In Re Zamora S. Et Al.

• Decision Date: 03 August 2010
• Docket Number: No. 31452.,31452.
• Citation: 998 A.2d 1279,123 Conn.App. 103
• Court: Connecticut Court of Appeals
• Parties: In re ZAMORA S. et al.

123 Conn.App. 103

998 A.2d 1279

In re ZAMORA S. et al.^*

No. 31452.

Appellate Court of Connecticut.

Argued May 24, 2010.

Decided Aug. 3, 2010.

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

Rosemarie T. Weber, for the appellee (respondent mother).

Marcus V. Hallum, Waterbury, for the minor children.

DiPENTIMA, C.J., and GRUENDEL and FRANCIS X. HENNESSY, Js.

DiPENTIMA, C.J.

The petitioner, the commissioner of children and families, appeals from the judgments of the trial court denying her petition for an adjudication of neglect as to the respondent mother, Sheena S., regarding her minor child, Bryce, and denying the petitions for termination of the respondent's parental rights as to her minor children, Zamora, Justin, Kelsey, Evan and Bryce.¹ The petitioner argues that the court improperly (1) found that Bryce was not neglected by the respondent, although he was neglected by his father, and (2) applied an elevated standard of proof for a subordinate fact underlying a required element necessary for the petitioner to prevail on the petitions for termination of parental rights.² We reverse the judgments of the trial court.

The following facts, as found by the court, are relevant to the resolution of this appeal. The department of children and families (department) first became concerned with the respondent's family as the result of a referral from the Waterbury police department on May 15, 2006. While striking the respondent, the father accidentally struck Evan, then one year old, causing a bloody nose and bruising. The respondent signed a safety agreement to live with the maternal grandmother but soon moved back in with the father. Department social worker Heather Howard testified that the department considered the major issues of the respondent to be that she was a victim of extensive domestic violence at the hands of the father, the injury to Evan, substance abuse, unaddressed mental health issues and inadequate parenting skills. A psychological assessment completed on September 19, 2008, by Ralph P. Balducci, a licensed psychologist, found that the respondent appeared depressed and that “[h]er emotional difficulties and personality disturbance clearly hinder her ability to effectively sustain relationships and to consistently and appropriately manage her parental responsibilities.”

On August 7, 2006, another domestic violence incident occurred, causing the department to become involved with the family once again. Howard testified that the respondent failed to fulfill her commitment to the department to file a “ ‘restraining-protective order’ ” against the father. Howard testified that the department was concerned with the respondent's mental health issues and her continuing failure to protect herself and her children from an abusive partner and the father.

On November 17, 2006, the petitioner sought and obtained an order of temporary custody of all of the children as a result of a domestic incident in which Evan apparently spilled a hot cup of coffee after taking it out of a microwave oven, resulting in serious burns to his chest and a five day stay in Bridgeport Hospital's burn unit. A department social study dated October 10 2008, stated that in December, 2006, the respondent informed the department that the father had left the home with all of his belongings. The study additionally stated that the department had no known information of domestic violence between the respondent and the father between November, 2006, and November, 2007. The court found that during this time period, the respondent focused on completing the specific steps she and the department had agreed on for achieving reunification with her children and that the department had provided appropriate rehabilitative services. The court further found that “[the respondent] has been faithful to all of the tasks to which she was directed but did not always satisfactorily complete the programs.” In March, 2007, Bryce, the fifth child of the respondent, was born. In November, 2007, the four oldest children were returned to the custody of the respondent.

On November 20, 2007, however, a serious incident of domestic violence occurred between the respondent and the father. The respondent reported to the department that on that date, the father “extensively beat her for two hours both in and out of the apartment [and] in the neighborhood.” During this time, he reportedly physically assaulted her, “ ‘beating, kicking and dragging her both in and out of the home, in the presence of her children.’ ” Following the November 20, 2007 incident, the respondent took the children to live in the home of their maternal grandmother, where they continued to live until March 1, 2008, when the respondent obtained a four bedroom apartment with the assistance of the department. As a part of the specific steps that the respondent entered into with the department, she agreed that the father would no longer live in her home. On March 26, 2008, Zamora reported to the department that the father had been living in the new home and that she was afraid to go home. She also reported that she had witnessed the father hitting the respondent. When asked, Justin and Kelsey confirmed Zamora's report. The respondent denied the allegations. On March 27, 2008, the petitioner obtained an ex parte order of temporary custody for all five children and filed a neglect petition with respect to Bryce. On October 14, 2008, the petitioner filed petitions for termination of parental rights as to Zamora, Justin, Kelsey, Evan and Bryce. On June 9, 2009, a hearing on the neglect petition as to Bryce and a trial on the termination of parental rights petitions as to all five children commenced. On September 3, 2009, in a memorandum of decision, the court found that Bryce had been neglected by the father but not neglected by the respondent, and rendered judgments terminating the parental rights of the father and denying the petitions to terminate the parental rights of the respondent. This appeal followed.

I

The petitioner first claims that the court improperly found that Bryce was not neglected by the respondent, although he was neglected by the father. More specifically, the petitioner argues that “neglect,” as defined in General Statutes § 46b-120, concerns the status of the child, not the status of an individual parent or guardian. Additionally, the petitioner claims that the court improperly dismissed part of the termination of parental rights petition as to Bryce insofar as that petition applied to the respondent because of its conclusion that the respondent had not neglected Bryce. We agree.

We first set forth our standard of review. “[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [ i ] t is not directed against them as parents, but rather is a finding that the children are neglected.... The application of a statute to a particular set of facts is a question of law to which we apply a plenary standard of review.” (Citations omitted; emphasis in original; internal quotation marks omitted.) In re T.K., 105 Conn.App. 502, 505-506, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008).

Section 46b-129 provides that the petitioner may file a petition with the Superior Court alleging that a child is neglected and plainly stating facts to support the petition. Section 46b-120 defines “neglect,” stating in relevant part that “(8) a child or youth may be found ‘neglected’ who (A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, (C) is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child or youth, or (D) has been abused....”

The court stated in its memorandum of decision that it “grants the petition of neglect as to [the] father and denies it as to [the respondent].” Later in its memorandum of decision, the court further explained that “[the petitioner] has NOT proved by a fair preponderance of the evidence that Bryce has been neglected.” The petitioner claims that the court's determination that Bryce was neglected by the father but not neglected by the respondent was improper in light of the statutory scheme and established law. Specifically, the petitioner cites In re David L., 54 Conn.App. 185, 191-92, 733 A.2d 897 (1999), asserting that the holding in that case-that an allegation and adjudication of neglect concerns the status of the child and not an individual parent-applies in the present case. In the case of In re David L., supra, at 186-87, 733 A.2d 897, the respondent father appealed from the adjudication of neglect as to his minor son, claiming that because he was named as the father of the child in the neglect petition, the adjudication of neglect applies to him, and, therefore, he had a right to be heard and to contest the adjudication. He further claimed that a trial court must determine who was responsible for the neglect before it can proceed to disposition because that determination is directly related to the justification of removal of the child from either parent's guardianship. Id., at 190, 733 A.2d 897. This court dismissed the appeal as moot, finding that “[o]ur review of the relevant statutes leads us to conclude that an adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for...