In re Quidanny L

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IN RE QUIDANNY L.*
(AC 37383)
Gruendel, Beach and Sullivan, Js.
Argued May 11—officially released August 6, 2015**
(Appeal from Superior Court, judicial district of New
Britain, Juvenile Matters, Cohn, J.)
Michael S. Taylor, assigned counsel, with whom was
James P. Sexton, assigned counsel, for the appellant
(respondent mother).
Benjamin Zivyon, assistant attorney general, with
whom were Elizabeth H. Bannon, assistant attorney
general, and, on the brief, George Jepsen, attorney gen-
eral, for the appellee (petitioner).
Robert W. Lewonka, for the minor child.
Opinion
GRUENDEL, J. The respondent mother appeals from
the judgment of the trial court terminating her parental
rights as to Q, her minor child.1 She contends that the
court improperly (1) determined that her attempted
suffocation of Q constituted an act of parental commis-
sion pursuant to General Statutes § 17a-112 (j) (3) (C),
and (2) found that the petitioner, the Commissioner of
Children and Families, had proven that statutory ground
by clear and convincing evidence. We affirm the judg-
ment of the trial court.
The relevant facts are gleaned from the court’s memo-
randum of decision and the undisputed evidence in the
record before us. On November 30, 2013, the respondent
was sixteen years old and her infant son, Q, was thirteen
months old. At that time, they were living at the home
of the respondent’s mother. Using her cell phone, the
respondent sent a video to Q’s father, who resided in
Florida. In that video, the respondent placed a blanket
over Q and then proceeded to sit on his head, as the
infant kicked and squirmed in an effort to free himself.
The respondent then used her cell phone to send a text
message to Q’s father that stated, ‘‘This what you want?’’
The father immediately forwarded the video message
to the respondent’s mother, who rushed to the respon-
dent’s bedroom only to find the door locked and Q
crying. The respondent’s mother then contacted the
police to report that the respondent was ‘‘locked in
her bedroom with her one year old infant and may be
purposely suffocating the infant.’’2 Three police officers
arrived at the home within minutes. When their entreat-
ies to unlock the bedroom door went unanswered, the
officers forcibly entered the room. They then encoun-
tered the respondent squeezing Q tightly, such that Q
was turning blue and appeared to be in great distress.
When the respondent refused to release the infant, the
officers engaged in a physical struggle to free Q from
her grasp. Once their efforts proved successful, the
respondent was handcuffed and Q was transported to
a nearby hospital, where he did not require medical
care. As a result of the foregoing, the respondent was
arrested and charged with attempt to commit murder
with special circumstances, attempt to commit assault
in the first degree, and risk of injury to a child. In the
criminal proceeding that followed, the Superior Court
ordered that there be no contact between the respon-
dent and Q. At trial, the respondent testified that she
was in the process of entering a nolo contendere plea
of guilty in that criminal proceeding to one count of
risk of injury to a child.
Following the events of November 30, 2013, the peti-
tioner invoked an administrative ninety-six hour hold,
thereby removing Q from the care and custody of the
respondent. The petitioner thereafter obtained an ex
parte order of temporary custody of Q, a finding that
reasonable efforts to reunify the respondent and Q were
not required, and an adjudication that Q had been
neglected. None of those determinations are at issue
in this appeal.
On February 10, 2014, the petitioner moved to termi-
nate the respondent’s parental rights with respect to
Q. The petition asserted that Q had been denied the
care, guidance or control necessary for his physical,
educational, moral or emotional well-being due to the
respondent’s acts of parental commission or omission.
A two day trial followed, at which two police officers,
a social worker with the Department of Children and
Families (department), and the respondent testified. In
its memorandum of decision dated November 20, 2014,
the court found by clear and convincing evidence that
the petitioner had proven the statutory ground alleged.
The court further found that it was in Q’s best interest
to terminate the parental rights of the respondent.
Accordingly, the court rendered judgment terminating
her parental rights pursuant to § 17a-112 (j) (3) (C).
From that judgment, the respondent now appeals.
I
The respondent claims that the court improperly
determined that her attempted suffocation of her infant
child constituted an act of parental commission pursu-
ant to § 17a-112 (j) (3) (C). More specifically, she con-
tends that a court cannot conclude that such an act
constitutes severe physical abuse, as that terminology
is used therein, absent proof that the child suffered
severe physical injury. We disagree.
The proper interpretation of § 17a-112 (j) (3) (C) pre-
sents a question of statutory construction, over which
our review is plenary. See In re Justice V., 111 Conn.
App. 500, 506, 959 A.2d 1063 (2008), cert. denied, 290
Conn. 911, 964 A.2d 545 (2009). ‘‘In making such deter-
minations, we are guided by fundamental principles
of statutory construction. See General Statutes § 1-2z;
Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075(2008) ([o]ur fundamental objective is to ascertain and
give effect to the apparent intent of the legislature
. . .).’’ (Footnote omitted; internal quotation marks
omitted.) In re Matthew F., 297 Conn. 673, 688, 4 A.3d
248 (2010); see also In re Emoni W., 305 Conn. 723,
733, 48 A.3d 1 (2012). ‘‘We recognize that terms in a
statute are to be assigned their ordinary meaning, unless
context dictates otherwise . . . . Wiseman v. Arm-
strong, 295 Conn. 94, 100, 989 A.2d 1027 (2010); see
also General Statutes § 1-1 (a) ([i]n the construction
of the statutes, words and phrases shall be construed
according to the commonly approved usage of the lan-
guage). In addition, [w]e often have stated that, when
the ordinary meaning [of a word or phrase] leaves no
room for ambiguity . . . the mere fact that the parties
advance different interpretations of the language in
question does not necessitate a conclusion that the
language is ambiguous. . . . Picco v. Voluntown, 295
Conn. 141, 150, 989 A.2d 593 (2010).’’ (Internal quotation
marks omitted.) In re Emoni W., supra, 733–34.
We begin with the text of the statute. Section 17a-112
(j) (3) (C) provides in relevant part that ‘‘[t]he Superior
Court . . . may grant a petition filed pursuant to this
section if it finds by clear and convincing evidence 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
nonaccidental or inadequately explained serious physi-
cal injury to a child shall constitute prima facie evidence
of acts of parental commission or omission sufficient
for the termination of parental rights . . . .’’ The stat-
ute thus specifies, as a ground for termination, acts of
parental commission or omission that result in the
denial of the care, guidance or control necessary for
the child’s well-being. Section 17a-112 (j) (3) (C) further
provides that such acts include ‘‘but [are] not limited
to, sexual molestation or exploitation, severe physical
abuse or a pattern of abuse . . . .’’3 We conclude that
§ 17a-112 (j) (3) (C) plainly encompasses the act of a
parent who attempts to suffocate a child, causing the
child to turn blue. That act of parental commission is
a quintessential example of severe physical abuse that
compromises a child’s physical and emotional well-
being.
The respondent nonetheless argues that a termina-
tion petition predicated on allegations of severe physi-
cal abuse cannot be granted unless severe physical
injury to the child is proven. Section 17a-112 (j) (3) (C)
contains no such requirement. Although the respondent
devotes considerable attention to the final clause of
subparagraph (C) of that statute, which provides in
relevant part that ‘‘nonaccidental or inadequately
explained serious physical injury to a child shall consti-
tute prima facie evidence of acts of parental commis-
sion or omission sufficient for the termination of
parental rights,’’ that clause merely clarifies when the
evidentiary burden properly is placed on a respondent.
As this court explained many years ago, ‘‘[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 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., 24 Conn.
App. 135, 144, 586 A.2d 1171, cert. denied, 218 Conn.
904, 588 A.2d 1087 (1991). Apart from its concluding
clause, § 17a-112 (j) (3) (C) does not contain any refer-
ence to the term ‘‘injury,’’ never mind a serious physi-
cal one.
To be sure, that statutory ground for termination of
parental rights contemplates harm to a child’s well-
being. Accordingly, to demonstrate an act of parental
commission thereunder, the petitioner must establish
harm to the physical, educational, moral, or emotional
well-being of the child in question. As our prior deci-
sions have recognized, that burden may be satisfied by
proof that a child suffered a significant physical or
emotional injury. See In re Kezia M., 33 Conn. App. 12,
19, 632 A.2d 1122 (statute ‘‘authorizes the termination
of parental rights where specific acts of parental com-
mission or omission have caused serious physical or
emotional injury to the child’’), cert. denied, 228 Conn.
915, 636 A.2d 847 (1993); In re Kelly S., 29 Conn. App.
600, 614, 616 A.2d 1161 (1992) (noting that statute ‘‘does
not permit the termination of parental rights based on
speculation as to what acts may befall a child’’ and
emphasizing that ‘‘[n]o injury has befallen [the child]
as a result of acts of commission or omission by her
parents’’); In re Sean H., supra, 24 Conn. App. 144(statutory ground not limited to acts that result in seri-
ous physical injury and also encompasses acts that
result in serious emotional injury to child). Neverthe-
less, nothing in our decisional law or the language of
§ 17a-112 (j) (3) (C) suggests that its application is con-
fined to acts resulting in such physical or emotional
injury. To the contrary, the plain language of that statu-
tory ground also encompasses acts of parental commis-
sion that result in significant harm to the educational
and moral well-being of a child.
At its essence, the respondent’s claim asks us to
rewrite § 17a-112 (j) (3) (C) so as to insert a provision
requiring proof of serious physical injury in cases of
physical abuse. That we refuse to do. We are obligated
to ‘‘construe a statute as written. . . . Courts may not
by construction supply omissions . . . or add excep-
tions . . . . The intent of the legislature . . . is to be
found not in what the legislature meant to say, but in
the meaning of what it did say. . . . It is axiomatic that
the court itself cannot rewrite a statute . . . . That is
a function of the legislature.’’ (Internal quotation marks
omitted.) Doe v. Norwich Roman Catholic Diocesan
Corp., 279 Conn. 207, 216, 901 A.2d 673 (2006); see also
Lucarelli v. State, 16 Conn. App. 65, 70, 546 A.2d 940(1988) (‘‘[c]ourts must interpret statutes as they are
written . . . and cannot, by judicial construction, read
into them provisions which are not clearly stated’’ [cita-
tion omitted]).
To paraphrase the words of our Supreme Court in
State v. Anonymous, 179 Conn. 155, 164, 425 A.2d 939(1979), the evil to be avoided by § 17a-112 (j) (3) (C)
is parental conduct that denies a child the care, guid-
ance or control necessary to his well-being. The paren-
tal conduct at issue in the present case is such an evil.
Here, the court found that Q suffered both physical
harm—turning blue as a result of the respondent’s
impairment of his respiration4—as well as emotional
harm from the act of his mother attempting to suffocate
him, specifically noting that ‘‘[t]here are psychological
effects that last after a physical assault.’’5 This is not a
case in which ‘‘[n]o injury has befallen’’ Q as a result
of acts of commission or omission by his parent. In re
Kezia M., supra, 33 Conn. App. 20; In re Kelly S., supra,29 Conn. App. 614. This also is not a case in which the
respondent ‘‘never presented any threat to the physical
and emotional safety’’ of Q; In re Sean H., supra, 24
Conn. App. 145; nor has the respondent so argued in
this appeal. We believe the actions of the respondent,
as documented more fully in part II of this opinion,
clearly constitute severe physical abuse as that lan-
guage is used in § 17a-112 (j) (3) (C). We therefore
reject the respondent’s claim that § 17a-112 (j) (3) (C)
is not implicated when a parent attempts to suffocate
a child and causes the child to turn blue, but no further
physical injury results.
II
The respondent also claims that the court improperly
found that the petitioner had proven that statutory
ground by clear and convincing evidence. ‘‘Our standard
of review on appeal from a termination of parental
rights is whether the challenged findings are clearly
erroneous. . . . It is axiomatic that a trial court’s fac-
tual findings are accorded great deference. . . . A find-
ing is clearly erroneous when either there is no evidence
in the record to support it, or the reviewing court is
left with the definite and firm conviction that a mistake
has been made. . . .
‘‘On appeal, [an appellate court’s] function is to deter-
mine whether a trial court’s conclusion was factually
supported and legally correct. . . . In doing so, how-
ever, [g]reat weight is given to the judgment of the
trial court because of [the trial court’s] opportunity to
observe the parties and the evidence. . . . [An appel-
late court does] not examine the record to determine
whether the trier of fact could have reached a conclu-
sion other than the one reached. . . . [Rather] every
reasonable presumption is made in favor of the trial
court’s ruling.’’ (Citations omitted; internal quotation
marks omitted.) In re Jorden R., 293 Conn. 539, 558–59,
979 A.2d 469 (2009).
The record before us contains ample evidence sub-
stantiating the court’s finding that the respondent
engaged in acts of parental commission that denied Q
the care, guidance or control necessary for his physical,
educational, moral or emotional well-being. The court
heard testimony from Kathryn Levy, a social worker
with the department who was assigned to the respon-
dent’s case. Levy testified that she viewed the video
that the respondent sent to Q’s father on November 30,
2013. She described its content as follows: ‘‘There was
a video of [the respondent] putting a blanket over [Q’s]
head and sitting on top of [him]. . . . [Q] was under-
neath [the respondent]. You could see his body—the
lower extremities of his body twisting and turning trying
to free himself. It appeared in the video that his upper
extremities were constricted and he wasn’t able to move
and he appeared to be crying in the video.’’ In addition,
an affidavit prepared by Eric Hundley, a social worker
at the department, was admitted into evidence. In that
affidavit, Hundley avers that he observed the video,
which ‘‘is approximately fifteen seconds in duration.
The video captures what appears to be a person sitting
upon the head of [Q], who also has a blanket draped
over his head. [Q] is observed in the video squirming,
with his head and body lacking asynchronism, and [Q’s]
head area having the least amount of movement. In
addition, [Q] could be heard crying as he twisted and
turned in between the legs belonging to [the respon-
dent] . . . .’’ In his trial testimony, Officer Kyle Macci
of the New Britain Police Department provided a similar
description of what he observed when viewing that
video, stating that he saw the respondent ‘‘on her knees
on the bed literally sitting on the baby’s face and the
baby is like—the baby’s face is underneath her, the
baby’s body is outwards and the baby is kicking and
squirming and going like this with [his] hands. . . .
Like trying to get away and obviously suffering.’’
Macci also provided firsthand testimony as to the
respondent’s conduct when the officers responded to
her home on the date in question. He testified that when
he entered the respondent’s bedroom, ‘‘[t]he baby was
definitely in distress, obviously, squirming and [he]
looked blue as if [he] was oxygen deprived and [the
respondent] was holding onto the baby also with her
hands. . . . I asked her to let go of the baby because
I didn’t want to use force and potentially hurt [him]
. . . . There were three [officers] there and I was hop-
ing she would comply just by our mere presence but
she did not, so we had to go actually hands on and use
force and I remember that she was trying with all of
her might to strangle this baby . . . .’’ Macci further
testified that the respondent applied a ‘‘significant
amount of force . . . on the baby’s chest and neck
area’’ and that Q ‘‘was struggling to breathe and was
making gasping noises’’ until the officers finally freed
him from the respondent’s grasp.
The police report on the November 30, 2013 incident,
which was admitted into evidence at trial, likewise indi-
cates that when the officers entered the bedroom the
respondent was ‘‘holding the baby with her arm around
[his] neck and squeezing it. The baby appeared to be
in serious distress. [The officers] jumped on the bed
and struggled with [the respondent] in an attempt to
save the baby. [The respondent] was squeezing the baby
so hard that the baby was in serious distress and was
unable to take in air. [The officers] finally broke [the
respondent’s] arms free from [Q] allowing [him] to
finally gasp for air.’’
In its memorandum of decision, the court expressly
credited both that police report and Macci’s testimony,
as was its exclusive prerogative. As this court has noted,
‘‘[i]t is the [fact finder’s] exclusive province to weigh
the conflicting evidence and to determine the credibility
of witnesses. . . . The [fact finder] can . . . decide
what—all, none, or some—of a witness’ testimony to
accept or reject. . . . As a corollary, [q]uestions of
whether to believe or to disbelieve a competent witness
are beyond our review. As a reviewing court, we may
not retry the case or pass on the credibility of witnesses.
. . . [W]e must defer to the [finder] of fact’s assessment
of the credibility of the witnesses that is made on the
basis of its firsthand observation of their conduct,
demeanor and attitude.’’ (Citation omitted; internal quo-
tation marks omitted.) State v. Altayeb, 126 Conn. App.
383, 387–88, 11 A.3d 1122, cert. denied, 300 Conn. 927,
15 A.3d 628 (2011); see also Schoenborn v. Schoenborn,
144 Conn. App. 846, 859, 74 A.3d 482 (2013) (‘‘this court
cannot pass on issues of credibility and must defer to
the trier of fact’s assessment thereof’’); State v. Gene
C., 140 Conn. App. 241, 247, 57 A.3d 885 (‘‘[c]redibility
determinations are the exclusive province of the . . .
fact finder, which we refuse to disturb’’), cert. denied,
308 Conn. 928, 64 A.3d 120 (2013).
The account of the respondent’s conduct provided
in the police report and Macci’s testimony, as well as
the testimonial and documentary evidence from the
department’s social workers, substantiates the court’s
finding that the respondent committed acts that denied
Q the care, guidance or control necessary for his physi-
cal, educational, moral or emotional well-being. Indulg-
ing every reasonable presumption in favor of the trial
court’s ruling, we cannot say that the court erroneously
concluded that the petitioner had proven an act of
parental commission pursuant to § 17a-112 (j) (3) (C)
by clear and convincing evidence.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** August 6, 2015, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The court also rendered a consensual termination of the parental rights
of Q’s father, whom we refer to by that designation. Because he is not a
party to this appeal, we refer to the respondent mother as the respondent.
We also note that, pursuant to Practice Book § 67-13, the attorney for the
minor child filed a statement adopting the brief of the petitioner in this
appeal.
2
The court was presented with evidence, in the form of an affidavit
prepared on November 30, 2013, by Eric Hundley, a social worker at the
Department of Children and Families, regarding certain events that tran-
spired earlier that day, which sheds light on the decision of the respondent’s
mother to contact the police. That affidavit indicated that the respondent’s
sister was playing with Q in the living room of the family’s home when the
respondent ‘‘entered and stated that [Q’s father had] told her he wished she
died. . . . [The respondent] then grabbed [Q] in a harsh manner underneath
his arm pits, hoisting him up into the air, then went into her bedroom. [The
respondent’s sister then] heard what sounded like a smack, and heard [Q]
cry out. . . . [The respondent] had locked her bedroom door at this point.’’
When the respondent’s sister summoned her mother, the respondent’s
mother ran up the stairs and said to the respondent, ‘‘ ‘I hope you are not
hitting the baby.’ ’’ The respondent then replied, ‘‘ ‘he came out my pussy,
so I can do what I want.’ ’’
3
Section 17a-112 (j) (3) (C) unambiguously indicates that those three
categories are illustrative of, but not the exclusive, acts of parental commis-
sion or omission qualifying thereunder. We note that our Supreme Court
upheld a challenge to the constitutionality of the predecessor to that statu-
tory ground for termination of parental rights, General Statutes (Rev. to
1977) § 45-61f, on vagueness grounds, emphasizing that ‘‘the process of
parenting itself is multifaceted and encompasses all of life’s activities. In
view of the diversity of human nature, backgrounds and capabilities, and
the differing aspirations of families in our society, it would be impossible
to delineate specific conduct as acceptable or unacceptable.’’ State v. Anony-
mous, 179 Conn. 155, 164–65, 425 A.2d 939 (1979).
4
At oral argument before this court, the respondent acknowledged that
the trial court specifically found that Q suffered a physical injury when he
turned blue as a result of her impairment of his respiration. She nevertheless
posits that such temporary harm is insufficient to establish an act of parental
commission pursuant § 17a-112 (j) (3) (C), and that a more lasting injury is
required. In its memorandum of decision, the court rejected that argument,
emphasizing that ‘‘there is no requirement [under § 17a-112 (j) (3) (C)] that
such injury last after the incident.’’ We concur.
5
In her reply brief, the respondent argues that ‘‘there were no facts’’ that
support a finding of an emotional injury to Q, a thirteen month old child.
We disagree. The trial court, as fact finder, reasonably could infer such an
injury from the testimony provided by social workers Kathryn Levy and
Eric Hundley and Officer Kyle Macci of the New Britain Police Department,
as discussed more fully in part II of this opinion.