IN RE: Zen T.1 (2013)

MEMORANDUM OF DECISION

This case presents a petition by the Department of Children and Families (DCF) asking that the parental rights of the mother and father of Zen T. (Zen or “the child”) be terminated.   The mother is Heather S. and the father is Cory T. Also pending before the court are the neglect petition, DCF's motion for out of state placement and mother's objection thereto, father's motion to transfer guardianship to paternal grandmother Donna K., mother's motion to transfer guardianship to maternal grandmother Ada S., and DCF's motion for a finding of no reunification efforts.

On April 9, 2013, father tendered to the court a signed written consent to terminate his parental rights.   After canvassing father and finding that father's consent was knowingly and voluntarily made with the assistance of competent counsel and with a full understanding of all of the consequences, the court, Elgo, J., accepted father's consent to terminate his parental rights to Zen, and granted DCF's motion to amend the petition to allege father's consent as the sole ground for the termination of his parental rights.   Due to his consent, no findings as to father are necessary to be made pursuant to General Statutes § 17a–112(k).

Mother Heather S. opposed the petition.   The statutory ground alleged in the petition against the respondent mother is that the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance, or control necessary for the child's physical, educational, moral, or emotional well-being, General Statutes § 17a–112(j)(3)(C).  The matter was tried to the court on April 9, 10, 11, and 25 of 2013.   The respondent mother was present and was represented at trial by counsel.   Although father had consented to the termination of his parental rights, he was present and was represented at trial by counsel.   Also present were attorneys for DCF and the child.   All counsel participated in the examination of witnesses and participated in the trial.   The petitioner called nine witnesses and introduced twenty exhibits.   Mother called nine witnesses, testified in her own behalf and introduced twenty-one exhibits.   Father called no witnesses and introduced one exhibit.   The child's attorney called no witnesses and introduced no exhibits.

On May 24, 2013, all parties filed their post-trial briefs.

The court finds that it has proper jurisdiction of the matter and that there are no pending actions affecting the custody of the minor child.   There are no claims of Indian tribal affiliation.   The court has carefully considered the petition, all of the evidence and testimony presented, including the demeanor and credibility of the witnesses, and the post-trial briefs of counsel, according to the standards required by law.   On the basis of the evidence presented and for the reasons stated below, the court adjudicates the child neglected, terminates the parental rights of both parents, denies both motions for transfer of guardianship, and grants DCF's motion for out of state placement.

FACTS

Having weighed all of the evidence and assessed the credibility of the witnesses, the court finds the following relevant facts to have been proven by clear and convincing evidence.²

Procedural History

On March 6, 2012, DCF invoked a ninety-six (96) hour hold on Zen's behalf.   On March 9, 2012 DCF filed a neglect petition, and an order of temporary custody (OTC) was granted on behalf of said child.   On March 16, 2012, the OTC was sustained by agreement, the respondent parents signed specific steps, and an expedited Interstate Compact on the Placement of Children study (ICPC) was ordered as to paternal grandmother and step-grandfather, Donna and James K. On June 20, 2012, psychological evaluations of mother, maternal grandmother, paternal grandmother and paternal step-grandfather were ordered by the court.   On July 12, 2012, DCF filed a coterminous petition to terminate the parental rights of both parents.   The respondent parents were properly served, appeared in court and were appointed counsel.   On August 3, 2012, pursuant to the ICPC approval, DCF filed a motion for out of state placement with paternal grandparents in Massachusetts, to which mother objected.   On November 14, 2012, the outstanding motions for out of state placement and transfers of guardianship were consolidated with the neglect and TPR petitions.

On December 17, 2012, DCF filed a proposed permanency plan of termination of parental rights and adoption, which was approved by the court, Frazzini, J., after a contested hearing on February 28, 2013.   On March 7, 2013, DCF filed a motion for no further efforts to reunify, which was consolidated with the TPR petition on March 21, 2013, and the matter proceeded to trial as above.

ZEN T.

A few minutes after Noon on Tuesday, March 6, 2012, when he was just under three months old, Zen's parents brought him to the emergency department of Connecticut Children's Medical Center (CCMC) because his left leg was swollen.   An X-ray revealed an acute oblique fracture of the proximal left femoral shaft, a significant fracture to Zen's left upper leg for which his parents had no adequate history and thus was highly suspicious for child abuse.   The DCF hotline was notified, and the emergency department physician requested a consultation with Irsal Cabahug, APRN, of CCMC's Suspected Child Abuse and Neglect (SCAN) Program.   Cabahug holds a master's degree as a forensic clinical nurse specialist and a post-master's certificate as a family nurse practitioner, and he is able to assess, diagnose, treat, and prescribe medication for patients.   By agreement of the parties at trial, he was qualified as an expert in the evaluation of suspected child abuse and neglect, and as a family nurse practitioner.

During his initial evaluation, Cabahug reviewed the emergency department reports, consulted with the CCMC SCAN attending physician, Dr. Nina Livingston, obtained Zen's medical history, interviewed both parents and performed a head to toe physical examination of Zen. Cabahug interviewed the parents separately.   Initially each reported that there had been no recent trauma events while in the parents' care that would have caused the injury to Zen's left leg.   The parents also reported that they cared for Zen together “99 [percent] of the time.”   Cabahug also spoke with Zen's pediatrician, Dr. Landinsky.   Cabahug learned that Zen had just been seen at his pediatrician's office for a weight check visit the previous morning, Monday, March 5, when his physical exam was normal with no leg issues noted.   After interviewing the parents, Cabahug concluded that Zen's leg was fractured at some time between that visit and the next morning, a time period during which only the parents had access to the child.   Cabahug also learned that although Zen had no significant underlying medical conditions, he was being followed for reflux and inadequate weight gain and had been prescribed Zantac.   Zen had experienced at least two prior injuries during his young life.   During a well-child visit when Zen was less than one month old, his pediatrician noted bruising to the back of Zen's neck, forearm and bilateral shoulder area, which was thought to have perhaps resulted from a too tight car seat strap.   Two weeks after the bruising, mother called the pediatrician's triage/advice line to report a bleeding cut under Zen's tongue, an intrusive injury for which there was no explanation.

As a part of the SCAN protocol, Zen immediately underwent a full skeletal x-ray survey which revealed, in addition to the aforementioned acute oblique fracture of the proximal left femoral shaft, a displaced fracture of the left posterior seventh rib, a classic metaphyseal lesion (CML) ³ of the distal right femur, a CML of the proximal right tibia, a CML of the proximal left tibia, a CML of the medial aspect of the right distal tibia, an irregularity of the distal radial metaphysis suspicious for CML, and an irregularity of the distal ulna metaphysis suspicious for CML. These injuries were in various stages of healing, indicating that they occurred during multiple injury events;  at least and most likely more than two such events.   All of the injuries resulted from trauma which could not have occurred during the normal handling of an infant;  nor could Zen, who at three months of age was unable to stand, crawl, or even roll over, have accidently injured himself.

Zen also underwent a CAT scan, which showed some enlarged spaces between Zen's brain and skull indicative of fluid in those areas, which necessitated additional testing.   A subsequent MRI revealed bilateral chronic subdural hematomas (two areas of older blood collection on both sides of the brain between Zen's brain and skull), which Cabahug determined after consultation with a neuroradiologist and a neurosurgeon to be at least three weeks old.   As these hematomas were most likely a result of trauma in the absence of an underlying medical condition, they were also considered highly specific for child abuse.

Zen was made comfortable with pain medication and admitted into the hospital, and DCF notified the Simsbury Police Department of suspected child abuse.   Detective Sgt. Scott Sagan met with DCF investigator Sandy Liquindoli at CCMC at 6:30 p.m. that same evening to begin an investigation.

During Zen's hospitalization and thereafter, Cabahug consulted with the departments of genetics, hematology, endocrinology, and neurology in order to rule out any underlying medical disorders as causes of the subdural hematomas and numerous broken bones.   Various tests were conducted, which found no evidence of any infection, bleeding disorders, malignancies, bone disorders, or genetic diseases to explain Zen's injuries.

A follow-up skeletal survey did reveal two additional injuries;  a displaced fracture of the left posterior fifth rib, and a displaced fracture of the left posterior sixth rib.   Accordingly, Zen had sustained at least eight fractures, two additional long bone irregularities suspicious for CML that Cabahug is “confident” are fractures, as well as bilateral chronic subdural hematomas, for a total of eleven injuries.   These injuries occurred on multiple occasions over a time period of at least three weeks.   Cabahug testified that a three-month-old child would be expected to have displayed pain behavior at the time of the injuries, and thereafter the injuries would have been tender, painful to the touch or to movement and manipulation.

Zen remained hospitalized at CCMC until he was discharged to non-relative foster care under an OTC on March 9, 2012, with scheduled follow-up appointments with Neurosurgery and SCAN, arrangements for a weekly visiting nurse, and Birth to Three services to be arranged by DCF. During this time in foster care, Zen suffered no new injuries.

After Zen's discharge, Cabahug continued his evaluation.   He interviewed the parents on several occasions, as did Sgt. Sagan of the Simsbury PD and various DCF social workers.

After a thorough evaluation, Cabahug's final assessment concluded that all of Zen's injuries are diagnostic for inflicted injury.   Cabahug so testified at trial, and also testified that neither parent could be excluded as having caused Zen's injuries.

FATHER, CORY T.

Father Cory T. was born in Fairbanks, Alaska on October 29, 1978, to John T. and Donna T. His father reportedly suffered from severe mental illness, and his parents were divorced when he was approximately eight years old.   His mother later married James K., with whom Cory had and continues to have a close relationship.   Cory has described his relationship with his mother as strained, as he felt that she had high expectations for him that he failed to meet.   Cory has two brothers, one of whom is a half-sibling.   Cory's family lived in several states before settling in Westfield, Massachusetts.   Cory attended school there, and after graduation received several certificates in addition to an associate's degree in mechanical engineering.   He obtained work related to that field and was so employed for a number of years in Vermont, Massachusetts and Connecticut.

Prior to meeting Heather, Cory had married his high school sweetheart.   They moved to Vermont, where Cory attended a work-study program in manufacturing engineering while his wife attended college.   They divorced after about seven years.   While the divorce was pending, Cory met someone else.   They moved to Connecticut, where Cory got an engineering job in manufacturing, and they became engaged, but that relationship also ended.   Cory had a history of anxiety and depression, and had taken anti-depressant medications after the break-ups of these relationships, and at other times.

Shortly after his engagement ended, Cory met Heather, and they began dating in late 2010.   Additional facts will be set forth below as warranted.

MOTHER, HEATHER S.

Mother Heather S. was born in Austin, Texas on October 14, 1971 to George and Ada S. Heather has one older sister from the same parents and two half-brothers.   Heather's father was a professor of math and accounting, and the family moved often to accommodate his changing teaching positions.   When Heather was about three years old, the family moved to France for two years, after which they returned to Austin.   Two years later they relocated to Oklahoma, where Heather attended elementary school and repeated the first grade.   When she was ten, Heather's father accepted a position at the University of Connecticut, and the family relocated to Storrs, where she attended middle school and where schoolwork continued to be difficult for her.   Two years later, her parents divorced, and Heather chose to live with her mother in Simsbury.   She attended Simsbury High School for two years, where she was active in extracurricular activities, including sports, but she did not excel academically and struggled in particular with reading.   When her relationship with her mother became strained, Heather decided to live with her father in Storrs, graduating from high school there.   Thereafter, she attended college in Alaska for about two years, where she was gang-raped by other students, but did not report the incident or seek counseling.   She quit college and began moving back and forth between a friend's home in Alaska and her father's home in Storrs, intermittently working at a casino.   She then moved to New York City, where she lived a marginal and peripatetic lifestyle for about fifteen years, drifting between different boyfriends, often not working or having a permanent place to live.   She reportedly worked at times as an escort, a bartender, a massage girl in a bar, and part-time in a shoe store, while unsuccessfully pursuing a career as a singer.

Heather seemed to have a penchant for unusual relationships, lifestyles, and ideas.   For example, one of her longer term boyfriends initially introduced himself as a banker, then claimed to be a CIA agent, on one occasion arriving home covered in blood.   Another friend allowed her to live in his studio apartment while she worked on an idea to create a radio station “creating positivity,” but the friend died from a drug overdose.   When Heather was thirty-three, she met a friend of a friend she was visiting in California;  a foreign national whom, after taking Ecstasy, she married in an Elvis chapel in Las Vegas to help prevent his deportation.   This man then returned to his girlfriend, and Heather returned to New York, later obtaining a divorce.

At one point, having decided to give up all of her material possessions so that she could “live free,” Heather gave up her apartment, put her possessions into storage, and “trusted the universe” that she would always have a place to sleep.   She gave her car away to a homeless person, apparently without a proper transfer, as she became responsible for multiple parking tickets thereafter.   For several years she variously “couch-surfed,” housesat, lived in short-term rentals, and occasionally stayed in Simsbury, Connecticut in a condo owned by her mother, who resided in Texas.   Without her mother's permission she invited six or seven homeless people she had met in Union Square to live in the Simsbury condo, an experiment that ended in disaster after two weeks, as her guests were mentally ill or had emotional problems, scared the neighbors, made a mess, and drew police involvement when one guest was arrested for rape.   After Heather's guests went back to New York, she remained, unemployed, in her mother's condo in Connecticut.

HEATHER AND CORY

Heather had met Cory T. through friends of her guests, and they began dating in late 2010.   Cory introduced Heather to his family during the holidays that December, but his parents were concerned about the relationship, as Heather did not work, other than perhaps occasionally selling items at flea markets, and appeared to them to be immature, self-absorbed and directionless.

Heather became pregnant several months later in March 2011.   The unplanned pregnancy was a surprise to both, as although Heather had trouble remembering to take birth control pills and Cory disliked condoms, they had “studied up” on the rhythm method and had been “very careful with it.”   Cory expressed happiness at the news.   About six months later he sublet his apartment and moved in with Heather at her mother's condo.   They apparently did not always bring out the best in each other.   Cory had a mental health history and had been on antidepressant medication.   Heather, who herself smoked marijuana regularly until her pregnancy, reportedly urged Cory not to take his medication and had him smoking marijuana as a natural alternative.   Cory had lost his job and his mental health issues worsened.   He wanted to see if he could make a living playing online poker rather than at engineering.   This plan was unsuccessful.   They apparently lived on a monthly stipend from Heather's father, Cory's disability income, and food stamps, and Heather obtained state medical insurance coverage.

Cory's parents visited Heather and Cory as the birth approached and the cluttered, unclean conditions they observed there alarmed them.   There were mold issues, and there were concerns about unsanitary conditions and hoarding issues.   They convinced the couple to move into an in-law style apartment that was attached to their home so that the baby would be brought home to a suitable living environment.

During her pregnancy, Heather developed cholestasis, a liver disorder, and her doctor, concerned about the effect on the baby, wanted to induce labor.   Instead, Heather did her own medical research, and having concluded that the condition was “not fatal” for the baby, went through all nine months of the pregnancy and underwent a C-section, instead, on Zen's due date.

Cory and Heather brought Zen home to Cory's parents' house in Westfield, Massachusetts.   At first, Cory was taking care of the baby and the in-law apartment, while Heather breast-fed Zen and recovered from her incision.   Cory seemed very proud of his son, but things went downhill quickly.   Breast-feeding was at times difficult for Heather.   Zen would cry and moan at night, and was diagnosed with acid reflux, for which he was prescribed Zantac.   Once again Heather did her own research, concluded that Zantac could harm Zen's liver, and used “gripe water” instead.   Cory's stress and depression increased, and he remained unemployed.   Heather did not feel accepted by Cory's family, they eventually moved to an apartment in Hartford, and the precipitating events occurred as above.

During the pendency of this matter, both parents were repeatedly interviewed by Cabahug, other CCMC staff, Detective Sgt. Scott Sagan, and several DCF social workers.   At least two interviewers reported that father appeared upset and emotional, and that mother appeared stoic, unemotional and more calculated in her responses during the interviews.   Each parent initially denied having any knowledge of how Zen could have been injured, and when told about the multiple fractures, mother did not believe that the hospital was telling her the truth.

Both parents initially supported each other.   Cory described Heather as sweet and gentle with Zen. Cory also consistently stated that although he had never, and would never, intentionally hurt Zen, he thought that because sometimes he played with or handled him roughly, he may have unintentionally injured him.   Cory also thought that his depression may have contributed to the situation.   Heather, however, described Cory as a doting father who, if he had injured Zen, had done so unintentionally by hugging or loving Zen too much.

During their initial interviews, Mother reported to Cabahug that over the previous two weeks she had been more forceful than usual when she was feeding Zen. Mother described how she would place Zen horizontally on her lap when breast feeding and she “would straighten out and pull out his legs.”   Mother reported that Zen “was acting frantic” while this was occurring, but that she thought Zen was upset because he was not eating, and not because she was straightening out his legs.   Cabahug testified that it was possible that this type of activity could have caused some of Zen's injuries, but he couldn't say for sure.   Mother also said that she couldn't remember when she had last done this, but knew that she had not done so since the previous Friday, March 2. However, this version of events does not square with what mother had also reported, that she was doing “baby yoga” with Zen and had been straightening out his legs when she first noticed the leg swelling that very morning.   When he was interviewed separately, father also mentioned that mother performed baby yoga and leg manipulations on Zen but deferred a more specific description of these practices to mother.

Both parents described an incident that had occurred on the previous Friday, March 2, when father had trouble removing Zen from his Baby Bjorn, and heard a popping sound.   Zen started crying, and father called out to mother that he was afraid that he may have broken Zen's arm.   Rather than bringing Zen to a doctor, they contented themselves with returning home and calling a nurse hotline, and after a telephonic evaluation with a nurse, concluded that Zen was fine.   However, mother also told CCMC staff that on the night of March 2, Zen was fussy, cried for an hour and a half, “was making a strange sound like a different moan,” and continued to be fussy and upset when moved throughout the weekend, yet the parents did not seek timely medical attention.

During several interviews, mother described a number of other incidents during which Zen cried out in pain and appeared to have been distressed by father's rough handling.   Mother reported that on one occasion, she had “heard Zen cry in an unusual cry like tremor,” and ran into the room to find father holding Zen on his knees, shaking Zen back and forth, toward father's body and then away, saying “it's OK, it's OK.” When she cautioned father about this, he replied that Zen liked it.   Despite Zen's crying, mother did not remove Zen or otherwise intervene.   Mother described another incident when father was bouncing Zen on his knee too hard, and she noticed that Zen was “crying harder and was making an unusual cry.”   In response, mother commented to father, “I don't think he likes that,” but once again she did not otherwise intervene.   Mother described another Baby Bjorn incident during which she heard the baby let out a cry.   Mother accepted father's explanation that he thought he had “squished” Zen's foot when he had bent down and the baby's leg had gotten wedged between his stomach and thigh, and did not seek medical attention.   Mother described another time when, after an argument with father, she noticed that father was squeezing Zen's leg very hard, and in response she merely gently touched father's hand.   She also noted that as she is very scientific, she was able to calculate the size of father's hand in relation to the size of Zen's leg, and so didn't think he was harming Zen. Mother recounted another example of Zen crying when father was hugging Zen too hard.   Despite her concern, mother's response was to tell father to “send Zen his love through energy,” and she did not otherwise intervene.   Mother explained during more than one interview that she believed that she and father had different parenting styles, and that she didn't have the right to judge father's style.   She also explained that despite her ongoing concerns about father's roughness with Zen, she felt that it would be insulting to father to harp on him about being gentle, and she chose to meditate upon it instead.

After the OTC, DCF initially provided weekly two and a half hour supervised visits for the parents together in the DCF office.   They remained a couple and resided together until both parents were arrested pursuant to warrants on April 30, 2013;  father, for assault in the first degree and risk of injury, and mother, for risk of injury.   Their charges were pending at the time of trial.   Full no contact criminal protective orders were issued at the time of the arrests, after which DCF ceased the visitation.   Mother's protective order was partially modified on August 27, 2012 to allow her to visit Zen only if supervised by DCF, and thereafter, DCF provided supervised visitation for mother.   DCF also provided mother with various services, including a mental health and substance abuse evaluation, parenting programs and ongoing assessment of parenting, case management services, and a psychological examination.

The court heard testimony from Dr. Bruce Freedman, a clinical psychologist who has evaluated thousands of families and has qualified as an expert in clinical psychology, family psychology, child abuse, domestic violence and substance abuse.   By agreement of the parties at trial, Dr. Freedman was qualified as an expert in the field of psychology and in the psychological evaluation of child abuse and neglect cases.   Dr. Freedman conducted a court ordered psychological evaluation of mother, maternal grandmother, and paternal grandmother and step-grandfather.

Dr. Freedman described mother during his testimony in part as follows:

I think she had unaddressed psychological problems, some of them came from childhood;  some of them came from trauma during her life.   I think there's a long period of time in her life that she led a very marginal lifestyle with all kinds of shifting relationships and unusual adult behavior, not particularly goal directed.   I think she is not really in touch with her emotions effectively.   I think I have questions about her capability of having a close relationship, whether it's with an adult or a child.   And I have questions about her—I think that she has a very inflated opinion of her own intelligence and judgment, you know, let me use the word grandiose because I think that captures it better than any other word I can think of.

Dr. Freedman's report states in part that “Heather did not show appropriate emotional response to the serious injuries to the baby.   She waffled between implicating Cory in having caused the injuries and insisting that he was gentle, doting and patient, and that she had never observed any behavior by him that would have caused any of the injuries.”   Dr. Freedman testified that mother had “a very primary goal” of protecting herself that ran through the proceedings, and that two days after their interview, he received a letter from Heather.   Therein she stated in part

I think it is important to make clear that when I say Cory was being abrupt or too rough for my taste with our son, that is how he was in everyday life, with everything & everybody.   I never meant to convey that he (was) appeared impatient in any way with our son.   I never heard or saw anything that I interpreted as anger or impatience aimed at Zen ․ even when Zen was crying & seemed inconsolable, Cory (was) appeared doting.

Dr. Freedman testified that he felt that the letter was intended by Heather “to make sure that there was no misunderstanding that she should be implicated, in any way, for any of the injuries to the child, that she had never observed anything in Cory T.'s behavior that would have injured a child.   That he was patient and doting.”

Regarding mother's mental status, Dr. Freedman's report indicates that although she did not show signs of mental illness, “Heather showed indications of substantial psychological problems, which would prevent her from safely caring for an infant.”

Dr. Freedman did not recommend or support reunification with mother.   He testified that he did not feel that Zen's injuries, or his two parents' contribution to those injuries, were ever adequately explained or taken responsibility for.   Dr. Freedman testified that in this regard, he couldn't see any circumstances in which the safety of the child could be guaranteed in a return to his mother, because he saw signs of psychological problems “that could have been part of a mechanism” of Zen's many injuries, and that could potentially impact her future parenting in ways that would further jeopardize the safety of the child.   Dr. Freedman could not rule out either parent as having caused Zen's injuries, and testified that he saw no evidence that would satisfy him that blaming the father for all of the injuries was a sensible explanation of what happened to Zen. Dr. Freedman also testified that even assuming that father was the sole perpetrator, he did not accept Heather's explanation that she had not observed anything that caused injuries to Zen or that should have resulted in her taking appropriate action to protect Zen from further injury.  “That's just impossible,” he said.   The court found with Dr. Freedman's analysis and testimony to be persuasive.

Heather was also evaluated shortly before trial at her own request by Dr. Eric Frazer.   Dr. Frazer is a licensed clinical psychologist with a specialization in forensic psychology who has evaluated over one thousand individual and families and has been qualified as an expert in clinical psychology, forensic psychology, addiction, psychopathology, and attachment.   By agreement of the parties at trial, Dr. Frazer was qualified as an expert in the field of psychology and in the psychological evaluation of child abuse and neglect cases.   Dr. Frazer acknowledged that Heather suffered from some significant unresolved personality deficits, that she engaged in unrealistic thinking, grandiosity and had a tendency toward “Pollyannaish denial,” but felt that she had made significant progress in her therapy.   When asked at trial whether he had an opinion on whether reunification efforts with mother should continue, he responded:  “I do have an opinion ․ that that should be considered. ” (emphasis added).   He elaborated that this should be done in “a very cautious step-wise plan,” incorporating substantial feedback from providers and frequent appraisals of mother's basic psychosocial stability, and projected that this would take up to another year to achieve.

Heather's therapist also testified at trial.   Joanna Curry–Sartori completed a bachelor's degree and at the time of trial was scheduled to graduate from Central Connecticut State University in May 2013 with a master's degree in marriage and family therapy.   She began employment as a marriage and family therapist trainee at the Bridge Family Center in June 2012, and began therapy with Heather in July 2012.   Curry–Sartori described Heather as highly cooperative and engaged, and proactive in bringing in items that Heather wanted to explore in the therapeutic environment.   Curry–Sartori described Heather's two therapeutic goals as developing her coping skills with regard to processing her experiences over the past year, and reflecting on current relationships and how to engage in an optimally healthy and respectful way, “with the understanding that this would be helpful to her in terms of continuing to prepare as a parent.”   Curry–Sartori was given a copy of the court ordered psychological evaluation about a month before trial.   She testified that she disagreed with the findings that Heather had a personality disorder, but pointed out that her role had not been to conduct a psychological evaluation.   She also acknowledged that until her recent receipt of the psychological evaluation, she only had mother's version of the events leading to Zen's removal.   The court did not place a great deal of weight on her testimony.

When asked about Heather's ongoing therapy, Dr. Freedman testified that mother is presently engaged in what he considers to be “hand-holding therapy,” through which it will not be possible for her deal effectively with her personality disorders.   He pointed to cognitive behavioral therapy and dialectic behavioral therapy as more appropriate for mother but has grave concerns about mother's ability to benefit from even those therapies, as she appears to lack the abilities to recognize the problem, accept the authority of the therapist, and deal constructively with failure and continue on in therapy.   As he described it, if Heather agreed with something she was fine, but if she disagreed she would do her own research to support her own view.   Dr. Freedman also pointed out that in her therapy with the trainee, Heather identified her own goal as to be less trusting of others, which the court regards as reflective of her evolved self-protective position about what happened to Zen:  that father is the culprit and she is the innocent victim, and therefore takes no responsibility for the horrible injuries suffered by her son.

After their arrests, the parents separated, their support of each other waned, and their positions regarding the origin of Zen's injuries began to evolve.

More recently, Heather told a social worker that she now believes that Cory must be a “psychopath” because she has done her own research that indicated that “babies are not that fragile.”   At trial, Heather denied causing Zen's injuries and testified that she believes that they were caused by Cory. However, she also testified:  “I never saw Cory do something that would have led me to believe that he was abusing our son.”   Cory, after being back in mental health treatment, on antidepressant medication, employed, and clean from marijuana use for a year, has recanted any prior statements he had made implicating himself, saying that it was now his belief that mother was the one who hurt Zen. He has described three incidents concerning mother that he felt might have resulted in harm to Zen, the first while mother was caring for Zen alone while angry with Father for going to a hockey game, the second during a cradle shaking incident, and the third during an occasion when mother was having difficulty breast feeding.

Heather took the witness stand at trial against her attorney's recommendation.   She testified that she had prepared the questions for her attorney to ask.   The court found her testimony to be troubling, as mother appeared to be focused on addressing personal minutiae rather than on the bigger picture of what had happened to her son.   She appeared detached when testifying in relation to the serious injuries that had been inflicted upon her son, but became emotionally distraught when describing paternal grandmother's last minute cancellation of a Valentine's dinner that Heather had planned.

THE GRANDPARENTS

At the time of Zen's hospitalization, paternal grandmother and step grandfather, Donna and James K., immediately presented themselves to DCF as an adoptive placement resource.   They and their extended family have visited with Zen regularly, and have a very close bond with him.   They have been licensed as foster parents and have been approved through the IPCP process.

After completing psychological evaluations and interactionals with paternal grandmother and step-grandfather Donna and James K., Dr. Freedman strongly recommended that Zen be placed with them.   During his testimony, Dr. Freedman described both as healthy, productive, well-functioning, goal-directed adults.   Donna K. trained as a special education teacher, and had a long record of working with troubled children.   He described her as having “a very sophisticated knowledge of children, and she's lively and attentive and has all of the qualities that you would look for in someone caring for a young child.”   When confronted with Zen's injuries, she and James K. were horrified and angry with Cory, and asked him to leave their home.   They had concerns about Heather, but did not attempt to excuse Cory, and Dr. Freedman did not question their commitment, or their ability to keep Zen safe.   Dr. Freedman also felt that James K. had a very good parenting record and showed good knowledge of child development.

Dr. Freedman completed a psychological evaluation and interactional with maternal grandmother Ada S. He found her to be a reasonably healthy adult, but viewed her as a visiting, rather than a placement resource for Zen. Freedman testified that he did not feel that maternal grandmother was a viable placement option, as she had limited contact with Heather over the previous decade, and had viewed Heather entirely as an innocent victim, placing all the blame on Cory. The court also notes that Zen did not appear to have a bond with her during visitations.

NEGLECT AND ABUSE ADJUDICATION

Pursuant to General Statutes § 17a–112(l), a petition for termination of parental rights may be tried at the same time as a neglect petition.   That section provides as follows:

Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b–129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child.   Notice of the hearing on such petitions shall be given in accordance with sections 45a–716 and 45a–717.   The Superior Court, after hearing, in accordance with the provisions of subsection (i) or (j) of this section, may, in lieu of granting the petition filed pursuant to section 46b–129, grant the petition for termination of parental rights as provided in section 45a–717.

In a coterminous proceeding, the trial court must first, pursuant to Practice Book § 35a–3, determine by a fair preponderance of the evidence whether the child is neglected, uncared for or abused.

DCF alleges in the neglect petition that Zen was neglected in that he was permitted to live under conditions injurious to his well-being, and that Zen was abused in that he had been inflicted with physical injury or injuries other than by accidental means, and had injuries that are at variance with the history given of them.

On March 6, 2012, Zen presented at the hospital with multiple serious physical injuries that occurred over time while he was in the respondents' care.   Irsal Cabahug concluded that Zen's condition was diagnostic for inflicted injury.   Other causes were ruled out.   The respondents have not provided an adequate explanation for Zen's injuries, and neither parent can be excluded as having caused the injuries.   Based on the evidence presented, the court finds by clear and convincing evidence, although only proof by a fair preponderance of the evidence is required, that Zen was neglected in that he was permitted to live under conditions, circumstances or associations injurious to his well-being.   The court also finds that Zen was abused in that he has been inflicted with physical injury or injuries other than by accidental means and has injuries that are at variance with the history given of them.

Therefore, the neglect petition is granted, and the child is adjudicated neglected and abused.   Zen is committed until further order of the court to the Commissioner of Children and Families who shall be guardian of the child.

TERMINATION OF PARENTAL RIGHTS

Having granted the neglect petition, the issue in this case is whether the petitioner has proved by clear and convincing evidence that the parental rights of the respondent parents should be terminated.  “In order to terminate a parent's parental rights under [General Statutes] § 17a–112, the petitioner is required to prove, by clear and convincing evidence, that:  (1) the department has made reasonable efforts to reunify the family;  General Statutes § 17a–112(j)(1);  (2) termination is in the best interest of the child;  General Statutes § 17a–112(j)(2);  and (3) there exists any one of the seven grounds for termination delineated in § 17a–112(j)(3).”  (Internal quotation marks omitted.)  In re Melody L., 290 Conn. 131, 148–49, 962 A.2d 81 (2009).

“The legal framework for deciding termination petitions is well established.   [A] hearing on a petition to terminate parental rights consists of two phases:  the adjudicatory phase and the dispositional phase.   During the adjudicatory phase, the trial court must determine whether one or more of the ․ grounds for termination of parental rights set forth in § 17a–112[ (j)(3) ] exists by clear and convincing evidence ․ If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase.   During the dispositional phase, the trial court must determine whether termination is in the best interests of the child ․ The best interest determination also must be supported by clear and convincing evidence.”   (Internal quotation marks omitted.)  In re Melody L., supra, 290 Conn. 163.  “Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding” the seven statutorily-enumerated criteria.  General Statutes § 17a–112(k).

Reasonable Efforts

In order to terminate parental rights, DCF must show by clear and convincing evidence that it “has made reasonable efforts to locate the parent and reunify the child with the parent ․ unless the court finds in this proceeding that the parent is unwilling or unable to benefit from reunification efforts, except that such a finding is not necessary if the court has determined at a hearing ․ that such efforts are not required ․” General Statutes § 17a–112(j)(1).

Various services were offered to the mother by DCF to facilitate a reunification with Zen, including a mental health and substance abuse evaluation, parenting programs and ongoing assessment of parenting, case management services, a psychological examination, and supervised visitation.   Mother stated in her trial brief that DCF has made such reasonable efforts to reunify and that the services offered were appropriate and designed to lead to the reunification of mother and child.   The court finds by clear and convincing evidence that DCF made reasonable efforts to reunify the child with the respondent mother.

ADJUDICATION

Acts of Commission or Omission–General Statutes § 17a–112(j)(3)(C)

DCF seeks to terminate the respondent mother's parental rights based on parental acts of commission or omission.  General Statutes § 17a–112(j)(3)(C) authorizes the termination of parental rights where “the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights ․” “The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove.”  (Internal quotation marks omitted.)  In re Cheyenne A., 59 Conn.App. 151, 158, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000).  “The language regarding prima facie evidence shifts the burden from the petitioner to the parent to show why a child with clear evidence of physical injury that is unexplained should not be permanently removed from that parent's care.   The language does not limit the grounds to acts resulting in physical injury.”  In re Sean H., 24 Conn.App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991).

Where termination is based on a claim of serious physical injury, the department must prove two elements:  the injury must be serious and the cause of such injury must be non-accidental or inadequately explained.  In re Jessica M., 49 Conn.App. 229, 241, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 749, 738 A.2d 1087 (1999).

“The General Assembly chose not to define the term ‘serious physical injury’ as it is used in our child welfare statutes.   It further declined to import the criminal definition provided by General Statutes § 53a–3(4), despite having done so in other statutes ․ [W]hen a statute does not supply a definition or a term, its ‘commonly approved usage’ governs ․ [T]o ascertain the commonly approved usage of a word, it is appropriate to look to the dictionary definition of the term ․ [t]he word ‘serious' is defined in Webster's Third New International Dictionary as ‘such as to cause considerable distress, anxiety, or inconvenience.’  “ (Citations omitted;  internal quotation marks omitted.)  In re Rachel J., 97 Conn.App. 748, 759–60, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006) (severe fracture to child's elbow was a serious physical injury).   See also In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2000) (three fractures of child's skull were serious physical injuries);  In re Cheyenne A., 59 Conn.App. 151, 158–59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000) (child's seventeen rib fractures were serious physical injuries).

In this case, the court finds that all of Zen's various fractures, CMLs, and bilateral subdural hematomas are serious physical injuries.   The court also finds that the serious physical injuries suffered by Zen were non-accidental or otherwise inadequately explained.

“There is no ‘requirement in § 17a–112 that there must be a finding of immediate physical danger to the child before parental rights can be terminated.”  In re Joshua Z., 26 Conn.App. 58, 62, cert. denied, 221 Conn. 901, 600 A.2d 1028 (1991).   The court must determine whether the requisite injury has befallen the child as a result of actual acts of commission or omission by the parents.  In re Kezia M., 33 Conn.App. 12, 20, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993).  “Under this subdivision, parental rights can be terminated for one or numerous acts or omissions that affect a child's well-being.”  In re Jessica M., supra, 49 Conn.App. 241.

Direct evidence of causing the injury is not required;  circumstantial evidence is sufficient.   See In re Cheyenne A., supra, 59 Conn.App. 158–59.

While it is true that evidence of the respondent's acts of omission was largely circumstantial, that evidence was sufficient.   The law does not distinguish between direct and circumstantial evidence as far as probative force is concerned ․ The standard of clear and convincing proof used in this case denotes a degree of belief that lies between the belief that is required to find the truth or existence of the issuable fact in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution ․ In a criminal case, the jury may draw reasonable, logical inferences from the facts proven as long as they do not resort to speculation and conjecture ․ In a case involving substantial circumstantial evidence, the cumulative impact of a multitude of facts, and not any one fact, may establish guilt ․ Insofar as circumstantial evidence can be and is routinely used to meet the higher standard of proof in a criminal prosecution, so can it be used in a case such as this where the applicable standard is that of clear and convincing proof.

(Citations omitted;  internal quotation marks omitted.)  In re Juvenile Appeal (85–2), 3 Conn.App. 184, 193, 485 A.2d 1362 (1985).

While some of the evidence suggests that Cory T. may have been the parent responsible for some or all of Zen's injuries, the evidence is far from clear that Cory was the sole perpetrator.   As there is no explanation for the multiple serious physical injuries that were inflicted upon him, Zen cannot safely be returned to his mother.   Moreover, even if we assume that his father Cory was solely and directly responsible for each of the eleven injuries, the evidence identifies Heather as a parent who failed to protect Zen from being injured.   As set forth above, Heather has described numerous occasions during which she observed or suspected that Cory was hurting Zen, but failed to appropriately intervene to protect him.   Heather also continued to cohabit with Cory during and after these incidents and for two months after the extent of Zen's injuries were known.   Neither parent has accepted responsibility and neither parent has provided a plausible explanation for Zen's injuries.   A parent may commit an act of omission or commission by failing to protect his child from serious physical injury, even if the parent was not the person who actually inflicted the serious physical injury.  In re Antonio M., 56 Conn.App. 534, 543, 744 A.2d 915 (2000);  In re Felicia D., 35 Conn.App. 490, 501–02, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994).   Such is the case here.

As DCF has proven by clear and convincing evidence that Heather S.'s acts of parental commission or omission denied Zen the care necessary for his physical well-being, the court finds for the petitioner on this ground.

DISPOSITION

General Statute § 17a–112(k) Criteria

The court has found by clear and convincing evidence that the necessary statutory grounds alleged by the petitioner for the termination of Heather S. and Cory T.'s parental rights have been proven.   Except in a case where termination is based on a parent's consent, before making a decision whether or not to terminate parental rights, “the court is mandated to consider and make written findings regarding seven factors delineated in [§ 17a–112(k) ].”  (Internal quotation marks omitted.)  In re Devon W., 124 Conn.App. 631, 648, 6 A.3d 100 (2010);  In re Jermaine S., 86 Conn.App. 819, 835, 863 A.2d 72, cert. denied, 273 Conn. 938, 875 A.2d 403 (2005);  In re Vanna A., 83 Conn.App. 17, 26, 847 A.2d 1073 (2004).   Father has consented to the termination of his parental rights;  these criteria and this court's findings as to the respondent mother, which have been established by clear and convincing evidence, are as follows:

(1) “The timeliness, nature, and extent of services offered or provided to the parent and the child by an agency to facilitate the reunion of the child with the parent.”

As set forth above, the court finds that DCF offered timely, appropriate and reasonable services to mother.

(2) “Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant the Federal Child Welfare Act of 1980, as amended.”

As noted above, DCF made reasonable efforts to reunify mother and child.

(3) “The terms of any court orders entered into and agreed upon by any individual or agency and the parent, and the extent to which the parties have fulfilled their expectations.”

The court finds that Specific Steps were ordered as to the respondent mother through which DCF offered her timely, appropriate and reasonable services, and that although mother was cooperative with the steps, it is not in Zen's best interest to be returned to her care.

(4) “The feelings and emotional ties of the child with respect to the parents, any guardians of his person and any person who has exercised physical care custody or control of the child for at least one year and with whom the child has developed significant emotional ties.”

Zen has resided with non-relative foster parents for the last fifteen months, since he was three months old.   He has done well there, and appears to have recovered from his injuries.   He has had regular visitation with paternal grandmother and step-grandfather Donna and James K. and their extended family, and has been observed to have a very strong bond with them.   He responds to them with marked enthusiasm and affection.   Paternal grandparents have been licensed as foster parents in Massachusetts, have been approved through the ICPC process, and have offered themselves as adoptive placements.   Maternal grandmother has also offered herself as a placement, but Zen does not appear to have a bond with her during visits.   Zen's bond with his mother as observed during their supervised visits is more difficult to characterize, as he does not seem to engage with her with the same enthusiasm as he shows with his paternal grandparents, and on several occasions during supervised visits has reached out his arms to the social worker, rather than to his mother, to be held.

(5) “The Age of the Child.”

Zen is eighteen months old.   He was born on December 10, 2011.

(6) “The effort of the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return to his home in the foreseeable future including but not limited (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact with the guardian or other custodian of the child.”

As set forth above, the respondent mother has made such efforts, including regularly attending supervised visitation under the terms of the criminal protective order;  however, it is not in Zen's best interest to be returned to her care.

(7) “The extent to which a parent has been prevented from maintaining a meaningful relationship by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent.”

There has not been any such conduct that has prevented the maintenance of a meaningful relationship between mother and the child, nor have economic circumstances stood in the way of development of a meaningful relationship.

Best Interests of the Child

The court must now address the issue of whether termination of parental rights is in the best interest of the child.   This is part of the dispositional phase of a termination proceeding.   See In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992) (“Our statutes and case law make it crystal clear that the determination of the child's best interest comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence.”  [Emphasis in original.] )

The desire and right of a parent to maintain a familial relationship with a child cannot be separated from the desire and best interest of a child either to maintain or to abandon that relationship, or the interest of the state in safeguarding the welfare of children.   These legitimate interests of parent, child and state require a balancing of the factors involved in those interests ․ In every case involving parental rights, a struggle exists between parents and the state to determine what is in the child's best interest, the child being the focus of the struggle.

(Citation omitted.)  In re Shaquanna M., 61 Conn.App. 592, 598–99, 767 A.2d 155 (2001).

Former Chief Justice Peters has noted:

Cases involving the termination of parental rights are always difficult ․ Accordingly, the court sought the proper balance between the parents' constitutionally protected interest in the care, custody and control of their children, and the interest of the state, acting as parens patriae, to protect the children's health and safety.

In re Christina M., 90 Conn.App. 565, 566–67, 877 A.2d 941 (2005), aff'd, 280 Conn. 474, 908 A.2d 1073 (2006).

The court finds that termination is in the best interest of Zen.

Father has consented to the termination of his parental rights.   As there is no explanation for the multiple serious physical injuries that were inflicted upon him, Zen cannot safely be returned to his mother.   Both parents have pending felony charges and protective orders remain in place.   Mother has unresolved and significant psychological issues that preclude the possibility of her safe reunification with Zen in the foreseeable future, if ever.   Zen is now eighteen months old, and having been in care for fifteen of those months, Zen now deserves to have the highest form of security, both physical and emotional, as can be provided by law.

In considering whether termination of the respondents' parental rights would be in the child's best interest, the court has examined multiple relevant factors including the child's interests in physical safety, sustained growth, development, well-being, stability and continuity of his environment;  his length of stay in foster care;  the nature of his relationship with his biological parents;  the degree and quality of contact maintained with his biological parents;  and his genetic bond to the respondents.

The court has also balanced this child's crucial need for physical safety, emotional stability, validation, consistency and permanency against the potential benefit of maintaining a connection with his biological parents.   See Pamela B. v. Ment, 244 Conn. 296, 314, 709 A.2d 1089 (1998) (child's physical and emotional well-being must be weighed against the interest in preserving family integrity).   After such scrutiny, and after considering the child's age, and the totality of circumstances, the court concludes that termination of parental rights is in the child's best interest.

The court finds by clear and convincing evidence that termination of the respondents' parental rights is in the best interest of the child, and grants the petitioner's motion for a finding of no reunification efforts.

Motions to Transfer Guardianship and for Out of State Placement

On May 19, 2012, father filed a motion to transfer guardianship of Zen to paternal grandmother.   On November 16, 2012, mother filed a motion to transfer guardianship of Zen to maternal grandmother.   These motions were consolidated for trial with the termination petition.

Decision-making on a motion to transfer guardianship generally requires the court to consider, inter alia, whether the proposed guardian is suitable and worthy and whether the proposed placement would be in the best interests of the child;  that is, whether such placement would foster the sustained growth, development and well-being of the child, as well as the continuity and stability of the child's environment.  General Statutes § 46b–129(j);  In re Haley B., 81 Conn.App. 62, 67, 838 A.2d 1006 (2004).   However, as the court has found that it is in Zen's best interest to terminate the parental rights of his parents, in order to free him for adoption, both motions to transfer guardianship are denied.

Pursuant to the ICPC approval, and for the reasons stated above, the court grants the petitioner's motion for out of state placement.

ORDERS

It is hereby ordered that the parental rights of Heather S. and Cory T. are TERMINATED as to their child Zen. The Commissioner of the Department of Children and Families is appointed statutory parent of Zen. The Commissioner is to file with the court no later than thirty days following the date of judgment, a written report as to the status of this child as required by law.   The Clerk of the Probate Court with jurisdiction over any subsequent adoption of this child shall notify in writing the Deputy Chief Clerk of the Superior Court for Juvenile Matters at New Britain of the date when any adoption is finalized.

Judgment may enter accordingly.

BY THE COURT,

GLEESON, J.

FOOTNOTES

FN2. During trial, the court granted by agreement the petitioner's motion for judicial notice dated April 8, 2013.   Accordingly, the court has taken judicial notice of court records including court memoranda, orders, and transcripts made in these cases for their existence, content and legal effect.   See Tait & Prescott, Tait's Handbook of Connecticut Evidence §§ 2.3.4(d), 2.4.1 and 2.4.2 (4th ed.2008)..  FN2. During trial, the court granted by agreement the petitioner's motion for judicial notice dated April 8, 2013.   Accordingly, the court has taken judicial notice of court records including court memoranda, orders, and transcripts made in these cases for their existence, content and legal effect.   See Tait & Prescott, Tait's Handbook of Connecticut Evidence §§ 2.3.4(d), 2.4.1 and 2.4.2 (4th ed.2008).

FN3. CMLs are fractures in the long bones of the body that are highly associated with child abuse, as they result from traumatic twisting, jerking, yanking or pulling motions to the extremities..  FN3. CMLs are fractures in the long bones of the body that are highly associated with child abuse, as they result from traumatic twisting, jerking, yanking or pulling motions to the extremities.

Gleeson, Marcia J., J.