In re Makenna S.

Full title: IN RE MAKENNA S. (B. 7-14-10)

Court: Connecticut Superior Court Judicial District of Middlesex, Child Protection Session at Middletown

Date published: Aug 31, 2011

2011 Ct. Sup. 18956 (Conn. Super. Ct. 2011)

Opinion

No. H14-CP10-010201-A

August 31, 2011

MEMORANDUM OF DECISION

BENTIVEGNA, J.

I STATEMENT OF CASE

This consolidated action involves a motion for order of temporary custody, neglect petition, termination of parental rights petition, and motion to review permanency plan. The parties to this matter are: petitioner, Commissioner of Children and Families (DCF or department); respondent mother, Savannah S.; respondent father, Jonathan S.; and the child, MaKenna S.

The matter was tried on May 4, 5, 6, June 13, 15 and July 13 15, 2011. The following witnesses testified at trial: Dr. Nina Livingston (expert in pediatrics and evaluation of child abuse and neglect); Dr. Christopher Kelly (expert in pediatric ophthalmology); Youdeline A. (foster mother); Dorothy Zyla (DCF social worker); Dr. Joseph Scheller (expert in pediatric neurology); father; Dr. Paul Kanev (expert in neurosurgery); and Dr. Andrea Asnes (expert in the area of child abuse and general pediatrics). On May 4, 2011, the court took judicial notice of the file.

The court finds that it has proper jurisdiction of the matter, notice of the proceeding was provided, and no action is pending in any other court affecting the custody of the child.

The court has fully considered the criteria set forth in the relevant Connecticut General Statutes, as well as the evidence, applicable case law, demeanor and credibility of the witnesses, and arguments of the parties in reaching the decisions reflected in the orders that issue in this memorandum.

After due consideration, the court sustains the order of temporary custody, grants the neglect petition, grants the petition for termination of parental rights, and grants the motion to review permanency plan.

II FINDINGS OF FACT

Having weighed all the evidence and assessed the credibility of the witnesses, the court finds the following relevant facts.

A Procedural History

MaKenna was born on July 14, 2010. On September 3, 2010, the department invoked a 96-hour hold based on injuries she sustained while in the care and custody of the respondents. MaKenna was hospitalized at Connecticut Children's Medical Center (CCMC) in Hartford, Connecticut.

On September 7, 2010, the department filed an ex parte motion/order of temporary custody (OTC), which was granted by the court (Gleeson, J.) that day. The respondents were ordered to comply with specific steps. The OTC was accompanied by a neglect petition based on conditions injurious and abuse. The department alleged in the addendum to the petition the following jurisdictional facts: "While under Mother's care and custody, child sustained injuries which are at variance with the history given them. While under Father's care and custody, child sustained injuries which are at variance with the history given them. Child has injuries that are at variance with the history given them."

On September 17, 2010, the respondents waived their right to a contested OTC hearing within ten days and agreed to consolidate the OTC with the neglect petition.

The department filed a termination of parental rights (TPR) petition on November 18, 2010, based on the ground of parental act(s) of commission or omission (Ground C). The department alleged that the respondents were unable or unwilling to benefit from reunification efforts. At the TPR plea date on December 10, 2010, the court, by agreement, consolidated the TPR petition with the OTC and neglect petition.

On February 9, 2011, the department filed a motion for technical correction, which was granted on March 22, 2011.

On April 29, 2011, the department filed a motion to review permanency plan of termination of parental rights and adoption. On June 13, 2011, the mother filed an objection to permanency plan. On May 4, 2011, the first day of trial, and on July 13, 2011, the court consolidated, by agreement, the motion to review permanency plan and objection with the other pending matters.

On June 13, 2011, the department orally objected to Dr. Scheller's testimony and requested a Porter hearing. After hearing, the court found that Dr. Scheller's testimony satisfied the Porter requirements and the department's objection was overruled.

On June 13, 2011, the mother filed a motion in limine to preclude Dr. Asnes from testifying as a rebuttal witness for the department. The motion was denied subject to the department complying with Practice Book § 13-4.

On June 16, 2011, the department filed a disclosure of (rebuttal) expert witness (Dr. Asnes and Dr. Kanev). On June 21, 2011, the mother filed a motion in limine regarding the department's rebuttal expert testimony. On June 22, 2011, the department filed a revised disclosure of (rebuttal) expert witness and an objection to mother's motion in limine. On July 11, 2011, father filed a motion in limine regarding the department's rebuttal expert testimony. On July 12, 2011, the department filed an objection to father's motion in limine. After hearing on July 13, 2011, the court found that the department substantially complied with the disclosure requirements for rebuttal expert witnesses. The court discussed the limitations of rebuttal testimony and evidence and the respondents' ability to make objections during the rebuttal expert testimony. The court denied the motions in limine to preclude the rebuttal expert testimony and sustained the objections.

During the trial, the court informed the parties that it was not going to draw an adverse inference from a parent's failure to testify pursuant to Practice Book § 35a-7A.

B Historical Facts (1) Department's Involvement

The department became involved with the family on September 3, 2010. MaKenna presented at Bristol Hospital and CCMC with serious brain injuries. The child protection concerns included MaKenna's unexplained injuries and the respondents' failure to provide a reasonable explanation for the injuries.

(2) Mother

The mother, Savannah S., was born in New Britain, Connecticut on June 28, 1987. She is twenty-four years old. She grew up in Berlin, Connecticut. After her parents divorced when she was three years old, Savannah lived primarily with her mother.

Sometime after graduating from high school, Savannah started school to become an emergency medical technician (EMT). She completed her coursework in January 2010, and subsequently took the EMT exam and passed. Her employment history includes working at Toys R US, a pharmacy and as an exotic dancer.

She began her relationship with father when she was eighteen years old. The respondents were married in May 2009. Mother reported that they have a good relationship and denied any domestic violence issues.

Mother reported that she is prescribed Suboxone for an addiction to pain medication. She has offered differing explanations as to why she takes pain medications, including a hockey injury or back injury. During her pregnancy, she also may have taken Ritalin and other medications.

On March 9, 2011, mother was arrested for assault in the first degree and risk of injury based on the injuries sustained by MaKenna. Mother was ordered to have no contact with MaKenna pursuant to a criminal protective order issued on March 10, 2011. She is no longer able to visit with MaKenna and is currently being held on bond. After she was arrested, mother informed the police that she was six weeks pregnant. The respondents had not previously informed DCF that mother was pregnant. Prior to trial, mother failed to offer an adequate explanation for MaKenna's injuries.

On September 7, 2010, the court (Gleeson, J.) ordered mother to comply with specific steps. In September 2010, the respondents revoked all releases of information except for CCMC and MaKenna's doctors. The department was unable to refer mother for services without a release.

Mother has complied with some of the specific steps. Mother attended the only scheduled administrative case review meeting. She attended MaKenna's medical appointments. She kept her whereabouts know to the department. She visited the child as often as permitted before she was arrested. She earned income as an exotic dancer until February 2011, when she started two voluntary EMT positions in Plymouth and Wethersfield. However, mother has not fully complied with several specific steps. Although mother has visited the child as often as permitted, the department had concerns regarding some of mother's behaviors during visits. Mother reported that she was participating in therapy and parenting classes but failed to provide the department with releases of information to confirm her participation and progress. Before she was incarcerated, mother refused to participate in a recommended substance abuse evaluation at Advanced Behavioral Health (ABH)/Wheeler Clinic. Mother reported that she was receiving Suboxone treatment but failed to provide the department with a release to confirm her participation and progress or for drug testing.

(3) Father

The father, Jonathan S., was born in Springfield, Massachusetts on March 26, 1978. He is thirty-three years old. After his parents were divorced when he was thirteen years old, Jonathon lived primarily with his father. His father eventually remarried.

In 1994, the family moved to Enfield, Connecticut, where father graduated from high school. After graduating, he started working part-time and took some college classes. He subsequently went into the Air Force. He has been full-time in the Air Force since 1999. He currently works as an aircraft mechanic.

Father has a child by a previous marriage. In 2003, father married Rebecca S., and they have one child together, Jasmine S., who is eight years old. They divorced after two or three years. Jonathon reported that he shared joint custody of Jasmine and was able to see her whenever he wanted. Jasmine recently moved to Florida to live with her maternal grandmother.

Father reported that he started dating mother approximately six to twelve months after his divorce. They were married in May 2009. They rent a townhouse in Bristol, Connecticut. Prior to trial, father failed to offer an adequate explanation for MaKenna's injuries.

On September 7, 2010, the court (Gleeson, J.) ordered father to comply with specific steps. In September 2010, father revoked all releases of information except for CCMC and MaKenna's doctors. The respondent was advised by counsel not to speak to DCF without counsel present and to revoke all releases, except for medical professionals. The department was unable to refer him for services without a release.

Father has complied with some of the specific steps. He attended the only scheduled administrative case review meeting. He kept his whereabouts known to the department. Father visited MaKenna as often as permitted. His visits have been appropriate. Father has secured and maintained adequate housing and legal income. However, father has not fully complied with all of the specific steps. Until May 3, 2011, the department was unable to conduct a home visit, although a visit had been previously requested. Father reported attending individual and family therapy and parenting classes but failed to sign releases of information to allow the department to confirm his participation and progress. Until May 5, 2011, father failed to sign a requested release for a substance abuse evaluation at Advanced Behavioral Health (ABH)/Wheeler Clinic. Father had previously refused to participate in a substance abuse evaluation through Advanced Behavioral Health/Wheeler Clinic.

(4) Child

MaKenna was born in Manchester, Connecticut on July 14, 2010. She is one year old. She was born via C-section at Manchester Hospital. Mother had been taking Suboxone during her pregnancy, and MaKenna was born addicted to Suboxone. MaKenna spent two weeks in the NICU being detoxed before she was discharged home. She was considered a healthy infant at discharge. MaKenna was reportedly developing normally until the time her injuries were sustained.

On August 27, 2010, mother found MaKenna unresponsive. Father was not at home. MaKenna was pale and stiff and had shallow breathing. Mother called 911. EMS came to the home and examined MaKenna. She was not brought to the hospital.

Mother reported that a few days before September 3, 2010, MaKenna bumped her head while taking a bath.

On September 3, 2010, mother reported that she found MaKenna unresponsive in her crib. MaKenna was pale and having shallow breathing. Mother called 911, and MaKenna was brought to Bristol Hospital.

At Bristol Hospital, MaKenna presented with faint pulses, bradycardia and hypothermia. A head CT showed subdural hematomas and subarachnoid hemorrhage. The respondents failed to provide an explanation for MaKenna's injuries.

Later that day, MaKenna was transferred to CCMC for further management. Her life was in jeopardy for several days, and her status was DNR and DNI until September 13, 2010. On September 6, 2010, Dr. Cowl, a critical care physician, reported that MaKenna had extensive brain damage and would not be able to ever walk, talk, laugh, smile or go to the bathroom on her own. She would not likely develop any further than what she has already achieved. On September 8, 2010, Dr. Kanev, a neurosurgeon, notified the family that MaKenna had sustained irreversible brain damage. She eventually stabilized and was able to breath on her own. She was fed through a G-tube.

While at CCMC, numerous evaluations and tests were conducted to determine the cause of her injuries, and revealed no underlying disease or condition that would cause or contribute to Makenna's medical profile.

MaKenna remained hospitalized at CCMC until October 25, 2010. During this period, she continued to cry inconsolably for most of the day. Her limbs would stiffen. The department began searching for a medically complex foster home that would be able to meet MaKenna's special medical and developmental needs.

Since October 25, 2010, MaKenna has been placed in a medically complex foster home. The department has observed the interaction between the foster mother and MaKenna. Foster mother is able to care for and console MaKenna. A bond has developed between them.

MaKenna requires ongoing medical attention and services for her medical and developmental issues. She receives nursing care by a LPN seven days per week for twelve hours per day. A visiting nurse sees MaKenna once per week. Dr. Kelly is her pediatric ophthalmologist. He is currently evaluating her for vision impairment and eligibility for services through the Board of Education and Services for the Blind. Dr. Young is her neurologist. Foster mother has expressed concerns regarding MaKenna's stiffness. She stiffens her muscles very tight, and it is very difficult to get her to relax. This stiffness causes MaKenna to get hot and sweaty. Dr. Young has tried to adjust MaKenna's medications, but the foster mother has not seen much improvement. Kirsten Philips, an APRN, has followed MaKenna for her gastroenterology problems. MaKenna is unable to eat by mouth and is fed by a G-tube. MaKenna has experienced mucous problems which foster mother reported seems to be getting thicker and causes MaKenna discomfort. Dr. Kanev has explored ways to address MaKenna's abnormally high muscle tone. This constant spasticity causes MaKenna significant pain and discomfort and will cause her lifelong problems.

Since October 2010, MaKenna has received Birth to Three services. She no longer has a sucking reflex and is getting occupational therapy to address this problem. She receives physical therapy once a week from Birth to Three. She has significant problems with her feet. She also sees a speech therapist twice per month. Due to her traumatic brain injuries, Birth to Three and her medical provides have reported that she is developmentally 0-2 months old.

Foster mother reports that a majority of the time MaKenna does not sleep well at night. She will sleep for awhile then be up and irritable and then sleep for a short period and wake up again. She cries inconsolably for much of the time when she is awake.

(5) Relevant Witness Testimony

The following witness testimony is relevant to the determination of the pending matters.

(a) Dr. Nina Livingston CT Page 18964

Dr. Nina Livingston was called by the petitioner as an expert in pediatrics and the evaluation of child abuse and neglect. She is the medical director for the Suspected Child Abuse and Neglect program (SCAN) at CCMC. The court heard both direct and rebuttal testimony from Dr. Livingston. She prepared an affidavit, dated September 7, 2010, which was submitted with the motion for an OTC. See Petitioner's Exhibit 11.

On September 3, 2010, Dr. Livingston was asked to consult on MaKenna's case. She obtained the medical history by reviewing the available records and speaking with the respondents and the medical staff at Bristol Hospital and CCMC.

MaKenna was born on July 14, 2010. Birth records indicate that MaKenna was induced at term and delivered by C-section due to failure to progress. At birth, MaKenna experienced neonatal abstinence syndrome (drug withdrawal) as a result of opiate medication mother took during pregnancy. During a two-week stay in the NICU, MaKenna was treated with morphine and weaned off prior to discharge. She was considered a healthy child on her release.

At MaKenna's one-month well visit, she presented as being normal. There was no indication of any trauma or complication from birth. A two-month visit was scheduled for mid-September 2010.

On August 27, 2010, mother called 911 after MaKenna experienced breathing problems. Mother reported that while she was feeding MaKenna, the child began to choke a little and then went limp and was not acting properly. The child had some stiffening of her body. Mother indicated that she tried to revive MaKenna by lightly shaking her. By the time EMS arrived, mother reported that the child had recovered and looked okay. Mother decided not to request treatment or transport to the hospital and decided to wait for the next well visit, which was scheduled for mid-September. When father returned home from work that day, the child appeared to be fine. Between August 27, 2010 and September 2, 2010, no issues were reported, and the child was her normal self.

During the night of September 2, 2010, mother reported that the child sounded fussy when she was up with father. Father reported that MaKenna cried a little more than usual that night, and her pupils looked larger. The child was sleeping when father went to work the next day.

On September 3, 2010, MaKenna woke up at approximately 9:00 a.m. and appeared to be normal. Mother fed and changed MaKenna and later put the child back in her crib for a nap.

At around noon, mother went to check on MaKenna and found her to be limp and not breathing. Mother tried to revive MaKenna by shaking her and giving her some rescue breaths and chest compression. She called 911. Bristol Police arrived at the scene first and administered rescue breathing with a Bag Valve Mask (BVM). EMS arrived soon after and found the child unresponsive with inadequate breathing and low heart rate. Resuscitation efforts were made. EMS transported MaKenna to the Bristol Hospital Emergency Department.

When MaKenna arrived at Bristol Hospital, she was pale, limp and unresponsive and had a low heart rate. Her pupils were not responsive as normal. She was intubated. A CT scan of her head showed bilateral subdural hematomas, which are fluid collections between the brain and the skull. While at Bristol Hospital, MaKenna exhibited what appeared to be seizure activity. MaKenna was transported to CCMC for further evaluation and treatment.

On arrival at CCMC, MaKenna was pale, limp and unresponsive. She was intubated. Her heart rate was lower than usual. Her pupils were not as responsive as normal. She had a tense bulging fontanel.

A scan was done of MaKenna's head which confirmed that she had bilateral subdural hematomas. MaKenna underwent an emergency procedure and fluid was drained from her head. It was difficult to determine the exact age of the blood, but there was likely acute (fresh) bleeding. Some of the fluid appeared to be less than seven days old, while other fluid appeared to be less than three days old. The appearance of the blood was consistent with both acute and older blood. Dr. Livingston could not say with certainty which or how much blood was acute versus older.

Dr. Livingston documented her work on MaKenna's case. In her SCAN Consultation report, dated September 3, 2010, Dr. Livingston reported: "The differential diagnosis for Makenna's subdural collections includes trauma (most likely), infection (culture of subdural fluid pending), bleeding disorder (initial screening lab tests unremarkable, making this unlikely; Dr. Hagstrom of Hematology recommended additional labs and these are pending), and rare metabolic disorder such as GA-1 (will check state newborn screen result). Birth records have yet to be reviewed. Evolution of large chronic subdural collections from asymptomatic subdural hematoma present at birth is extremely unlikely. Makenna's presentation is suspicious for inflicted trauma. When she is neurologically stable ophthalmology should be consulted to perform dilated retinal exam. Skeletal survey should be obtained when clinical stability allows. Follow-up intracranial imaging is planned. DCF and police are present and investigating . . ." Father's Exhibit No. S.

DCF asked Dr. Livingston to prepare an affidavit. In her affidavit, dated September 7, 2010, she wrote: "The initial differential diagnosis for Makenna's subdural collections included trauma (most likely), infection (culture of subdural fluid negative), bleeding disorder (initial screening lab tests unremarkable, making this unlikely; Dr. Hagstrom of Hematology recommended additional labs and these were also normal, so there is no evidence for bleeding disorder and no further evaluation is planned for this), and rare metabolic disorder glutaric acid uria type 1 (CT newborn screen result negative, and this includes GA-1; genetics is consulting to advise whether any further testing is indicated). The findings of subdural hematomas in combination with extensive bilateral retinal hemorrhages at 7 weeks of age are not consistent with birth injury. Makenna's subdural hematomas and retinal hemorrhages are highly suspicious for abusive head trauma. If Makenna survives she is expected to be neurologically devastated. Makenna should have a f/u skeletal survey in 2 weeks if she survives to that date." Petitioner's Exhibit No. 11.

In the SCAN attending follow-up note, dated September 8, 2010, Dr. Livingston noted: "Thorough multispecialty evaluation has revealed no underlying disease that would cause or contribute to Makenna's medical presentation. The injuries observed are consistent with violent head trauma. Mother's description of brief non-violent shaking to revive Makenna on more than one occasion is not consistent with the findings observed. It is also noted that Makenna was described as being suddenly limp and unresponsive in mother's arms before mother's attempts to revive her, and that the reported sudden unresponsiveness remains unexplained. Her presentation is diagnostic for abusive head trauma. Her clinical course has been complicated by severe hypoxic ischemic brain injury (likely due to a period of apnea and/or inadequate breathing on the morning of presentation) and her neurologic prognosis is grim . . ." Father's Exhibit No. U.

Dr. Livingston was asked about the possibility that birth trauma attributed to MaKenna's subdural hematoma. Dr. Livingston did not have all the birth records when she wrote her affidavit. Those birth records indicated that MaKenna had both caput and cephalohematoma, which are considered normal findings. Caput is shorthand for caput succedaneum which is swelling in the scalp. It can be caused by the squeezing on the head during labor or passage through the vagina canal. Cephalohematoma is bleeding beneath the periosteum, usually of a single bone and usually it is a parietal bone. In this case, it was probably the right parietal bone. The periosteum is a covering on the surface of the bone. It is not uncommon in labor, and or, vaginal delivery for an infant to have some bleeding beneath the periosteum of one of the parietal bones. This creates a swelling that is usually localized to that bone and does not cross suture lines. It is also considered a normal finding in newborns and will typically resolve within weeks to months depending on the size and how it progresses. Dr. Livingston testified that the information regarding cephalohematoma/molding/caput did not significantly change her opinion that the subdural hematomas were not the result of birth trauma.

She was asked whether subdural hematomas could still exist seven weeks after birth. She testified that a significant proportion of newborns, anywhere from 10% to 46%, will have a small amount of subdural blood present. Subdural hematomas that occur from birth are expected to resolve within a month. It was highly unlikely that a subdural hematoma would still exist seven weeks after birth but that possibility could not be excluded based on the medical research. More study was needed on this issue. However, the way MaKenna presented is not consistent with findings that her injuries were residual from birth.

MaKenna presented with diffuse swelling of both hemispheres of her brain. Such injury is seen with head trauma but also may be seen in cases of hypoxic ischemic injury (inadequate respiration), where the tissue is not getting enough blood or oxygen. Potential causes of hypoxic ischemic injury include asphyxia, seizure, and blood around her brain. Seizure activity may cause inadequate respiration, which can lead to hypoxic ischemic injury to the brain. There could be inadequate respiration in the setting of a seizure which could contribute toward the brain injury that was observed. The seizure activity could cause the brain swelling but not the bleeding around the brain or retinal hemorrhages. Mother described MaKenna as not breathing adequately and being blue around the lips. Based on mother's report and the way MaKenna presented, MaKenna suffered a period of hypoxia to her brain. Dr. Livingston testified that MaKenna's brain swelling likely occurred on the morning of or within the 24-hour period prior to her presentation. Based on mother's report that she fed MaKenna that morning and then put her back in her crib and two or three hours had passed before she found MaKenna unresponsive, it could have been quite a long period of time when MaKenna was not breathing adequately. Serious brain injury could result.

MaKenna was examined by ophthalmology and found to have extensive multi-layered retinal hemorrhages in both eyes (bilateral). The retinal hemorrhages extended all the way to the limiting edge of the retina in both eyes. By the October 2010 evaluation, the retinal hemorrhaging had mostly resolved. Dr. Livingston testified that birth may cause retinal hemorrhaging. However, birth related retinal hemorrhages are seen to resolve by four weeks of life. The pattern or extent of retinal hemorrhage observed in Makenna was not consistent with retinal hemorrhages associated with birth.

Dr. Livingston was asked about whether efforts to resuscitate MaKenna caused her retinal hemorrhages. Before MaKenna was transported to CCMC on September 3, 2010, resuscitation efforts were made by mother, Bristol Police, Bristol Hospital EMS, and Bristol Hospital Emergency Department personnel. Dr. Livingston recognized that a few retinal hemorrhages may result from resuscitation efforts. However, based on the medical literature, Dr. Livingston did not believe that resuscitation efforts would explain the location, severity and pattern of MaKenna's retinal hemorrhages. The fact that MaKenna's retinal hemorrhages were so extensive and multi-layered was evidence that the injury resulted from severe head trauma. MaKenna's retinal hemorrhages were not a result of resuscitation. The finding of multi-layered, bilateral retinal hemorrhages was critical in reaching a diagnosis of abusive head trauma.

MaKenna presented with no external signs of trauma. She did not have any bruises or scrapes on her. Testing did not detect any fractures either of her head or the rest of her skeleton. There were no signs of any impact injury externally to her head. There were no clear signs that MaKenna suffered any injury to her ribs, neck or torso. Based on testing performed, MaKenna's injuries were not the result of any underlying medical condition.

Dr. Livingston was asked about whether reports of minor head bump were related to MaKenna's injuries. Father talked about MaKenna bumping her head on a faucet during bathing, but not even crying, and that that there was no apparent injury. Mother talked about one time bathing her in the sink and having her bump her head on the edge of the sink, crying briefly, but then appearing uninjured. Dr. Livingston testified that neither of those events would be expected to cause anything like the constellation of findings found in MaKenna.

When MaKenna was first evaluated at CCMC, the initial working diagnosis was that her injuries were highly suspicious for inflicted injury. Her presentation was diagnostic for at least one episode of abusive head trauma. Dr. Livingston was asked about her differential diagnosis. She testified that the combination of findings has few potential causes, the most common of which is abusive head trauma. Severe accidental head trauma might cause the combination of MaKenna's injuries, including a high speed motor vehicle crash. A crush injury to the head might also cause these injuries. However, severe accidental head trauma or crush injury were not part of the differential diagnosis based on the lack of report of any such event.

Dr. Livingston was questioned about the potential causes of MaKenna's injuries besides abusive head trauma. Other causes of injury were ruled out including blood disorder, genetic condition, metabolic condition, leukemia and a minor head bump. A minor head bump on a faucet or bathtub would not have caused the combination of injuries seen in MaKenna. Dr. Livingston was asked about a number of other medical issues and whether they caused or contributed to MaKenna's injuries including CPR, asphyxiation, the growth rate of MaKenna's head circumference, seizure activity, hypoxia, sudden infant death syndrome (SIDS) or near-miss SIDS. None of these issues altered Dr. Livingston's opinion that MaKenna suffered at least one episode of abusive head trauma.

Dr. Livingston concluded that MaKenna's injuries were highly suspicious for child abuse. The combination of subdural hematomas, severe bilateral retinal hemorrhages and brain swelling led to a diagnosis of abusive head trauma. This combination of injuries in a previously healthy baby was highly suspicious of inflicted head trauma. Dr. Livingston believed that MaKenna suffered at least one episode of violent head trauma but was unable to determine if the injuries resulted from one or more events or exactly how the injuries were inflicted. The injury causing event likely occurred within twenty-four hours of MaKenna's presentation on September 3, 2010. Dr. Livingston believed that MaKenna experienced a life-threatening event. There was no other medical explanation for her injuries.

Dr. Livingston was asked about the controversy regarding shaken baby syndrome and the development of abusive head trauma (AHT) as a diagnosis. The diagnosis in this case was abusive head trauma, not shaken baby syndrome. By definition, abusive head trauma is head trauma that is inflicted on a child. It may be caused by shaking or impact or a combination of both. The reality is that in many cases the exact mechanism of injury is unknown. The absence of external signs, bruises or contusions, or fractures does not exclude abusive head trauma as a diagnosis. Based on history provided by the parents, Dr. Livingston could not exclude either caretaker. The parents failed to offer an adequate explanation for MaKenna's injuries.

Makenna is neurologically devastated and has a poor long-term neurological prognosis. She suffers global stiffness. She is likely to be blind. She is not expected to have receptive or expressive speech or significant cognitive or motor development.

Dr. Livingston was asked to comment on Dr. Scheller's opinions regarding the case. She understood Dr. Scheller to have the following opinions regarding MaKenna's injuries. MaKenna developed a subdural hematoma at birth, which evolved into big chronic collections of blood and caused her head to be enlarged. On the day that she presented, MaKenna had an acute life threatening event or apparent life threatening event (ALT)/near-miss SIDS event. Her acute subdural hematoma was the result of shocked blood vessels following that event. MaKenna's extensive multilayer retinal hemorrhages were the result of resuscitation efforts. Dr. Livingston testified that she did not believe that there was support in the medical literature for Dr. Scheller's opinions regarding the shocked blood vessels, resuscitation efforts as the cause for the retinal hemorrhages, and subdural hematoma being residual from birth.

Dr. Livingston was questioned regarding certain records and test results not being available when she wrote her September 7, 2010 affidavit. These records included some birth records, Bristol Hospital CAT scans, some CCMC test results including genetic tests, EMT records. Dr. Livingston had the Bristol Hospital radiology reports but was not able to review scans with radiologist until several weeks later. Dr. Livingston testified that no information presented after September 7, 2010, changed her diagnosis of abusive head trauma. She had all the relevant information when she made her diagnosis of abusive head trauma. She has not subsequently received any information which would cause her to change the diagnosis.

The respondents argued that Dr. Livingston rushed to judgment in terms of her diagnosis of abusive head trauma. They argued that she did not wait for all the test results and consultations and also did not review all the birth records and brain scan images before finalizing her diagnosis. The respondents also raised concerns regarding the use of the term "shaken baby syndrome" on several occasions to describe MaKenna's injuries.

During the trial, there was evidence presented about the current position of the American Academy of Pediatrics (AAP) regarding the diagnosis of abusive head trauma. In May 2009, the AAP issued a policy statement entitled, "Abusive Head Trauma in Infants and Children." PEDIATRICS Volume 123, Number 5, May 2009, p. 1409. Father's Exhibit No. A-A. The policy statement addressed the controversy regarding shaken baby syndrome and abusive head trauma (AHT). "Shaken baby syndrome is a subset of AHT." Id., p. 1410. "The term is sometimes used inaccurately to describe infants with impact injury alone or with multiple mechanisms of head and brain injury and focuses on a specific mechanism of injury rather than the abusive event that was perpetrated against a helpless victim." Id., p. 1410. It was noted that "many clinicians and researchers acknowledge that precise mechanisms for all abusive injuries remain incompletely understood." Id., p. 1409. The AAP recommended the adoption of the term "abusive head trauma" (AHT) rather than shaken baby syndrome as the medical diagnosis. Id., 1410-11. "A medical diagnosis of AHT is made only after consideration of all the clinical data. On some occasions, the diagnosis is apparent early in the course of the evaluation, because some infants and children have injuries to multiple organ systems that could only be the result of inflicted trauma. On other occasions, the diagnosis is less certain, and restraint is required until the medical evaluation has been completed . . . Pediatricians often find it helpful to consult a subspecialist in the field of child abuse pediatrics to ensure that the medical evaluation has been complete and the diagnosis is accurate." Id., 1410. The AAP made several recommendations including that "[c]onsultants in radiology, ophthalmology, neurosurgery, and other subspecialist are important partners in the medical evaluation and can assist in interpreting data and reaching a diagnosis." Id., p. 1411.

The evidence demonstrated that MaKenna's evaluation at CCMC was conducted in a manner consistent with the AAP recommendations. Dr. Livingston is a subspecialist in child abuse pediatrics. In reaching a diagnosis, she obtained the medical history, reviewed the available medical records, and consulted with specialists in radiology, ophthalmology, neurosurgery, genetics and other subspecialists. A complete medical assessment was conducted that involved numerous tests to rule out alternative explanations for MaKenna's injuries. After a thorough evaluation, Dr. Livingston concluded that MaKenna's presentation with subdural hematomas, severe bilateral retinal hemorrhages and brain swelling could only be the result of inflicted trauma.

The use of the term "shaken baby syndrome" by the department and in the records was unfortunate in some respects, but it did not reflect any rush to judgment or bias. Rather, as noted by the AAP, the term is sometimes used inaccurately.

(b) Dr. Christopher Kelly

Dr. Christopher Kelly was called by the petitioner as an expert in pediatric ophthalmology. He has privileges at CCMC and was asked to consult on MaKenna's case on September 7, 2010. On November 16, 2010, Dr. Kelly wrote a letter to MaKenna's primary care physician, Dr. Jiby George. See Petitioner's Exhibit No. 12.

At trial, Dr. Kelly testified regarding his evaluation of MaKenna. He has seen MaKenna on four occasions. When he first examined MaKenna on September 7, 2010, she had numerous retinal hemorrhages in both her eyes. The retinal hemorrhages were multi-layered and extensive, too many to count. Her left eye had more. Dr. Kelly saw MaKenna for the second time on October 2, 2010. Her retinal hemorrhages had improved but not fully resolved. On November 16, 2010, Dr. Kelly had a follow-up appointment with MaKenna. By then, her retinal hemorrhages had fully resolved.

Dr. Kelly testified regarding the diagnosis of MaKenna's eye injuries. What stands out in terms of MaKenna's retinal hemorrhaging was the number and pattern of retinal hemorrhages and the multiple levels of retinal hemorrhaging. The hemorrhages extend to the ora serrata, the extreme edge of the retina. The pattern and extent of retinal hemorrhaging was consistent with a diagnosis of abusive head trauma. MaKenna also had optic atrophy in both eyes, which had progressed over the last few months. He graded it as three on a scale of four. As a result, MaKenna was not likely to have useful vision. Optic atrophy was seen as a complication of abusive head trauma.

Dr. Kelly was questioned about other potential causes of MaKenna's eye injuries including asphyxiation, seizures, CPR, birth trauma, and brain swelling. None of these potential causes altered his conclusion that MaKenna suffered abusive head trauma. Retinal hemorrhaging from CPR would have a very different pattern. Based on the medical literature, CPR would likely only cause a few scattered hemorrhages in the posterior pole, which was very different pattern than from what was found. Although birth trauma is usually considered the number one cause of retinal hemorrhages, Dr. Livingston had never seen retinal hemorrhages from birth trauma take more than a few weeks to resolve. There may be some retinal hemorrhages that took longer to resolve but would not be seen in MaKenna's pattern. The optic atrophy also made birth trauma extremely unlikely because birth trauma would not cause the loss of both optic nerves. Brain swelling or subdural hematoma would not directly cause retinal hemorrhages. Sometimes retinal hemorrhaging occurred for unknown reasons but not in the pattern seen here.

Dr. Kelly testified regarding his prognosis for MaKenna. He last saw MaKenna on April 26, 2011. Her prognosis was very poor. She had optic atrophy in both eyes. A signal will not be able to get from her eye to her brain. It was unlikely that she will have useful vision. She may be able to see light. She will be considered legally blind.

(c) Youdeline A.

Youdeline A. has been MaKenna's foster mother since October 2010. She received special training to care for MaKenna. She was licensed as a medically complex foster parent. She also worked full time.

MaKenna had significant special medical and developmental needs. She had a number of issues due to her brain injuries. She vomited frequently and had mucus issues.

Services were in place to address MaKenna's special needs. A licensed practical nurse (LPN) has come to the home seven days per week for twelve hours per day to help care for MaKenna. A visiting nurse has also made visits to the home once or twice per week. MaKenna also has received Birth to Three services several times per month including occupational therapy, physical therapy and speech therapy.

Foster mother has taken MaKenna to her numerous medical appointments. She must see several doctors on a regular basis, including her primary care doctor, a neurologist and a pediatric ophthalmologist. The parents have attended some of MaKenna's medical appointments.

MaKenna has not been able to sleep through the night. She usually has not gone to sleep until 10:30 p.m. and then has only slept until 1:30 a.m. MaKenna averaged approximately three hours of sleep per night. She cried most of the time when awake. Her body often stiffened up, which was a concern because this may cause her body temperature to rise. She has been fed through a gastric feeding tube (G-tube).

Youdeline testified that she was open to being a possible adoption resource for MaKenna.

(d) Dorothy Zyla

DCF social worker Dorothy Zyla was assigned to MaKenna's case in October 2010. After being assigned, Zyla reviewed the care record. On September 3, 2010, a referral was made based on MaKenna's head trauma and suspicions of child abuse. The initial diagnosis was inflicted abusive head trauma. Her injuries were unexplained.

The parents were interviewed after DCF became involved. The parents were unable to provide any explanation for MaKenna's injuries. The respondents were MaKenna's only caretakers when she was injured. The parents never said that anyone else was MaKenna's caretaker or responsible for her injuries. Zyla admitted that there are a number of references in the department's records to violent shaking and shaken baby syndrome even though the diagnosis was abusive head trauma. As the case progressed, the department started to use the term "abusive head trauma" rather than shaken baby syndrome to explain the child's injuries.

On September 7, 2010, the respondents were ordered to comply with specific steps, including providing releases of information. Both parents had indicated that they were involved in services on their own. The respondents signed releases for MaKenna's medical providers but revoked or refused to sign other releases. Mother failed to provide releases to DCF to contact any of her service providers or make referrals. Until recently, father failed to provide any releases to DCF to contact any of his service providers or make referrals. The parents were recommended for substance abuse evaluation, but releases were needed. Father recently signed a release of information for a substance abuse evaluation.

Zyla testified regarding visitation. After MaKenna was placed in the department's care, the parents were provided with two, two-hour visits per week. The parents visited as often as permitted. However, DCF had several concerns regarding mother's visitation. She sometimes had difficulty trying to sooth MaKenna. Mother failed to follow directions from the nurses regarding caring for MaKenna. Mother would bounce MaKenna too much when the child was being fed through the G-tube. In an attempt to provide oral stimulation to MaKenna, mother would put her finger(s) in MaKenna's mouth without a glove and in a way which would cause MaKenna to gag or even vomit. Mother was eventually able to provide appropriate oral stimulation to MaKenna with additional instruction. On one occasion, mother came to a visit in her EMT uniform, and the child subsequently became sick. The department asked mother to stop wearing her uniform to visits. On March 9, 2011, mother was arrested for charges related to MaKenna's injuries. Visits with mother were suspended after a full no-contact criminal protective order was put in place, which prevented mother from having any contact with MaKenna.

As the case progressed, the interaction between the respondents during visitation became tense. Mother sometimes raised her voice at father or was cross or condescending toward him. Father would not respond or stay quiet. After speaking with the department's domestic violence consultant, Zyla talked to father about the department's concerns regarding the parents' relationship and whether father wanted to participate in any domestic violence services. Father indicated that he did not think there were any problems in their relationship and declined services.

Father has continued to have visitation. He has been appropriate with MaKenna and has been able to care for her and sooth her. Father has followed the directions given by the nurses regarding caring for MaKenna.

Zyla has recently seen the child in the foster home. MaKenna was unable to eat on her own and was fed with a G-tube. She was not able to sit up or crawl on her own. She basically spent her day lying down or being held. Sometimes she was placed in a swing. When she was awake, she cried or was irritable most of the time. Makenna must attend numerous medical appointments with specialists. She must take several medications on a daily basis. The respondents have attended many of MaKenna's medical appointments. MaKenna has received a number of services in the foster home including Birth to Three and nursing services. Zyla does not know what services would be available if the child was returned to the parents. The nursing services have been provided through father's health insurance.

The foster mother has worked full-time. Nursing services are provided for in the home when foster mother has to work. The parents have expressed some concerns regarding the foster mother including her being late for a medical appointment and some marks or bruises observed on MaKenna. The department investigated and found no concerns regarding the foster mother. Foster mother has cooperated with nursing services and transported MaKenna to all of her medical appointments.

Prior to trial, the respondents have not provided an explanation with respect to how MaKenna sustained her injuries. The respondents have continued to believe that there was an underlying medical reason for MaKenna's injuries. The respondents have expressed sadness for MaKenna's state of being but have not verbalized or demonstrated any remorse for causing the injuries. Father has continued to support mother despite her arrest and does not believe she would be capable of hurting MaKenna. In February 2011, the department sent letters to the respondents regarding concerns with the case. Due to the respondents' unwillingness to provide releases, the department was unable to obtain information regarding any referrals or support services they had pursued on their own. The department also notified the respondents regarding concerns with visitation. On May 3, 2011, Zyla was finally able to conduct a home visit. The respondents' home was clean and adequately furnished. There were sufficient supplies for the child. The department would work toward reunification if ordered to do so.

An OTC was requested due to MaKenna's significant injuries. Both parents reported that they were the only caretakers for MaKenna. The parents have not provided an explanation as to how the injuries occurred. Based on the circumstances, the department's position is that the OTC should be sustained, the neglect petition should be granted, and the child should be committed to the department. As to TPR, the department believes that the parental act(s) of commission or omission ground has been proven and that termination is in the child's best interest. MaKenna sustained a life threatening injury in the respondents' care which has not been adequately explained.

(e) Dr. Joseph Scheller

Dr. Joseph Scheller was called by the respondents as an expert in pediatric neurology. He wrote a report dated May 4, 2011. See Mother's Exhibit No. G.

Dr. Scheller reviewed the records but did not examine MaKenna. He believed that MaKenna suffered birth trauma, which may have caused her subdural hematoma. The birth records indicated that MaKenna was found to have molding of the skull, which means that the skull was misshapen during delivery. She also had a cephalohematoma, which is blood outside the skull underneath the scalp. Molding and the cephalohematoma may occur if labor has started and the baby's head has approached the birth canal and then is squeezed. Cephalohematomas and molding are not usually problematic and usually resolved in a few weeks in the vast majority of cases. Although these conditions were usually benign, they may not always be. In some percentage of the cases, cephalohematoma can indicate an existent latent problem that was not visible to the eye. A subdural bleeding at birth can evolve into a chronic subdural collection.

MaKenna's subdural hematoma may also have been caused by an hypoxic event. A hypoxic event that made the vessels more fragile may then cause those stressed blood vessels to leak and resulted in a subdural hematoma. Dr. Scheller believed that leakage from brain blood vessels represented them being shocked by a life threatening event and then resuscitated. By shock, he meant a very dramatic drop in blood pressure. When any organ does not get enough blood flow for a period of time, that organ tends to swell as a reaction to the lack of blood flow. As that organ swells, the cell connections become looser and so fluid or blood can leak through cell connections where cells come together. It is not unusual for an organ that has gone through a very low pressure, shock, to then once it is resuscitated to leak either fluid or blood.

Dr. Scheller believed it was possible that that MaKenna's preexisting condition of this chronic subdural fluid collection due to a birth complication made her more prone to have a subdural hematoma from a near-miss SIDS or apparent life threatening event (ALTE). Dr. Scheller testified that the small amount of acute blood as seen in Makenna's CT scans of September 3, 2010, represented leakage from brain blood vessels that have been shocked by this life threatening event and then resuscitated.

Dr. Scheller believed that his opinions were supported by the rate of growth of MaKenna's head circumference, which he considered to be abnormal. Based on the measurement from the July well visit and from her presentation at CCMC, MaKenna's head circumference grew six centimeters in less than two months. In his opinion, Makenna's head grew at an abnormal rate some point after the end of July 2010. Intracranial bleeding, cerebral edema, and increased intracranial pressure could acutely increase head circumference in an infant of Makenna's age. An abnormal rate of head circumference growth may be an indication of an underlying problem, including extra fluid collection that does not belong there.

Dr. Scheller testified that brain scans showed a symmetric pattern of brain swelling and brain injury, which reflected an ischemic or hypoxic type of injury. In other words, the brain for a period of time failed to get enough oxygen and blood flow. As a result, the bulk of the brain, except for that central core of the brain, was injured and that injury then caused swelling. In his opinion, the brain scans were consistent with an hypoxic ischemic event. The scans indicated an absolute symmetry, with the distinguishable outer circle of the brain versus the lighter color of the inner circle of the brain. Dr. Scheller believed that it was something that happened from within, and that can only be something related to blood flow or oxygen involving the whole brain except for the very deep core of the brain. Sometimes that happened as a result of SIDS which was a great mystery. But sometimes it happened as a result of too much fluid pushing on the brain and perhaps even causing a very small amount of hemorrhage that irritated the brain and caused the heart to stop. Dr. Scheller was not sure whether it was triggered from this great mystery of SIDS or was it connected to that extra fluid that MaKenna had.

Dr. Scheller believed that there were other explanations for MaKenna's retinal hemorrhages besides child abuse. The most common cause of retinal hemorrhages was vaginal birth. A significant percentage of normal newborn vaginal births suffered retinal hemorrhages because of chest compression that increased pressure in the retinal veins. Retinal hemorrhages may also result from resuscitation efforts. On September 3, 2010, CPR was performed on MaKenna by the mother, police, EMTs, and Bristol Hospital Emergency Department staff. Dr. Scheller believed that whether CPR can cause a large amount of retinal hemorrhages was a matter of controversy. In his opinion, CPR caused Makenna's extensive bilateral multilayer retinal hemorrhaging.

In his opinion, MaKenna's brain injuries were not consistent with any type of blow to the head and or with any type of external force. MaKenna had no external evidence of trauma. There was no skin bruising. She was not found to have any fractures or broken bones. Rib fractures would be expected if somebody had squeezed her very tightly. MaKenna was not found to have any neck injury. If she was shaken in a violent or hurtful manner, then you would expect her head to be flopping back and forth and that could injure her spinal cord, soft tissues of her neck, or even her neck bones. She was not found to have any of those injuries. If somebody had hit her head with any kind of degree of force, you would expect that force to translate into the substance of the brain. There would be an area of swelling just underneath that and perhaps that area of swelling pushing from left to right and perhaps one area of the brain not being nearly as affected. But in this case the symmetrical nature of MaKenna's brain injury was reflected in the brain scans. There was a subdural hemorrhage which was very small, but no blood was found within the substance of the brain itself.

Dr. Scheller testified regarding his diagnosis. He drew different conclusions from the clinical evidence than Dr. Livingston and Dr. Kelly. Dr. Scheller concluded that the child's injuries resulted from internal causes rather than child abuse. On September 3, 2010, MaKenna came into the hospital because of an event that was a non-traumatic event. The main thing that affected MaKenna's brain was something that happened internally. Either a lack of oxygen or a lack of blood flow to the brain or both caused MaKenna to be so ill that day and then to develop a severe brain injury as time passed. The key finding to Dr. Scheller was the lack of evidence of external trauma and the brain scans that indicated a global lack of oxygen or lack of blood flow. Based on these findings, Dr. Scheller concluded that there was no evidence that MaKenna was abused. The symmetry of the brain injury and the lack of external trauma and fracture(s) were not consistent with child abuse and another explanation was very reasonable.

Dr. Scheller was asked about his views on shaken baby syndrome (SBS), sudden infant death syndrome (SIDS), and near-miss SIDS or apparent life-threatening event (ALTE). He shared the minority view on many of these issues and believed that they were matters of controversy. In a SBS case, there would presumably be neck injury, trunk injury or broken ribs if a baby was shaken violently. If a baby had been shaken violently, you would expect to see trunk injuries because you would assume the baby was held at the trunk so that would mean bruises around the trunk. There might also be broken ribs if the baby was squeezed very hard at the trunk. If the baby was held upright and shaken back and forth, you would expect to see a neck injury that could mean injury to either spinal cord or neck bones or soft tissues in the neck. When there was no evidence of impact, it was less likely to be called shaken baby syndrome. Dr. Scheller believed that the pattern of brain injuries that was thought at one point to been easily be attributed to SBS has never been proven and there is now a slow movement away from that term because of the lack of proof.

Dr. Scheller criticized the use of the term "abusive head trauma" (AHT). AHT is a vague term that is now being used in the world of child abuse specialists to replace shaken baby syndrome. Abusive head trauma is a diagnosis of exclusion. In these types of cases, there are not usually eye witness accounts of what happened. Abusive head trauma seems to indicate that somebody got upset with a child and hit the child over the head. The factors necessary for a diagnosis of AHT would have to rule out other conditions that can present with features of head injury, including strokes, bleeding problems, heart problems, and infections. In near-miss SIDS or ALTE cases, the baby is able to be resuscitated. Dr. Scheller believed in this case that there were risk factors for near-miss SIDS. Some of the risk factors include low birth weight, maternal smoking, and family history of a life threatening event and prior history of a life-threatening event. At least one of the risk factors was present; mother smoked during pregnancy. Dr. Scheller believed that when something goes wrong in the brain of an infant and there is not a great explanation for it, one has to suspect that, perhaps, that maybe somebody did abuse the child, but then one needs to consider all the other possibilities as well.

Dr. Scheller was asked about his minority views on a number of issues related to the diagnosis of MaKenna's injuries. When asked if it was true that the medical literature does not support the theory that hypoxia causes subdural hematomas in infants, Dr. Scheller testified that it was an area of controversy. He recognized that the majority view is that an hypoxic ischemic event does not cause a subdural hemorrhage in an infant. He did not necessarily agree with the medical literature that trauma is the most common cause of subdural hematoma in infancy. He recognized that the majority of the medical literature does not support the theory that hypoxia causes bilateral multilayer retinal hemorrhages extending to the ora serrata.

When asked about Dr. Livingston's diagnosis of abusive head trauma, Dr. Scheller believed that it was more likely that the chronic subdural fluid and the small amount of acute subdural hemorrhage trigged a reflex diagnosis of child abuse when, in fact, the subdural fluid was there as a complication of birth. The acute hemorrhage was there as result of the near-miss SIDS event. Dr. Scheller could find no evidence that MaKenna was the victim of child abuse.

Dr. Scheller was asked about things that may be found in an abused child including subdural hematoma, retinal hemorrhages, subdural fluid, and a pattern of bilateral retinal hemorrhages. Dr. Scheller believed that there would also be evidence of external trauma and possibly neck injuries. Dr. Scheller believed that if there was no external injury, as in this case, there was a need to explain an internal injury in another way.

Dr. Scheller believed that what happened to MaKenna was weird and unusual. In cases of abusive head trauma there has to be external signs of abuse or there has to be a good explanation how the inflictor was able to avoid it. He ruled out child abuse based on the fact that there was no external injury, no neck injury, no broken bones, and the pattern on the brain scans was not consistent with an abusive event.

(f) Father

Father's testimony was limited to offering into evidence several pictures of MaKenna taken before September 3, 2010.

(g) Dr. Paul Kanev

Dr. Paul Kanev was called in rebuttal by the petitioner as an expert in neurosurgery. He is the director of pediatric neurology at CCMC. He was asked to consult on MaKenna's case and was the treating neurosurgeon. He examined MaKenna soon after she presented at CCMC. The child was in a severe state of neurological dysfunction. She was in a coma with limited response to stimulation. She has a bulging soft spot on her head and the brain scans showed evidence of hemorrhage. Dr. Kanev tapped into the soft spot and drained the fluid. Approximately four ounces of blood were drawn where there should not have been any blood. Dr. Kanev was not able to precisely date the blood, but the red blood indicated acute bleeding. Dr. Kanev believed that the rate of growth of MaKenna's head circumference may be residual from the blood drained from her head. Larger measurement would be expected after the events MaKenna experienced.

Dr. Kanev did not believe that a birth-related subdural hematoma would cause a child to present in the way MaKenna presented. Cephalohematoma may occur in a newborn infant and usually resolves from one week to six to eight weeks. Without repetitive trauma, there would not likely be repetitive bleeding. A cephalohematoma does not evolve into a subdural hematoma. The medical findings were not consistent with the cephalohematoma persisting.

Dr. Kanev diagnosed MaKenna with traumatic brain injury with an abusive mechanism. He disagreed with Dr. Scheller's opinion that MaKenna's injuries were not the result of child abuse. There was no evidence that MaKenna's subdural hematoma was the result of birth trauma. Dr. Kanev disagreed with Dr. Scheller's opinion regarding MaKenna's retinal hemorrhages resulting from resuscitation efforts. Her retinal hemorrhages were far more extensive than any sporadic ones that have been reported to result from CPR. The evidence of acute hemorrhages and presence of both old and new blood is inconsistent with near-miss SIDS. Dr. Kanev disagreed with Dr. Scheller's opinion regarding shocked blood vessel.

MaKenna has a poor prognosis in terms of long-term brain function. Her neurological development has been arrested at the level of a four-to six-week old child.

(h) Dr. Andrea Asnes

Dr. Andrea Asnes was called in rebuttal by the petitioner as an expert in child abuse and general pediatrics. She is an assistant professor at the Yale University School of Medicine, Department of General Pediatrics.

Dr. Asnes reviewed the records but did not examine MaKenna. She testified that the birth related trauma at issue, molding, cephalohematoma and caput, would typically resolve in a few days or weeks and would not be expected to cause the findings found in MaKenna's case. Dr. Asnes recognized that there could be a subdural hematoma related to birth, but it would behave differently and would not be responsible for MaKenna's presentation on September 3, 2010. She did not believe that MaKenna's retinal hemorrhages could be caused by a birth-related subdural hematoma. The pattern and extent of the retinal hemorrhages are associated with trauma.

Dr. Asnes was in agreement with the diagnosis of abusive head trauma. The AHT diagnosis was made in this case after extensive testing and consultation with the multi-disciplinary team, including a pediatric ophthalmologist, radiologist and neurosurgeon. The additional information regarding MaKenna's birth records, birth trauma, and resuscitation efforts did not change Dr. Asnes's opinion. Dr. Asnes had no issues with the standard of care in this case.

Dr. Asnes believed that there was not as much controversy in the medical community regarding AHT as there was outside the medical community. The majority view in the medical community was that AHT was a real diagnosis that can be made with medical accuracy.

Dr. Asnes did not agree with Dr. Scheller's conclusions regarding MaKenna's case. She did not agree with Dr. Scheller's opinion that the absence of external trauma ruled out child abuse. Dr. Scheller's opinions regarding near-miss SIDS and ALT were not consistent with MaKenna's presentation. Near-miss SIDS was an outdated term, which provided no explanation as to the injuries. ALT was not a diagnosis but rather a descriptive term. A child may have an ALT presentation, i.e., problem breathing, but that was not an end diagnosis. Dr. Asnes did not understand Dr. Scheller's use of the term shock in relation to MaKenna's subdural hemorrhages. The term "shock" was not used in the medical literature to explain these types of findings. She did not believe that the medical literature supported Dr. Scheller's opinion that resuscitation efforts can cause the extensive retinal hemorrhages found. Instead, the medical literature indicated that retinal hemorrhages from CPR were rare, and, if found, they were in a different pattern.

The court will provide additional facts as needed.

III DISCUSSION CT Page 18984

The department has filed a motion/order of temporary custody, neglect petition, termination of parental rights petition, and motion to review permanency plan, all of which have been consolidated for trial. Consolidation of these matters is provided for under the Practice Book. "Subject to the requirements of Section 33a-7(a)(6), upon motion of any party or on its own motion, the judicial authority may consolidate the hearing on the order of temporary custody or order to appear with the adjudicatory phase of the trial on the underlying petition." Practice Book § 33a-7(e). In addition, "[u]pon motion of any party or on its own motion, the judicial authority may consolidate separate petitions for trial. In determining whether to consolidate, the judicial authority shall consider whether consolidation will expedite the business of the court without causing delay or injustice." Practice Book § 35a-6A; See also General Statutes § 17a-112(1) ("Any petition brought by the Commissioner of Children and Families to the Superior Court, pursuant to subsection (a) of section 46b-129, may be accompanied by or, upon motion by the petitioner, consolidated with a petition for termination of parental rights filed in accordance with this section with respect to such child"). In this case, the consolidation of all these matters will expedite the business of the court without causing delay or injustice and is in the best interest of the child and the interests of justice.

Procedurally, the court must address the issues in turn. "At a consolidated order of temporary custody and neglect adjudication hearing the judicial authority shall determine the outcome of the order of temporary custody based upon whether or not continued removal is necessary to ensure the child's . . . safety, irrespective of its findings on whether there is sufficient evidence to support an adjudication of neglect or uncared for." Practice Book § 33a-7(e). "When coterminous petitions are filed, the court first must determine, by a fair preponderance of the evidence, whether the child has been neglected. If the court so finds, it then may consider, as a disposition of the matter, a request to terminate parental rights. That requires consideration of the accompanying termination petition and a hearing thereon. The hearing on a petition to terminate parental rights consists of . . . two phases, adjudication and disposition. See Practice Book § [33-12]. In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination of parental rights exists by clear and convincing evidence. If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interest of the child." (Citation omitted; internal quotation marks omitted.) In re Clark K., 70 Conn.App. 665, 669, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2002). See Practice Book § 35a-3 ("When coterminous petitions are filed, the judicial authority first determines by a fair preponderance of the evidence whether the child or youth is neglected . . . if so, then the judicial authority determines whether statutory grounds exist to terminate parental rights by clear and convincing evidence; if so, then the judicial authority determines whether termination of parental rights is in the best interests of the child or youth by clear and convincing evidence. If the judicial authority 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 judicial authority may consider by a fair preponderance of the evidence any of the dispositional alternatives available under the neglect . . . petition"). Practice Book § 32a-3 provides in relevant part: "(a) The standard of proof applied in a neglect . . . proceeding is a fair preponderance of the evidence. (b) The standard of proof applied in a decision to terminate parental rights or a finding that efforts to reunify a parent with a child or youth are no longer appropriate, is clear and convincing evidence."

A OTC

The department has asked the court to sustain the order of temporary custody pursuant to § 46b-129(b), which requires a finding that: "(1) the child or youth is suffering from serious physical illness or serious physical injury or is in immediate physical danger from the child's or youth's surroundings, and (2) that as a result of said conditions, the child's safety is endangered and immediate removal from such surroundings is necessary to ensure the child's or youth's safety . . ." If so, then the court must determine "whether the court should vest the child's or youth's temporary care and custody in a person related to the child or youth by blood or marriage or in some other person or suitable agency pending disposition of the petition." General Statutes § 46b-129(b). The parents are on notice that at issue is whether "conditions in the home have endangered the safety and welfare of the child . . ." General Statutes § 46b-129(b). The court must determine "whether or not continued removal is necessary to ensure the child's . . . safety . . ." Practice Book § 33a-7(e).

In the case of In re Juvenile Appeal (83-CD), 189 Conn. 276, 296, 455 A.2d 1313 (1983), the Supreme Court held that the burden of proof to be used in a contested OTC proceeding is fair preponderance of the evidence. "[T]he burden of proof is always on the state when it seeks to remove children from the home." Id., 295. "[C]hild's safety pending further proceedings is the primary concern of a temporary custody hearing." Id., 298.

On September 3, 2010, MaKenna presented at the hospital with serious physical injuries. The combination of subdural hematomas, severe bilateral retinal hemorrhages and brain swelling was highly suspicious of abusive head trauma. MaKenna was in the care and custody of her parents when the injuries occurred. No other caretakers were reported. The respondents have not offered an adequate explanation for MaKenna's injuries. While in the respondents' care, MaKenna suffered life threatening injuries that have left her with irreversible brain damage. Based on history provided by the parents, neither parent can be excluded as causing the injuries. The conditions in the home have endangered the safety and welfare of the child. As a result of said conditions, the child's safety is endangered and continued removal from such surroundings is necessary to ensure the child's safety.

Based on the evidence presented, the court finds by a fair preponderance of the evidence that continued removal is necessary to ensure the child's safety. Therefore, the order of temporary custody is sustained and temporary custody of the child is vested in the department.

B Neglect Petition

The department alleges in the neglect petition that MaKenna was neglected in that she was both permitted to live under conditions injurious and she was abused.

General Statutes § 46b-129(a) provides in relevant part: "the Commissioner of Children and Families . . . having information that a child . . . is neglected . . . may file with the Superior Court that has venue over such matter a verified petition plainly stating such facts as bring the child . . . within the jurisdiction of the court as neglected . . . within the meaning of section 46b-120 . . ."

"A neglect petition is sui generis and, unlike a complaint and answer in the usual civil case, does not lead to a judgment for or against the parties named. Neglect proceedings, as do termination of parental rights cases, consist of two phases: adjudication and disposition. In the adjudicatory phase, the trial court must determine if the child is neglected." In re David L., 54 Conn.App. 185, 191, 733 A.2d 897 (1999).

"[A]n adjudication of neglect relates to the status of the child and is not necessarily premised on parental fault. A finding that the child is neglected is different from finding who is responsible for the child's condition of neglect. Although [General Statutes] § 46b-129 requires both parents to be named in the petition, the adjudication of neglect is not a judgment that runs against a person or persons so named in the petition; [i]t is not directed against them as parents, but rather is a finding that the children are neglected." (Citations omitted; emphasis in original; internal quotation marks omitted.) In re T.K., 105 Conn.App. 502, 505-06, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). See In re Zamora S., 123 Conn.App. 103, 110, 998 A.2d 1279 (2010). "Nothing in § 46b-129 requires that the respondent parent in a neglect proceeding have custody for the court to adjudicate a neglect petition." In re Jessica S., 51 Conn.App. 667, 672, 723 A.2d 356, cert. denied, 251 Conn. 901, 738 A.2d 1090 (1999). "The statutes and rules of practice . . . do not afford a parent in a neglect proceeding the right to require the trial court to adjudge each parent's blameworthiness for a child's neglect." In re David L., supra, 54 Conn.App. 193.

A neglected child is defined as a child who "(A) has been abandoned, (B) is being denied proper care and attention, physically, educationally, emotionally or morally, (C) is being permitted to live under conditions, circumstances or associations injurious to his well-being . . . or (D) has been abused . . ." General Statutes § 46b-120(8). "`Abused' means that a child or youth (A) has been inflicted with physical injury or injuries other than by accidental means, (B) has injuries that are at variance with the history given of them . . ." General Statutes § 46b-120(3).

"Section 46b-129(j) governs petitions for adjudication of neglected children and the commitment of their custody and provides that `[u]pon finding and adjudging that any child or youth is uncared-for, neglected or dependent, the court may commit him to the Commissioner of Children and Families . . ." (Emphasis in original.) In re David L., supra, 54 Conn.App. 191. "[W]hile an adjudication of neglect may lead to removal of a child from parental custody pending investigation and resolution of the child's circumstances, removal is only one of a number of possible dispositions after a finding of neglect. Thus, even after a finding of neglect, the child may remain with his or her parents under protective supervision . . . Pursuant to § 46b-129(d), the Superior Court has three possible options from which to chose regarding custody of a child found to be neglected: (1) commit the child to the commissioner of children and families; (2) vest guardianship of the child in a third party until the child reaches the age of eighteen; or (3) permit the natural parent or guardian to retain custody and guardianship of the child with or without protective supervision." (Citation omitted; internal quotation marks omitted.) In re David L., supra, 54 Conn.App. 192, n. 7.

On September 3, 2010, MaKenna presented at the hospital with serious physical injuries. Both Dr. Livingston and Dr. Kelly concluded that MaKenna's injuries were the result of abusive head trauma. Other causes were ruled out. While in the respondents' care, MaKenna sustained serious physical injuries that have left her with irreversible brain damage. The respondents have not provided an adequate explanation for MaKenna's injuries. Neither parent can be excluded as causing the injuries. The conditions in the home have endangered the safety, health and welfare of the child. MaKenna was neglected in that she was permitted to live under conditions, circumstances or associations injurious to her well-being. MaKenna 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.

Based on the evidence presented, the court finds by a fair preponderance of the evidence that MaKenna was neglected in that she was both permitted to live under conditions, circumstances or associations injurious to her well-being and also that she was abused. Therefore, the neglect petition is granted, and the child is adjudicated neglected and abused. MaKenna is committed until further order of the court to the Commissioner of Children and Families who shall be guardian of the child.

C

CT Page 18989

Termination of Parental Rights

Having determined by a fair preponderance of the evidence that MaKenna is 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 § 17a-112(j)(3)." (Internal quotation marks omitted.) In re Melody L., 290 Conn. 131, 148-49, 962 A.2d 81 (2009).

"The legal framework for deciding termination petitions is well established. [A] hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112[(j)(3)] exists by clear and convincing evidence . . . If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child . . . The best interest determination also must be supported by clear and convincing evidence." (Internal quotation marks omitted.) In re Melody L., supra, 231 Conn. 163. "Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding" the seven statutorily-enumerated criteria. General Statutes § 17a-112(k).

(1)

CT Page 18990

Reasonable Efforts

In the adjudicatory phase, the first issue to be addressed is whether DCF met its burden regarding reasonable efforts. See In re Melody L., supra, 290 Conn. 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 section 17a-111b, or determines at trial on the petition, that such efforts are not required . . ." General Statutes § 17a-112(j)(1). In accordance with § 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). In this case, the petitioner alleges that the respondents are unable or unwilling to benefit from reunification efforts.

"The standard for reviewing reasonable efforts has been well established by the Appellate Court. `Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the department, [§ 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite the child or children with the parents. The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn . . . [R]easonable efforts means doing everything reasonable, not everything possible.' . . . In re Daniel C., 63 Conn.App. 339, 361, 776 A.2d 487 (2001)." In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004). "[R]easonableness is an objective standard . . . and whether reasonable efforts have been proven depends on the careful consideration of the circumstances of each individual case." (Internal quotation marks omitted.) In re Vincent B., 73 Conn.App. 637, 641, 809 A.2d 1119 (2002), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003). The department has "a continuing duty to make reasonable efforts." Id., 644. But "[t]he department is required only to make `reasonable efforts.' It is axiomatic that the law does not require a useless and futile act." In re Antony B., 54 Conn.App. 463, 476, 735 A.2d 893 (1999). In addition, "making no efforts to reunify a parent and his or her child may be reasonable in certain circumstances . . ." In re Vincent B., supra, 73 Conn.App. 645.

"Reunification efforts generally consist of visitation and, where appropriate, other rehabilitative services such as evaluations, testing, counseling, therapy, education, medical care, parenting classes and housing assistance." In re Destiny Q., Superior Court, Child Protection Session at Middletown (November 19, 2001, Levin, J.). In accomplishing the goals set out in the specific steps, time is of the essence. DCF is expected to make all necessary referrals immediately, and the respondent parents are expected to cooperate promptly with the referral process and engage in services as soon as possible. In evaluating the department's reunification efforts, the court may consider whether the department engaged the respondent, apprised him or her of the steps that had to be taken to achieve rehabilitation, and gave the respondent feedback on his or her progress in reaching that goal. In re Vincent B., supra, 73 Conn.App. 645. The court may take into consideration whether the department met "its burden of making reasonable efforts to achieve reunification by engaging the respondent and making available services aimed at instilling in him [or her] healthy parental skills." Id., 647. The court may also assess whether "steps taken by the respondent presented the department with a window of opportunity during which reasonable efforts at reunification should have been made." Id., 644. The court may find that the efforts were reasonable even though the department made mistakes. In re Charles A., 55 Conn.App. 293, 297-98, 738 A.2d 222 (1999) ("The court is aware that [the department] has made mistakes in this case in failing to treat [the respondent] as a victim of domestic violence . . . These mistakes, however, do not defeat the proposition that reasonable efforts at reunification were made. In the first instance, counseling services were provided. Other, in home services were offered, but refused" (internal quotation marks omitted)).

In finding that DCF made reasonable efforts, the courts have given careful consideration to the circumstances of each individual case. See, e.g., In re Destiny D., 86 Conn.App. 77, 83-84, 859 A.2d 973 (department provided regular visitation, rehabilitative services, counseling and therapy for children, respondent's performance in rehabilitative programs was disappointing, including erratic attendance, resistance to treatment recommendations and positive drug tests; respondent also refused to sign releases for a period of time, so department was unable to make additional referrals), cert. denied, 272 Conn. 911, 863 A.2d 702 (2004); In re Jonathan C., supra, 86 Conn.App. 180 (department provided numerous referrals for services, facilitated visitation and provided therapy for both respondent and children); In re Sheila J., 62 Conn.App. 470, 479, 771 A.2d 244 (2001) (department offered respondent services over several years, including substance abuse evaluation and treatment, parenting skills classes, domestic violence counseling, family reunification program, psychological evaluation and visitation; but she failed to avail herself of or participate meaningfully in those services by failing to attend many visits, and denying that she needed to participate in counseling); In re Daniel C., supra, 63 Conn.App. 362 (respondents participated in services but continually relapsed and resumed abusing substances and alcohol, so the department, not unreasonably, declined to pursue goal of reunification after children were removed; "[t]he dissolution of this family resulted from the respondents' cycle of alcohol and substance abuse and not from the failure of the department to provide services and assistance"); and In re Ebony H., 68 Conn.App. 342, 350, 789 A.2d 1158 (2002) (respondent's inability to overcome drug addiction and failure to comply with services "thwarted the department's efforts to reunify her and the child").

In the alternative, the court may also determine that the respondent was either unable or unwilling to benefit from reunification efforts. As previously noted, "[t]he department is required only to make `reasonable efforts' . . . [as] [i]t is axiomatic that the law does not require a useless and futile act." In re Antony B., supra, 54 Conn.App. 476. Accordingly, the court may find by clear and convincing evidence that "the department had made reasonable efforts to reunify the respondent with the children, [and] [t]he respondent's subsequent failure to take advantage of those efforts establish her [or his] inability or unwillingness to benefit from those reasonable efforts . . ." In re Alexander T., 81 Conn.App. 668, 676, 841 A.2d 274, cert. denied, 268 Conn. 924, 848 A.2d 472 (2004).

In finding that a respondent was unable or unwilling to benefit from the department's reunification efforts, the courts have given careful consideration to the circumstances of each individual case. See, e.g., In re Jonathan C., supra, CT Page 18993 86 Conn.App. 178 ("[t]hroughout the duration of the department's involvement with the family, the respondent demonstrated a lack of cooperation and progress, and revealed an apathetic attitude toward the repeated and extensive reunification efforts that were made"). In making this determination, the court may consider whether "the respondent's positive step in participating in a treatment program demonstrated a degree of rehabilitation in itself." In re Vincent B., supra, 73 Conn.App. 645 (trial court judgment terminating respondent's parental rights reversed because department did not make reasonable efforts when it decided not to engage in further efforts based on its prior experiences with respondent, although respondent took steps and was in a position to benefit from services; respondent had successfully completed long-term inpatient substance abuse treatment and counseling for anger management and depression and had attended regularly scheduled supervised visitation; there was no evidence of relapse in those areas). In addition, the court may consider whether the respondent "was unwilling or unable to formulate an appropriate plan for [the child]. . ." Id. 647.

(a) Mother

The department provided services to mother to assist in her reunification with the child, including supervised visitation and case management. The department provided mother with visitation services until March 2011, when mother was arrested and ordered to have no contact with MaKenna. The department worked with Birth to Three services and MaKenna's medical providers. Mother failed to fully cooperate with the department's efforts. The department requested that mother sign releases in order to make referrals for additional services. Mother refused to sign releases for herself on the advice of counsel. The department was unable to refer mother for services that would assist in the reunification process. For example, the department recommended that mother undergo a substance abuse evaluation, but mother failed to sign a release and make herself available. Mother claimed that she was attending therapy and parenting classes on her own but would not sign releases to allow the department to confirm her participation and progress.

Although the department made reasonable reunification efforts, mother was unable or unwilling to fully cooperate with those efforts and failed to adequately address the child protection concerns. Mother failed to make herself available to actively participate in services. She demonstrated a lack of interest, cooperation and progress with efforts toward reunification. She failed to take the steps necessary to present the department with a window of opportunity during which reasonable efforts at reunification could have been made. The department's efforts were thwarted by mother's inability or unwillingness to benefit from the services. The department made reasonable efforts to reunify mother with MaKenna, and her subsequent failure to take advantage of those efforts establish her inability or unwillingness to benefit from those reasonable efforts.

Based on the evidence presented, the court finds by clear and convincing evidence that the department made reasonable efforts to locate the mother and to reunify the child with the parent and that the mother was unable or unwilling to benefit from reunification efforts pursuant to General Statutes § 17a-112(j)(1).

(b) Father

The department provided services to father to assist in his reunification including supervised visitation and case management. The department has worked with Birth to Three services and MaKenna's medical providers. Father failed to fully cooperate with the department's efforts to facilitate reunification with MaKenna. The department requested that father sign releases in order to make referral for additional services. Until recently, father refused to sign releases required for referrals. Father only recently signed a release to allow the department to refer him for a recommended substance abuse evaluation. The department was unable to refer father for services that would assist in the reunification process. Father claimed that he was attending therapy and parenting classes on his own but will not sign releases to allow the department to confirm his participation and progress.

Although the department made reasonable reunification efforts, father was unable or unwilling to fully cooperate with the services and failed to adequately address the child protection concerns. Father failed to make himself available to actively participate in services. He demonstrated a lack of interest, cooperation and progress with efforts toward reunification. He failed to take the steps necessary to present the department with a window of opportunity during which reasonable efforts at reunification could have been made. The department's efforts were thwarted by father's inability or unwillingness to benefit from the services. The department made reasonable efforts to reunify father with MaKenna, and his subsequent failure to take advantage of those efforts establish his inability or unwillingness to benefit from those reasonable efforts.

Based on the evidence presented, the court finds by clear and convincing evidence that the department made reasonable efforts to locate the father and to reunify the child with the parent and that the father was unable or unwilling to benefit from reunification efforts pursuant to General Statutes § 17a-112(j)(1).

(2) Statutory Ground for Termination of Parental Rights

Having found that the department has met its burden regarding reasonable efforts, the court must next determine whether the department has proved one of the statutory grounds for termination of parental rights. Each statutory basis set out in General Statutes § 17a-112(j) is "an independent ground for termination." In re Baby Girl B., 224 Conn. 263, 293, 618 A.2d 1 (1992). The petitioner is required "to prove, by clear and convincing evidence that one of the specific statutory bases for termination has been established." Id.

In this case, the department seeks to terminate the respondents' parental rights based on parental acts of commission or omission. Section 17a-112(j) provides in relevant part: "The Superior Court . . . may grant a petition . . . if it finds by clear and convincing evidence that . . . (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 nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights . . ." See In re Jorden R., 107 Conn.App. 12, 19, 944 A.2d 402 (2008), rev'd on other grounds, 293 Conn. 539, 979 A.2d 469 (2009); In re Nelmarie O., 97 Conn.App. 624, 905 A.2d 706 (2006); In re Clark K., 70 Conn.App. 665, 799 A.2d 1099, cert. denied, CT Page 18996 261 Conn. 925, 806 A.2d 1059 (2002); In re Sheena I., 63 Conn.App. 713, 723, 778 A.2d 997 (2001); In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000); In re Antonio M., 56 Conn.App. 534, 744 A.2d 915 (2000); In re Jessica M., 49 Conn.App. 229, 241, 714 A.2d 64 (1998), appeal dismissed, judgment vacated, 250 Conn. 747, 749, 738 A.2d 1087 (1999); In re Lauren R., 49 Conn.App. 763, 773, 715 A.2d 822 (1998); In re Felicia D., 35 Conn.App. 490, 646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253 (1994); In re Kezia M., 33 Conn.App. 12, 632 A.2d 1122, cert. denied, 228 Conn. 915, 636 A.2d 847 (1993); In re Kelly S., 29 Conn.App. 600, 616 A.2d 1161 (1992); In re Sean H., 24 Conn.App. 135, 137-38, 586 A.2d 1171, cert. denied, 218 Conn. 904, 588 A.2d 1078 (1991); In re Theresa S., 196 Conn. 18, 19-20, 491 A.2d 355 (1985); In re Juvenile Appeal (85-2), 3 Conn.App. 184, 485 A.2d 1362 (1985); and In re Juvenile Appeal (84-AB), 192 Conn. 254, 255-56, 471 A.2d 1380 (1984).

"[W]here termination is based on a claim of serious physical injury, two criteria must be met to establish prima facie evidence for termination of parental rights: the physical injury must be serious and it must be nonaccidental or inadequately explained." In re Jessica M., supra, 49 Conn.App. 241. In the absence of a statutory definition of "serious physical injury," the Appellate Court reasoned that it must entail something more than a showing of abuse or neglect given that the definitions for those terms "use only the words physical injury or injuries not serious physical injury." Id., 242. The court must determine whether the requisite injury has befallen the child as a result of actual acts of commission or omission by the parents. In re Kezia M., supra, 33 Conn.App. 20.

"The language regarding prima facie evidence shifts the burden from the petitioner to the parent to show why a child with clear evidence of physical injury that is unexplained should not be permanently removed from that parent's care. The language does not limit the grounds to acts resulting in physical injury." In re Sean H., supra, 24 Conn.App. 144.

"Under this subdivision, parental rights can be terminated for one or numerous acts or omissions that affect a child's well-being." In re Jessica M., supra, 49 Conn.App. 241. General Statutes § 17a-112(j)(3)(C) "authorizes the termination of parental rights where specific acts of parental commission or omission have caused serious physical or emotional injury to a child." (Internal quotation marks omitted.) In re Antonio M., supra, 56 Conn.App. 543; In re Felicia D., supra, 35 Conn.App. 502. "There is nothing in this clear statutory language that limits the acts of commission or omission to the serious physical injury of a child, rather than the serious emotional injury of a child." In re Sean H., supra, 24 Conn.App. 144; In re Nelmarie O., supra, 97 Conn.App. 628-29.

"The acts of both parents are pivotal in assessing the chain of circumstances which led to these proceedings. While acts of commission in a case such as this are fairly ascertainable through direct evidence, proof of acts of omission tends to be elusive. The young age of the children and the fact that their mistreatment occurred in the privacy of the family home demand that proof of one parent's failure to halt the mistreatment perpetrated by the other must rest largely upon circumstantial evidence. We thus find that the statements admitted to establish the declarant parent's acts of commission were relevant to establish, by inference, the nondeclarant parent's acts of omission. The fact that an admission by one parent might also support an inference of acts of omission by the other does not go to the admissibility of the statement. We hold that the court did not err to the extent, if any, that it viewed one parent's admission to support an inference against the other." In re Juvenile Appeal (85-2), supra, 3 Conn.App. 191.

A review of the pertinent caselaw reveals a number of different factual scenarios where parental acts of commission and/or omission were sufficient for termination of parental rights.

Child sustained nonaccidental and inadequately explained serious physical injuries in In re Jorden R. In re Jorden R., supra, 107 Conn.App. 14. The child was born in June 2005. Id., 15. In July 2005, the child was taken to the hospital and found to have fractures of the skull and clavicle as well as soft tissue injuries. Id., 14-16. In one of the physician's opinion, the child had symptoms consistent with shaken baby syndrome. Id., 16. There were no reports of accidental injuries, and both the parents and grandparents denied any knowledge of how the injuries occurred. Id., 16-17. "Among his injuries were a compound skull facture with overlying hematoma, severe brain dysfunction associated with large subdural effusion, and brain swelling and retinal hemorrhages in the left eye. The collection of fluids in Jorden's brain were of different ages, possibly indicating two episodes of trauma." Id., 17.

Although it reversed the trial court judgment granting termination on other grounds, the Appellate Court found that evidence was sufficient to support the conclusion regarding parental act(s) of commission or omission. "Pursuant to § 17a-112(j)(3)(C), the court found that the child had 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. It determined that the specific acts were the severe injuries of a nonaccidental nature, not adequately explained, resulting in life threatening injuries and permanent neurological impairment . . .

"The child must have been with one or both of his parents when he was injured, since neither has suggested that the injuries might have occurred when he was with his grandmother, and both parents acknowledged that he was in their care during the night of the injury. Neither parent admitted to any act that might have caused the injuries, and each has suggested that the other might have been responsible. The father had shown some violent tendencies of which the respondent was aware, and, indeed, she was suspicious of some of his actions with the child. The court found by clear and convincing evidence that the child suffered severe physical injuries that the parents could not explain." Id., 19.

Child sustained unexplained serious physical injuries in In re Clark K. There, the trial court found that the children were neglected and terminated the parents' parental rights. In re Clark K., supra, 70 Conn.App. 665. The younger child, M, was born in June 1998. Id., 669. In September 1998, M was taken to the hospital and found to have suffered three fractures to the skull. Id. The child had a subdural hematoma and significant swelling on the area of the fractures. Id. Mother made conflicting statements regarding the child's injuries. Id., 671, 673. In upholding the finding of neglect, the court noted that "M had sustained physical injuries by other than accidental means." Id., 675. The court found that the mother's inculpatory statements coupled with the medical testimony supported the TPR adjudication based on parental act(s) of commission or omission. Id., 676. The disposition of termination of parental rights was in the best interest of the children especially given the "uncertainty of foster care when permanency planning is the goal with respect to their lives." Id., 678-79.

Child suffered unexplained serious physical injuries in In re Cheyenne A. In re Cheyenne A., supra, 59 Conn.App. 155. In affirming the judgment, the Appellate Court noted that "the court found by clear and convincing evidence that Cheyenne suffered severe physical injuries in the form of seventeen rib fractures that occurred at different times. The respondents could not explain her injuries and, after a period of time and reflection, attributed them to Cheyenne's grandmother." Id., 159. The medical testimony indicated that "the fractures were caused, mechanically, by severe, sustained compression, which usually occurs when a baby is shaken. The diagnosis was highly suggestive of child abuse. The respondents did not report that [the child] had sustained any trauma of a magnitude sufficient to cause her injuries, and brittle bone disease was ruled out as a cause. Medical personnel considered inadequate the explanations offered by the respondents, such as the child's having rolled off a couch." Id., 154-55. The trial court judgment granting TPR was affirmed. Id., 160.

Children were seriously injured by mother's acts in In re Sheena I. There, mother burned one child's arms. In re Sheena I., supra, 63 Conn.App. 723. In addition, mother was absent from the home for lengthy periods of time, she had knowledge of that one of the children's fathers had neglected and inflicted abuse on the children, and she failed to take steps to protect her children from the abuse. Id. The mother did not challenge trial court's decision that her parental rights should be terminated based on act(s) of commission or omission. Id., 724. The TPR was affirmed. Id., 726.

Child sustained serious physical and emotional injury in In re Antonio M. There, the child disclosed sexual abuse by the mother and her boyfriend. In re Antonio M., supra, 56 Conn.App. 541. There was testimony concerning sibling fights. Id., 540. The court appointed psychologist testified that mother failed to acknowledge the children's problems and failed to admit any wrongdoing. Id., 542. The trial court noted that, in her testimony, the mother failed to accept "responsibility for the many bad events which befell her children while in her care . . ." Id. The trial court also found that the "child had sexually explicit knowledge beyond his years . . ." Id. "[A]lthough the court did not conclusively state that [the child] was the victim of sexual abuse, it concluded that the respondent's failure to protect [the child] from the acts of her boyfriend and his own brother caused [the child] physical and emotional injury." CT Page 19000 Id., 543. The TPR was affirmed. Id., 548.

Child suffered serious physical or emotional injury in In re Lauren R. There, the child disclosed sexual abuse by the mother's boyfriend, and the child disclosed that "she had told her mother and older sister what had happened and that her mother told her not to talk to anyone about it." In re Lauren R., supra, 49 Conn.App. 767. When mother was informed by the police of the child's disclosures, mother stated that the child was lying and did not believe the child's allegations. Id. Mother refused to disclose her boyfriend's name to the police. Id. In terminating the mother's parental rights, "[t]he trial court concluded that the respondent's failure to believe Lauren when confronted with Lauren's account of the incidents of abuse as well as with Jeff's admission of abuse, her failure to protect Lauren from further abuse, her failure to avail herself of reunification services and her failure to cooperate with the police and the department to ensure Lauren's protection constituted acts [of commission or omission.]" Id., 772. The TPR judgment was affirmed. Id., 780.

Child sustained nonaccidental serious physical injuries in In re Felicia D. There, the younger child sustained serious physical injuries while in the mother's care including a skull fracture, subdural hematoma, and bruises on the skull, buttocks and anus. In re Felicia D., supra, 35 Conn.App. 492. In terminating the mother's parental rights based on acts of commission or omission, "[t]he trial court found that [the child] was a victim of sexual abuse, and had sustained serious head injuries. [The child] received the injuries while in the respondent's care and the respondent offered no explanation consistent with those injuries. The court also found that although the respondent was not the person who inflicted serious physical injury on [the child], she continually exposed her to the risk of serious injury by associating with dangerous men. She did not act to protect [the child] from sustaining the injuries she received, and she did not acknowledge the possibility that her husband . . . might have caused the injuries. These circumstances . . . cast grave doubt on the respondent's ability to parent." Id., 502. The TPR judgment was affirmed. Id., 504.

Children suffered serious emotional injury in In re Sean H. The trial court terminated the non-custodial parent's rights based on parental acts. In re Sean H., supra, 24 Conn.App. 139. There, "[t]he respondent [father] stabbed [the mother] to death in full view of four of his children, leaving the children homeless, with no caregiver and with permanent emotional injury. In addition, the respondent had emotionally and physically abused his child Sean and his wife . . . in front of the other children over a long period of time. This resulted in Sean's placement in psychiatric inpatient treatment and contributed to the emotional injury of the other four children." Id., 145. In affirming the judgment terminating the respondent's parental rights, the court found that the parental acts ground applies to both custodial and noncustodial parents. Id., 146.

Children did not sustain any physical injuries but were denied the care, guidance or control necessary for their emotional well-being in In re Nelmarie O. There, mother failed to provide for the emotional well-being of her children by abusing another child in their presence and ordering her children to participate in the abuse. In re Nelmarie O., supra, 97 Conn.App. 629. The parental acts of commission and/or omission statute "does not require that the children who are the subjects of the termination petition be abused physically." Id. The judgments terminating the mother's parental rights were affirmed.

Children sustained nonaccidental serious injuries in In re Theresa S. There, the mother suffered from serious mental health issues and attempted to take her own life and her two young children's lives by cutting their wrists and her own with a kitchen knife. In re Theresa S., supra, 196 Conn. 19. In affirming the termination of the mother's parental rights, the court found that "[t]he evidence upon which the trial court based termination was substantial and convincing, and the court thoroughly considered the large degree to which the respondent's actions adversely affected the physical, emotional, and psychological well-being of the children." Id., 27.

The caselaw also reveals a number of factual scenarios where the evidence was insufficient for termination of parental rights based on parental act(s) of commission or omission.

Child sustained nonaccidental, non-serious physical injuries in In re Jessica M. There, the trial court granted the petition for neglect and dismissed the petition for termination of parental rights. In re Jessica M., supra, 49 Conn.App. 230-31. In dismissing the TPR petition, "[t]he trial court found that in March 1995, [the child] had bruises on her back, legs and buttocks most probably caused by her father's beating her with a belt. [The child's] mother struck the child's head. The injuries were nonaccidental because her parents intended to strike her. Because x-rays and a . . . (CAT) scan taken at the time did not reveal any broken bones, the trial court did not find [the child's] injuries to be serious enough to warrant termination of parental rights for acts of parental commission or omission. The trial court also noted that Jessica suffered developmental delays and psychological trauma as a result of her injuries." Id., 241. Nevertheless, "[t]he trial court concluded that [the child's] injuries were not so serious as to warrant termination of her parents' parental rights." Id., 243. In affirming the judgment, the Appellate Court found that the trial court's decision was consistent with prior decisions interpreting the statute as well as opinions rendered in other states construing serious physical injury in child protection cases. Id., 243-44.

Child was not denied the care necessary for her well-being in In re Kezia M. There, the child had been in the care of the department since shortly after birth. In re Kezia M., supra, 33 Conn.App. 20. The Appellate Court found that the trial court erred in terminating the father's parental rights based on the acts of commission or omission ground. Id., 19. "No injury has befallen her as a result of acts of commission or omission by her parents. She could not have been denied the care, guidance or control necessary for her physical, educational, moral or emotional well-being by reason of parental acts while in foster care." Id., 20.

Child was not denied the care necessary for her well-being in In re Kelly S. There, the child had been in the department's custody since shortly after birth. In re Kelly S., supra, 29 Conn.App. 614. "No injury has befallen her as a result of acts of commission or omission by her parents . . . [T]here [was] no evidence that [the child] [had] been actually neglected or uncared for by the parents, as she [had] since birth been either in a hospital or competent foster home." (Internal quotation marks omitted.) Id., 614. In reversing the trial court's judgment terminating the respondents' parental rights based on parental acts, the court found that the parental acts of commission or omission ground "requires proof of specific [parental] conduct that has caused serious injury to the child." Id., 615-16. "It does not permit the termination of parental rights based on speculation as to what acts may befall a child." Id., 614.

(a) Mother

The evidence clearly supports the termination of the mother's parental rights based on parental acts of commission or omission. On or about September 3, 2010, MaKenna sustained serious physical injuries that were nonaccidental or inadequately explained while in the respondents' care that have left her with irreversible brain damage. Based on the combination of subdural hematoma, extensive bilateral retinal hemorrhages and brain swelling, Dr. Livingston diagnosed MaKenna with abusive head trauma. Dr. Kelly also diagnosed MaKenna with abusive head trauma based on the severity of the retinal hemorrhages. Both these experts ruled out other causes for MaKenna's injuries. Dr. Scheller's opinions regarding the causes of MaKenna's injuries were clearly outweighed by the medical testimony and evidence to the contrary. The fact that there were no signs of external trauma, skin bruises, fractures, broken bones, and neck, rib, back, or trunk injuries does not exclude a diagnosis of child abuse. As the American Academy of Pediatrics noted, the precise mechanisms for abusive injuries remain incompletely understood. In this case, the more credible expert testimony clearly supported the diagnosis of abusive head trauma.¹

1 "It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony . . . The credibility and the weight of expert testimony is judged by the same standard, and the trial court is privileged to adopt whatever testimony [it] reasonably believes to be credible . . . It is the quintessential function of the fact finder to reject or accept certain evidence, and to believe or disbelieve any expert testimony . . . The trier may accept or reject, in whole or in part, the testimony of an expert offered by one party or the other . . . Nevertheless, although the trial court may rely on expert testimony, it ultimately must make its own independent determination as to the best interest of the child. In re Jeisen M., 270 Conn. 382, 398, 852 A.2d 643 (2004) (`[a]lthough we often consider the testimony of mental health experts . . . such expert testimony is not a precondition of the court's own factual judgment as to the child's best interest' . . .). In sum, we must defer to both the trial court's weighing of the expert testimony presented and the trial court's independent factual determination as to what was in [the child's] best interest."(Citations omitted; internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 488-89, 940 A.2d 733 (2008).

MaKenna's injuries were life threatening and have left her neurologically devastated. She will never recover developmentally. She will likely be considered legally blind. Her hearing is greatly limited. MaKenna will not be able to function cognitively due to her extensive brain damage. She will continue to require extensive medical care for the rest of her life. Her injuries were nonaccidental or inadequately explained. Mother has failed to adequately explain how MaKenna sustained her injuries while in the respondents' care. Mother either caused the injuries or, by act(s) of omission, allowed MaKenna's injuries to occur. The respondents were MaKenna's only caretakers. Mother was unwilling or unable to safeguard MaKenna from sustaining serious head trauma.

By analogy, the caselaw also supports the termination of mother's parental rights. Like the child in In re Jorden R., MaKenna was only a few weeks old when she presented at the hospital with serious brain injuries, including subdural hematoma, brain swelling and retinal hemorrhages. In re Jorden R., supra, 107 Conn.App. 14-17. Mother was one of MaKenna's primary caretakers. Id., 19. There were no reports of accidental injuries sufficient to cause the child's injuries, and the mother denied any knowledge of how the injuries occurred. Id., 16. The mother did not admit to any act that might have caused the injuries. Id., 19. MaKenna sustained nonaccidental and inadequately explained serious physical injuries which resulted in life threatening injuries and permanent neurological impairment. Id., 19. As in In re Clark K., MaKenna was only a few weeks old when she presented at the hospital with serious brain injuries, including subdural hematoma and brain swelling. In re Clark K., supra, 70 Conn.App. 669. Mother made conflicting statements regarding the child's injuries. Id., 671, 673. Mother reported at CCMC that she had shaken MaKenna but failed to disclose that information earlier at Bristol Hospital. MaKenna sustained physical injuries by other than accidental means. Id., 675. Similar to the respondents in In re Cheyenne A., Savanna did not report that MaKenna had sustained any trauma of a magnitude sufficient to cause her injuries, and medical conditions were ruled out as a cause. In re Cheyenne A., supra, 59 Conn.App. 154-55. The facts in In re Felicia D. are similar in that MaKenna sustained serious brain injuries including subdural hematoma. In re Felicia D., supra, 35 Conn.App. 492. MaKenna was in the respondents' care, and the mother offered no explanation consistent with those injuries. Id., 502. Although one of the respondents may not have inflicted serious physical injury on MaKenna, the circumstances cast grave doubt on the respondents' ability to parent. Id., 502. As in In re Theresa S., the mother's actions adversely affected the physical, emotional, and psychological well-being of MaKenna. In re Theresa S., supra, 196 Conn. 27.

Unlike the child in In re Jessica M., MaKenna's injuries were serious enough to warrant termination of the respondents' parental rights. In re Jessica M., supra, 49 Conn.App. 243. In addition, MaKenna's case is distinguishable from In re Kezia M. and In re Kelly S., because she sustained her injuries while in the respondents' care. In re Kezia M., supra, 33 Conn.App. 20; In re Kelly S., supra, 29 Conn.App. 614.

Based on the evidence presented, the court finds by clear and convincing evidence that MaKenna has been denied, by reason of an act or acts of parental commission or omission of the respondent mother including, but not limited to, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for MaKenna's physical, educational, moral or emotional well-being and that MaKenna suffered either nonaccidental or inadequately explained serious physical injuries. The objective evidence clearly weighs in favor of the petitioner. Therefore, the court finds by clear and convincing evidence that the department has proved the ground of parental acts of commission or omission against the mother pursuant to Section 17a-112(j)(3)(C).

(b) Father

The evidence clearly supports the termination of the father's parental rights based on parental acts of commission or omission. On or about September 3, 2010, MaKenna sustained serious physical injuries that were nonaccidental or inadequately explained while in the respondents' care that have left her with irreversible brain damage. Based on the combination of subdural hematoma, extensive bilateral retinal hemorrhages and brain swelling, Dr. Livingston diagnosed MaKenna with abusive head trauma. Dr. Kelly confirmed the diagnosis based on the severity of the retinal hemorrhages. Both experts ruled out other causes for MaKenna's injuries. Dr. Scheller's opinions regarding the causes of MaKenna's injuries were clearly outweighed by the medical testimony and evidence to the contrary. The fact that there were no signs of external trauma, skin bruises, fractures, broken bones, and neck, rib, back, or trunk injuries does not exclude a diagnosis of child abuse. As the American Academy of Pediatrics noted, the precise mechanisms for abusive injuries remain incompletely understood. In this case, the more credible expert testimony clearly supported the diagnosis of abusive head trauma. See fn 1.

MaKenna's injuries were life threatening and have left her neurologically devastated. Her quality of life has been adversely affected due to her injuries. She can possibly see shadows and light. Her hearing is greatly limited. MaKenna will not be able to function cognitively due to her extensive brain damage. She will continue to require extensive medical care for the rest of her life. Her injuries were nonaccidental or inadequately explained. Father has failed to adequately explain how MaKenna sustained her injuries while in the respondents' care. Father either caused the injuries or, by act(s) of omission, allowed MaKenna's injuries to occur. The respondents were MaKenna's only caretakers. Father was unwilling or unable to safeguard MaKenna from sustaining serious head trauma.

By analogy, the caselaw also supports the termination of father's parental rights. Like the child in In re Jorden R., MaKenna was only a few weeks old when she presented at the hospital with serious brain injuries, including subdural hematoma, brain swelling and retinal hemorrhages. In re Jorden R., supra, 107 Conn.App. 14-17. Father was one of MaKenna's primary caretakers. Id., 19. There were no reports of accidental injuries sufficient to cause the child's injuries, and the father denied any knowledge of how the injuries occurred. Id., 16. The father did not admit to any act that might have caused the injuries. Id., 19. MaKenna sustained non accidental and inadequately explained serious physical injuries which resulted in life threatening injuries and permanent neurological impairment. Id., 19. As in In re Clark K. MaKenna was only a few weeks old when she presented at the hospital with serious brain injuries, including subdural hematoma and brain swelling. In re Clark K., supra, 70 Conn.App. 669. MaKenna sustained physical injuries by other than accidental means. Id., 675. Similar to the respondents in In re Cheyenne A., the father did not report that MaKenna had sustained any trauma of a magnitude sufficient to cause her injuries, and medical conditions were ruled out as a cause. In re Cheyenne A., supra, 59 Conn.App. 154-55. The facts in In re Felicia D. are similar in that MaKenna sustained serious brain injuries including subdural hematoma. In re Felicia D., supra, 35 Conn.App. 492. MaKenna was in the respondents' care, and the father offered no explanation consistent with those injuries. Id., 502. Although one of the respondents may not have inflicted serious physical injury on MaKenna, the circumstances cast grave doubt on the respondents' ability to parent. Id., 502. As in In re Theresa S., the father's actions adversely affected the physical, emotional, and psychological well-being of MaKenna. In re Theresa S., supra, 196 Conn. 27.

Unlike the child in In re Jessica M., MaKenna's injuries were serious enough to warrant termination of the respondents' parental rights. In re Jessica M., supra, 49 Conn.App. 243. In addition, MaKenna's case is distinguishable from In re Kezia M. and In re Kelly S., because she sustained her injuries while in the respondents' care. In re Kezia M., supra, 33 Conn.App. 20; In re Kelly S., supra, 29 Conn.App. 614.

Based on the evidence presented, the court finds by clear and convincing evidence that MaKenna has been denied, by reason of an act or acts of parental commission or omission of the respondent father including, but not limited to, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for MaKenna's physical, educational, moral or emotional well-being and that MaKenna suffered either nonaccidental or inadequately explained serious physical injuries. The objective evidence clearly weighs in favor of the petitioner. Therefore, the court finds by clear and convincing evidence that the department has proved the ground of parental acts of commission or omission against the father pursuant to Section 17-112(j)(3)(C).

C Best Interest of the Child

Having found that the department has proved the adjudicatory grounds with respect to the respondents, the court must next determine whether the department has met its burden of proof as to disposition.

"In the dispositional phase of a termination of parental rights hearing, the emphasis appropriately shifts from the conduct of the parent to the best interest of the child . . . [T]he trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent's parental rights is not in the best interest of the child." (Citations omitted; internal quotation marks omitted.) In re Janazia S., 112 Conn.App. 69, 97-98, 961 A.2d 1036 (2009).

"The best interests of the child include the child's interests in sustained growth, development, well-being and continuity and stability of its environment . . . In arriving at this decision, the court is mandated to consider and make written findings delineated in [§ 17a-112(k)]." (Internal quotation marks omitted.) In re Trevon G., 109 Conn.App. 782, 794-95, 952 A.2d 1280 (2008); see also In re Tremaine C., 117 Conn.App. 590, 600, 980 A.2d 330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). The court makes the following findings regarding the statutory factors.

(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.

The department offered the respondents services and was ready to make referrals for services to facilitate reunification with the child. The referral, services and offers of referrals were made available to the respondents and were offered on a consistent, timely and sufficient basis. The respondents were unable or unwilling to benefit from the services offered.

(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.

The department offered the respondents referrals and services and was ready to make referrals for services to facilitate reunification with the child. The services and offers of referrals were made available to the respondents and were offered on a consistent, timely and sufficient basis. The department has made reasonable efforts to reunite the family. The respondents were unable or unwilling to benefit from the services offered. The respondents have failed to adjust their circumstances, conduct or conditions to make it in the best interest of the child to return the child to their care. The department made reasonable efforts to reunite the family pursuant to the federal Adoption Assistance and Child Welfare Act of 1980, as amended.

(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 September 7, 2010, the respondents were ordered by the court to cooperate and comply with specific steps. During this period, the department offered services and referrals to the respondents. The services and referrals were appropriate in that they were designed to address the problems that led to the department's involvement and ultimately the removal of the child. The respondents have not fully complied with their obligations under the specific steps and have been unable or unwilling to benefit from the services offered.

(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.

MaKenna is one year old. Since September 3, 2010, she has not been in the respondents' care and not spent significant time with either of the parents besides visitation. Mother has not been allowed to visit with MaKenna since she was arrested in March 2011. MaKenna demonstrated some bond with the respondents during visitation. MaKenna has demonstrated a bond with the foster mother, who has cared for her since October 2010.

(5) The age of the child.

MaKenna was born on July 14, 2010, and is one year old.

(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 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 respondents in the foreseeable future. Although the respondents 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 MaKenna with a safe, permanent and stable home environment where she 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 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 § 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.

MaKenna is one year old. She has sustained abusive head trauma and has irreversible brain damage. She has special medical and developmental needs. She has been neurologically devastated and will require long-term medical care. MaKenna was in the respondents' care when she was injured.

MaKenna needs a caretaker who is able to keep her safe and provide for her long-term care. She appears to be bonded with the foster mother, who has cared for her since October 2010. The foster mother has expressed an interest in adoption should MaKenna be freed for adoption. MaKenna needs a caretaker who is available and able to care for her special medical needs. She needs a permanent, safe and stable home environment free of child protection concerns.

While in the respondents' care and custody, MaKenna suffered serious physical injuries that were nonaccidental or inadequately explained. The respondents could not explain MaKenna's injuries. The respondents did not report that MaKenna sustained any trauma of a magnitude sufficient to cause her injuries. Neither parent admitted to any act that might have caused the injuries. The child was with one or both of her parents when she was injured. Although one of the parents may not have inflicted MaKenna's injuries, the non-inflicting parent did not act to protect MaKenna from harm and has not acknowledged the possibility that the other parent might have caused the injuries. These circumstances cast grave doubt on the respondents' ability to parent, either collectively or separately. The respondents' actions or inactions have adversely affected the health, safety and well-being of the child. The respondents failed to show why MaKenna, a child with clear evidence of serious physical injury that is nonaccidental and unexplained, 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 respondents is in the best interest of the child.

D

CT Page 19012

Motion to Review Permanency Plan

On April 29, 2011, the department filed a motion to review permanency plan of termination of parental rights and adoption. On June 13, 2011, the mother filed an objection to permanency plan. On May 4, 2011, the first day of trial, and on July 13, 2011, the court consolidated, by agreement, the motion to review permanency plan and objection with the other pending matters.

General Statutes § 46b-129(k) governs the approval of a permanency plan and provides in pertinent part: "(2) . . . the court shall approve a permanency plan that is in the best interests of the child or youth and takes into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan." Practice Book § 35a-14(d) provides in relevant part: "At each hearing on a motion for review of permanency plan, the judicial authority shall review the status of the child, the progress being made to implement the permanency plan, determine a timetable for attaining the permanency plan, determine the services to be provided to the parent if the court approves a permanency plan of reunification and the timetable for such services, and determine whether the commissioner of the department of children and families has made reasonable efforts to achieve the permanency plan. The judicial authority shall also determine whether the proposed goal of the permanency plan as set forth in General Statutes § 46b-129(k)(2) is in the best interests of the child or youth by a fair preponderance of the evidence, taking into consideration the child's or youth's need for permanency. The child's or youth's health and safety shall be of paramount concern in formulating such plan."

For the reasons stated above, the court finds that termination of parental rights and adoption is in the child's best interest and her need for permanency. Accordingly, the court grants the department's motion to review permanency plan and approves the permanency plan of termination of parental rights and adoption. The court finds that the department has made reasonable efforts to achieve the identified permanency plan. Any objections are overruled.

IV CONCLUSION AND ORDERS

For the above stated reasons, the court renders judgment and enters the following orders:

The Order of Temporary Custody is SUSTAINED, and temporary custody is vested in the Commissioner of Children and Families.

The Neglect Petition is GRANTED and the child is adjudicated neglected and committed to the Commissioner of Children and Families.

The Termination of Parental Rights Petition is GRANTED and judgment may enter terminating the parental rights of the respondent parents. It is further ordered that the Commissioner of Children and Families is appointed the statutory parent for the child.

The Motion to Review Permanency Plan is GRANTED and the court approves the permanency plan of termination of parental rights and adoption. The court finds that the department has made reasonable efforts to achieve the plan.

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 the child, 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.