November 7, 2018
In re Lilyana et al. – 186 Conn. App. 96 (2018) – November
Termination of Parental Rights
Claim of Deliberate Non-accidental Assault
Respondent mother appealed a finding terminating her rights as to her older daughter, Lilyana, claiming that the trial court had insufficient evidence to determine that she committed an assault through a deliberate, non-accidental act, pursuant to C.G.S. § 17a-112 (j) (3) (F), that resulted in serious bodily injury to Lilyana’s younger sister, Avah.
Lilyana was born in May 2015; Avah was born in March 2016. In October 2016, Avah’s father called 911, stating that she was not breathing and could not move her legs, after allegedly falling off the bed while he was in the bathroom. Mother had left for work an hour earlier; before leaving, she had noted bruises on her daughter’s head. He and mother were the children’s primary caretakers, although outside health care professionals also saw the children on a regular basis.
Yale New Haven diagnosed Avah with head trauma – subdural & retinal hemorrhages – as well as three leg fractures (two of which were healing) and facial bruising. The hospital’s child abuse specialist testified that the child’s seizures could be attributed to severe physical abuse on multiple occasions.
Other DCF witnesses at trial included the DCF investigator, a visiting nurse who had come to the apartment regularly, a detective from the police department who interviewed mother after the incident, six medical professionals, and other acquaintances of the family, including their landlord. Testimony was introduced regarding mother’s prior awareness of facial bruising and other injuries; mother’s failure to attend follow-up pediatric appointments, despite telling the visiting nurse that she had; a domestic violence incident and constant fighting between the parents; and of hearing the baby cry hysterically for three nights prior to the hospitalization. Mother, in turn, had two medical professionals testify that the injuries were accidental based on their review of the medical records, which the court found unpersuasive.
In February 2018, the trial court issued a “thorough and thoughtful memorandum of decision,” in which it terminated mother’s rights, finding that the petitioner had proved, by clear and convincing evidence, grounds (C) and (F) of § 17a-112 (j) (3) as to Lilyana, and ground (C) as to Avah.
Mother appealed finding as to Lilyana only, claiming that the court improperly applied ground (F), where there was insufficient evidence to determine whether she or Avah’s father were responsible for the baby’s injuries, and thus, insufficient evidence that she committed a deliberate, non-accidental assault.
The Appellate Court affirmed the trial court’s decision. It distinguished this case from both In re Brianna T. and In re Egypt E. In both of those cases, the court was unable to determine from the evidence whether one of two parents had any role in the abuse.
Here, in contrast, the Court found that there was extensive evidence that both parents engaged in a course of conduct that made them both the direct cause for Avah’s serious bodily injuries. Mother “was not just a party who simply stood by and watched her infant suffer serious injuries,” but rather, given the specific facts in evidence, “was an active participant” and “was in close physical proximity to Avah when she sustained her serious physical injuries.”