Opinion
F04CP16011036A F04CP16011037A
02-01-2018
In re Lilyana L.
UNPUBLISHED OPINION
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Ginocchio, James P., J.
MEMORANDUM OF DECISION
James P. Ginocchio, J.
On October 21, 2016, the Commissioner of the Department of Children and Families (the Department) or (DCF) filed ex-parte motions for orders of temporary custody (OTC) and neglect petitions on behalf of the children. On October 21, 2016, the court granted the Department’s ex-parte motions for orders of temporary custody finding that the children were in immediate physical danger from their surroundings and that continuation in the home was contrary to the welfare of the minor children and vested temporary custody of the minor children in the Department.
The Department simultaneously filed neglect petitions and termination petitions on behalf of the minor children. In the neglect petition, the Department alleges that the minor child Avah L. (Avah) has physical injury or injuries inflicted by other than accidental means; or the child has injuries that are at variance with the history given of them. Also, Avah was being denied proper care and attention, physically, educationally, emotionally, or morally or was permitted to live under conditions injurious to her well-being in that the child, at seven months of age, presented to the hospital on or about October 14, 2016 with facial bruising, three fractures, which included two healing fractures and one acute fracture, left and right sided subdural hematomas, and extensive retinal hemorrhages. The neglect petition also included Lilyana L. (Lilyana), who was then an eighteen-month-old child similarly situated to her then seven-month-old sibling, Avah. The petition alleges that Lilyana was being denied proper care and attention, physically, educationally, emotionally, or morally or was permitted to live under conditions injurious to her well-being.
The termination petitions alleged (Ground C) as to both Britney (Ms. N.) and William (Mr. L.) that (1) as to Avah, pursuant to General Statutes § 17a-112(j)(3)(C), 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 non-accidental 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 ..."
On November 15, 2017, pursuant to Connecticut Practice § 34a-1(d), the judicial authority on its own motion sought to amend the termination of parental rights petition in the above captioned case to include (Ground C), as to Ms. N. that (2) as to Lilyana, pursuant to General Statutes § 17a-112(j)(3)(C), 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 non-accidental 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 parties were given an opportunity to file briefs and be heard on this motion at a date and time to be scheduled by the court. On December 22, 2017, the court, after having reviewed all the briefs filed by the parties and after having heard all the arguments from counsel, overruled the respondent mother’s objection to the court’s motion to amend the petition thus permitting the court to consider (Ground C), as to Ms. N. (2) as to Lilyana, pursuant to General Statutes § 17a-112(j)(3)(C).
The termination petition alleges (Ground F), as to Ms. N. (3) as to Lilyana, pursuant to General Statute § 17a-112(j)(3)(F), the parent committed an assault, through a deliberate non-accidental act, that resulted in the serious bodily injury of another child of the parent. On May 18, 2017, there was a finding by the court that Mr. L. was not the biological father of Lilyana. At all times prior to the commencement of trial, Ms. N. failed to identify the biological father of Lilyana. In October 2017, after all the evidence in the coterminous trial had concluded, the Department was able to identify and locate Jahzel M. (Mr. M.), whom Ms. N. now claimed to be the putative father of the minor child, Lilyana. On November 6, 2017, genetic testing was performed on Mr. M. and he could not be excluded as the biological father of the minor child, Lilyana. On December 1, 2017, the court granted the petitioner’s motion to cite in Mr. M. and amend the neglect petition. On December 6, 2017, counsel was appointed to represent Mr. M.
On January 11, 2018, Mr. M. appeared in court with his attorney and knowingly and voluntarily waived his right to a neglect trial. He was permitted to remain silent. His case was continued pending the outcome of the adjudication and disposition with regard to the above captioned case.
The trial on the petitions took place on July 10th, 11th, 12th, 13th, 14th, 2017, and September 5th, 6th, and 19th, 2017. All parties attended with counsel. The court finds from the record that there are no other custody proceedings affecting these children and that it has jurisdiction.
The court heard testimony from various witnesses. The Department’s witnesses included: Christopher Loesche, DCF Social Worker; Officer Mark Blackwell, Bridgeport Police Department; Debbie Nugent, Avah’s Birth to Three worker; Allen Brooks, Landlord; Jessica Brooks, landlord’s daughter; Andrew Weber, AMR-emergency responder; Michelle Macchio, visiting nurse; Michael Haas, DCF Investigator; Charlotte Schmid, DCF Social Worker; Dr. Erin Bowen, Avah’s pediatrician; Dr. Lisa Pavlovic, attendant child abuse pediatrician; Dr. Brendon Graeber, radiologist; Dr. Michael DiLuna, neurosurgeon; Detective Albert Palatiello, Bridgeport Police Department; Beth Adams, respondent mother’s probation officer; Kate Rende, Southwest Community Health Center, Maria Richardson, New Era; Phillip Cruz, Department of Corrections; Denise Fuzie, DCF Social Worker; Dr. Brian Smith; treating orthopedic, Dr. Kathleen Stoessell, treating ophthalmologist.
The respondent’s witnesses included: Dr. Joseph Scheller; Dr. Jack Levenbrown; Liza Gonzalez and Carl Young, friends of respondent father. The respondent mother and respondent father did not testify.
Dr. Brendon Graeber testified as a rebuttal witness on behalf of the petitioner.
Lists of Exhibits: State’s Exhibit A- Erin Bowen, M.D-CV; State’s Exhibit B- patient appointment and RX records, 11 pages; State’s Exhibit C- Avah’s head and growth chart; State’s Exhibit D- Avah’s Birth to Three notes, 3 pages; State’s Exhibit E- Brendan Graeber, M.D-CV, 3 pages; State’s Exhibit F- Michael DiLuna, M.D-CV, 14 pages; State’s Exhibit G- Lisa Pavlovic M.D-CV, 2 pages; State’s Exhibit H- Brian Smith, M.D-CV, 17 pages; State’s Exhibit I- Kathleen Stoessel, M.D-CV, 21 pages; State’s Exhibit J- Dr. Lisa Pavlovic, affidavit, 3 pages; State’s Exhibit K- Dr. Kathleen Stoessel-CD of Avah’s RetCam photos; State’s Exhibit L- Dr. Kathleen Stoessel’s retinal hemorrhage notes dated 10/15/16 to 2/14/17, 5 pages; State’s Exhibit M1-11- photos taken by investigation workers 10/14/16, 1-11; State’s Exhibit N1-4- photos taken by Bridgeport Police 10/14/16; State’s Exhibit O- photos sent via respondent mother to nurse Macchio 10/6/16; State’s Exhibit P- text message between respondent mother and nurse Macchio 10/10/16; State’s Exhibit Q- Yale medical records/images of Avah; State’s Exhibit Q1 DVD of pictures; State’s Exhibit R- DOC records summary report, 15 pages; State’s Exhibit S- DOC disc-calls from respondent father; State’s Exhibit T- Social Study dated 1/10/17, 11 pages; State’s Exhibit U- Addendum to Social Study Social; State’s Exhibit V- Article, Evaluation and Diagnosis of Abusive Head Trauma, 22 pages; State’s Exhibit W- Avah: Jolly Jumper video.
Respondent Mother’s Exhibit M1- Dr. Joseph Scheller’s report, 3 pages; Respondent Mother’s Exhibit M2- Dr. Jack Levenbrown’s report, 4 pages; Respondent Mother’s Exhibit M4- Dr. Levenbrown, CV; Father’s Exhibit E1, article-Experience And Reason; Father’s Exhibit F2, article-non-cutaneous conditions clinicians might mistake for abuse; Father’s Exhibit F3, Dr. Scheller’s CV, 5 pages.
The court reviewed the many documents entered into evidence. After duly considering the evidence and for the reasons set forth in detail below, the court finds by a fair preponderance of the evidence that Avah was abused in that she 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. The court also finds that Avah was permitted to live in conditions injurious to her health and well-being and the conditions in the home endangered the safety, health and welfare of the child. The court finds as to Lilyana, who was only eighteen months old at the time Avah sustained her injuries, that she was similarly situated to Avah and was also permitted to live in conditions injurious to her health and well-being and the conditions in the home endangered the safety, health and welfare of the child. An adjudication of neglect is entered. Avah and Lilyana are committed until further order of the court to the Commissioner of Children and Families who shall be guardian of the children.
The Department has proven by clear and convincing evidence that as to Ms. N. and Mr. L. (1) as to Avah, pursuant to General Statutes § 17a-112(j)(3)(C), 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 non-accidental 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 ...," and as to Ms. N. (2) as to Lilyana, pursuant to General Statutes § 17a-112(j)(3)(C), 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 non-accidental 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 ..." and as to Ms. N. (3) as to Lilyana, pursuant to General Statute § 17a-112(j)(3)(F), the parent, Ms. N. committed an assault, through a deliberate non-accidental act, that resulted in the serious bodily injury of another child of the parents.
PRELIMINARY FACTS
The court considered the following evidence by clear and convincing evidence:
Mother
The respondent mother, Britney, (Ms. N.), was born on October 13, 1988. The Department did not have information regarding her father. Information regarding her childhood is unknown. Ms. N. has several siblings who reside in surrounding towns. Ms. N. maintains a close relationship with her immediate family and spends holidays and birthdays with them. The Department is unaware of Ms. N.’s educational background. Ms. N. has held several jobs in the restaurant field and was working at a local country club at the time of Avah’s injuries. Ms. N.’s income is unknown. She has a total of three children, Amelia B. (DOB: 9/14/10), Lilyana L. (DOB: 5/28/15), and Avah L. (DOB 3/20/16).
Amelia resides with her father, Ruben B. (Mr. B.), in Bridgeport, Connecticut. Avah and Lilyana are in the care of the Department of Children and Families via an OTC and placed in the care of their maternal grandmother. Although Ms. N. is not in a romantic relationship with Mr. B., they maintain a close relationship and Ms. N. is very involved in Amelia’s life.
Ms. N. reported she ended her relationship with Mr. L., the father of Avah, when she found out that Avah was hurt in his care. Ms. N. reported that when she was in a relationship with Mr. L., he was controlling, for example, timing her while she was out. In 2015, there was a four-month protective order in place with Mr. L. being the subject and Ms. N. being the protected party. Details regarding the protective order are unknown. Ms. N.’s relationship history is unknown. Although there was testimony from Michal Haas, DCF investigative social worker, that Ms. N. was fearful of Mr. L. and that she had ended their relationship, there was evidence produced at trial that would suggest otherwise. Additional facts will be set forth below as warranted.
Ms. N. informed the Department that in 2007, she was involved in a terrible car accident that resulted in her having significant neck and back pain. She explained she was in the hospital for nearly three months before she was discharged home with physical therapy being in place. She explained that while in the hospital, she was prescribed pain medication, which she quickly became dependent upon. Ms. N. indicated that within a year of her accident, her dependency on pain medication was serious and she knew she needed to address it before her addiction got out of hand. Ms. N. reported she reached out to New Era for methadone maintenance. She continues to get her methadone from New Era.
Maria Richardson, a substance abuse counselor at New Era, testified at trial on behalf of the petitioner. She stated that Ms. N. had been a client of hers for approximately two years. She also testified that her clients were routinely drug tested. Ms. N. was tested monthly from November 2016 up until the time of trial. Ms. N. tested positive for cocaine and as a result of testing positive for cocaine, Ms. N. lost her bottle privileges and was required to come into the clinic and receive her daily dosage of methadone. Also, it was recommended that Ms. N. seek inpatient treatment in order to address her ongoing drug problem.
Ms. N. did attempt to engage in outpatient treatment. Kate Rende, a counselor at South West Community Health Center, testified at trial on behalf of the petitioner that Ms. N. had been her client since 2015 and that in March 2017, it was recommended that Ms. N. engage in the intensive outpatient program (IOP). Ms. N. tested positive for cocaine use. She was also assessed with anxiety disorder and opiate dependency. The intensive outpatient program required that Ms. N. attend three days a week for a total of nine hours, group therapy was a component of her treatment.
Initially, Ms. N. expressed a willingness and desire to participate in the program, but shortly thereafter, her attendance fell off substantially and she continued to use cocaine. She was unsuccessfully discharged from the program and it was recommended that she enter into inpatient treatment. Several programs were recommended for Ms. N., but there was no sincere effort on her part to enter inpatient treatment.
Ms. N. was also on adult probation at this time. As a condition of her probation, she was required to undergo a substance abuse evaluation and to submit to random urine tests. From February 2017, to the time of trial, Ms. N. consistently tested positive for cocaine. In addition to testing positive for cocaine, Ms. N. had missed several appointments with her probation officer, Beth Adams. She then stated that the reason she missed the appointments was because of childcare issues. It is important to note that at this time, none of her children were in her direct care.
Ms. N. was deemed to be in technical violation status of her probation and she was directed to enter into an inpatient program. While on probation, Ms. N. minimized her drug use and feigned surprise when she was told that she was testing positive for cocaine. In February 2017, she told her probation officer that she was no longer in a relationship with Avah’s father and she also blamed him for the child’s injuries.
In March 2017, Ms. N. was arrested on a warrant related to Avah’s injuries. Her criminal case is currently pending and she has posted her bond.
There was credible testimony that Ms. N. has fully cooperated with the Department insofar as visitation with her children is concerned. She visits with her children regularly and all visits are reported to be positive. It was noted there is a strong bond between Ms. N. and her children. There have been no reports of inappropriate behavior by Ms. N. at any of the visits.
Father
The respondent father William L., Jr. (Mr. L.) was born on October 1, 1967 in Puerto Rico to Evelyn L. and Freddie M. He was raised in Puerto Rico until the age of four. At the age of four, Mr. L. and his family moved to Bridgeport, Connecticut. Mr. L. reports he had a " normal childhood." He played several sports (baseball, football and basketball) and reported his home was " happy." When Mr. L. was four, his mother left his father. Mr. L. denied any history of domestic violence and/or substance abuse in his family. He was disciplined by his mother by having privileges taken away or having to go to a timeout. He was raised Catholic, however, he does not attend church currently. (State’s Exhibit T, p. 3.)
Mr. L. attended school in the Bridgeport school system. He received special education services for reading and received his high school diploma from Bassick High School in 1986. After graduating high school, Mr. L. worked at a factory called Blaze 2, making bicycle seats. He has held various jobs in Westport, Connecticut working as a landscaper, as well as a bus boy/dishwasher at several restaurants.
At the time the social study (State’s Exhibit T) was prepared, Mr. L. worked at JJ’s store located in Bridgeport, Connecticut as a stock person. His hours varied; he made approximately $170 per week. Mr. L. does not receive assistance. (Id. ) At the time of Avah’s injuries, Mr. L. worked part-time at a car wash. He is currently incarcerated because of his inability to post a $100,000 bond for charges related to Avah’s injuries.
Mr. L. has never been married. He has a total of five children; William L., II (age 25), who resides in Rhode Island, Jonathan L. (age 22), Jenny L. (age 27), who resides in Waterbury, Connecticut, Destiny L. (age 15), who resides in Bridgeport, Connecticut, and Avah L. (DOB 3/20/16), who is placed in the Department’s care. Mr. L. reported he has maintained a relationship with all his children with the exception of Jenny who he has not spoken with in two years. Mr. L. reported he was in a relationship with Avah and Lilyana’s mother, Ms. N., for approximately two years and they were engaged. Mr. L. reported he had not spoken with Ms. N. after Avah, the youngest child, was injured.
At the time the social study (State Exhibit T) was completed, Mr. L. was residing with his mother and daughter, Destiny, in Bridgeport, Connecticut. Mr. L. denied violence in his relationship with Ms. N. He reported that they have " regular" arguments; however, they were easily resolved. From August 19, 2015 to December 3, 2015, there was a protective order in place with Mr. L. being the subject and Ms. N. being the protected party. The details regarding the protective order are unknown. (Id. )
Mr. L. reported he had a substance abuse issue, specifically using " crack" in the 90s. He stopped using by going " cold turkey." Mr. L. denies a current substance abuse concern. Mr. L. reports he has no past history of hospitalizations and/or chronic illnesses. He reports he has a bad back from playing sports. He denies any past and/or current mental health treatment. (Id. at 4.)
Mr. L. has extensive criminal history dating back to 1988. Mr. L.’s charges have included: possession of a firearm without a permit, assault, possession of marijuana, possession with intent to sell and disorderly conduct. Mr. L. has had a total of twelve arrests since 1988. His most recent arrest was on June 18, 2015, for disorderly conduct. At the time the social study was prepared, Mr. L. was on adult probation (Id. )
The Children
Lilyana L. (Lilyana) was born on May 28, 2015, in Bridgeport, Connecticut. At the time of Lilyana’s birth, her mother, Ms. N., tested positive for oxycodone for which she had not had a prescription since August 2014. Ms. N. was on methadone maintenance throughout Lilyana’s pregnancy and received regular pre-natal care. Lilyana did not test positive for substances and was born at a healthy weight of 7 pounds, 9.3 ounces. Lilyana was discharged to the care of Ms. N. and Mr. L. upon discharge from the hospital on June 1, 2015. (Id. )
Lilyana displayed delays in her development, therefore, she was referred to Birth to Three services by her mother, Ms. N. Due to concerns regarding her development, Lilyana was found eligible for Birth to Three services and began receiving weekly services from St. Vincent’s Special Needs services in September 2016. Lilyana attends full-time daycare at the learning center. (Id. )
Lilyana is a healthy child with no known medical concerns. She is seen at Children’s Medical Associates for routine pediatric care. She is up to date with her well-child checks and immunizations. Lilyana’s last well-child check was completed on December 20, 2016. According to Lilyana’s maternal grandmother, she is diagnosed with anemia and prescribed iron supplements. Lilyana is a good eater, she eats all her solids and a variety of foods. (Id. )
Lilyana was removed from Ms. N. and Mr. L.’s care on October 17, 2016, and placed in the care of her maternal grandmother who resides in Derby, Connecticut. Lilyana’s younger sibling, Avah, is placed with maternal grandmother as well. Lilyana has adjusted to her placement and no concerns were noted. Lilyana visits with Ms. N. three times a week and has had visits with Mr. L. prior to his incarceration. Lilyana appears to enjoy visitation with both Ms. N. and Mr. L. (Id. )
Avah L.
Avah was born at thirty-seven weeks gestation on March 20, 2016, in Bridgeport, Connecticut to Ms. N. and Mr. L. She was born weighing 4 pounds, 11 ounces. During Avah’s pregnancy, her mother, Ms. N. was taking prescribed methadone and Xanax. Avah was born with methadone and Xanax in her system, however, she did not display any significant withdrawal symptoms. She was born small for her gestational age and was diagnosed with gastro-esophageal reflux and milk protein intolerance. Avah was provided with weekly visiting nurse services in order to monitor her weight and assist with her significant reflux shortly after her birth and discharge from the hospital on March 27, 2016. (Id. at 5.)
In August 2016, Avah’s mother, Ms. N. had concerns regarding her development, therefore she completed a referral to Birth-to-Three. On September 2, 2016, Avah completed an evaluation through St. Vincent’s Special Needs services and was found eligible for services due to delays in the adaptive area of development. Since the injuries, Avah still received weekly Birth to Three services and had made gains with her development. (Id. )
Debra Nugent, Avah’s Birth to Three Worker, testified at trial on behalf of the petitioner. She testified that Avah had some muscle stiffness and mobility issues. She particularly noted that Avah had trouble holding her bottle up, she had trouble eating, her head muscles were tight and she was not rolling over consistently. Other than those issues, Avah was age-appropriate in all other categories. She first met with the family on September 2, 2016, and began working with the family and child on September 30, 2016. A schedule was set up where the worker would come in once a week for about an hour.
On the visit dated October 7, 2016, the mother, Ms. N. showed the worker a mobile phone picture of Avah with bruises on her face. Ms. N. indicated that she was told by the visiting nurse that the bruising was possibly a side effect from the Nexium prescribed for Avah’s reflux. She also told the worker that the visiting nurse was aware of the bruising and directed her to decrease the Nexium and then make an appointment to see the baby’s doctor. The worker testified that she found the bruising to be unusual; however, she accepted Ms. N.’s explanation and did not think it was a serious concern at the time. Ms. Nugent did not note any other bruising on any other part of Avah’s body before or after the photo was shown to her.
Ms. Nugent’s last home visit with Avah was on October 10, 2016. During that last home visit, she did note that Avah’s arms and body were stiff, but she also noted that Avah was enjoying the Jolly Jumper and using it appropriately. Avah was still having difficulty rolling over on a consistent basis. The following week Avah was rushed to the hospital and immediately removed from her parents’ care.
On November 4, 2016, Avah resumed her Birth to Three therapy and continued to progress. She was still on the increased dosage of Nexium and it was reported that she had not experienced any type of allergic reaction to the medication.
Michelle Macchio, Avah’s visiting nurse, testified at trial on behalf of the petitioner. On April 1, 2016, she opened her case on Avah. In her initial assessment, Ms. Macchio determined that even though Avah was a small baby at birth, she was born healthy. Her role would be to assess and monitor the growth and development of Avah.
Beginning in April 2016, the visiting nurse would go to the home twice a week and in July the visits would be once a week. During each visit, there would be a full assessment of the child. The nurse noted that in order for Avah to bulk up, it would be necessary for her to be on a formula high in calories and high in vitamins. It was noted that Avah did suffer from a significant reflux problem and it seemed that the Nexium helped significantly whereas previous attempts with reflux medications failed.
On April 28, 2016, the baby was prescribed Nexium. Her reflux improved and in May 2016, Avah’s Nexium prescription was increased to 2.5 mg twice a day. In early October 2016, it was noted that there was bruising in the child’s right ear, bruising on the right side of the face and a nose bleed. At this time, there was no change in the child’s Nexium prescription.
On October 6, 2016, Ms. N. called nurse Macchio to say that she was very upset about the bruising on the right side of Avah’s face. She sent a photograph of the child to the nurse. (State’s Exhibit O.) The nurse and Ms. N. discussed the possibility that the bruising was a rare side effect of the Nexium, however, the nurse testified that she had never seen anything like this before and the bruises only appeared on her face, never on her body. She told Ms. N. not to discontinue the Nexium, that it was important for Ms. N. to make an appointment with the doctor immediately. In fact, the visiting nurse called the pediatrician that night and made an appointment with Dr. Bowen for the next day. Ms. N. did not keep that appointment. There was testimony from Dr. Bowen’s office that confirmed the nurse’s concerns with regard to Avah’s bruising and it was confirmed that Ms. N. was aware of the appointment.
During the October 10, 2016, home visit, Ms. N. told the nurse that she made contact with the doctor’s office and that the doctor’s office informed her to cut back on the Nexium. (State’s Exhibit 2.) That information turned out to be untrue.
On October 11, 2016, the visiting nurse noted that the bruising had resolved itself. There was no further bruising noted and the child seemed okay. She testified that the child’s reflexes were good and that there were no concerns that the child suffered from a vitamin D deficiency because she was on a formula that contained the appropriate nutrients.
The visiting nurse had very little contact with Mr. L. She witnessed one incident when Mr. L. became upset with Ms. N. making a claim that Avah was not his child. Ms. N. also told the nurse that there were times she needed a break from Mr. L.
During her last visit with nurse Macchio, Ms. N. attempted to explain the bruising on Avah’s ear. She claimed that this injury could have been caused by Avah hitting her head and face on objects that were attached to her swing set. There was also testimony during the trial that some of Avah’s injuries could have been caused by her being placed in an exersaucer, a device commonly used by infants. The visiting nurse testified that she never remembered seeing an exersaucer in the respondent parent’s home. Ms. Macchio also testified that during her visits to the home, Ms. N. acted appropriately with Avah.
Dr. Erin Bowen, Avah’s pediatrician, testified at trial on behalf of the petitioner. Her initial assessment indicated that Avah was technically born full-term even though she was born at thirty-seven weeks. Avah experienced mild withdrawals from methadone and Xanax, but there was no trauma at birth and she was assessed to be a healthy baby. Avah, however, did experience significant reflux shortly after birth. At first, Dr. Bowen thought that the condition could be treated by supportive measures such as holding the baby in a certain position while burping her. When these supportive measures did not work, Dr. Bowen prescribed medication for Avah.
The initial medications and changes in formula did not produce positive results, therefore, on April 28, 2016, Dr. Bowen prescribed Nexium for Avah’s reflux condition. Avah’s reflux began to improve and she started to gain weight. In August 2016, Avah continued to gain weight and at that time, her prescription for Nexium was increased to 2.5 mg twice a day. In addition to treating Avah’s reflux, Dr. Bowen conducted routine checkups of the infant. This included head to toe examinations and regular measurements of Avah’s head growth. (State’s Exhibit C, Avah’s head and growth chart.)
All of Avah’s checkups indicated that she was developing normally and appropriately. There was no indication that Avah was vitamin D deficient. She was on a formula that contained all the necessary vitamins and nutrients. For the most part, Ms. N. was consistent in keeping her appointments with Dr. Bowen. In May 2016, there was a GI referral for Avah because she was not gaining weight. Ms. N. never took the child for that examination and Dr. Bowen had to intervene in order to set up a new GI appointment.
Ms. N. never took the child for the rescheduled exam. Despite the missed appointments, Avah did continue to gain weight and her checkups were normal until September 2016. On September 22, 2016, Ms. N. called the doctor’s office and expressed concerns that Avah’s weight was dropping and she had a fever. Dr. Bowen’s office scheduled an appointment for September 28, 2016. Ms. N. did not show up to the appointment. On October 7, 2016, the visiting nurse set up an appointment for Ms. N. to bring Avah into Dr. Bowen’s office. The purpose of this visit was to address the bruising that the nurse noticed on Avah’s face.
Ms. N. did not appear for the October 7th appointment. When she was asked by the visiting nurse about the October 7th visit, she stated that she called the doctor’s office and they told her to discontinue the Nexium. Dr. Bowen credibly testified that she never spoke to Ms. N. or directed her office to tell Ms. N. to reduce or discontinue the Nexium. At the trial, Dr Bowen was shown the photo of the marks on Avah’s face. (State’s Exhibit O.)
Dr. Bowen testified that she had never seen that type of bruising before on Avah and that her first assumption was that the bruising was not the result of the Nexium. She testified that a mark on the face alone would not be the side effect of the medication. The reaction to the medication would be more widespread rather than localized. When shown the picture of the bruising in Avah’s ear, Dr. Bowen testified that bruising, especially in an infant’s ear, is always a concern to all pediatricians.
Dr. Bowen also discounted the possibility that such an injury was caused by the swing set in which the baby often slept. Had Ms. N. brought the child in with any of these marks on her face, she would have immediately sent the child to the emergency room for an evaluation. She further testified that these types of marks on the face of an infant were a red flag for child abuse.
Dr. Bowen continued to see Avah after she was removed from her parent’s care. She testified that Avah was still on the same Nexium dosage earlier prescribed and that there were no new side effects, allergic reactions, or bruising noted with regard to the child.
On October 14, 2016, at approximately 5:40 p.m., police and emergency personnel responded to a 911 call at 63 Hazelwood Avenue, Bridgeport, Connecticut. The caller, who was the baby’s father, Mr. L., stated that he needed help, his baby was not breathing. Those who initially arrived at the scene described the infant, Avah L., as being nonreactive and nonresponsive. Her body was limp and she was not able to move her arms or legs. The attending medic was eventually able to get a response from the child.
The child was taken to a nearby hospital. Officer Mark Blackwell, Bridgeport Police Department, spoke to the baby’s father, Mr. L., and asked what happened. Mr. L. responded that he was watching the baby after her mother, Ms. N., had left for work. He stated that he had to use the bathroom and while in the bathroom, he left the baby on the bed in their bedroom. When he returned he found the baby, lying on her back, on the floor. He proceeded to call for help.
There was a great deal of testimony throughout the trial that the bed from which the child had fallen was approximately twenty-four inches high and that there was carpeting on the floor. The father, Mr. L., called Ms. N. at work and Ms. N. arrived at the home while the police and emergency responders were tending to the child. When Ms. N. arrived at the scene, she became very emotional. Ms. N. was not interviewed at this time.
On October 14, 2016, Dr. Lisa Pavlovic, Attending Pediatrician and Child Abuse Attending at Yale-New Haven Children’s Hospital submitted the following affidavit. (State’s Exhibit J.)
On 10/14/2016, I was consulted on the case of Avah L., a 6-month-old infant admitted to Yale-New Haven Children’s Hospital on 10/14/2016 with a subdural hematoma and facial bruises after an unwitnessed fall from a bed. As part of my evaluation, I have examined Avah, reviewed her medical records, interviewed mother alone and discussed her case with the medical staff at Yale-New Haven Children’s Hospital and with Chris Loesche, Daisy Barreiro and Michael Haas of the Department of Children and Families (DCF).
I interviewed mother, Britney N. on 10/15/2016. Britney stated that on 10/14/2016, she had left her home at 4:52 pm to go to work and left Avah and her 16-month-old sister in the care of bio-dad William L. At 5:35 pm Britney received a call from William L. that she did not answer. William then proceeded to call two more times and Britney picked up on the third call. Britney stated that William was crying on the phone and stated that Avah had fallen off the bed and was floppy so he called 911. Britney left work immediately and when she arrived home, the ambulance was already present. Britney said that William described to her that he had left Avah on the bed while he used the bathroom. He returned to find Avah lying on the floor and crying and that when he picked her up she was floppy.
Britney also gave a history of noting facial bruising since early October. She noted a bruise on Avah’s cheek, her ear, left wrist, and whole right side of her face. Britney stated that she had informed the visiting nurse of the bruises. Britney had attributed the bruising to a side effect to an increase in medication that Avah had been prescribed for her reflux call Nexium. (Id. ) I examined Avah on 10/15/2016. On physical examination, Avah had a bruise noted on her right cheek, left cheek and forehead, as well as an abrasion over her left eye. The rest of her physical examination was normal. Avah had a skeletal survey on 10/15/2016 read by two pediatric radiologists, Dr. Goodman and Dr. Graeber, which showed the following:
1. Healing transverse fracture of distal right femur (leg bone);
2. Acute buckle fracture of distal right tibia (lower leg bone);
3. Healing transverse fracture of proximal left tibia (lower leg bone).
Avah had an MRI of her brain and spine on 10/15/2016 which showed a left subdural hematoma with some mass effect on the underlying brain (blood pushing down on the brain). The MRI of the spine did not show any abnormalities. Avah developed seizures on 10/17/2016 and a repeat MRI of her brain was done which showed a right subdural hematoma with some mass effect on the underlying brain. Avah had a CT on her abdomen on 10/15/2016 which was normal. Avah had a dilated ophthalmologic examination on 10/15/2016 by Dr. Catherine Stoessel, an ophthalmologist at the Yale-New Haven Children’s Hospital, which showed bilateral retinal hemorrhages with the left eye having too numerous to count hemorrhages. (Id. )
In summary, Avah is a six-month-old infant with the following injuries:
1. Facial bruising;
2. Three fractures to include two healing fractures (greater than 7-10 days old) and one acute fracture (less than 7-10 days old);
3. Left and right sided subdural hematoma;
4. Extensive retinal hemorrhages.
It is my opinion that Avah’s injuries are due to severe physical abuse, to include abusive head trauma (violent shaking mechanism). In light of the fact that there exist both new and healing injuries, it is my assessment that more than one episode of abuse took place (Id. )
Dr. Pavlovic testified at trial that she consults on approximately 150 to 200 child abuse cases a year. She stated that less than half of these cases are determined to be physical abuse. The injuries are often the result of accidents or pre-existing medical conditions. Dr. Pavlovic followed the proper protocol when conducting her investigation. She obtained Avah’s medical history, reviewed all the records, spoke to Ms. N. and consulted with the medical staff at Yale-New Haven Hospital.
After reviewing all the relevant information, Dr. Pavlovic concluded that Avah’s injuries were not the result of an accident or a pre-existing medical condition. She testified that there was a significant history of bruising noted on Avah’s face including a nose bleed. The parents did not provide a plausible explanation for these injuries. Of particular concern was the fact that Ms. N. continued to claim that the Nexium was responsible for the bruising and that she was directed by the doctor’s office to reduce the medication. The fact that Ms. N. was not truthful about this information was of particular concern to Dr. Pavlovic.
Also noted was the fact that Avah did not have a bleeding disorder. Her lab work was normal. When Dr. Pavlovic was asked to look at the photos of Avah’s face (State’s Exhibits M5-M10), she testified that a fall from the bed could account for a single bruise, but in Avah’s case, there were multiple bruises with multiple planes of contact. When asked to comment on State’s Exhibit P, the photos of Avah’s face, Dr. Pavlovic testified that the photo of the bruising on Avah’s face was consistent with a slap mark. Dr. Pavlovic concluded that the Nexium and/or the fall from a bed could not explain all of Avah’s bruises.
Dr. Pavlovic went on to testify that there was additional information that had to be considered in this case. Not only did Avah experience significant bruising in the first six months of her life, when she was brought into Yale-New Haven Hospital on October 14, 2016, she also suffered from a subdural hematoma on the left side of her brain, retinal hemorrhaging, and three fractures, one acute and two healing that were determined to be seven to ten days old. Dr. Pavlovic testified that a subdural hematoma was not the type of head trauma that was consistent with a fall from the bed as described by the father, Mr. L., but instead, the trauma was the result of a violent shaking of the child. She also made a similar finding with regard to the severe retinal hemorrhaging that was found behind Avah’s eyes. Those injuries were also consistent with the child having been violently shaken.
With regard to the fractures, Dr. Pavlovic testified that two of them could not have occurred on the date Avah was brought into the hospital because they were in a healing stage. It was determined that they were greater than ten days old. She testified that these fractures could not have been the result of the fall from the bed as described by the father, Mr. L. These fractures were the result of a forceful tug, when the limbs were violently swung back and forth or by a direct blow to the limb.
Dr. Pavlovic testified that Avah had experienced seizures three days after her admission and this was due to the fact that Avah had experienced a brain injury. The seizures were caused by the shifting of blood on her brain. Dr. Pavlovic noted that Avah never experienced seizures before her admission to the hospital and she has not experienced seizures since her release. After reviewing all the information Dr. Pavlovic determined there were no genetic disorders, no history of seizures or bleeding and no finding that Avah suffered from any type of bone disease.
Dr. Pavlovic was asked to comment on the written findings made by Dr. Joseph Scheller, a board certified pediatrician and child neurologist, who wrote a report on behalf of the respondent parents. (Respondent Mother’s Exhibit M1.) Dr. Scheller opined that Avah’s two healing fractures were the result of a vitamin D deficiency. He stated in his report that infants who are low birth weight and who struggle to gain weight are at a risk for vitamin D deficiency. He stressed that vitamin D is essential for good bone health. (Respondent Mother’s Exhibit M1 p. 2.)
Dr. Pavlovic testified that even though Avah was not tested for a vitamin D deficiency, there was no reason to believe that a vitamin D deficiency led to the two leg fractures. The records indicated that Avah was formula fed and that the formula contained the appropriate vitamins and nutrients. Also, Dr. Pavlovic stated that a vitamin D deficiency can be seen in the X-rays. For example, the bones would look a certain way. Avah’s X-rays did not present with those issues.
Dr. Scheller indicated in his report that he did not see Avah’s right tibia fracture. (Id. at 2.) Dr. Pavlovic testified that two pediatric specialists from Yale-New Haven Hospital confirmed the presence of a right distal tibia fracture.
Dr. Scheller stated in his report that infants who were victims of abusive head trauma were often found to have brain injury, neck injury, acute rib and skull fractures, and scalp swelling. He reported that Avah had none of these. (Id. )
Dr. Pavlovic testified that if a child has retinal hemorrhaging and subdural hematomas then you have head trauma resulting from the child being solely shaken. If a child is severely shaken, you will not necessarily have the other injuries listed by Dr. Scheller.
Dr. Scheller stated that Avah had a chronic condition that allowed fluid to accumulate between her brain and skull, this caused her skull to grow from the 0.1 percentile of birth to the 60th percentile at the age of 6 1/2 months. The descriptive name for this chronic fluid collection is subdural hygroma. Subdural describes the location and hygroma describes the nature of the fluid collection. (Id. )
Dr. Pavlovic testified that many newborns have small heads, but all the records indicated that Avah’s head was developing normally. Avah was checked weekly and her head growth was charted. The charts showed a normal curve and arc for Avah’s head growth. (State’s Exhibit C.) There was no finding that Avah’s fontanel was abnormal. More importantly, Dr. Pavlovic could not understand how Dr. Scheller could diagnose Avah with a chronic condition such as subdural hygroma without the appropriate medical testing. There was no CAT scan or MRI that indicated Avah suffered from this chronic condition.
Working under the assumption that Avah had this chronic condition, Dr. Scheller continued with the following: Subdural hygromas of infancy are usually benign, but they can occasionally cause small subdural hemorrhages following minimal head trauma. These occur for two reasons- first, small vessels that course from the inner skull to the brain’s surface are stretched by the fluid accumulation and can tear and leak blood. Second, the body attempts to wall off the fluid collection and builds a membrane. This membrane is vascular and can leak blood as well, and is clearly visible on Avah’s head CT scan on 10/14. Avah’s acute subdural hemorrhage of 10/14 developed as a complication of her chronic subdural hygroma and was likely triggered by her accidental fall. The impact of her head on the floor stretched already tense blood vessels and made them leak blood in the subdural space. Avah demonstrated this propensity towards subdural bleeding while she was in the hospital as well. On her CT scan of 10/14 and her MR of 10/15, she did not have blood noted along the midline falx (skin) that separates her two hemispheres. This developed some time on 10/16 or 10/17, and was noted on the repeat head MR study of 10/17. It would be far-fetched to imagine that Avah was abused while in the hospital. (Id. at 3.) Avah’s hemorrhages of 10/14 and then again of 10/17 irritated the surface of her brain and triggered seizures. These resolved as the blood dissipated. (Id. )
Dr. Pavlovic once again testified that there was no such history that Avah suffered from chronic hygroma or that she had a propensity for subdural bleeding.
In his report, Dr. Scheller stated that Avah was found to have elevated liver enzymes on 10/14. This finding is consistent with a fall and with mild injury to her liver due to impact. (Id. )
Dr. Pavlovic testified that a CAT scan of Avah’s abdomen did not show anything grossly abnormal. There was no significant injury or trauma related to the liver. There was no chronic condition that made Avah more susceptible to liver damage.
Dr. Pavlovic testified that you cannot piecemeal the injuries as suggested by Dr. Scheller. Instead, you must look at the child as a complete person. Avah was a very small infant who did not have the dexterity, the weight or the strength to cause her own injuries. Her injuries were not caused by the use of the Jolly Jumper or a swing set where she often slept. Dr. Pavlovic seriously questioned whether Avah had the motor skills necessary to roll over on the bed and then fall onto the floor as stated by her father, Mr. L. Due to the serious nature of the injuries, the history of bruising, the acute fracture, the healing fractures, the parent’s inability to explain the injuries and Ms. N.’s deception regarding the Nexium, Dr Pavlovic concluded with a reasonable degree of medical certainty that Avah had been the victim of abuse.
Dr. Brendan Graeber, an expert in pediatric radiology, testified at trial on behalf of the petitioner. He conducted a full evaluation of Avah after she was admitted to the hospital. The evaluation included a chest X-ray, a skeletal survey of her entire body, CAT-scan of her head and an MRI of the brain and spine. (State’s Exhibit Q1.)
The X-rays, which were shown in the courtroom, detected fractures of the long bones of the lower extremities. With regard to the leg fractures, Dr. Graeber was able to demonstrate what a healthy bone looks like compared to one that had been recently fractured or one that was recently healing. In Avah’s case, he clearly noted a healing of the right femur where the bone bulges which is indicative of a buckle fracture. He compared Avah’s damaged right femur to her healthy left femur which showed a normal smooth contour shaft down to the end of the bone. Dr. Graeber testified that the healing fracture was more than a week old and this type of fracture is typically caused by force.
With regard to Avah’s left tibia, Dr. Graeber was able to show the court the fracture pattern where the bone buckled. He compared it to her right tibia which had a smooth normal contour. This fracture was also in a healing state. Dr. Graeber also showed the court an additional fracture located at the lower end of Avah’s right tibia. This was deemed to be an acute non-healing fracture of the distal right tibia ankle that occurred within the last seven days of her admission.
Dr. Graeber discussed the results of the CAT scan of Avah’s head and her brain that was taken on October 14, 2016. The exam showed a collection of blood in the subdural space between Avah’s skull and her brain. This was more prominent on the left side of Avah’s brain. Dr. Graeber testified that the right side was normal, the grey dark matter running through the brain is spinal fluid. On the left, the bright material located between the skull and the brain is blood. That is blood pushing the brain away from the skull separating the brain from the skull. This injury is known as a subdural hematoma. An MRI of Avah’s head, taken on October 15, 2016, showed a small amount of blood detected on the right side of her brain. An additional MRI taken on October 17, 2016, indicated the presence of more blood on the right side of Avah’s brain. Dr. Graeber explained that detection of more blood on the right side of the brain was possibly the result of the child shifting her head causing the blood to redistribute from the left side to the right side.
Dr. Graeber determined there was no pre-existing condition that could account for Avah’s head injuries. When asked to describe to the court what mechanism was necessary to cause this type of injury, he indicated any type of blunt trauma could cause such an injury. An example of blunt trauma could be a child who struck his head on the refrigerator door.
Dr. Graeber also testified that a subdural hematoma could be caused by a rapid acceleration and deceleration motion. This can happen when a child is shaken or suffers whiplash such as in a motor vehicle accident. When asked to comment on whether a six-month-old toddler could sustain these injuries as a result of a fall from the bed, he testified that it was possible, but concluded when you consider the spectrum of injuries, the nature of the fractures, the retinal hemorrhaging and the subdural hematomas, it was highly unlikely that these injuries were caused from a fall from the bed.
Dr. Graeber was questioned about the findings made by respondent mother’s expert, Dr. Jack Levenbrown, an expert in pediatric radiology. (Respondent Mother’s Exhibit M2.) In his report, Dr. Levenbrown stated that he had reviewed the Yale-New Haven X-rays with regard to Avah’s injuries. Under section C, he noted possible buckle fracture medial aspect of distal RIGHT tibia with question of calcification of healing laterally. (Id. at 2.) Dr. Graeber testified that was not what he reported, instead, he noted an acute non-healing fracture of the distal right tibia.
Dr. Levenbrown stated in his report that these minor fractures would be caused by an axial force going up the legs and are not the type of fractures associated with abusive injuries. (Id. at 3.)
Dr. Graeber agreed with Dr. Levenbrown to the extent that this may be true with children who are older and ambulatory. However, when a non-ambulatory infant presents with long bone fractures, it should be viewed with suspicion.
Dr. Levenbrown stated in his report that Avah’s use of the Jolly Jumper and/or exersaucer device could be responsible for the minor fractures. (Id. at 3.)
Dr. Graeber viewed the video of Avah bouncing in the Jolly Jumper. (State’s Exhibit W.) Dr. Graeber concluded that you needed a much more significant force than that which was demonstrated in this video to cause the fractures that Avah sustained. He noted that Avah’s legs were relatively elevated, that she was bouncing on the balls of her feet using her toes and not striking her heels.
Dr. Graeber was then asked to comment on the findings of Dr. Scheller. (Respondent Mother’s Exhibit M1.) With regard to the issue of the vitamin D deficiency, Dr. Graeber testified that even if Avah had a mild vitamin D deficiency, she would not be susceptible to these minor fractures. Moreover, Dr. Graeber performed a full skeletal exam of Avah and concluded that Avah’s bones looked nice and dense. There was no finding of any bone disease.
Dr. Graeber was also asked to comment on Dr. Scheller’s finding that Avah suffered from subdural hygroma that he claimed made her more susceptible to subdural hemorrhaging. Dr. Graeber completely disagreed with this finding and testified that the CAT scan of Avah’s head showed no signs of this chronic condition. He also concluded there was no evidence of an aneurysm, no evidence of bleeding in the brain, no evidence of a blood clot, no evidence of a stroke and no evidence of any other abnormalities.
Dr. Michael DiLuna, Chief of Pediatric Neurosurgery at Yale-New Haven Hospital, testified at trial on behalf of the petitioner. He was one of Avah’s admitting physicians when she was transferred from Bridgeport Hospital. He was able to review and assess her medical records. Upon her arrival at Yale-New Haven Hospital, Dr. DiLuna conducted a physical exam of Avah and then ordered a CAT scan of Avah’s brain and spine and an MRI which involved a skeletal survey and a series of X-rays of her whole body. He noted the following findings: a bulging fontanel and bleeding under the skull (subdural hematoma). Although most of the blood was detected on the left side of the head, there was also blood detected on the right side of Avah’s skull.
Dr. DiLuna also noted a lack of symmetry between the right and left side of Avah’s brain. This condition is known as a midline shift process called herniation. If this condition were to progress it could be fatal. After conducting a thorough and extensive examination of Avah, Dr. DiLuna concluded the following: no stroke, no skull fracture, no abnormal blood vessels, and no congenital abnormalities. Other than the injuries noted, her brain was symmetric and intact.
Dr. DiLuna testified that there were three ways for a child to sustain a subdural hematoma: (1) trauma, (2) bleeding diaphysis which involves clotting factors, for example, if the child had hemophilia and the blood is not clotting properly, and (3) abnormal blood vessels could be a factor, but they would not typically cause an isolated subdural hematoma.
Dr. DiLuna testified that the MRI results taken on October 15, 2016, showed that the clot was doing two things, it was aging and the blood was redistributing around the brain. This was a positive sign that Avah was in the healing process.
Dr. DiLuna was then asked what type of force or mechanism would cause a subdural hematoma. He stated there were a few things that could cause that type of injury. One cause could be the rapid acceleration and deceleration of the head where the head is moving at a high speed and then comes to an abrupt stop or reverses direction. He also testified that a significant blow to the head could cause a subdural hematoma, although this would be highly unlikely. Moreover, a significant blow to the head would more than likely cause a skull fracture and there would be a lot of bruising and swelling on the outside of the head.
Dr. DiLuna was presented with the following hypothetical question: assume you left a child on a bed that was two feet off the ground, the child fell off the bed onto a carpeted floor landing on her back, assume Avah was approximately six months old only, rolling intermittently, showing some signs of delay requiring Birth to Three services. Given that information, could you give an opinion on the probability of what the mechanism was that caused the injuries presented on October 14, 2016.
Before stating his expert medical opinion, Dr. DiLuna stated that every week at Yale-New Haven Hospital he is consulted on between 2 to 15 kids (under twelve months) who either role off changing tables, flip over in a shopping cart, get jumped on by a dog and parents tripping going down stairs while holding their child. In these cases you are more than likely to see skull fractures and swelling around the head. It would be extremely rare for a child of Avah’s size and weight, falling from a bed onto a carpeted floor, having that much bleeding on her brain. This type of injury is more likely caused by a rapid accelerating and decelerating motion of the head.
He then concluded with a reasonable degree of medical certainty that a subdural hematoma alone could not be ruled out as accidental or non-accidental, however, he concluded that when you consider this finding in conjunction with the other findings such as retinal hemorrhaging and the fractures to Avah’s legs, you have injuries that are non-accidental. He testified: this child was " beaten up."
When asked to review and comment on the written findings of Dr. Scheller, Dr. DiLuna testified as to the following: Avah did not sustain a new subdural hematoma as dictated by the MRI dated October 17, 2016. It was only new because radiology had dictated it was new. The subdual hematoma Dr. Sheller claimed was new was seen on the previous CAT scan. Avah did not suffer from a significant vitamin D deficiency that would explain her leg fractures. Dr. DiLuna testified that approximately sixty percent of children have low vitamin D. It is more common in children who are breast fed as compared to those who are on formula. Avah was formula fed. There were no X-rays, MRIs, or CAT scans that showed that Avah had any type of bone disease that were vitamin D related. He stated that if low vitamin D was responsible for stress fractures in children, the hospitals in this country would be experiencing an epidemic. That simply has not occurred.
Dr. DiLuna opined that Avah did not suffer from a pre-existing medical condition, as claimed by Dr. Scheller, where she had excess fluid between the surface of her skull and her brain thus making her more susceptible to experiencing a subdual hematoma from a fall off the bed. In fact, Dr. DiLuna brought in an image of another child’s brain where excessive fluid was present. (State’s Exhibit Q.) He compared that image to the image of Avah’s brain. It was clear from the comparison and the testimony that Avah did not suffer from a genetic or pre-existing condition where she had an excess amount of fluid around her brain.
Dr. DiLuna stated that children who have this condition usually have huge heads and inherit this condition from parents who are similarly situated. Dr. DiLuna reviewed the records with regard to Avah’s head growth and development. (State’s Exhibit C.) He determined that Avah did not have the typical head circumference for the presence of excessive fluid. Dr. DiLuna also testified that assuming a child has excess fluid around the brain, they would be more likely susceptible to a subdural hematoma by means of an abrupt rotational movement rather than by a fall from a bed.
In his report, Dr. Scheller claimed that subdural hygromas of infancy are usually benign, but they can occasionally cause small subdural hemorrhages following minimal head trauma. He claimed these occur for two reasons- first, small vessels that course the inner skull to the brain’s surface are stretched by the fluid accumulation and can tear and leak blood. Second, the body attempts to wall off the fluid collection and builds a membrane. This membrane is vascular and can leak blood as well, and it is visible on Avah’s CT scan of 10/14. Avah’s acute subdural hemorrhage of 10/14 developed as a complication of her chronic subdural hygroma, and was likely triggered by her accidental short fall. The impact of her head on the floor stretched already tense blood vessels and made them leak blood into the subdural space. (Respondent Mother’s Exhibit M1, p. 3.)
Dr. DiLuna completely disagreed with this finding and further claimed that it did not make any sense. First of all, there was no medical record or testing that demonstrated Avah had subdural hygroma. He stated that Dr. Scheller was clumping together medical terms that don’t exist. The condition he is referring to usually occurs with older people who experience large hematomas on the brain. When there is a lot of bleeding outside the brain, a membrane, which is a tough piece of tissue, will surround the clot. That membrane could cause additional leakage. The fluid would be blood, not water; hygroma refers to water. With regard to Avah, there was a new blood clot on her brain, which would not have had enough time to form a membrane. Once again, Dr. DiLuna stated that Dr. Scheller was incorrect in his finding that Avah suffered from a pre-existing condition that indicated excess fluid on her brain.
In his report, Dr. Scheller stated that: Avah demonstrated this propensity towards subdural bleeding while she was in the hospital as well. On her CT scan of 10/14 and her MR of 10/15 she did not have blood noted along the midline falx (skin) that separates her two hemispheres. This developed sometime on 10/16/ or 10/17, and was noted on the repeat head MR study of 10/17. It would be far-fetched to imagine that Avah was abused while in the hospital. (Id. at 3.)
Dr. DiLuna testified that Avah did not have any type of bleeding disorder. The hospital performed all the necessary tests with regard to this issue and the testing showed that her platelet count was normal, there was no blood clotting disorder noted and there were no pre-existing membranes that showed a propensity for bleeding.
In his report, Dr. Scheller stated that: Avah’s hemorrhages of 10/14 and then again of 10/17 irritated the surface of her brain and triggered seizures. These resolved as the blood dissipated. (Id. at 3.) Avah was found to have elevated liver enzymes on 10/14. This finding is consistent with a fall, and with mild injury to her liver due to impact. (Id. )
Dr. DiLuna agreed with Dr. Scheller with regard to the issue involving Avah’s seizures, however, he categorized the reference to the elevated liver enzymes as a non-specific finding. In his report, Dr. Scheller stated: Avah was found to have retinal hemorrhages in both eyes, worst in the left. Retinal hemorrhages are a non-specific finding and can be seen wherever there is increased intracranial pressure and intracranial hemorrhage (Avah had both conditions). (Id. )
Dr. DiLuna took exception to Dr. Scheller’s finding that the retinal hemorrhages in both of Avah’s eyes were non-specific and can be seen wherever there is increased intracranial pressure and intracranial hemorrhage. Dr. DiLuna testified he has seen many cases where patients who suffered from increased intracranial pressure did not experience retinal hemorrhaging. He concluded that retinal hemorrhaging does not occur after a small incidental head trauma. Instead, he concluded that retinal hemorrhages are very specific to a rotational acceleration and deceleration motion.
Dr. Brian Smith, Pediatric Orthopedic Surgeon at Yale-New Haven, testified at trial on behalf of the petitioner. He treated Avah after her injuries in October and conducted a follow up visit in his office. He had access to all her medical records which included tests, X-rays, radiographs and lab work. He found that there were no pre-existing conditions or abnormalities to her bones that made her susceptible to the fractures previously noted. Dr. Smith was asked to review the report prepared by Dr. Jack Levenbrown on 5/16/17. (Respondent Mother’s Exhibit M2.)
In his report Dr. Levenbrown stated: This almost 7-month-old infant girl sustained two to three minor fractures of the legs, with the lower right femur and upper left tibia fractures shown faint periosteal elevation, making these fractures about seven days old. The lower right tibia may have a faint buckle fracture of indeterminate age, possibly 7 to 10 days old. These minor fractures would be caused by an axial force going up the legs, and are NOT the type of fractures associated with the abusive injuries. (Id. at 3.)
Fractures associated with abusive injury include spiral fractures of long bones, as well as so-called Classic Metaphyseal Lesions which are avulsion fractures of the metaphyseal ends of the bones due to twisting injury. (Id. )
In Avah’s case, the minor buckle and minor impacted fractures could have been caused by an unreported fall with the point of impact being the bottom of the foot, or a fall with impact force going up a flexed knee. See article by Dr. Suzanne B. Haney in Pediatric Emergency Care 2009: Vol. 25: (12) 841-44. (Id. )
Alternatively, the minor fractures may have been accidentally caused by the infant being in a Jolly Jumper or an Exersaucer Device. (Id. )
The short video clip that I reviewed showed Avah in a Jolly Jumper and placing the entire sole of her foot on the ground and pushing off and these repetitive motions in developing bones may have generated axial forces which resulted in the minor fractures. (The Instructions from the Jolly Jumper Company cautioned that the length of the seat should be adjusted so ONLY the tips of the toes are touching the ground.) Likewise, the Exersaucer Device has been known to result in fractures as reported by Dr. Penny Grant in Pediatrics 2001: Vol. 108; 1009-12. The fractures illustrated in the article were even more dramatic than the buckle fractures in Avah’s case. (Id. )
Dr. Levenbrown concluded: Avah, almost 7 months of age, was reported to have fallen off a bed and sustained a subdural hematoma in the head. I will not be commenting on the subdural or the CT and MRI scans of the head. (Id. )
However, it is my opinion, to a reasonable degree of medical certainty, that the two or three minor fractures of the legs which the infant sustained are consistent with accidental injury such as from an unreported fall approximately one week prior to the 10/15/16 X-rays or from the repetitive axial forces generated by slightly improper use of the Jolly Jumper device. The use of an Exersaucer could have caused minor fractures of these types. (Id. ) These types of buckle fractures are slightly impacted fractures that have an extremely low probability of being from abusive trauma. (Id. )
Dr. Smith testified that the fractures Avah sustained would not be common for a child who is non-ambulatory. When shown the video of Avah in the Jolly Jumper, Dr. Smith concluded that Avah was not only developmentally delayed, she did not have the age, the size, the weight, or the body mass to create and generate enough force to cause these type of injuries.
As far as the case study cited in Dr. Levenbrown’s report, Dr. Smith testified that the study cited two cases where the two children, under the age of 12 months, suffered high physeal leg fractures that were attributed to the exersaucer. The children had no other injuries. The study was done in 2001 and there were no follow up studies. In Avah’s case, Dr. Smith determined that her injury was a fracture from the physic to the metaphysic. She did not appear to have a physical injury. Dr. Smith concluded that the fractures cited in the study were not the same type of fractures that Avah sustained.
Dr. Smith was shown all the state’s exhibits as they related to Avah’s bruising and then asked if this child was presented to him in his office with these injuries, even with no fractures, would it be a concern to him. Dr. Smith responded that it would be a concern and the bruises should be investigated. When shown the photo of Avah’s face (State’s Exhibit P), he testified that particular bruise on Avah’s forehead looked potentially like a hand print or finger mark on the face. Moreover he testified that the hand print was most likely produced by an adult or a child who was between the age of ten and fourteen.
Dr. Smith has seen Avah since she has been removed from her parent’s care. All the X-rays indicated she was healing well, walking, and experiencing no further issues as they relate to her bone growth.
Dr. Kathleen Stoessel, Avah’s treating Ophthalmologist, testified at trial on behalf of the petitioner. She conducted an evaluation of Avah on October 15, 2016, the day after she was admitted to Yale-New Haven Hospital. Before conducting the examination, she was informed that the child had sustained retinal hemorrhages in both eyes and that the injuries were possibly non-accidental.
In order to conduct the examination Avah’s eyes were dilated by using eye drops. The eyes were then numbed so Dr. Stoessel was able to conduct a thorough exam of both retinas by using a scope. When testifying, Dr. Stoessel referred to her retinal notes and slides of Ret cam photos. (State’s Exhibits K and L.) She placed an image of a child with normal eyes next to an image of Avah’s scan. In Avah’s right eye, she noted a few small retinal hemorrhages, but in the left eye she noted extensive intra-retinal hemorrhages, too many to count.
After giving a detailed medical description of what was occurring in Avah’s eyes as a result of the hemorrhaging, Dr. Stoessel opined that these injuries were caused when the baby’s head was shaken. The vitreous (jelly like substance that fills the eyeball) was moving in such a way that accelerating and decelerating forces were causing the vitreous to pull away from the retina, resulting in the hemorrhages. When asked what other conditions could cause retinal hemorrhages, she stated that blood disorders, leukemia, anemia, infections, and abnormal vessels in the retina could cause this condition. To the best of her knowledge, no infections or blood disorders were noted with regard to Avah.
Dr. Stoessel was asked to review Dr. Scheller’s report. She did not agree with his statement that the retinal hemorrhages were non-specific and were more likely the result of intracranial pressure or intracranial hemorrhages. She testified that retinal hemorrhaging can occur when there is intracranial pressure and intracranial hemorrhages, but they did not present like this in Avah’s case. When retinal hemorrhages are the result of increased intracranial pressure or intracranial hemorrhages, they present as small and swollen around the nerve. If you look at Avah’s left eye, her nerve is not swollen, that would always be present with intracranial pressure. Also, you would not have the extensive amount of hemorrhages that Avah had sustained. Dr. Stoessel concluded that Avah’s retinal hemorrhages were not the result of intracranial pressure or intracranial hemorrhages.
On September 5, 2017, Dr. Joseph Scheller, a pediatric neurologist, testified on behalf of the respondent parents. Dr. Scheller testified that in the case of Avah L., he reviewed all the medical records including birth records, pediatrician records, ER visits and hospitalizations. He reviewed the X-rays and brain images including CT scans and MR scans. Dr. Scheller stood by his findings as stated in Respondent’s Exhibit M1.
Dr. Scheller testified that Avah experienced rapid head growth in the first six months of her life. At birth, her head circumference was measured in the 0.1 percentile range. At 6 months, she was measured in the 60th percentile range. He testified that this was an extremely rapid head growth rate and when the head is growing faster than expected that usually causes a fluid circulation problem. There are fluids (spinal fluid) that circulate both inside and then outside the brain. If those fluids get backed up or the drainage system gets clogged, then the fluids begin to expand the skull. He testified that this condition is called hydrocephalus, it simply means too much fluid inside the skull. He stated that in Avah’s case the fluid buildup has been there for months. He concluded that Avah suffered from this chronic condition that allowed fluid to accumulate between her brain and skull.
Dr. Scheller’s trial testimony was consistent with his written report (Respondent Mother’s Exhibit M1, p. 3) where he stated that subdural hygromas of infancy are usually benign, but they can occasionally cause small subdural hemorrhages following minimal head trauma. He claimed these occur for two reasons- first, small vessels that course the inner skull to the brain’s surface are stretched by the fluid accumulation and can tear and leak blood. Second, the body attempts to wall off the fluid collection and builds a membrane. This membrane is vascular and can leak blood as well, and it is visible on Avah’s CT scan of 10/14. Avah’s acute subdural hemorrhage of 10/14 developed as a complication of her chronic subdural hygroma and was likely triggered by her accidental short fall. The impact of her head on the floor stretched already tense blood vessels and made them leak blood into the subdural space.
Dr. Scheller testified that infants who were victims of abusive head trauma were often found to have brain injury, neck injury, acute rib and skull fractures and scalp swelling. He testified that a neck injury is something that you might suspect in a child who has been shaken violently and has been subjected to a whiplash type of motion. Avah had none of these injuries. He testified that it was in the realm of possibility that a violent person hit Avah on the head and caused her to have this subdural hemorrhage, but because there was an absence of these other findings, he believed it was more likely that a pre-existing condition allowed a short accidental fall to cause her to have the subdural hemorrhage and that it wasn’t the result of a violent act.
Dr. Scheller also testified that Avah demonstrated a propensity towards subdural bleeding while she was in the hospital as well. When asked to explain why there was new blood on October 17, 2016, Dr. Scheller testified that what was happening was the brain was trying to create a wall in between where there was something that doesn’t belong and where there was something that does belong, so the brain is creating a membrane. That membrane is very vascular, it’s building something. When you build something you need a lot of recruiting cells to get there to help build it. That comes because new blood vessels are being formed to create something. Whenever there are new blood vessels, they are very fragile and can leak, so this new blood represents leaking from the small blood vessels that are trying to create a membrane.
Dr. Scheller also explained that Avah had been subjected to many tests and exams while in the hospital and that the constant movement could have caused these very sensitive blood vessels to leak causing more bleeding. He testified that the blood noted in the midline falx was new blood and that dissipating settling blood from the acute subdural hematoma would more likely move to the back of the brain.
Dr. Scheller testified that Avah was found to have elevated liver enzymes on 10/14. This finding is consistent with a fall and with a mild injury to her liver due to impact.
When Dr. Scheller reviewed Avah’s X-rays, he did not see a right distal tibia fracture. He did acknowledge that there were healing fractures, but they were not related to the events of October 14, 2016. He also testified that infants who are low birth weight and who struggled to gain weight are at risk for vitamin D deficiency and are more susceptible to fractures. He was surprised that Yale-New Haven did not test for vitamin D deficiency, but did acknowledge there was no bone disease detected in Avah’s X-rays.
Dr. Scheller testified that Avah had no sign of rickets. Although he testified that the healing fractures could be a symptom of low vitamin D, he conceded that they could also be a symptom of abuse. On cross examination, he testified that approximately one-quarter to one-half of children Avah’s age are vitamin D deficient, however, most of them do not sustain the types of fractures as seen in Avah’s case. He conceded that this was an unusual event.
With regard to the retinal hemorrhages in both of Avah’s eyes, Dr. Scheller stood by his report and stated that these were non-specific findings and that retinal hemorrhages can be seen wherever there is increased intracranial pressure and intracranial hemorrhages. Avah had both those conditions. He testified that Avah had more severe hemorrhages on the left side, in her left eye, and she had very mild retinal hemorrhages on the right side, in her right eye. He testified that it was possible that retinal hemorrhages could be caused by a baby being shaken, but he also stated that you would have to explain why one side had the severe bleeding and not the other. You can’t shake one eye and you can’t shake one-half of the head. You would have to explain why there was only blood in one-half of the head and not on the other half.
Dr. Scheller testified that he was familiar with the traction theory of retinal hemorrhages, which was very popular in the child abuse world. The theory states that if a violent person takes a baby and shakes the baby back and forth, that act of violent shaking can cause brain bleeding and that violent shaking can actually tear apart the inside of the eyeball causing retinal hemorrhages. Dr. Scheller does not subscribe to that theory. He also disagreed with Dr. Pavlovic’s conclusion that Avah suffered a brain injury. He agreed that there was something going on in between the brain and the inside of the skull and other than the brain being squeezed a bit, nothing actually happened to the brain at all. He concluded that Avah’s injuries were the result of an accidental or incidental type of occurrence.
On cross examination, Dr. Scheller conceded he was not certified in the field of child abuse pediatrics and he has not taught any courses or published any significant papers within the medical community. He has not received any awards for his service as a neurologist and has never achieved tenure in the academic community. In the past, he has testified as an expert, on behalf of landlords, that neurological conditions caused to children were not the result of lead poisoning.
Dr. Scheller has never been hired by a prosecuting attorney in a criminal or a family court case. In fact, he presented at a conference for public defenders where he provided knowledge about the most up-to-date medical conditions that mimic medical findings presumed by the pediatric community to be diagnostic of child abuse as well as the nuts and bolts for how to approach a case of alleged non-accidental abuse by a parent.
Dr. Scheller does not accept the diagnosis of abusive head trauma as recognized by the American Academy of Pediatrics, the Academy of Family Physicians, and the American Association for Pediatric Ophthalmology, the American Association of Neurological Surgeons, the American College of Radiology, and the American College of Surgeons. Despite the fact that this diagnosis is widely accepted in the medical community that a child can suffer injury in or about the head or within the skull by a violent shaking, Dr. Scheller maintains the contrary minority viewpoint.
Dr. Scheller was then asked to comment on the policy statements of the American Academy of Pediatrics. (State’s Exhibit B.) He agreed that abusive head injury is the most common cause of death as a result of physical abuse. He agreed that the clinical manifestations of abusive head injury are often nonspecific. He agreed that the history of trauma issues were not forthcoming and external signs of injury such as bruising may be minimal or absent. He agreed that retinal hemorrhages are frequently noted in children with abusive head injuries in sixty to eighty-five percent of the retrospective studies. The policy statement goes on to say that although retinal hemorrhages had been reported in other cases, those associated with abusive head injury are characteristically numerous, involve multiple layers of the retina, and extend beyond the posterior pole of the peripheral retina. Despite the findings of the policy statements, he disagreed with the findings and conclusions of Dr. Stoessel.
Dr. Scheller also co-authored an article that indicated in non-accidental trauma, retinal hemorrhages have been reported in forty-seven to one hundred percent of children and are most frequently found in both eyes diffusely, involving all layers of the retina and extending to the periphery. He agreed that this was the type of retinal hemorrhages found in Avah’s left eye. The article also indicates that retinal hemorrhages rarely occur in accidental trauma and when present are predominately unilateral, few in number, and located in the back of the retina. They’re not over the entire retina. In a particular case cited in the study, the child in question also had partially healing bones and in that case the child was diagnosed with non-accidental head trauma.
Dr. Scheller also conducted another study entitled moderate bilateral retinal hemorrhages in an infant following a shortfall. In that study, the author indicated that this type of injury was uncommon in infants following accidental head traumas. In that case, the child had a non-depressed skull fracture, and underneath that fracture site, there was a hemorrhage as well. The study also stated that retinal hemorrhages in infants have been attributed to vitreoretinal traction meaning shaking or acceleration or deceleration. In that study, he concluded there was no evidence of shaking.
With regard to cutaneous bruising, the study stated bruising in a non-ambulatory infant is rare. Any bruise to a young infant should raise concerns of either trauma or bleeding diathesis. Dr. Scheller disagreed with the word rare. In Avah’s case, Dr. Scheller was asked to look at the bruises on Avah’s face. (State’s Exhibit O.) As a pediatrician, he testified that finding such bruising on a non-ambulatory child would be a concern. However, he could not say whether or not they were the result of abuse and he could not connect them to the acute subdural hemorrhage. He did agree that you have to look at the whole child in order to determine the cause of her injuries. He testified that if confronted with the injuries Avah had sustained, he would be concerned. He conceded that any bruise on an infant or broken bone in an infant could be a possible sign of abuse. At the end of his testimony, he did not concede, when presented with all the facts concerning Avah’s injuries, that it was reasonable and probable that she was abused.
In 2008, Dr. Scheller wrote an article about getting the whole story in medicine. He testified that it was important to get all the information before rendering an opinion. However, in this case, he never personally examined Avah nor did he speak to any of the doctors who treated her. He never interviewed Ms. N. and he never interviewed Mr. L.
On September 6, 2017, Dr. Jack Levenbrown, a board certified pediatric radiologist, testified as an expert on behalf of the respondent parents. (Respondent Mother’s Exhibit M2.) During his career, Dr. Levenbrown had testified on behalf of the prosecution as well as the defense. He testified that he received from Yale-New Haven Hospital all of the X-rays, CAT scans and MRIs that were related to Avah’s case. He also reviewed a video clip of Avah in a Jolly Jumper.
Dr. Levenbrown testified that Avah sustained two or possibly three minor fractures of the legs, with the lower right femur and upper left tibia fractures showing faint periosteal elevation, making these fractures about seven days old. He stated the lower right tibia may have a faint buckle fracture of indeterminate age, possibly seven to ten days old. He did not agree with the radiologist at Yale-New Haven that Avah suffered an acute fracture of the right tibia and fibula. He testified that he observed a tiny piece of bone, but it was difficult to see, he doubted whether it was a fracture at all. He testified that these minor fractures would be caused by an axial force going up the leg, and are not the type of fractures associated with abusive injuries.
Fractures associated with abusive injury include spiral fractures of long bones, as well as so-called Classic Metaphyseal Lesions, which are avulsion fractures of the metaphyseal ends of the bones due to a twisting injury. Dr. Levenbrown testified that Avah’s fractures were not the result of a twisting injury. A twisting injury would cause a spiral fracture. He stated that in Avah’s case there was a buckle fracture. This type of fracture was more likely caused from a shortfall rather than from being hit or beaten. In his report, (Respondent’s Mother’s Exhibit 4) Dr. Levenbrown stated:
The minor buckle and minor impacted fractures could have been caused by an unreported fall with the point of impact being the bottom of the foot, or a fall with impact force going up a flexed knee. See article by Dr. Suzanne B. Haney in Pediatric Emergency Care 2009: Vol. 25: (12) 841-44. (Id. at 3.) Alternatively, the minor fractures may have been actually caused by the infant being in a Jolly Jumper or an exersaucer device. (Id. )
Dr. Levenbrown explained that the short video clip that he reviewed showed Avah in a Jolly Jumper and showed her placing the entire foot on the ground pushing off. He reported that these repetitive motions in developing bones may have generated axial forces which resulted in the minor fractures. Instructions from the Jolly Jumper Company cautioned that the length of the seat should be adjusted so only the tips of the toes are touching the ground. Likewise, the Exersaucer device has been known to result in fractures as reported by Dr. Penny Grant in Pediatrics 2001: Vol. 108; 1009-12. The fractures illustrated in the article were even more dramatic than the buckle fractures in Avah’s case. (Id. )
Dr. Levenbrown testified that he could not find any literature to support his theory with regard to the Jolly Jumper. Also there was no testimony as to when this video clip was taken and there was no evidence that an exersaucer was found in the parent’s home.
He concluded to a reasonable degree of medical certainty, that the two or three minor fractures of the legs that the infant sustained are consistent with accidental injury such as from an unreported fall approximately one week prior to the October 15, 2016 date or from the repetitive axial forces generated by slightly improper use of the Jolly Jumper device. The use of an exersaucer could have caused minor fractures of these types. He stated that these types of buckle fractures are slightly impacted fractures; he asserted that they have an extremely low probability of being from abusive trauma.
On cross examination, Dr. Levenbrown testified that he was not board certified in child abuse pediatrics, which is a highly specialized field. He also testified that he did not talk to any of the physicians involved in Avah’s care and treatment nor did he talk to the respondent parents.
Dr. Levenbrown was asked to comment on a study conducted by Dr. Grant, which he cites and relies on in his written report. (Father’s Exhibit 1.) The study discussed femur fractures in infants by use of an exersaucer. There were only two cases reported. In one case it talks about a seven-month-old infant, in the other case it mentions a four and a half-month-old infant. In each case, there were no other injuries noted in these children. Both children suffered from an acute oblique distal femur fracture involving the physeal plate. The fractures were not described as a classic CML lesion. In a classic CML, the fracture starts from the outside in. When Dr. Levenbrown was asked whether Avah’s fractures started and stayed outside of the bone, Dr. Levenbrown said he wasn’t sure and that he did not consider that an important distinction.
On cross examination he did agree with the statement that bruising in infant is rare and any bruising to a young infant should raise concerns of trauma. He also testified that he searched for literature and he searched the Nexium site to see if bruising was one of the known side effects and he couldn’t find anything about Nexium causing bruising. He was not aware of any relationship between Nexium and bruising.
On September 6, 2017, Dr. Brendan Graeber, Avah’s pediatric radiologist, returned to the witness stand as a rebuttal witness. He was asked to comment on Dr. Scheller’s testimony with regard to his diagnosis of hydrocephalus. Dr. Graeber testified that a diagnosis of hydrocephalus is made when the ventricle within the brain is normally enlarged with fluid. During his testimony he referred to the initial CAT scan taken on October 14, 2016, which clearly demonstrated that Avah did not suffer from this condition.
The CAT scan demonstrated that all the ventricles within Avah’s brain were normal. He further testified that the only excess fluid found in Avah’s subdural space was blood, not water, and therefore there was no evidence of hydrocephalus. Dr. Graeber, by utilizing a series of images, clearly demonstrated that Avah did not suffer from subdural hygroma. There was a subdural collection of fluid on Avah’s left side, that fluid was blood, not water. Dr. Graeber was once again asked to comment on Dr. Scheller’s finding that in Avah’s case the body attempted to wall off the fluid collection and developed a membrane. Dr. Scheller also claimed that this membrane is vascular and can leak blood. Dr. Graeber testified that he did not see any such membrane developing on the right side of Avah’s brain. He did testify that on October 15, 2016, there was a blood collection on her left side in the subdural space. Dr. Graeber also provided a detailed explanation as to whether or not there was blood present in the falx on October 14, 2016. He explained that the blood is bright and the CT scan image showed blood extending around the back part of the brain. He explained that on the posterior part of the patient’s left side of the brain, there is a little triangle of blood extending here up along the falx. With regard to this issue, Dr. Graeber concluded there was no new blood found along the falx on October 17, 2016.
Dr. Graeber also testified that he and his colleague, Dr. Goodman, a pediatric radiologist at Yale-New Haven Hospital, confirmed that there was an acute buckle fracture of Avah’s ankle. He also confirmed the healing transverse buckle fracture of the upper tibia and the lower right femur. He testified that these fractures were not a CML, or classic metaphasis lesion which is often associated with child abuse. Avah’s injuries were in a portion of the bone that is actually called the diametaphysis or the metadiphysis. It is a typical weak point for the bone and is very characteristic to see these fractures in children.
Dr. Graeber was also asked to comment on the two case studies cited by Dr. Levenbrown, which discussed fractures in children. In both cases, the children’s fractures begin in the physis and then extended obliquely into the metaphysis. In Avah’s case, they were not oblique fractures, but rather transverse fractures that ran perpendicular to the long access of the bone. He concluded that Avah’s fractures were not consistent with the description of fractures as used in the example of a child being injured by use of an exersaucer. He also stood by his earlier testimony and concluded that Avah could not generate enough force to injure herself by her use of the Jolly Jumper and that these types of fractures would be rare in non-ambulatory infants.
Christopher Loesche, DCF social worker, testified at trial on behalf of the petitioner. He conducted an interview with Ms. N. on October 14, 2016, while Avah was in the pediatric intensive care unit. The two spoke of Avah’s injuries. With regard to the bruises, Ms. N. reported that over the previous few months she noticed the bruises and sometimes she would just find them randomly. She reported that at the time she thought that the Nexium was responsible. She told the worker that she had reported this condition to the visiting nurse and that the visiting nurse had been in consultation with the pediatrician’s office. She also told the social worker that she noticed bruises on Avah’s cheeks and a mark on her forehead before she left for work on Friday, October 14, 2016.
Ms. N. also offered another explanation as to why there might be bruising. She told the social worker that Avah, while placed in her swing, would sometimes move her head around and would hit her face against the plastic toys on the tray that goes over the swing. She stated that she would often put a blanket over the plastic pieces to prevent Avah from hitting her head so hard against these objects.
Detective Albert Palatiello, Bridgeport Police Department, testified at trial on behalf of the petitioner. He had the opportunity to interview both parents after Avah’s injuries. He interviewed Ms. N. on October 24, 2016. They spoke about the child, the child’s medical issues, her background, her employment, and her relationship with Mr. L.
When asked if she believed that Mr. L. could have done this to Avah, she stated that because of the extent of the injuries, she believed that Mr. L could have done this. Although she expressed this belief about Mr. L, when asked to comment on Avah’s specific injuries, she proceeded to tell the detective that the bruises on Avah’s face were caused by her swing set. She stated that her child would hit her face on the swing so they would put a blanket down to try to stop that. She also reported that Avah bruised easily because she was on a medication called Nexium.
During the interview, Ms. N. discussed her relationship with Mr. L. They lived together in Bridgeport and they were involved in one domestic violence incident in the past. She denied that either one of them was using illegal substances. She reported that she stopped using illegal substances about eight years ago. In a subsequent interview on November 10, 2016, Ms. N. disclosed to Detective Palatiello that Mr. L. smoked marijuana on a daily basis and also had used heroin. She went on to describe an incident where the child was crying and Mr. L. screamed something to the effect, " would you shut the baby the fuck up." She reported that she did leave the baby alone with him at times. She recalled another incident where Mr. L. was cleaning a fan that was dusty and the dust got on Avah’s nose, he helped her blow her nose. When the child returned to her, she noticed her nose was bright red, she thought that this was strange. However, she continued to maintain that this condition was caused by the Nexium.
Detective Palatiello interviewed Mr. L. on October 14, 2016, the date when Avah was hospitalized. During that interview, Mr. L. described how Avah sustained her injuries and the timeline in which the incident took place. He claimed Avah fell off the bed. There was a second interview on November 4, 2016. During that interview they once again discussed the timeline of events and how the child fell off the bed. When the detective told Mr. L. that his explanation of Avah’s falling from the bed did not match up with her injuries, Mr. L. once again stated that the baby fell off the bed. He appeared to be stressed during the interview and often avoided eye contact with the detectives. At one point, he became angry, yelled at the detectives conducting the interview and walked out.
Liza Gonzalez and Carl Young testified on behalf of Mr. L. Ms. Gonzalez was in a relationship with Mr. L. and she is the mother of one of his children. She testified that she sees Mr. L. approximately twice a week and has observed him with his daughter, Avah. She testified that he is very appropriate with Avah and expressed no concerns.
Carl Young testified that he grew up with Mr. L. and that he sees him about twice a week. He has observed Mr. L. and Avah together and testified that they had a good relationship and he expressed no concerns.
Philip Cruz from the Department of Corrections testified at trial on behalf of the petitioner. He is assigned to the security division of the agency. His duties and responsibilities include: assisting outside law enforcement agencies in monitoring mail and telephone calls for incarcerated inmates. He testified that before an inmate could place a call, he has to punch in a ten-digit number, six being his distinct inmate number and the other four being a pin number. All inmates are advised that phone calls are monitored and recorded. Mr. Cruz brought in a log of all the recorded calls made by Mr. L. from the time he was incarcerated until the commencement of the trial. (State’s Exhibit R.) In addition to the logs, Mr. Cruz brought in a series of discs that contain recorded conversations between Mr. L. and Ms. N. (State’s Exhibit S.)
The first recorded conversation occurred on February 9, 2017 (log number 203714003360). During the conversation, Mr. L. insisted that Ms. N. send him money, he was incarcerated and he could not post his bond of $100,000. She told him that she was going to send him money. There came a point during the conversation when Ms. N. claimed his family members were questioning the paternity of the children. Ms. N. told Mr. L. she was also going to be arrested for charges related to Avah’s injuries and that her bond was going to be $50,000. She insisted that she was not home at the time of Avah’s injuries and she claimed that she could not go to jail and that the kids needed her. At one point, she encouraged him to take the blame, at which point, Mr. L. responded that he was not going to take the blame for something he did not do. Ms. N. then told him not to confess to anything, that they could beat the charges. They ended the conversation by expressing their love for each other.
On February 24, 2017, Ms. N. and Mr. L. spoke again. (Call number 18.) During this conversation, Mr. L. complained to Ms. N. that she had not been writing to him. She assured him that she had sent multiple letters. He then became suspicious of her and inquired why her criminal case was not being transferred to Judicial District where the more serious cases were heard. She assured him that her case was transferred to same court. Then he questioned her as to whether he was the father of Lilyana. She assured him that he was not only the father of Lilyana, but also the father of Avah. She became emotional and told him she missed him. He ended the phone call by telling her not to write to him or to phone him under her name, instead, she was to use Lilyana’s name. He also told her he would be using another inmate’s name and number when he writes to her in the future.
On March 4, 2017, Mr. L. and Ms. N. spoke again. (Call Number 32.) During this conversation, Mr. L. was upset with Ms. N. because she did not pick up the phone when he called her early in the morning. He was very suspicious of her whereabouts. This jealously and lack of trust was a common theme throughout most of their conversations. At times, they were yelling at each other. Ms. N. certainly had no fear of Mr. L.
The other common theme that ran through most of their conversations was his constant demand for money. That was his priority; he needed money for clothes, sneakers, and television credits. Ms. N. commented on the fact that he never asks about the children. He ended the conversation by telling her he loved her.
On March 4, 2017, Mr. L. also spoke with his sister. (Call number 29.) He was extremely agitated because someone had taken his stash from his belongings and the stash was worth about $900. He demanded that his sister tell whoever took what appeared to be his narcotics that there would be consequences if he did not get his share of the money. During the entire conversation, his tone was demanding, aggressive, and threatening.
On March 29, 2017, Mr. L. spoke with his sister again. (Call number 101.) In this conversation Mr. L. tells his sister that there was an occasion when he and Ms. N. were arguing and at some point during the argument Ms. N. threw Avah on the couch. His sister believed that this information was important and that it should be shared with the Department and his public defender. His sister stated that she has been trying to call Ms. N. on a daily basis and even attempted to call her at work. Ms. N. did not return her phone calls.
On April 12, 2017, Mr. L. and Ms. N. spoke. (Call number 59.) This profanity laced conversation was nothing short of a domestic violence dispute. Both parties were screaming at each other. Mr. L. was angry with Ms. N. because she was not returning his phone calls. In fact, he accused her of sleeping with someone else.
On April 13, 2017, they spoke again. (Call number 161.) On that date, Mr. L. had a scheduled court appearance. Mr. L. was angry with Ms. N. for not being there for his court appearance. Although Ms. N.’s case was not scheduled for that date, she went to court in order to see him and find out what was going on with his case. When her public defender approached her in the hallway, he advised her that it would not be a good idea for her to be in court while his case was called, it wouldn’t look good in front of the judge. Ms. N. tried to explain this to Mr. L., but he did not believe her story.
On April 14, 2017 (Call number 164), the two talked about a card that he had sent to her. She said that she loved the card. During the conversation she became very emotional and told him that she still loved him. She talked about sending him more money. He reminded her that a third party would be used for future communications, that a person named Evy would be calling her.
On April 20, 2017, Mr. L. and Ms. N. got into a heated exchange. Mr. L. told Ms. N. to never threaten him by telling him that she was going to change the children’s last name. She became out of control and was screaming at him; she reminded him that he was the one who said that he never wanted Avah to have his last name because he doubted he was her father. Mr. L. denied he ever made those remarks. (Call number 208.)
On April 28, 2017, there was heated exchange between the two. Mr. L. accused Ms. N. of not picking up the phone on multiple occasions and ended the conversation by telling her he was not going to call her anymore.
On June 13, 2017, they spoke again. (Call number 300.) Mr. L. was suspicious and jealous of Ms. N.’s actions. He wanted to know who she was staying with and where she was residing. She became frustrated with him and ended the conversation with a vulgar remark.
On June 20, 2017 (Call number 310), Mr. L. was talking to his sister. His sister was trying to provide him with as much information that she had as to Ms. N.’s current whereabouts. The conversation also revolved around the issue of drug use.
On June 24, 2017, Mr. L. placed a call to Ms. N. (Call number 314.) When she responded, he disconnected the call.
Mr. Allen Brooks, the landlord of Ms. N. and Mr. L., and his daughter, Jessica, provided credible testimony with regard to the living conditions in the respondent’s apartment prior to Avah’s hospitalization. The respondent parents were tenants in his three-family home for approximately eighteen months. The landlord and his daughter lived on the first floor and the respondent parents and children lived on the second floor. The landlord complained that there was a heavy amount of traffic going in and out of the apartment. He also testified that the respondent parents would often have short meetings with people on the street corner as well as short meetings with people in vehicles outside of the apartment. He testified that there was a constant heavy smell of marijuana in their hallway. He advised the respondent parents that they were not being good tenants and he eventually initiated an eviction proceeding.
Jessica Brooks was also residing in the home in September and October of 2016. She also lived on the first floor with her father. She testified that because the walls were thin, she was able to hear what was going on above her. During the month of September and October, she testified that the parents argued constantly, she described the arguments as intense and stated that Ms. N. could become very aggressive at times. While the parents fought, the babies did not necessarily cry. However, in the week before Avah was taken to the hospital, she specifically remembered that there were three consecutive nights when the baby was crying so hard, she believed that the baby was going to hurt herself. On the third night, she was so concerned she spoke to her mother about calling the Department, but they decided not to call. They determined that this would look vindictive in light of the pending eviction proceeding. Jessica Brooks also testified that while the baby was crying, she did not hear either parent enter her room to care for her.
COTERMINOUS PETITIONS
Because there are coterminous petitions for neglect and termination in this case, the court must first determine if the children have been neglected or uncared for as of the date the petition was filed or last amended. In re Juvenile Appeal (84-AB), 192 Conn. 254, 263, 471 A.2d 1380 (1984); In re Jermaine S., 86 Conn.App. 819, 827, 863 A.2d 720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005); In re Clark K., 70 Conn.App. 665, 669-70, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002); In re Daniel C., 63 Conn.App. 339, 350, 776 A.2d 487 (2001). If the court concludes, by a fair preponderance of the evidence, that the children have been neglected or uncared for, disposition is deferred until decisions are made on the termination petitions.
The next step requires the court to determine whether the proof provides clear and convincing evidence that any of the grounds alleged exist to terminate the parents’ rights as of the date the TPR petitions were filed or last amended.
If grounds have been found to adjudicate the children neglected or uncared for and to terminate parental rights, applying the respective standards of proof, the court must then consider whether the facts as of the last day of trial establish by clear and convincing evidence that termination is in the children’s best interest, after considering the seven factors set forth in General Statutes § 17a-112(k).
Neglect Adjudication
The neglect petitions alleges that the parents have denied the children proper care and attention, that the children have been permitted to live in conditions injurious to their health and well-being, and that Avah has been abused in that she has physical injuries at variance with the history given. Physical neglect is the failure, whether intentional or not, of the person responsible for the child’s health, welfare, or care to maintain adequate food, clothing, supervision, and safety for the child. The Court makes the following factual findings.
On October 14, 2016, Avah, an almost seven-month-old infant, presented at the hospital with the following serious physical injuries (1) facial bruising, (2) three fractures to include two healing fractures (greater than 7-10 days old) and one acute fracture (less than 7-10 days old), (3) left and right sided subdural hematomas and (4) extensive retinal hemorrhages.
Avah sustained serious physical injuries while in the respondents’ care. These injuries could have been life-threatening. These injuries occurred while Lilyana was present in the home. The respondents have not provided an adequate explanation for Avah’s injuries. Neither parent can be excluded as causing the injuries. There was overwhelming medical evidence that Avah’s injuries were non-accidental in nature. Moreover, there was an abundance of evidence that the respondent parents were actively using drugs and associating with those selling drugs.
Allen Brooks, the landlord, complained that there was the constant smell of marijuana in the hallway on the second floor, there was a constant stream of suspicious people coming in and out of the apartment, and there were many clandestine meetings with occupants of motor vehicles on the street. There was testimony from the landlord’s daughter that there was constant fighting between the couple. There was testimony that the child was crying hysterically for three consecutive nights with no one tending to her. This occurred shortly before she was taken to the hospital as a result of her injuries.
The court finds, by a fair preponderance of the evidence, that Avah was abused in that she 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. Other causes were ruled out. The Department also met its burden as to Lilyana who was similarly situated. Lilyana was only eighteen months old at the time Avah sustained her injuries and was also permitted to live in conditions injurious to her health and well-being. The conditions in the home have endangered the safety, health and welfare of the children. The court also finds that the children were denied proper care and attention. An adjudication of neglect is entered. Avah and Lilyana are committed until further order of the court to the Commissioner of Children and Families who shall be guardian of the children.
Termination of Parental Rights
Having determined by a fair preponderance of the evidence that Avah and Lilyana were neglected, the court must next determine whether statutory grounds exist to terminate the respondents’ parental rights by clear and convincing evidence, and if so, then the court must determine whether the termination of the respondents’ parental rights is in the best interests of the child by clear and convincing evidence. See Practice Book § 35a-3. Otherwise, if the court determines that termination grounds do not exist or termination of parental rights is not in the best interests of the child or youth, then the court may consider by a fair preponderance of the evidence any of the dispositional alternatives available pursuant to the neglect adjudication. See Practice Book § 35a-3.
" 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 General Statute § 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 General Statute § 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, 231 Conn. at 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 the adjudicatory phase, the first issue to be addressed is whether the Department met its burden regarding reasonable efforts. See In re Melody L., supra, 290 Conn. at 148-49. The court must determine if " the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent ... unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to General Statutes § 17a-111b, or determines at trial on the petition, that such efforts are not required ..." General Statutes § 17a-112(j)(1).
In accordance with General Statute § 17a-112(j)(1), " the Department may meet its burden concerning reunification in one of three ways:(1) by showing that it made such efforts, (2) by showing that the parent was unable or unwilling to benefit from reunification efforts, or (3) by a previous judicial determination that such efforts were not appropriate." (Internal quotation marks omitted.) In re Jonathan C., 86 Conn.App. 169, 173, 860 A.2d 305 (2004).
Denise Fuzie was the DCF social worker assigned to the case on November 3, 2016. She testified at trial that she was responsible for reviewing the entire file regarding Avah and Lilyana. She conducted an interview with Ms. N. on November 10, 2016. The social worker expressed concerns with regard to Avah’s injuries. The social worker and Ms. N. discussed her account of Avah’s injuries. They talked about the bruising and the other injuries which included fractures, both healing and acute, and the concern that it was non-accidental abuse. At that time, Ms. N. claimed that the Nexium was the cause of the bruising.
During that interview, Ms. N. explained that she was going to take the child to the pediatrician on October 7, 2016, but her car broke down. However, Ms. N. did tell the social worker that she called the office and spoke to a nurse whose name she could not recall and the nurse told her that the bruising was caused by the Nexium and that she should decrease the medication.
With regard to the other injuries, the fractures, the subdural hematomas and the retinal hemorrhaging, Ms. N. stated that she was initially informed by the father, Mr. L. that Avah had fallen off the bed. She stated that she was upset with him for leaving Avah unattended. When she later learned that there was evidence that the baby had been shaken, she became angry that Mr. L. had harmed the child. At that time, Ms. N. told the social worker that she was very angry with him and that she wanted nothing to do with him. Ms. N. reported that she was not in communication with Mr. L. and no longer in a relationship with him. She talked about being involved in a domestic violence program and she expressed a desire for Mr. L. to pay for injuring Avah. She did not want Mr. L. to visit the children. Mr. L. was arrested on February 7, 2017, for charges relating to Avah’s injuries. After his arrest, Mr. L.’s mother called Ms. N. and asked her to help provide financial support so he could get a lawyer. According to the social worker, Ms. N. told her that he could rot in jail.
Ms. Fuzie also spoke to the father, Mr. L. He once again explained how Avah had fallen of the bed when he was out of the room and when he found her, she was unresponsive. Mr. L. did not offer any explanation as to the healing injuries. When asked about his relationship with Ms. N., he stated that he was in a relationship with her for about 2 years and they were engaged. During the conversation, Mr. L. expressed a concern that the attorneys did not want the parents to see each other. Prior to Mr. L.’s incarceration, he had supervised visits with the children. His interaction with the children was appropriate.
The Department filed a motion for no further reunification efforts based on the fact that the explanations provided by the parents as to Avah’s injuries were not consistent with the medical evidence. The Department was particularly concerned with Ms. N.’s deception with regard to the missed doctor’s appointment and the misrepresentation regarding the Nexium prescription. With regard to Avah’s retinal hemorrhaging and subdural hematomas, the explanation that Mr. L. provided, that Avah fell off the bed, was not consistent with the medical evidence. Because the two sole caregivers of the children could not explain how Avah sustained her injuries or acknowledge who caused them, the Department claimed it was difficult to provide the parents with rehabilitative services.
For these reasons the court, after a hearing on December 1, 2016, made a finding that reunification efforts were no longer appropriate. All parties were present on that date, they were represented by counsel and they were given the opportunity to be heard. The court reaffirms that decision based on the evidence presented during the trial. In addition, based on the totality of evidence presented, the court finds by clear and convincing evidence that the respondent parents are unwilling or unable to benefit from reunification efforts. See In re Egypt, 322 Conn, 231, 140 A.3d 210 (2016) and In re Jordan, 979 A.2d 469 (2009).
The court finds by clear and convincing evidence that Avah’s injuries were non-accidental in nature and not the result of a pre-existing medical condition. With regard to Avah’s history of bruising, there was no credible medical testimony proffered to support the claim that these injuries were caused by the reflux medication, Nexium, or by Avah’s use of a swing set, Jolly Jumper or exersaucer.
Dr. Bowen, Avah’s pediatrician, was shown pictures of the marks on Avah’s face. She credibly testified that she had never seen that type of bruising before on Avah and that her first assumption was that the bruising was not the side effect of Nexium. She stated that a mark on the face alone would not be the side effect of the medication, that the reaction to the medication would be more widespread rather than localized. When shown the picture of the bruising in Avah’s ear, Dr. Bowen also testified that bruising, especially in an infant’s ear, is always a concern to all pediatricians. Many of the other medical professionals who testified were shown the photos of Avah’s bruising. They testified that these bruises or marks, i.e., slap marks, would cause them concern and they were suspicious in nature.
Dr. Levenbrown, the respondent parents’ expert witness, testified that he could find no medical studies that support the theory that Nexium could have caused the bruising. More importantly, since Avah has been removed from her parents’ care, she has experienced no new bruising while still being prescribed Nexium. Avah did not suffer from any type of bleeding disorder or a vitamin D deficiency, there was testimony that Avah was formula fed and that the formula contained the appropriate vitamins and nutrients. She did not have infantile rickets or metabolic bone disease such that she is susceptible to suffering from fractures that may occur in the course of normal care of an infant.
There was credible medical testimony from Dr. Pavlovic, Dr. DiLuna and Dr. Graeber that Avah did not have a pre-existing medical condition, specifically subdural hygroma or hydrocephalus. Moreover, Dr. Pavlovic and Dr. DiLuna could not understand how Dr. Scheller could diagnose Avah with a chronic condition such as subdural hygroma without the appropriate medical testing.
Dr. DiLuna stated that children who have this condition usually have huge heads and inherit this condition from parents who are similarly situated. Dr. DiLuna determined that Avah did not have the typical head circumference for the presence of excessive fluid. After conducting a thorough and extensive examination of Avah, Dr. DiLuna also determined that Avah never suffered the following: a stroke, a skull fracture, no abnormal blood vessels and no congenital abnormalities.
Hospital records also indicated Avah’s platelet count was normal, there was no blood clotting disorder noted, and there were no pre-existing membranes that showed a propensity for bleeding. Other than the injuries she had sustained, her brain prior to her injuries was symmetric and intact. There was credible medical testimony that Avah’s head was developing normally, she was checked weekly and her head growth was charted. The charts showed a normal curve and arc for Avah’s head growth. There was no finding that Avah’s fontanel was abnormal.
Dr. Pavlovic, Dr. DiLuna, and Dr. Stoessel concluded that Avah’s subdural hematomas and retinal hemorrhages were the result of abusive head trauma. They testified that the mechanism that most likely caused these injuries was the rapid acceleration and deceleration of the head where the head is moving at a high speed and then comes to an abrupt stop or reverses direction.
Dr. Stossel opined that Avah’s retinal hemorrhaging was a result of the baby’s head being shaken. The vitreous (jellylike substance that fills the eyeball) was moving in such a way that the accelerating and decelerating forces caused the ventures to pull away from the retina resulting in the hemorrhages. The only other conditions that could have caused the retinal hemorrhages were blood disorders, leukemia, anemia, infections and abnormal vessels in the retina. She noted no blood disorders or infections with regard to Avah. Dr. Stoessel also testified that the type of retinal hemorrhages that Avah sustained were not the result of intracranial pressure.
Drs. Smith and Pavlovic credibly testified that the acute fracture of Avah’s distal right tibia was the result of a forceful tug or when the limbs were swung back and forth or by a direct blow to the limb. Dr. Smith testified that the injuries Avah sustained were not the type of injuries common for a child who is non-ambulatory. When shown the video of Avah in the Jolly Jumper, Dr. Smith concluded that Avah was not only developmentally delayed, she did not have the age, the size, the weight or the body mass to create and generate enough force to cause these type of fractures.
Dr. Brendan Graeber, who was qualified as an expert in pediatric radiology, credibly testified that on the basis of his review of Avah’s radiographic images, Avah suffered from an acute fracture of the distal right tibia. There was a healing buckle fracture in the distal right femur and a transverse fracture of Avah’s proximal left tibia. He testified that the type of mechanism that would create the fracture to the left leg would be when there is an axial load, a force that is transmitted down the long axis of the bone. There was a similar fracture pattern in the proximal upper end of the left tibia. With regard to the posterior part of the distal right tibia, he detected a small buckle fracture where the cortex had buckled at the posterior margin. These are not the type of fractures that should be seen in a non-ambulatory infant, especially one who is too small to generate the type of force necessary to create the types of fractures noted. In a non-ambulatory child, any long bone fracture is going to be viewed with some suspicion.
The court has carefully reviewed and assessed all the medical testimony presented during the trial and concludes by clear and convincing evidence that Avah was the victim of child abuse. There was an abundance of credible medical testimony from those who treated Avah at the time of her injuries and shortly thereafter, which indicated that these injuries were non-accidental in nature.
Dr. Scheller and Dr. Levenbrown never examined Avah, never consulted with the treating physicians and never interviewed the respondent parents regarding Avah’s injuries. They presented a piecemeal analysis of Avah’s injuries that supported an agenda rather than a credible assessment of the totality of Avah’s injuries. The more credible testimony presented at trial was by Dr. Bowen, Dr. Pavlovic, Dr. DiLuna, Dr. Stossel, Dr. Smith and Dr. Graeber.
On or about October 14, 2016, Avah sustained serious physical injuries while in the respondents’ care and according to Dr. DiLuna’s testimony, these injuries could have been life-threatening. These injuries occurred while Lilyana was present in the home. The respondents have not provided an adequate explanation for Avah’s injuries. Neither parent can be excluded as causing the injuries. There was overwhelming medical evidence that Avah’s injuries were non-accidental in nature.
Moreover, there was an abundance of evidence that the respondent parents were actively using drugs and associating with those selling drugs. Allen Brooks, the landlord, complained that there was the constant smell of marijuana in the hallway on the second floor, there was a constant stream of suspicious people coming in and out of the apartment, and there were many clandestine meetings with occupants of motor vehicles on the street. Ms. N. told the police that Mr. L. was smoking marijuana daily and using heroin. Mr. L. told others that Ms. N. was using drugs throughout their relationship.
There was testimony from the landlord’s daughter that there was constant fighting between the couple and both respondents could be aggressive at times. Ms. N. was observed leaving her home to physically assault another individual. There was a DOC recorded conversation when Mr. L. tells his sister that Ms. N. was observed throwing the baby down on the sofa after one of their arguments. There was testimony that the child was crying hysterically for three consecutive nights with no one tending to her. This occurred shortly before Avah was taken to the hospital, the same period of time when Avah had experienced bruising and was in the healing stages of two leg fractures. Ms. N. has failed to offer a plausible explanation as to how Avah sustained these bruises and healing fractures while in her and Mr. L.’s exclusive care. Ms. N. cannot be excluded as a source of those injuries.
There was testimony during the trial that Ms. N. had significant concerns with regard to Avah’s bruising. There was testimony at the trial that Ms. N. found this random bruising to be strange and suspicious. She was told by the visiting nurse that the issue of Avah’s bruising should be addressed immediately and the visiting nurse arranged for a pediatrician’s appointment for Avah on October 7, 2016. Ms. N. purposely missed the appointment and falsely claimed that the doctor’s office told her to cut back on Avah’s Nexium use. Moreover, when Dr. Bowen testified at trial, she stated with a reasonable degree of medical certainty that Avah’s bruising was not the result of the Nexium prescription and she testified that Avah’s bruising would have been looked upon with great suspicion. Also, there was additional testimony from medical professionals that Avah’s bruising was not caused by the Nexium prescription or by her use of a swing set, exersaucer or Jolly Jumper.
Although there was testimony that Avah’s injuries, sustained on October 14, 2016, occurred while in Mr. L.’s care, the court is troubled by the testimony that when Ms. N. left for work that day, she noted bruises on Avah’s cheeks in the morning and a bruise on her forehead right before she left for work in the early evening. Within an hour the child was rushed to the hospital. There was also strong circumstantial evidence, Ms. N.’s deceptive behavior, coupled with the fact that there was medical testimony that the bruising on Avah’s face was consistent with a slap mark made by a hand similar in size to that of Ms. N., that permits the court to draw a reasonable inference that Avah was abused by Ms. N. and that she cannot be excluded as the source of any of the other injuries Avah sustained.
Neither parent could offer a plausible explanation as to how these injuries occurred. Mr. L. offered up a scenario that was inconsistent with reliable, credible and medical testimony. The injuries Avah sustained on October 14, 2016, occurred while the child was in the immediate care of Mr. L. and because of his implausible explanation and his deceptive behavior he cannot be excluded as a cause of those serious physical injuries.
There was also testimony at trial that Ms. N. blamed Mr. L. for the child’s injuries, that she feared him and ended the relationship with him. Nothing could be further from the truth. From the time of Avah’s injuries, to the time of trial, Ms. N. and Mr. L. communicated on a regular basis and those conversations were recorded by the prison system.
During those taped conversations, it became apparent that Ms. N. had no fear of Mr. L. She became extremely aggressive toward him on multiple occasions. In many of these conversations the two expressed their love for each other despite the fact that Mr. L. was extremely jealous, controlling and on several occasions questioned his paternity of the children. Since he was incarcerated, Ms. N. tried to provide him with money so that he could purchase clothes, sneakers and TV credits. They both talked about using third parties for communications to minimize the nature of their relationship.
After reviewing these recorded conversations, the court could draw the following reasonable inferences: Ms. N. had no fear of Mr. L., their toxic relationship was still intact and at no time did Ms. N. blame him for Avah’s injuries. In those tape recorded conversations, in their own words, Ms. N. and Mr. L. had forged a united front where they have put their interests before the interests of Avah and Lilyana. There was no longer a scintilla of blame by either parent as to who caused Avah’s injuries. Instead there was a shared goal of self-preservation, a united front, and a commitment to prevail in their criminal prosecution.
Although the children are happy and excited to see Ms. N., she doesn’t have the ability to be in a healthy relationship nor does she have the strength and resolve to protect her children.
Adjudicatory Grounds
1. Ground C. as to the Respondent Mother (Ms. N.), Avah
When termination is based on a claim of serious physical injury, the Department must prove two elements: (1) the injury must be serious, and (2) the cause of such injury must be non-accidental or inadequately explained. See 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). While physical injury is not defined in the statute, relevant cases provide examples and instruction. For example, in the case of In re Rachel J., 97 Conn.App. 748, 759-60, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), a severe fracture to the child’s elbow was found to be a serious physical injury. The case of In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099 cert. denied, 261 Conn. 925, 806 A.2d 1059 (2000), held that three fractures of child’s skull were serious physical injuries. Another example is In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000), where the court found that the child’s seventeen rib fractures were serious physical injuries.
In Avah’s case, she sustained bruising, healing fractures, an acute leg fracture, subdural hematomas as well as retinal hemorrhages when she was only six months old. These were without question life-threatening and serious injuries. She could not have inflicted such injuries on herself at such a tender age.
The court finds by clear and convincing evidence, that Avah suffered non-accidental serious physical injury while in the care of her parents. The court further finds, from the credible medical testimony that these serious injuries were inconsistent with his parents’ explanations and remain unexplained by Ms. N., and as the court has concluded, she failed to protect her young child from such injuries.
These non-accidental serious physical injuries to Avah constitute prima facie evidence that the facts alleged took place. " 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 serious physical injury that is non-accidental or 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).
The Department need not prove that Ms. N. inflicted these injuries to Avah, even though she cannot be excluded as the cause of the injuries. Moreover, they are non-accidental, and so it is Ms. N.’s burden to demonstrate why the removal should not happen. In this case, Ms. N. has not met her burden as to why this permanent removal should not happen. Given her poor judgment and deceptive behavior, she is not in a position to care for her child, nor will she be in the foreseeable future. Providing her more time is not consistent with Avah’s age and needs for permanency.
The court finds the Department has met its burden by clear and convincing evidence on this ground as to Avah. The evidence clearly supports the termination of Ms. N.’s parental rights based on parental acts of commission or omission, that the Department has proven by clear and convincing evidence that (1) as to Avah, pursuant to General Statutes § 17a-112(j)(3)(C), 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 non-accidental 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 ..." (Ground C.)
2. Ground C. as to the Respondent Mother (Ms. N.), Lilyana
With regard to Lilyana L., the older daughter of Ms. N., the same ground is alleged. Lilyana fortunately did not sustain any serious physical injury as her younger sister has. Nonetheless, the statutory analysis and the case law also permit termination pursuant to these provisions. The relevant section of the statute states that the child has been denied " by reason of an act or acts of parental commission or omission ... the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being." Lilyana was only eighteen months old when her almost seven-month-old baby sister was rushed to the hospital with life threatening injuries. Both Avah and Lilyana were in the exclusive care of Ms. N. and Mr. L. Lilyana was similarly situated to Avah in that she was a non-verbal child living in the same home where she and her sister were exposed to a pattern of physical abuse and emotional trauma as result of the commission or omissions of acts perpetrated by Ms. N. Lilyana’s mother demonstrably failed to protect her from such a traumatic and violent atmosphere. These are acts of omissions and/or commissions denied Lilyana the care and guidance necessary for her physical, educational, moral and emotional well-being. The court concludes that this ground as to Ms. N. has been proven by clear and convincing evidence.
3. Ground F. as to the Respondent Mother (Ms. N.), Lilyana
A third ground was alleged against Ms. N. is Connecticut General Statutes 17a-112(j)(3)(F). It alleges that she has been involved in an assault through a non-accidental act that resulted in serious bodily injury to another child of the parent. The relevant sections of the statute provide, if a parent is not alleged to have committed the injury directly, then she must have " requested, commanded, importuned, attempted, conspired or solicited such act." In the court’s interpretation, all such words imply some intentional and deliberate conduct.
The court finds by clear and convincing evidence that Ms. N. engaged in such conduct that was the cause of Avah’s bruising and other injuries. Although there was testimony that Avah’s injuries, sustained on October 14, 2016, occurred while in Mr. L.’s care, the court is troubled by the testimony that when Ms. N. left for work that day, she noted bruises on Avah’s cheeks in the morning and a bruise on her forehead right before she left for work in the early evening. Within an hour the child was rushed to the hospital. There was testimony that Ms. N. was the primary caregiver of Avah. She was in close proximity to Avah when she sustained her serious physical injuries. There was testimony that Avah was crying hysterically for three consecutive nights and not being cared for by either parent. This would have been the same time period when the child was in the healing stages of her leg fractures. There was also strong circumstantial evidence, Ms. N.’s deceptive behavior, coupled with the fact that there was medical testimony that the bruising on Avah’s face was consistent with a slap mark made by a hand similar in size to that of Ms. N., that permits the court to draw a reasonable inference that Avah was abused by Ms. N. and that she cannot be excluded as the source of any of the other injuries Avah sustained.
In reviewing the totality of evidence presented in this case, the court finds that Ms. N. was not just a party who simply stood by and watched her infant suffer serious injuries, but rather she was an active participant with regard to those injuries.
The court finds by clear and convincing evidence that Ms. N. cannot be excluded as the cause of any or all of these serious bodily injuries and that she and Mr. L. have engaged in a course of conduct that makes them both the direct cause for Avah’s serious bodily injuries. In re Jordan C., No. L15CP13009231A, 2014 WL 7497519, at *6-7 (Conn.Super.Ct. Dec. 8, 2014).
The court finds the Department has met its burden by clear and convincing evidence on this ground as to Lilyana, pursuant to General Statute § 17a-112(j)(3)(F), the parent committed an assault, through a deliberate non-accidental act, that resulted in the serious bodily injury of another child of the parents.
4. Ground C. as to Respondent Father (Mr. L.), Avah
When termination is based on a claim of serious physical injury, the Department must prove two elements: (1) the injury must be serious, and (2) the cause of such injury must be non-accidental or inadequately explained. See 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). While physical injury is not defined in the statute, relevant cases provide examples and instruction. For example, in the case of In re Rachel J., 97 Conn.App. 748, 759-60, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), a severe fracture to the child’s elbow was found to be a serious physical injury. The case of In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2000) held that three fractures of child’s skull were serious physical injuries. Another example is In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000) where the court found that the child’s seventeen rib fractures were serious physical injuries.
In Avah’s case, she sustained bruising, healing fractures, an acute leg fracture, subdural hematomas as well as retinal hemorrhages when she was only six months old. These were without question life-threatening and serious injuries. She could not have inflicted such injuries on herself at such a tender age.
The court finds by clear and convincing evidence that Avah suffered non-accidental serious physical injury while in the immediate care of Mr. L. The court further finds, from the credible medical testimony that these serious injuries were inconsistent with Mr. L.’s explanations and remain unexplained. The court has concluded that Mr. L. failed to protect his young child from such injuries.
These non-accidental serious physical injuries to Avah constitute prima facie evidence that the facts alleged took place. " 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 serious physical injury that is non-accidental or 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).
The Department need not prove that Mr. L. inflicted these injuries to Avah, even though he cannot be excluded as the cause of the injuries. Moreover, they are non-accidental, and so it is Mr. L.’s burden to demonstrate why the removal should not happen. In this case, Mr. L. has not met his burden as to why this permanent removal should not happen. Given his poor judgment and deceptive behavior, he is not in a position to care for his child, nor will he be in the foreseeable future. Providing Mr. L. more time is not consistent with Avah’s age and needs for permanency. Therefore, the court finds by clear and convincing evidence that the Department has proved the ground of parental acts of commission or omission against Mr. L. pursuant to General Statutes § 17-112(j)(3)(C).
Best Interest of the Children
Having determined that the petitioner has proven adjudicatory grounds for termination of parental rights against each respondent by clear and convincing evidence, the court next considers the issue of disposition. The Department must also prove by clear and convincing evidence that termination of parental rights is in the child’s best interests. Pursuant to General Statute 17a-112(k), the court must make and consider the following seven factual findings in conjunction with its determination on the issue of disposition.
(1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by an agency to facilitate the reunion of the child with the parent .
On October 21, 2016, the Court (Ginocchio, J.) made the finding that reasonable efforts to prevent or eliminate the need for removal of said children were made by the Department. Due to the significance of the abuse endured by Avah L., the Department has filed Co-Terminus petitions with respect to Avah L. and her sibling Lilyana L.
(2) Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended .
On December 1, 2016, the Court (Ginocchio, J.) made the finding that reasonable efforts to reunify said children with the parents, Mr. L. and Ms. N., were no longer appropriate. Specific steps have not been ordered for respondent parents. The Department has provided Ms. N. and Mr. L. with the opportunity to provide a plausible explanation regarding Avah’s injuries, however, they have not.
(3) The terms of any applicable court order entered into and agreed upon by any individual or agency and the parent, and the extent to which all parties have fulfilled their obligations under such order .
On December 1, 2016, the Court (Ginocchio, J.) made the finding that reasonable efforts to reunify said children with the parents, Mr. L. and Ms. N., were no longer appropriate. Specific steps have not been ordered for respondent parents.
(4) The feelings and emotional ties of the child with respect to the child’s parents, any guardian of such child’s 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 .
Lilyana and Avah have been in the respondents’ care for most of their lives. Ms. N. has been allowed to visit with both children before and after she was arrested in connection with Avah’s injuries. Mr. L. has been incarcerated as a result of his inability to post his bond as it relates to the charges with regard to Avah’s injuries. He has not had any visitation since his incarceration. The children have demonstrated a bond with Ms. N. during visitation.
(5) The age of the child .
Avah was born on March 20, 2016, and is twenty-three months old. Lilyana was born on May 28, 2015, and is almost thirty-three months old.
Due to their young ages, they are at a high risk of significant injury and/or death if they were to return to either parent’s care. They have limited visibility within the community and are non-verbal.
Lilyana is almost thirty-three months old and Avah is twenty-three months old. To allow further time for either parent to provide plausible explanations regarding the serious injuries Avah sustained is not reasonable, given the children’s need for permanency and their need to reside in a safe and stable home.
(6) The efforts the parent has made to adjust such parent’s circumstances, conduct, or conditions to make it in the best interest of the child to return such child home in the foreseeable future, including, but not limited to (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 or communication with the guardian or other custodian of the child .
Both respondent parents have failed to sufficiently adjust their circumstances, conduct or conditions to make it in the best interest of the child to be reunified with the respondent parents in the foreseeable future. Although the respondent parents have consistently visited with the child when allowed, they have been unable or unwilling to sufficiently address their child protection concerns and are not in a position, either separately or together, to provide Avah and Lilyana with a safe, permanent and stable home environment where they would be able to thrive.
(7) The extent to which a parent has been prevented from maintaining a meaningful relationship with the child 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 .
Neither respondent parent has been prevented from maintaining a meaningful relationship with the child 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.
Having made the written findings regarding the seven factors delineated in General Statutes § 17a-112(k), the court must now determine whether termination of parental rights is in the best interest of the child. This is part of the dispositional phase of a termination proceeding. In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992) (" the determination of the child’s best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence" ). In making this determination, the court can consider all events occurring through the close of the dispositional hearing. Practice Book § 35a-9.
" [T]he determination of a child’s best interest is generally a fact intensive inquiry ... [T]he best interest standard ... is inherently flexible and fact specific and gives the court discretion to consider all of the different and individualized factors that might affect a specific child’s best interest." (Citation omitted; internal quotation marks omitted.) In re Shanaira C., 297 Conn. 737, 759-60, 1 A.3d 5 (2010).
In addition to the statutory factors, the court has identified and considered a number of other factors that are relevant to the determination of the best interest of the child. These factors include the following: child’s age; child’s bond to parent; child’s bond to foster parent; child’s cognitive or physical limitations/disabilities; child’s developmental concerns/delays; child’s diagnosis; child’s exposure to inappropriate caretakers; child’s interests in sustained growth, development, well-being and continuity and stability of her environment; child’s injuries; child’s lack of visibility in the community; child’s length of stay in foster care; child’s need for long-term care; child’s medical issues; child’s need for supportive, safe, structured, stable and nurturing caretakers; child’s need to be raised in a safe, predictable, caring and nurturing home; child’s prognosis; child’s removal and placement history; child’s safety; child’s special needs; expert testimony; family environment; family functioning; family integrity; genetic bond to the parent; immediacy of risk to child; parent’s ability to benefit from services; parent’s ability to be primary caretaker; parent’s ability to provide adequate supervision; parent’s ability and willingness to make sufficient efforts to reunify; parental acts of commission and/or omission; parent’s compliance with the court orders (specific steps); parent’s constitutional right to raise child; parent’s criminal involvement; parent’s efforts toward reunification; parent’s failure to recognize his/her responsibility for keeping child safe; parent’s failure to take advantage of services offered by the Department to assist the parent in securing the return of his/her child; parent’s housing; parent’s incarceration; parent’s level of participation with services; parent’s refusal to participate or rejection of rehabilitative services offered; parent’s residence-stability and suitability; parent’s wishes and desires; parent’s signing of releases; parent’s visitation history; parent-child interaction; parent minimizes or denies abuse/neglect of child; parental rights and responsibilities; permanency, need for; reasonable efforts made by the Department to reunite the family; removal circumstances; risk factors; and stability.
Avah is twenty-three months old. She has sustained abusive head trauma, retinal hemorrhages, bruising and fractured bones. Avah was in the respondents’ care when she was injured.
Avah and Lilyana need caretakers who would able to keep them safe and provide for their long-term care. They need a permanent, safe and stable home environment free of child protection concerns.
While in Ms. N.’s and Mr. L.’s care and custody, Avah suffered serious physical injuries that were non-accidental or inadequately explained. Ms. N. and Mr. L. could not explain Avah’s injuries. Ms. N. and Mr. L. did not report that Avah sustained any trauma of a magnitude sufficient to cause her injuries. Neither Ms. N. nor Mr. L. admitted to any act that might have caused the injuries. The child was with one or both of her respondent parents when she was injured. Although one of the respondent parents may not have inflicted Avah’s injuries, the non-inflicting parent did not act to protect Avah from harm and has not credibly acknowledged the possibility that the other parent might have caused the injuries. These circumstances cast grave doubt on Ms. N.’s and Mr. L.’s ability to parent, either collectively or separately. Ms. N.’s and Mr. L.’s actions or inactions have adversely affected the health, safety and well-being of the children. Ms. N. and Mr. L. failed to show why Avah, a child with clear evidence of serious physical injury that is non-accidental and unexplained and Lilyana who was present and similarly situated, should not be permanently removed from their care.
For the above stated reasons, the court finds that the Department has established by clear and convincing evidence that the termination of the parental rights of the respondent parents Ms. N. and Mr. L., as to Avah is in the best interest of the child and the termination of parental rights of Ms. N. as to Lilyana is in the best interest of the child.
CONCLUSION AND ORDERS
For the above stated reasons, the court renders judgment and enters the following orders.
The Neglect Petition is GRANTED and the children are adjudicated neglected and committed to the Commissioner of Children and Families.
The Termination of Parental Rights Petition is GRANTED and the parental rights of Ms. N. are hereby terminated as to Avah and Lilyana and the parental rights of Mr. L. are hereby terminated as to Avah. It is further ordered that the Commissioner of Children and Families is appointed the statutory parent for Avah for the purpose of securing an adoptive family or another permanent placement. Lilyana will remain committed to the Department of Children and Families until further order of the court.
Pursuant to General Statutes § 17a-112(o), the Department shall report to the court, not later than thirty days after the date judgment is entered, on case plans, as defined by the Federal Adoption Assistance and Child Welfare Act of 1980, for Avah, which shall include measurable objectives and time schedules. At least every three months thereafter, the Department shall report to the court on the progress that has made on the implementation of the plans.
Judgment may enter accordingly.
It is so ordered.