informed Dupuis that she had seen the respondent and William B. physically fighting as recently as a week before December 10, 2004. Tayler stated that the respondent and William B. throw cans at each other and slap, punch and kick each other. Tayler also reported that one night she saw Chico place William B. in a headlock and saw blood everywhere. Nicholas separately stated to Dupuis that he observed the fight between Chico and William B. and saw Chico choking William B.

Prior to the incident on December 7, 2004, there were times when both William B. and the respondent were so intoxicated that the children could not awaken either of them. Tayler reported to Dupuis that she sees the respondent and William B. drink Captain Morgan rum, Budweiser beer and vodka daily when she is at the respondent's house. Tayler added that William B. "acts weird and crazy and [the respondent] talks funny. That is also how I know they are drinking." Tayler also reported that the respondent and William B. sleep late and Tayler gets herself and her brother ready for school in the morning.

When asked by Dupuis about her drinking, the respondent stated that she does not drink every day and does not always become intoxicated when she drinks. She stated further that sometimes she does and sometimes she does not, but she does not see a problem if she drinks or becomes intoxicated if the children are asleep or staying with their father. In response to a question about her use of alcohol in front of the children, the respondent testified: "I mean have a glass of wine. [William B. and I] have beer when we're watching the game or whatever, but I mean, I don't think it's to the point of falling down, intoxicated drunk." Melissa D., the respondent's adult daughter from a previous marriage, testified that she had witnessed the respondent abuse alcohol during the six to eight month period prior to December 7, 2004. Melissa D. testified that she thought that the respondent used alcohol as a coping method and an outlet and had abused alcohol for as long as she could remember.

Following Dupuis' initial investigation, the department placed the children on a ninety-six hour hold and transported them to their adult sister's home. See General Statutes § 17a-101g. On December 14, 2004, the petitioner, the commissioner of children and families, filed neglect petitions and motions for an order of temporary custody due to inadequate care, failure to provide a safe, stable and nurturing environment, emotional neglect, inadequate supervision and exposure to domestic violence. On December 14, 2004, the motions were granted ex parte by the court. The court sustained the orders of temporary custody on December 22, 2004, by the agreement of the parties.

In an interview with David M. Mantell, a clinical psychologist who had been ordered by the court to conduct psychological examinations, Nicholas stated that William B. and the respondent had hurt him in the past by dragging him and slapping him; Nicholas also stated that he had a rash around his neck when he was pulled. Nicholas also told Mantell that the respondent and William B. sometimes swear at him and Tayler and use "the a and b word[s]." Nicholas also reported to Mantell that he feels scared when the respondent and William B. drink and drive home because the car "bounc[es] when it hits bumps and [the car is] on the side of the road."

Tayler also stated to Dupuis that at the end of the summer of 2004, she "smelt something funny" and knew that it was not cigarette smoke because her father smokes cigarettes. The respondent testified that she had never used marijuana or cocaine in the past but admitted that in another proceeding, she had exercised her fifth amendment right against self-incrimination when asked about her marijuana and cocaine use.

A trial on the neglect petitions was held on several dates between November 4, 2005, and September 29, 2006. The children did not testify. The court found that the children had witnessed domestic violence between the respondent and William B., that the children had witnessed a "significant physical altercation" between William B. and Chico, that the children had suffered both verbal and physical abuse at the hands of the respondent and William B., that the children had witnessed substance abuse by the respondent and William B., and that the respondent had not provided proper supervision for the children. The court found that the children, as of the date of the petitions, were neglected, having been denied proper care and attention, physically, educationally, emotionally or morally, and had been permitted to live under conditions, circumstances or associations injurious to their well-being. The court ordered that the respondent and the father have joint custody of the children, that their primary residence would be with their father and that the respondent was entitled to a minimum of five hours of supervised visitation each week. Because of the number of evidentiary challenges, each of which is fact specific we will address each claim separately and set forth additional facts pertaining to each challenge.

To evaluate the respondent's evidentiary challenges to the court's rulings, we begin with the applicable standard of review common to them. "Our standard of review regarding challenges to a trial court's evidentiary rulings is that these rulings will be overturned on appeal only where there was an abuse of discretion and a showing ... of substantial prejudice or injustice.... Additionally, it is well settled that even if the evidence was improperly admitted, the [party challenging the ruling] must also establish that the ruling was harmful and likely to affect the result of the trial." (Internal quotation marks omitted.) In re...