In re Alizabeth L.-T.

213 Conn.App. 541

278 A.3d 547

IN RE ALIZABETH L.-T. et al.^*

AC 44814

Appellate Court of Connecticut.

Argued January 31, 2022

Officially released June 29, 2022^**

Robert M. Fitzgerald, Willimantic, for the appellant (respondent father).

Andrei Tarutin, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Evan O'Roark, assistant attorney general, for the appellee (petitioner).

Sharon A. Peters, Portland, for the minor children.

Bright, C. J., and Prescott and Flynn, Js.

PRESCOTT, J.

The respondent father, Benjamin L.,¹ appeals from the judgments of the trial court sustaining ex parte orders granting temporary custody of his minor children, Alizabeth L.-T., Tanisha L., and Alyson L.-T.,² to the petitioner, the Commissioner of Children and Families. The respondent father raises several evidentiary claims on appeal, including that, at the contested hearing, the court improperly (1) admitted certain hearsay statements of the children under a statutory exception to the hearsay rule codified in General Statutes § 46b-129 (g),³ and (2) admitted hearsay statements made by Alizabeth during a forensic interview under the medical diagnosis or treatment exception to the hearsay rule.⁴ See Conn. Code Evid. § 8-3 (5). We agree with both claims and conclude that these evidentiary errors, considered together, were not harmless because, without the improperly admitted hearsay testimony and exhibits, it is likely that the outcome of the hearing would have been different. Accordingly, we reverse the judgments of the court and remand the case for a new contested hearing.

The record reveals the following procedural history. On May 13, 2021, the Department of Children and Families (department) received an anonymous report regarding allegations that Alizabeth, Tanisha, and Alyson were the victims of physical and sexual abuse as well as possible sexual exploitation. Specifically, the report alleged that the respondent mother had permitted boyfriends with whom she was having extramarital affairs to sexually assault the children and had directed Alyson and Tanisha to lose weight so that she could sell photographs of them. The report also alleged physical abuse of the children by the respondent mother, and that the respondent father was aware of the alleged abuses by the respondent mother but had instructed the children to lie if they were questioned by the department or law enforcement about the abuse. On May 21, 2021, following an investigation by the department into the allegations, the petitioner filed neglect petitions on behalf of the children and motions seeking ex parte orders of temporary custody. An affidavit by a department social worker, Kristy Borders, in which she detailed the various allegations and preliminary investigatory findings of the department, was attached to the petitioner's filings. The court, Carbonneau, J ., granted the ex parte orders of temporary custody that same day and set a preliminary hearing date for May 25, 2021.

The petitioner, on obtaining the ex parte orders, immediately removed the children from the respondent parents’ home and placed them in the temporary care of the children's older brother, Jamie C., and his wife, Zesmery F. Zesmery works at an area hospital and is a mandated reporter;⁵ see General Statutes § 17a-101 (b) ; and she was the person who had alerted the department of the suspected abuse and neglect.

At the May 25, 2021 preliminary hearing, the respondent father appeared and indicated that he intended to contest the orders of temporary custody.⁶ The respondent father waived his right to a hearing within ten days; see General Statutes § 46b-129 (c) (4) ; and the court, Chaplin, J ., set a contested hearing date for June 17, 2021.

At the contested hearing, the petitioner offered testimony from Zesmery and Borders, and five exhibits, all of which were admitted in full by the court over the objections of the respondent father's counsel. Exhibit A was a copy of Borders’ affidavit that had accompanied the neglect petitions. Exhibit B consisted of photographs of cell phone screenshots showing text messages exchanged between Zesmery and Tanisha. Exhibit C was a photograph purporting to show an injury to Alizabeth's ear. Exhibit D was a photograph of damage to a door purportedly caused when the respondent mother pushed one of the children into it. Exhibit E was a copy of a text message from Zesmery to Borders memorializing a conversation that Zesmery had with Alyson. The respondent father testified on his own behalf but offered no exhibits of his own. As previously noted, the respondent mother did not appear for the contested hearing. The children were represented at the hearing by appointed counsel.

Following the presentation of the evidence and closing arguments, the court rendered a brief oral ruling from the bench sustaining the ex parte orders of temporary custody. The court stated that the allegations of both sexual and physical abuse of the children were "very, very concerning"; the court, however, did not initially delineate who committed the sexual and physical abuse. It also noted the existence of additional allegations that the respondent parents had coached the children to lie to the department during its initial investigation. Finally, the court stated that "[t]here's also concerns whether or not there is any accuracy as to the reported nature of the composition of the home currently, whether [the respondent mother] intends to return, has the capacity to return, and whether or not there has been sufficient attention shown to the care of the girls, their condition, and the allegations that they've provided ...." In summary fashion, the court then concluded: "Based upon all the information provided to the court, the evidence that's been before the court, the court does find that there has been sufficient credible evidence presented to the court to demonstrate that there was immediate physical danger; therefore, the court does find that the reason for commitment or at least the order of temporary custody existed at the time and has yet been rectified. Continuation ... in the home, or returning to the home, is not in the best interest of the children, it is contrary to their welfare, and it is in the best interest of the children that the [orders of temporary custody] be sustained." The respondent father timely filed the present appeal.

Following the filing of the appeal, both the petitioner and the respondent father filed motions for articulation asking the trial court to set forth the factual basis for its decision. The trial court granted these motions and filed a written articulation in which it set forth the following factual findings: "Tanisha is the biological child of the respondent parents. Alizabeth and Alyson were placed with the respondent parents by the petitioner in July, 2016, and subsequently [were] adopted by the respondent parents in May, 2019. ... Jamie and Zesmery are the current foster parents of the children. Zesmery has developed a close relationship with the children over the last year approximately. Zesmery communicates with the children almost daily on social media ... and they visit in person as well. In early May, 2021, the children were left home alone while the respondent father traveled to Puerto Rico to address marital issues with the respondent mother, who was residing [there] at a home owned by the respondent parents. Specifically, he wanted to discuss the respondent mother's infidelity. Zesmery and Jamie brought the children to stay at their home while the respondent father was in Puerto Rico. During [that] time ... [the children] disclosed incidents of sexual abuse and exploitation by the respondent mother .⁷ Jamie called the respondent father by cell phone to relay the disclosures, and the respondent father directed Jamie not to worry and that he would take care of these concerns.

"The respondent father returned from Puerto Rico the next day and the children returned home. The respondent father informed the children that the respondent mother remained in Puerto Rico and that he would bring her back to their home in [Connecticut]. The respondent father instructed the children ... to lie to the petitioner. The children informed Zesmery that they were afraid of the respondent mother returning home to Connecticut. Alyson called Zesmery crying and relayed that the respondent parents told her to lie to the petitioner, to recant all of the disclosures, and to tell the petitioner that living with Jamie was unsafe.

"Alizabeth and Alyson disclosed incidents of physical abuse by the respondent mother and provided pictures related to these incidents. They believed such incidents occurred because they [had] told the respondent father of the respondent mother's infidelity with other men. The respondent mother pushed Alyson into a door with such force that the door was damaged. The respondent father was present for this incident and pulled the respondent mother away to stop her from inflicting further physical abuse. In the days after the disclosure to Zesmery, but immediately prior to the petitioner's home visit, the respondent father replaced the damaged door. During the course of the petitioner's removal of the children from the home, the respondent father pulled the children into the bathroom and told them to lie to the petitioner and to recant all of their disclosures.

"After the children were removed from the home, the respondent father called Tanisha and told her to call the respondent mother. Tanisha called the respondent mother. During this call, the respondent mother told Tanisha to protect [her], to prioritize [her] over Alizabeth and Jamie, and to lie to the petitioner. The children disclosed to Zesmery and ... Borders that they are fearful of returning home out of fear of the respondent parents." (Emphasis added; footnote added.)

The court also found that "the children ha[d] disclosed these incidents of sexual...