Opinion
H14CP13010981A
01-06-2017
In re Mariam E. [1]
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Barbara M. Quinn, Judge Trial Referee.
This case came before this court on remand from an order of the Connecticut Supreme Court on July 21, 2016, overturning the decision of the trial court terminating of parental rights of Natasha and Morsy E. to their two minor children. In re Egypt E., 322 Conn. 231, 140 A.3d 210 (2016).
The history of this case is not in dispute. On September 5, 2013, the Commissioner of the Department of Children and Families, hereafter " DCF, " filed for orders of temporary custody and neglect petitions. The children were removed from their parents, due to the unexplained serious injuries suffered by Mariam E., then seven weeks old. Subsequently, termination petitions were filed, alleging actions of omission and commission by the parents. The petitions were granted on June 1, 2015, and the trial court's decision was appealed.
The appeal was sustained and the petitions were remanded to this court for a second trial. After trial and for all of the detailed reasons set forth below, the court finds, from the clear and convincing evidence, that the allegations of the amended petition have been proven and terminates these parents' rights to their two young children.
1. FACTS
A. Procedural Background
The termination petitions were filed on October 4, 2013, and alleged that Egypt and Mariam E., pursuant to General Statutes § 17a-112(j)(3)(C), had:
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 wellbeing, except that non-accidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights.
On remand, amendment to the termination petitions was granted on September 13, 2016. The court permitted amendment to add: (1) additional facts supporting a finding that DCF had made reasonable efforts to reunify the children with their parents; (2) that the court had approved a permanency plan other than reunification on June 1, 2015 pursuant to subsection (k) of Connecticut General Statutes § 46b-129, see § § 17a-112(j)(1) and § 17a-111b(a)(2). The claim that the parents were unwilling or unable to benefit from such efforts remained unchanged. This court declined the request to add an additional termination ground; failure of the parents to rehabilitate pursuant to Connecticut General Statutes § 17a-112(j)(3)(B)(i). Permitting amended to a new statutory basis for termination of parental rights so late in these proceedings does not satisfy the requirements of due process and notice.
Trial on the petitions took place over six days, beginning on October 24, 2016 and concluding on November 7, 2016. All parties attended with counsel. The parents vigorously contested the petitions and testified. The court finds from the record that there are no other custody proceedings affecting these children and that it has jurisdiction.
B. The Central Issues in This Trial on Remand
DCF frames the issues in this trial by stating there was never any acknowledgment or admission on the part of either parent of culpability for Mariam's injuries or evidence of putting the children's needs ahead of their own. Without an acknowledgement or admission, the children, DCF asserts, could not safely be reunified with either Natasha or Morsy. The parents, through their counsel, vigorously argue that there is no reason that the children could not have been returned to Natasha's care, particularly after Morsy was incarcerated, where he remains to this day. That is to say, each believes that the children could be safely and reasonably returned to Natasha's care, as no one believes she caused any injuries to Mariam.
C. The Unexplained Injuries to Mariam E. and Egypt E.'s Status
From all the credible and probative evidence presented, the court finds the following facts.
(1) Mariam E.
Mariam E. was just seven weeks old when she was brought by both Natasha and Morsy to the Connecticut Children's Medical Center, hereafter " CCMC" on advice of her pediatrician on September 1, 2013. Each had noticed an inflamed shoulder area which was very tender to the touch and which made a sort of " crunching sound" when touched. Mariam was clearly in pain. Mariam was initially seen by a physician's assistant, hereafter " PA, " with seven years of experience. She testified that her work is overseen at CCMC by the attending doctors who review the work the physicians' assistants undertake. She stated she took the history given by the parents, ordered tests and reviewed the guidelines concerning suspected child abuse. The PA testified that she examined the infant, and " because she had a very young infant with a fracture and bruises, following the pathway for suspected child abuse, I ordered tests, x-rays and with attention to the clavicle, blood work and urine tests."
The PA received word about the injuries shown on Mariam's x-rays from the radiologist who noted a total of six (6) fractures, including a displaced fracture of the right clavicle, the left shoulder blade where it meets the clavicle as well as two in the left tibia and one in the right tibia. There was also some bruising that was observable visually. She testified that any bruising on a child who is not independently mobile is suspicious for child abuse. She told the parents about the fractures and asked again for explanations. The parents first said they knew of nothing and then that Mariam's older sister, Egypt, then thirteen months old, might have bounced Mariam too hard in her bouncy seat.
Most compelling was the testimony of Dr. Nina Livingston, who is a child abuse pediatrician with a board certified subspecialty in child abuse pediatrics. She is the director of the Suspected Child Abuse and Neglect Program, hereafter " SCAN, " at CCMC. The practice of the SCAN program is to consult with the team in charge of providing medical care to the injured infant and consult with such doctors as may be involved, depending on the clinical situation. She was on call the weekend that Mariam was brought in and consulted with the PA who had examined Mariam. She also reviewed all the notes, including those of Irsal Cabahug, then an advanced practice registered nurse (APRN) with the SCAN program. Various hospital notes and test results also were exhibits before the court. Dr. Livingston stated that the clavicle injury was caused by a blow to Mariam's shoulder or clavicle and could not have been caused by normal handling of the child. She noted that the fracture to the left chromium process is uncommon and " very worrisome and concerning in young children. It is caused by a direct blow and by significant forces applied to the area." She concluded that Mariam's injuries were inflicted on her and that, considering the history provided by the parents, were suspicious for child abuse. She stated unequivocally that considerable force had been applied to Mariam's small body with pressure and most likely blows to cause these injuries. While she was unable to provide a timeframe with specificity in which the leg injuries could have been caused, she was unequivocal in her opinion that the clavicle and left shoulder injury had been caused in close proximity to Mariam's examination at CCMC, and would have occurred in the previous twenty-four (24) hours.
The court received Irsal Cabahuag's written reports, Exhibits 1 and 2 which detailed the injuries. In Exhibit 2, he notes that " Miriam's presentation remains diagnostic for inflicted injury . . . I explained Mariam's diagnosis to parents again on 9/17/2013. Miriam must be protected from further injury ." Emphasis added by the court. Exhibit 2, page 2.
Exhibits 1, 2 and 3 document all the fractures, bruising, test results and medical conclusions reached as a result of Mariam's examination and tests at CCMC.
Mariam was also tested for Osteogenesis Imperfecta, or " OI, " a series of genetic bone diseases. Mariam did not have the condition, the tests showed as well as a close examination of her x-rays, so this condition was ruled out after it was considered at CCMC in September 2013. Nonetheless, Mariam's mother continued throughout these proceedings to unceasingly search for any other explanations of Mariam's injuries, other than Morsy's conduct as had been explained to her as the most likely and suspected cause. Even as OI was initially ruled out, Natasha wanted a second opinion. Tests for OI were again performed at CCMC in October 2013. This second view also concluded that Mariam did not have OI, based on the tests, Mariam's skeletal development, and her physical presentation. As late as September 2016, three years later, Natasha still clung to OI as an alternate explanation for Mariam's injuries, still unwilling to accept the most likely explanation, that Morsy had hurt his youngest daughter.
See Exhibit 6, Report of Dr. Rosengren, a pediatrician board certified in Genetics at CCMC as set forth in her CV, Exhibit 7.
During the time of these consultations and examinations, the police were called and began to interview the parents at the hospital and DCF became involved as well. Both of the parents were confused as to what was happening. Both Natalie and Morsy learned that neither of their children would be returned home to them at that time. The parents could not locate any acquaintances or family members to care for their children in the short time they had to make such arrangements. DCF invoked its 96-hour hold and removed both children. They have remained in non-relative foster care since September 2013 to the present time.
(2) Egypt E.
While Mariam was in the process of being admitted to the hospital, Egypt was permitted to be examined as well. She did not have any injuries or fractures, nonetheless she, too, was removed from the care of her parents. The reason for her removal is that neither parent was able to provide a safe alternative for Egypt, who was then non-verbal and unable to protect herself. To this day, neither Natasha nor Morsy appear to be able to comprehend why such removal was necessary to protect their oldest daughter, even though she had not been injured. They cling to the fact that Egypt was uninjured as a way to protect themselves from the awareness of the truth of Mariam's significant injuries and their failure to provide safety for both children.
D. The Parents' Inconsistent Explanations for Mariam's Injuries
The explanations given for Mariam's injuries were many and varied. They began by the failure to provide any explanation and then went next to the fact that Egypt might have injured her younger sister in various ways. Neither explanation is consistent with the force needed to inflict these injuries on Mariam. Next, each offered the explanation that when the children had been in the care of Natasha's father and stepmother, ten days or so earlier, something may have happened, but both of them maintained that these relatives would not injure the girls. Again, such explanations were not consistent with the recent nature at least of the collar bone fractures and that of the left shoulder.
Morsy was the family breadwinner and, just prior to these events, had been working many hours as a Certified Nurses' Assistant (CNA) to support his children and his wife. Morsy came to the United States from Cairo, Egypt after being raised in a loving family with two younger sisters and earning a college degree. He and Natasha were married in 2009, after knowing each other for about two years. Natasha is a U.S. citizen and was raised in Connecticut and has two biological siblings and some step-siblings. She had a loving childhood and earned a college degree in Fine Arts. Natasha converted to the Muslim faith and stayed at home to care for these two infants, born just twelve months apart.
Morsy reported to DCF and the police that a week before September 1, 2013, on August 24, 2013, he had been in an automobile accident while on his way to work and was injured. He had been home from work during the week prior to the time Mariam was brought to the hospital. He stated he was full of aches and pains, particularly in his back and neck, but had stopped taking his pain medication, because it made him feel bad. Natasha reported he was sad and irritable during the time he was home after the accident. Mariam had acid reflux and was difficult to soothe and did not sleep through the night reliably yet. He and Natasha took turns caring for the girls at night and were their primary caretakers on the evening of August 31, 2013.
Natasha made no other convincing reports as to how these injuries could have occurred and appears never to have seriously considered, until the end of this trial, that Morsy injured their youngest daughter. Initially, she reported that on the evening of August 31, 2013, she cared for Egypt while Morsy cared for Mariam, who was downstairs in their condominium in her swing, so that her crying and acid reflux would not keep her sister and mother awake and they slept upstairs. She also stated they shared that duty that evening.
Morsy gave a number of conflicting reports to the police in the days shortly after the girls' removal; first that he dropped Mariam on the floor, next that he dropped her twice from a height on the stairs. He gave an explanation finally on September 5, 2016, that was consistent with the mechanism and the extent of Mariam's injuries.
Morsy stated to the police that when he cared for Mariam on the evening of August 31, 2016 in the middle of the night, she was crying. He said he:
picked her up under her arms. He stated that she was facing him and he had his fingers on her back with his thumbs anterior or her shoulders. At this time, he stated that he may have grabbed her too hard, and described her as crying before and after this event. In addition, Morsy reported he placed Mariam E. hard into a bouncy chair onto the floor, and indicated he did not recall when this exactly happened. Last, Morsy E. described and demonstrated while he was changing Miriam E.'s diaper, he grabbed both her legs with his thumbs on the anterior distal thighs just above the knees with his fingers wrapped around her posterior lower legs, and straightened her legs by pressing down with his thumbs. He said he could not recall when this specifically happened, but admitted he may have done this with more force than he was demonstrating during the interview.
Petitioner's Exhibit 11, pages 30 and 31 of 45.
He maintained then and continues to maintain that he never intended to injury Mariam. Even when he admitted on the last day of this second trial that he had injured Mariam, he testified that he could not recall the force used.
When this explanation of September 5, 2013 was provided to Dr. Livingston the next day, she stated, that in her opinion, these descriptions were consistent with the serious injuries that were inflicted on Mariam with force. She said the twisting of Mariam's legs as Morsy described it with sufficient force was most likely the explanation of her leg fractures and the position of his thumbs as described on her back and with the squeezing noted, would have explained the other fractures to the collar bone and the left shoulder blade. She confirmed her belief concerning the mechanisms of injury to Mariam during her testimony at this trial.
E. Events after the Removal of the Children
The court begins its analysis with the specific steps which were ordered at the time of the ex-parte order of temporary custody in September 2013 and which were reaffirmed after the hearing on temporary custody. Those steps set the framework for reunification efforts and progress by the parents, if any. Those steps provided for Natasha that she have parenting and individual counseling with the goal that she would be able to protect her children. In addition, it required her to cooperate with service providers that might be recommended for these steps. For Morsy, the steps required him to attend parenting and individual counseling and to make progress toward the identified treatment goals, which were to learn how to control his anger and recognize how that impacts his ability to care for his children and learn how to protect his children and keep them safe. Services were to be provided through the Wheeler Clinic or its equivalent.
Exhibit 21, Specific Steps dated 9/5/2013.
Exhibit 22, Specific Steps dated 9/5/2013.
(1) Natasha E.
Natasha began services at Catholic Charites in September 2013. She has received parenting education which she completed. She has had visitation with her children until the decision in June 2015 at the conclusion of the first trial. She was observed to have a good relationship with her children and they with her.
Her progress in counseling was, however, negligible and she was never able to comply with the specific steps. Her counselor, sadly for Natasha, refused to accept the parameters of the referral from DCF and, with instructions from Natasha's lawyer, was completely unwilling to assist Natasha in addressing and accepting the reality of what had taken place and who had injured her daughter. Natasha's counselor most inappropriately took on the role of an advocate. Her position was that neither of these parents could have injured Mariam and were completely innocent. Determination of guilt or innocence was never part of her professional role. Helping her client emotionally was. Only after being confronted with the inconsistencies of her position and testimony at trial, did the counselor admit very reluctantly and belligerently that the only manner in which Natasha could keep the children safe was to keep them away from the putative abuser, in this case Morsy. If, like a physician, among her professional guidelines is to cause no emotional harm, then by her actions, this counselor was doing the opposite of what was required. Natasha most certainly did not benefit. Although she pays lip service to the concepts of keeping her children safe, Natasha has never accepted the need to truly separate herself from Morsy to be able to protect her children from future harm.
Exhibit 12, a letter from DCF to her counselor lays forth the problems in her therapy in detail.
Instead, Natasha clung to all other possible explanations for these events, including medical explanations, stating that unless she saw someone injuring her child, she could not know what happened. She expended considerable emotional effort to protect her own feelings for Morsy at the expense of the safety of her children. She came closest to some acknowledgement while she was at the Prudence Crandall House. The testimony of a counselor at Prudence Crandall House sheds some light on her efforts in 2014. Her testimony was that Natasha knew she did not cause Mariam's injuries herself. Nonetheless, from the start of the sessions, Natasha stated that she " wasn't going to accuse anybody 'cause she didn't see anyone do it and that was pretty much her stance for the entire time" the counselor worked with her.
Exhibit 5, Transcript of the testimony of Kristen J. of Prudence Crandall House before Judge Taylor on December 4, 2014.
Exhibit 5, at page 163.
During the early spring of 2014, Natasha felt she did not know whom to trust, as she wasn't able to trust anyone at the moment until she knew the answer. She noted to the counselor that " she was surprised to find she had no desire to stay with her husband and does not trust him at all at this point." Nonetheless, she continued to wonder, at the conclusion of her contact with this counselor in June 2014, if Morsy was truly the one that hurt their daughter. So, despite divorcing Morsy in 2014 in order to have her children returned to her, she had made absolutely no progress toward complying with the specific step of learning how to keep her children safe. She repeatedly, throughout the time of Morsy's incarceration, made daily telephone calls to him and professed her love for him. Her confused beliefs were still palpably evident in her conduct and demeanor at trial and even on the last day of trial, when she testified under oath that Dr. Livingston's testimony had persuaded her that she now knew and understood how the serious injuries to Mariam had been caused.
Exhibits 27 and 28 are disks contained more than 700 telephone conversations in which Natasha and Morsy profess their love for each other. They wish to be together upon his release from incarceration. Such statements took place even during times that Natasha was telling professionals she was going to separate from him and be alone, if that is what it took to have her children returned to her.
(2) The Psychological Evaluation of April 2014 and other Expert Testimony
Natasha E. was psychologically evaluated on April 2, 2014 by Dr. Barbara Berkowitz, a clinical psychologist appointed by the court to evaluate her and her mother. At that point in time, the plan had been for Natasha and the girls to reside with their maternal grandmother, but that proved not to be safe or possible for reasons not relevant to this decision.
Natasha's comments to Dr. Berkowitz in 2014 demonstrate that she was still searching for explanations for Mariam's injuries; that she admitted Morsy could have done it, and that she wanted to be given a chance as a mother to have her children back and wanted boundaries set for her and classes so that this could happen. She stated:
I want to figure out if he really did it. He's still a possible suspect in my head. I want more medical information about the age of the injuries. Did it happen with Morsy? With my Dad and Kathy? What happened and when?
Exhibit 30, Psychological Eventuation, page 16.
Dr. Berkowitz observed a good interaction between Natasha and her children. She noted a " mutual and loving attachment." She testified at trial that the relationship between them was appropriate and caring. Dr. Berkowitz understood and believed at that time that Natasha E. was prepared to separate herself emotionally from Morsy and that she was divorcing him. Premised on the relationship she saw between Natasha and her children and her sense that Natasha had made strides in counseling, she recommended reunification and a return of the children to Natasha's care while in her mother's home with DCF involved under protective supervision. She understood that Morsy was incarcerated with charges stemming from the injuries and would not present any issue to Natasha at that time.
Exhibit 30, at page 21.
At the present trial, Dr. Berkowitz was questioned about her position. She was asked to assume that at least two of Mariam's injuries were caused while she was only in her parents' care and that as recently as February 2016, Natasha stated her unqualified love and commitment to Morsy and that she wanted to have all of them back together with the children. Dr. Berkowitz responded if she had known these facts, then reunification would not have been an option. She testified " if he is continuing to maintain his innocence despite his conviction and incarceration, and if there is no explanation for these injuries, it would be imprudent and unconscionable to reunify the children with the two people who are the only two possible perpetrators." She also went on to note that treatment of an individual such as Natasha without her acknowledgment of the method of causation of the injuries to her children " is not absolutely out of the question but it makes treatment much more likely if one can acknowledge the problems and why they occurred. If there is not acknowledgment and admission, then the treating professionals' hands are tied behind their back." Asked what is the situation when the partner is in denial, she noted " it is still not a good situation and not safe for the children."
Dr. Berkowitz, trial testimony, 10/25/2016.
Dr. Berkowitz, trial testimony 10/25/2016.
Dr. David Mantell, often a court-appointed forensic psychologist evaluator in these matters, was called as the petitioner's expert. He had not met with the respondents or the children, and was not in a position to offer a diagnosis of the condition which brought about the abuse and to opine as to specific treatment for these parents. Nonetheless, given his expertise, he too echoed the position that acknowledgment is the beginning of any effective treatment to prevent such harm from re-occurring. In his opinion, general acknowledgments of possible involvement in the abuse without specificity were not sufficient for diagnostic clarity and not the basis for formulating an abuse-specific treatment plan. He stated that in order to keep children safe, preventive and defensive actions need to be put into place to prevent any reoccurrence of these kinds of injuries.
Dr. Mantell, trial testimony October 26, 2016.
From her repeated statements to her counselors, and Dr. Berkowitz, the court finds that Natasha was unable to take any steps to inform herself about the injuries to her daughter, Mariam. While she eloquently stated in her repeated pleas to helping professionals about her need to understand, that need did not drive her to act. She could have inquired in detail through her attorney and DCF and reviewed the medical material available from CCMC and the detailed police report and the criminal charges. She certainly listened to the testimony during the first trial in 2014 and the early months of 2015. Despite hearing much the same testimony as the court heard during the second trial, the earlier testimony made no difference in her understanding of the injuries inflicted on Mariam. At that earlier time, she refused to believe that Morsy played any role in those injuries.
Natasha also claimed to DCF that Morsy's sentencing would persuade her of his guilt in causing the injuries to her younger daughter. Although Natasha attended the sentencing hearing, no change in her position occurred. As before, the need to deny he did this and to acknowledge her involvement with him, won out again. Such a change in her understanding of what took place, the court concludes, would have required Natasha to directly confront the difficult truth. When she wanted " boundaries" set forth her, as she stated in her emotional appeal to Dr. Berkowitz, Natasha had not understood that they had already been set for her in these proceedings by DCF and the court through the specific steps that had been ordered. The blueprint for reunification with her children was at hand and in front of her, Natasha needed only have begun to seriously follow it. Her failure to confront and acknowledge the possibility that Morsy abused Mariam meant, the court finds, the possibility of continued abuse existed. See Hogan v. Department of Children and Families, 290 Conn. 545, 566, 964 A.2d 1213 (2012), In re Allison G., 276 Conn. 146, 161, 883 A.2d 1226 (2005). The court finds, despite her partial attempts to comply with the specific steps, Natasha's failure to acknowledge the facts of what took place meant that she could not safely be reunified with her daughters.
(3) Morsy E.
Morsy was referred to Catholic Charities for counseling in accordance with the specific steps. He completed an intake and assessment and began group and individual sessions. Ultimately in March 2014, he was discharged from treatment as he was inconsistent in attendance and had too many missed sessions. Morsy was arrested for Assault 1, Reckless Endangerment 1 and Risk of Injury to A Minor on October 18, 2013 for Mariam's injuries. He was incarcerated but soon released on bond until sometime in March 2014 when he returned to confinement. He pled under the Alford doctrine on August 27, 2015 to two counts of Reckless Endangerment and two counts of interfering with a police officer. He was then sentenced to a term of incarceration and his maximum release date is June 4, 2018. He is presently incarcerated. He did attend and complete some programs while incarcerated.
Neither during the first termination trial, his criminal sentencing, nor during his parole hearing has Morsy ever been willing to admit his responsibility for the injuries seven-week-old Mariam suffered. During counseling, he also was unable to acknowledge his role in Mariam's injuries. Only on the last day of this trial did he reluctantly admit he caused her injuries, based on Dr. Livingston's testimony. He continued to state he had no memory of the force he used. His admission was only general, without a willingness to face the details of the events which occurred, a necessary precursor to any meaningful treatment, as pointed out by Dr. Mantell. He, like Natasha, was unable to comply with the specific steps, even though he completed parenting and believes himself to be a good person. A full detailed acknowledgment or admission of the injuries his vulnerable daughter suffered at his hands has still not taken place.
Exhibit 29, audio of parole hearing.
See among other exhibits, Exhibit 33, transcript of the testimony of his counselor before Judge Taylor on February 9, 2015.
Both parents in their own individual ways demonstrate a remarkable capacity for self-deception. Even as each admitted he or she now was ready to acknowledge Morsy as the source of the injuries to Mariam, each stated that awareness in very similar detached words. Such observable internal lack of candor keeps them, the court concludes, from putting the needs of their children first, admitting their faults and thereby permitting the possibility of careful reunification with their children.
This is the fatal flaw that has prevented reunification throughout these lengthy proceedings. It is at the heart of their inability and unwillingness to benefit from the services offered to them. It means that their children, even now, could not reasonably and safely be returned to them.
(4) The Children, Egypt and Mariam E.
Egypt is now four years old and is a very verbal child. She has met her developmental milestones and is a cheerful and energetic child. Like many children, she enjoys being outside and running around. She has become a bit of a tomboy. She is engaging with an infectious smile. She and her sister, Mariam, now three, are closely connected and love to do things together. The DCF social worker testified that these are very bright young children who are flourishing in preschool. They enjoy playing together. They sing together and are artistic. They love to be around people.
The two girls have resided in the same foster home since they were removed from their parents and have now been in the care of their foster parents for significantly longer than either child spent in the care of their biological parents. They each have a very close and loving relationship with their foster parents to whom they look for comfort and guidance. At times, Egypt may become a bit bossy but Mariam is now beginning to stand up for herself. Their sibling bond has been important for each of them. The social worker stated the children are in need of permanency. Each looks to their foster parents for care, guidance, and love. In this home, they have experienced stability, and patient and loving care free of trauma.
II. DISCUSSION AND LEGAL CONCLUSIONS
A. Reasonable Reunification Efforts § 17a-112(j)(1)
In order to terminate parental rights, DCF must prove, by clear and convincing evidence, the statutory element requiring:
" 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 provided such finding is not required if the court has determined at a hearing . . . that such efforts are not appropriate." C.G.S. § 17a-112(j)(1). " Although [n]either the word reasonable nor the word efforts is . . . 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." (Internal quotation marks omitted; citation omitted.) In re Mariah S., 61 Conn.App. 248, 255, 763 A.2d 71 (2000).
The court finds that DCF made reasonable efforts to reunify these parents with their children safely and that it offered them, or they took advantage of, services reasonably designed to accomplish that outcome. Those services included parenting education, domestic violence counseling for Natasha at the Prudence Crandall Home, mental health counseling at Catholic Charities and visitation with the children, as detailed above. For Morsy, it was counseling at Catholic Charities and completion of certain programs while incarcerated, as well as case management services. The unwillingness of either of these parents to acknowledge their involvement in Mariam's injuries until the end of this trial on remand from the Supreme Court demonstrates that they were each in different ways unwilling and unable to benefit from those services. The court so finds from the clear and convening evidence before it. The court also notes that the court, (Taylor, J.) made a finding that reunification efforts were no longer required on June 1, 2015 and that finding remains unchallenged.
B. The Statutory Grounds for Termination of Parental Rights
With respect to the statutory grounds for termination of parental rights, the circumstances of these two children must be examined separately as different sections of the statute apply to their separate and different circumstances.
(1) Mariam E.
When termination is based on a claim of physical injury to a child, DCF must prove two elements: (1) the injury must be serious, and (2) the cause of such injury must be non-accidental or inadequately explained. See In re Jessica M., 49 Conn.App. 229, 241, 714 A.2d 64 (1998), appeal dismissed, 250 Conn. 747, 749, 738 A.2d 1087 (1999). While serious physical injury is not defined in the statute, relevant cases provide examples and instruction. For example, in the case of In re Rachel J., 97 Conn.App. 748, 759-60, 905 A.2d 1271, cert. denied, 280 Conn. 941, 912 A.2d 476 (2006), a severe fracture to the child's elbow was found to be a serious physical injury. The case of In re Clark K., 70 Conn.App. 665, 676, 799 A.2d 1099, cert. denied, 261 Conn. 925, 806 A.2d 1059 (2000) held that three fractures of child's skull were serious physical injuries. Another example is In re Cheyenne A., 59 Conn.App. 151, 158-59, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000) where the court found that the child's seventeen rib fractures were serious physical injuries.
In Mariam's case, she suffered fractures to both legs, an open fracture to her clavicle, a fracture to her left chromium process and bruising as well as a later discovered rib fracture. The court concludes, from the clear and convincing evidence, that these were serious physical injures for such a vulnerable young child.
The court finds, from the clear and convincing evidence, that Mariam suffered non-accidental serious physical injury while in the care of her parents. The court further finds, from the testimony of the CCMC personnel and the testing performed, that these serious injuries were inconsistent with most of her parents' explanations and remained unexplained by Natasha until her tentative testimony on the last day of trial. Morsy's admissions on the last day of trial also are lacking in full acceptance of his culpability.
The law does not require this court to conclude, from clear and convincing evidence, that Morsy caused the injuries to Mariam, although in this case the facts warrant such a finding, at least as to the clavicle and left shoulder injuries. There is no evidence to suggest Natasha inflicted any injuries and so her conduct raises questions of acts of omission as to both children. These non-accidental serious physical injuries to Mariam constitute prima facie evidence that the facts alleged took place.
" The phrase prima facie evidence means evidence which, if credited, is sufficient to establish the fact or facts which it is adduced to prove." (Internal quotation marks omitted.) In re Cheyenne A., 59 Conn.App. 151, 158, 756 A.2d 303, cert. denied, 254 Conn. 940, 761 A.2d 759 (2000). In these termination proceedings, " [t]he language regarding prima facie evidence shifts the burden from the petitioner to the parent to show why a child with clear evidence of serious physical injury that is non-accidental or unexplained should not be permanently removed from that parent's care. That has been the burden that Natasha and Morsy have carried throughout this trial. Given his failure to acknowledge fully his culpable conduct, Mariam E. could not be returned to his care and there has been no request that she be so returned. She also cannot safely be returned to Natasha, who by her own failure to timely and fully acknowledge the cause of at least some of Mariam's injuries, is not even now in a position to keep her safe, despite her verbal statements to the contrary.
(2) Egypt E.
As to Egypt E., who was fortunately uninjured, the statutory grounds relate to that portion of General Statutes § 17a-112(j)(3)(C), that the child has
been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being, except that non-accidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights." (Emphasis added by the court.)
Because Egypt is and was similarly situated to Mariam, that inquiry must focus and what, if anything, the parents have learned to be able to keep her safe. This inquiry also connects to their efforts to rehabilitate after the events of September 1, 2013. This court has previously reviewed their denials and failure to admit their actions. As noted by the experts who testified, without acknowledgment there can be no movement forward to develop a plan to keep the children safe. The potential for continued abuse continues unabated without such steps. It is therefore their failure to act, their omissions, which for each of them establishes by clear and convincing evidence this specific ground for termination of parental rights. In Natasha's case, it is her failure to come to terms with what has happened to her youngest daughter and her former's husband's culpability in those injuries. For Morsy, it is his failure to even now admit fully what he did. Neither Natasha nor Morsy are able to provide to their daughters, the " care, guidance or control necessary for the child's physical, educational, moral or emotional well-being." See Connecticut General Statues § 17a-112(j)(3)(C).
The law requires, after the burden of proof has shifted to them, each of the parents to demonstrate that the children could be returned to them safely. While this may seem a harsh penalty, it is the policy of the state to keep children safe and the focus of the statutory requirements is squarely on the children's safety, both at the time of removal and now, at the termination of parental rights trial. The failure of either Natasha or Morsy to candidly, fully, and squarely face the tragic events of the evening of August 31, 2013 requires the severance of their parental rights.
Having found that the grounds for termination of the parental rights of Natasha and Morsy E. have been established by clear and convincing evidence, the court must now turn to the dispositional phase of these proceedings.
C. Disposition and the Seven Statutory Criteria
The court is mandated to consider and make written findings regarding seven factors delineated in Connecticut General Statutes § 17a-112(k).
(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--§ 17a-112(k)(1) .
As set forth above, the court finds that DCF offered services to both parents to facilitate reunification. As noted in detail, neither Natasha nor Morsy ever completed all the services nor benefited from them so that safe reunification could occur.
(2) Whether the Department of Children and Families has made reasonable efforts to reunite the family pursuant to the federal Adoption and Safe Families Act (ASFA) 42 U.S.C. § § 620-79, as amended .
The court finds that reasonable efforts to reunite the family were made by the provision of services and exploration of other relatives to provide care and to make possible the eventual reunification of this family, had the parents cooperated with the services provided for them.
(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--§ 17a-112(k)(3) .
Reunification efforts with Natasha were comprised of case management services, supervised visitation and parenting education through Behavioral Health Consulting Services, LLC and mental health services through Catholic Charities and Change, Inc., domestic violence counseling and shelter through Prudence Crandall House. For Morsy, the services provided included case management, supervised visitation and parenting education and mental health services through Catholic Charities.
The court ordered specific steps for the parents. There were referrals for counseling with which the parents never complied. They each completed parenting programs but with no change in their conduct or willingness to acknowledge their daughter's injuries or how they came about. There was much effort spent by Natasha but with no understanding of what she needed to do to achieve reunification.
(4) The feelings and emotional ties of the children with respect to their parents, any guardian of his 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--§ 17a-112(k)(4) .
The children are now settled into their foster home where they have been for more than three years. They are well bonded to this family to whom they look for love and nurturance. They knew and acknowledged their mother when they were last able to visit and she was affectionate with them. Unfortunately, she is not in a position to have them safely returned to her care.
(5) The ages of the children--§ 17a-112(k) .
Egypt is now four years old and Mariam is three.
(6) The efforts the parent has made to adjust his circumstances, conduct, or conditions to make it in the best interest of the child to return him to his 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--§ 17a-112(k) .
The court has detailed in the body of this decision the parents' inability to acknowledge their conduct so that the children could be returned to them. That failure means that it is not safe for them to be returned to either parents and therefore not in their best interests.
(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--§ 17a-112(k) .
There has been no such conduct noted in this case. It is the parents' own conduct that has prevented the maintenance of a meaningful relationship with their children.
D. The Children's Best Interests
In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992) and other case law makes it apparent that " the child's best interest comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence." In considering whether it is in their best interest to terminate their parents' rights, the court has examined multiple relevant factors including the children's interests in sustained growth, development, well-being, stability and continuity of their environment; their length of stay in foster care; the nature of the relationship with their biological parents as well as the degree and quality of contact maintained with the biological parents.
After considering their ages and the totality of circumstances, the court concludes, from the clear and convincing evidence, that termination of their parents' rights is in Egypt E. and Mariam E.'s best interests. Each needs a secure and safe placement so that each of them can grow and mature to become a productive child and adult. Unfortunately, neither of the biological parents can provide that for these young children.
ORDERS
It is HEREBY ORDERED that the parental rights of Natasha E. and Morsy E. to Egypt and Mariam E. are terminated. The Commissioner of the Department of Children and Families is hereby appointed the statutory parent for the children. The Commissioner will file, within 30 days hereof, a report as to the status of these children, as required by statute and such further reports shall be timely presented to the court as required by law. Judgment may enter accordingly.