In re Stephen M.

953 A.2d 668

109 Conn.App. 644

In re STEPHEN M. et al.^*

No. 28084.

Appellate Court of Connecticut.

Argued April 25, 2008.

Decided August 12, 2008.

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

Kathryn Steadman, for the appellee (respondent mother).

Karen Oliver Damboise, for the appellee (respondent father).

Matthew J. Collins, for the minor children.

BISHOP, LAVINE and BORDEN, Js.

LAVINE, J.

To facilitate the state's parens patriae interest, the legislature has enacted a comprehensive scheme to protect children who are at risk due to their parents' inability or failure to provide for their wellbeing. See General Statutes § 17a-101; In re T.K., 105 Conn.App. 502, 503-504, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). The statutory scheme takes into consideration, however, the fundamental precept that "[p]arents have a constitutionally protected right to raise and care for their own children." In re Juvenile Appeal (83-DE), 190 Conn. 310, 318-19, 460 A.2d 1277 (1983). The statutory scheme consists of a number of interrelated intermediate steps on a path that eventually may lead to the termination of parental rights. The adjudication of those intermediate steps yields factual findings and orders regarding behavior expected of parents to facilitate reunification of families, if possible, and provides a factual predicate for further proceedings.

The petitioner, the commissioner of children and families, appeals from the judgments of the trial court dismissing the petitions for the termination of the parental rights of the respondent parents¹ with respect to their three children, a son and two daughters.² The petitioner claims that when adjudicating the petitions for termination of parental rights, the trial court, Crawford, J., improperly disregarded the prior factual finding that the children were neglected, which was based on the father's sexual abuse of the respondents' son.³ In light of the fact that a party is barred by the doctrine of collateral estoppel from relitigating a previous finding of neglect during a subsequent termination trial, we agree that the trial court improperly disregarded the earlier neglect finding. We therefore reverse the judgments of the trial court.

The following facts, as found by the court, Trombley, J., after the trial on the neglect petitions,⁴ are relevant to the petitioner's appeal. In July, 1991, the father agreed to the termination of his parental rights in a daughter, T, who is not a subject of this appeal.⁵ The father has a criminal record. In May, 1994, he received a suspended sentence for threatening and harassment. In 1995, he was arrested and charged with multiple counts of sexual assault in the third degree and risk of injury to a child for acts he perpetrated on T.⁶ On February 21, 1996, he pleaded guilty, pursuant to the Alford doctrine,⁷ to two counts of risk of injury to a child. He received a suspended sentence and a term of probation, but he failed to cooperate with the office of adult probation (adult probation). According to his probation officer, the father was arrogant and resisted treatment at the Northeast Mental Health Sexual Offender Program and eventually was discharged from that program. He refused to discuss his relationships with significant others. Adult probation referred the respondents to the department of children and families (department) prior to the birth of their son.

The department investigated and urged the mother to participate in counseling services for nonoffending parents of sexual abuse victims in order to protect the son, who was born in late 1997. The respondents signed a service agreement from the department, requiring twenty-four hour a day adult supervision for their son. The mother was required to protect the boy from harm and to cooperate with the department. The father was to have no unsupervised contact with his son pursuant to the court-ordered conditions of probation. The father violated a no contact order regarding T. In 1998, he was found to be in violation of his probation⁸ and sentenced to two years in prison. On July 17, 2002, the father was convicted of breach of the peace in the second degree for acts perpetrated against the mother.

On August 5, 2002, the father reported to the state police that his son had disclosed to him that the son had been sexually assaulted by a neighbor, "Uncle Ray." Using the language of a child, the son later told the investigating state trooper, Steven Corradi, of sexual acts perpetrated on him by his father. The son also told Corradi that he had lied about Uncle Ray because he feared that his father would go to jail.⁹ Corradi referred the matter to the department. Orders of temporary custody were filed with respect to the son and the older daughter, who was two months old at the time. The orders of temporary custody were sustained by agreement. The son was evaluated by a sexual abuse expert, Rebecca Bowen, in December, 2002.¹⁰

Bowen concluded within a reasonable degree of clinical probability that the son had been sexually abused and that the father was the abuser. Bowen recommended that the son have no contact with the father and that the mother receive therapy. On the basis of Bowen's advice, the department stopped visits between the father and son. The father was evaluated by two sexual offender specialists, who found that he was at medium to high risk to reoffend. They recommended that the father not have unsupervised contact with the children.

On August 22, 2002, the petitioner filed neglect petitions for the respondents' son and older daughter. The petitioner alleged that the respondents' son "is being denied proper care and attention, physically, educationally, emotionally or morally, or ... is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child...." General Statutes § 46b-120(9)(B) and (C). The petitioner also alleged that the son was abused in that he "is in a condition that is the result of maltreatment such as ... sexual molestation or exploitation...." General Statutes § 46b-120(4)(C). The petitioner alleged that the older daughter "is being denied proper care and attention, physically, educationally, emotionally or morally, or ... is being permitted to live under conditions, circumstances or associations injurious to the well-being of the child...." General Statutes § 46b-120(9)(B) and (C). The respondents' younger daughter was born in June, 2003, and agents of the department filed an order of temporary custody when she was two days old. The order of temporary custody was sustained. On June 30, 2003, the petitioner filed a neglect petition for the respondents' younger daughter on the same grounds as those alleged as to her sister.

The neglect petitions were tried before Judge Trombley in April, 2004. In its memorandum of decision, the court identified the core question as whether the son was sexually abused by the father and whether he was an abused child within the meaning of § 46b-120(4)(C). As to the older daughter, the court stated that the issue was whether she, as a child residing in the same household, was a neglected child as defined by § 46b-120(9). As to the younger daughter, the question was whether the petitioner was justified in removing her from the respondents' care under the doctrine of predictive neglect.¹¹

Judge Trombley found, with respect to the neglect petitions, that the petitioner had proven by a fair preponderance of the evidence that the son was an abused child within the meaning of § 46-120(4)(C) in that he had been sexually molested by the father. The court based its finding on the father's conviction related to having sexually assaulted T, his lack of cooperation with adult probation, his violation of probation and the testimony of experts who opined that the father had abused the son.¹² The court also found that the son was permitted to live under conditions, circumstances and associations injurious to his well-being. As a consequence of the sexual abuse he had sustained, the son was being denied proper care and attention, emotionally and morally.

As to the respondents' daughters, the court found that the petitioner had proven by a fair preponderance of the evidence that there was a substantial risk that harm would be perpetrated on them. The court found, moreover, that the daughters had been denied proper care and attention, emotionally and morally, and that they were or would have been living under conditions, associations and circumstances injurious to their well-being.¹³

In light of the father's sexual abuse of the son, the risk to which the daughters would have been exposed, and the mother's continuing refusal to accept that the father's abuse was possible, if not substantially probable, the court committed all three children to the custody of the petitioner until further court order. The court found by clear and convincing evidence that it was no longer appropriate for the department to make efforts to reunify the father with the children.

The court found, however, that the petitioner had not proven by clear and convincing evidence that further efforts to reunify the mother with the children were no longer appropriate. The mother's only failings were her belief, against compelling evidence to the contrary, that the father did not sexually abuse their son and her allowing the father to direct and to control her actions in this case, including her insistence that he and she be represented by the same counsel. The court ordered the mother to engage in nonoffender sexual abuse counseling and denied her permission to see her son until she complied with the order.¹⁴ The court ordered the department to make reasonable efforts to explore the possibility of returning the three children to the mother's...