Noel M., In re

Page 996

580 A.2d 996

23 Conn.App. 410

In re NOEL M. ^*

No. 6451.

Appellate Court of Connecticut.

Argued April 3, 1990.

Decided Oct. 2, 1990.

Prescott W. May, Seymour, with whom, on the brief, was Scott A. Barton, Waterbury, for appellant (respondent mother).

Patricia Lilly Harleston, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, Atty. Gen., and Susan Pearlman, Asst. Atty. Gen., for appellee (petitioner).

Melissa A. Buckley, New Haven, for minor child.

Before DUPONT, C.J., and DALY and NORCOTT, JJ.

NORCOTT, Judge.

The respondent appeals from the trial court's judgment adjudicating the respondent's minor child, Noel M., to be neglected and committing her to the temporary custody of the department of children and youth services (DCYS). On appeal, the respondent claims (1) that the evidence was insufficient to support a finding of neglect, (2) that the trial court violated her constitutional rights to confrontation and to cross-examination by not allowing her counsel to question the child directly, (3) that the trial court improperly allowed certain witnesses to testify to the ultimate issue of whether the child was being truthful in describing alleged sexual abuse, and (4) that the trial court ignored the Connecticut public policy to promote family integrity.

The following facts are not in dispute. On August 9, 1986, Noel, then eight years old, told her maternal grandmother that she had been sexually molested by her stepfather. The next day, in the presence of her grandmother, she repeated this accusation to the respondent, who contacted DCYS and the Milford police department. The stepfather was subsequently arrested and charged with risk of injury to a child and sexual assault in the fourth degree.

On August 11, at the suggestion of a DCYS intake worker, the respondent and her child left the marital residence and moved in with the maternal grandmother. After hearing inconsistent statements from the child, and after the stepfather vehemently denied the accusations, the respondent was convinced that her child was incorrect, and, on September 7, she and Noel moved back in with the stepfather. ¹

On September 10, DCYS filed a petition for temporary custody and a finding of neglect, claiming that the child was sexually abused and was being permitted to live under conditions injurious to her well-being.

The trial court held a full hearing on the petition of DCYS. After the hearing, the trial court determined that the child was neglected and committed her to the temporary custody of DCYS for the maximum period of eighteen months with continued residency in the maternal grandparents' home. From that judgment, the respondent appeals.

I

Before addressing the respondent's claims, we must address the petitioner's argument that this appeal is moot. The petitioner relied upon the fact that the period of temporary custody had expired and the parties agreed to extend the commitment for up to eighteen months more. The petitioner contends that since Noel continued in the custody of DCYS under an extension of commitment, no practical relief can be afforded to the respondent on appeal from the first commitment. We do not agree.

" 'It is a well-settled general rule that the existence of an actual controversy is an essential requisite to appellate jurisdiction; it is not the province of appellate courts to decide moot questions, disconnected from the granting of actual relief or from the determination of which no practical relief can follow.' " Hartford Principals' and Supervisors' Assn. v. Shedd, 202 Conn. 492, 496-97, 522 A.2d 264 (1987); Connecticut Foundry Co. v. International Ladies Garment Workers Union, 177 Conn. 17, 19, 411 A.2d 1 (1979). The mere fact, however, that the term of the court's order has expired is not enough to establish that an appeal from that order is moot.

While it is true that the original order of the court committing the child to the temporary custody of DCYS had expired, there still exists an actual controversy over whether Noel is a neglected child. Furthermore, it was only because of this commitment that DCYS was able to seek and obtain an extension under General Statutes § 46b-129(e).

" '[I]n the absence of a class action, the "capable of repetition, yet evading review" doctrine is limited to the situation where two elements combined: (1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] reasonable expectation that the same complaining party would be subjected to the same action again.' " Connecticut Foundry Co. v. International Ladies Garment Workers Union, supra, at 20-21, 411 A.2d 1. Under § 46b-129(e), "[n]inety days before the expiration of each eighteen-month commitment made ... and each extension ... the commissioner of children and youth services shall petition the court to ... extend the commitment...." (Emphasis added.) Hence, the respondent could expect to be subjected again to this same action. We conclude, therefore, that this case presents a situation that is capable of repetition yet evading review.

The appellate process in this case has, thus far, consumed over three years and it is possible that the second eighteen month extension period might lapse before any appellate review can be achieved. Accordingly, we will not dismiss the present appeal because of mootness and, instead, turn to the merits of the appeal.

II

The respondent first claims that there was insufficient evidence to support an adjudication of neglect. We do not agree.

After a full hearing on the petition for adjudication of neglect, the trial court found the following relevant facts. On August 11, 1986, as a result of the respondent's report of the child's allegation of sexual abuse, a DCYS intake worker met with the respondent and her child. The child told the DCYS worker, in a separate interview, that her stepfather had escorted her into the bedroom where he touched her breasts and genital area. The respondent said that the child had said the same thing to her and, at that point, stated that the child was not a liar.

The DCYS worker advised the respondent to move out of the house and to keep the child away from the stepfather or she might risk losing custody of the child. The respondent then took the child and moved into the maternal grandparents' home.

That same day, the respondent took the child to be examined by the child's pediatrician. The pediatrician listened to the child's story and examined her, both in the presence of the respondent. The child described to the doctor the manner in which her stepfather had, on several occasions, sexually abused her. In his examination the doctor found no evidence of trauma to or penetration of either the vagina or the anus, and he informed the respondent of this in the child's presence. The doctor noted that the child verbalized well and seemed relieved when talking about her complaints. Although he found no objective evidence of abuse, it was his opinion that the child was telling the truth, and he referred her to a licensed clinical psychologist.

During a preliminary meeting with the psychologist, the respondent recounted the child's allegations made to her grandmother. The respondent described Noel as a happy, well adjusted child who would tell the truth and said that the accusation against the stepfather was at variance with the child's history, and the respondent had difficulty believing it.

The respondent became increasingly dissatisfied living at the grandparents' home and feared that the grandmother was seeking to gain custody of the child. Relying on the pediatrician's physical findings, on inconsistencies in the child's stories and what she deemed to be appropriate behavior between the stepfather and child at a group picnic, she decided to return with her child to the stepfather. On September 7, 1986, the respondent told the child that they were going to the apartment to get some clothing and that the stepfather would not be there. When they arrived, the stepfather and his two sons were in the apartment. Although the child protested, the respondent insisted that they spend the night.

Richard M., the child's maternal uncle, visited the apartment that night. At his suggestion, the respondent informed the maternal grandparents that she and the child had returned to the home of the stepfather.

On September 8, 1986, another DCYS intake worker spoke with Noel for about 45 minutes at her school. The child told this worker that the stepfather had touched her private parts and pointed to her breasts and vaginal area. The child also described an incident of sexual abuse by the stepbrother. The child then asked if her stepfather would go to jail. Following the report of this interview, DCYS decided to place a ninety-six hour hold over the child. It served papers on the respondent, picked up the child from school, and brought her to her grandparents' house.

DCYS arranged for the grandmother to bring the child to the sexual abuse clinic at Yale-New Haven Hospital to be examined by a child sexual abuse expert. During the examination, the child described to that physician instances in which her stepfather had sexually abused her, saying that the last date was August 9, 1986, the day she told her grandmother about it. She also said she resisted his attempt to put his penis into her mouth, and she described an incident of attempted sexual abuse by one of her stepbrothers. The child was embarrassed and emotional during this discussion. She was clear, however, in distinguishing the acts performed by her stepfather from those performed by her stepbrother.

The physician's physical findings revealed hymenal tears to the vagina consistent with forced insertions, and she was of the opinion, based upon the manner in which the child told her story and upon the physical evidence, that the child was being truthful. She recommended that the child be...