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*********************************************** 
IN RE LILYANA L. ET AL.*

(AC 41451)

Sheldon, Moll and Mihalakos, Js.

Syllabus

The respondent mother appealed to this court from the judgment of the

trial court terminating her parental rights with respect to her minor

child, L. The trial court also terminated the mother’s parental rights

with respect to her minor child A, but the mother did not appeal from

that judgment. The court had determined, pursuant to statute (§ 17a112 [j] [3] [F]), that the mother had committed an assault of A, through

a deliberate, nonaccidental act that resulted in serious bodily injury to

A. The court found that on the day of the incident at issue, the mother,

who was A’s primary caretaker, had noted bruises on A’s head before

she left for work. About one hour later, A’s father, W, who was watching

A, called 911 and stated, inter alia, that A was not breathing and could

not move her legs. W told the police that he had left A on a bed and

went to use a bathroom, and then found A on the floor when he returned.

The mother told the police that W could have caused A’s injuries. The

court determined that the mother could not be excluded as the source

of certain of A’s injuries and that the mother was in close physical

proximity to A when A sustained the injuries. On appeal, the mother

claimed that the trial court improperly applied § 17a-112 (j) (3) (F) in

terminating her parental rights and that because the court was unable

to determine whether she or W was responsible for A’s injuries, the

evidence was insufficient for the court to have found that she committed

a deliberate, nonaccidental assault that resulted in the injury of A. Held

that the trial court properly terminated the mother’s parental rights as

to L, as that court properly applied the law, and its legal conclusion

that the elements of § 17a-112 (j) (3) (F) were established was supported

by clear and convincing evidence; that court found that the mother and

W had engaged in a course of conduct that made them both the direct

cause of A’s injuries, and the evidence was sufficient to establish that

the mother committed a deliberate, nonaccidental assault on A, as there

was extensive evidence on which the court could have based its finding

that the mother was not just a party who simply stood by and watched

A suffer serious injuries, but that she was an active participant with

regard to those injuries, and evidence demonstrating that the mother

had once thrown A onto a couch comported with credible medical

testimony and certain other evidence, which showed that the incident

at issue on which the termination petition was based was not the only

time that A had been abused.

Argued September 11—officially released November 7, 2018**

Procedural History

Coterminous petitions by the Commissioner of Children and Families to adjudicate the respondents’ minor

children neglected and to terminate the respondents’

parental rights with respect to their minor children,

brought to the Superior Court in the judicial district of

Fairfield, Juvenile Matters at Bridgeport, and tried to

the court, Ginocchio, J.; thereafter, the court amended

the petition to terminate the parental rights of the

respondent mother as to the minor child Lilyana L.;

judgments adjudicating the minor children neglected

and terminating the respondents’ parental rights, from

which the respondent mother appealed to this court.

Affirmed.

Karen Oliver Damboise, assigned counsel, for the
appellant (respondent mother).

John E. Tucker, assistant attorney general, with

whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon and Mildred Bauza, assistant attorneys general, for the appellee (petitioner).

Rebecca A. Rebollo, for the minor child.
Opinion

MIHALAKOS, J. The respondent, Britney N., appeals

from the judgment of the trial court rendered in favor

of the petitioner, the Commissioner of Children and

Families, terminating her parental rights with respect

to her minor child, Lilyana L.1 On appeal, the respondent

claims that the trial court erred when it determined,

pursuant to General Statutes § 17a-112 (j) (3) (F), that

the respondent committed an assault, through a deliberate, nonaccidental act that resulted in serious bodily

injury to another child of the parent.2 We affirm the

judgment of the trial court.

The facts of this case involve the termination of the

respondent’s parental rights as to her daughter, Lilyana,

which was based on the respondent’s abuse of another

child, Avah L. The following facts and procedural history are relevant to this appeal. This appeal arises from

coterminous neglect and termination of parental rights

petitions filed with respect to the respondent’s minor

children, Lilyana (born in May, 2015) and Avah (born

in March, 2016).3 On October 21, 2016, the petitioner

filed petitions for the termination of the respondent’s

parental rights as to Avah4 and Lilyana. The termination

petition as to Lilyana alleged, pursuant to § 17a-112

(j) (3) (F), that the respondent committed an assault,

through a deliberate, nonaccidental act, that resulted in

the serious bodily injury of another child of the parent.

Until October 7, 2016, the children resided with the

respondent and Avah’s father, William L., in an apartment on the second floor of a three-family house. The

respondent and William were the children’s primary

caretakers, although outside health care professionals

came to the apartment on a regular basis to help with

the care of Avah, who suffered from small gestational

age, acid reflux, and torticollis.

The petitioner filed the underlying petition following

Avah’s hospitalization on October 14, 2016. In its memorandum of decision, the trial court found the following

facts regarding the events that transpired on that date:

‘‘[A]t approximately 5:40 p.m., police and emergency

personnel responded to a 911 call . . . . The caller,

who was [Avah’s] father, [William], stated that he

needed help, his baby was not breathing. Those who

initially arrived at the scene described the infant,

[Avah], as being nonreactive and nonresponsive. Her

body was limp, and she was not able to move her arms

or legs. . . . The child was taken to a nearby hospital.

[Officer Mark Blackwell of the Bridgeport Police

Department] spoke to the baby’s father, [William], and

asked [him] what happened. [William] responded that

he was watching the baby after her mother, [the respondent], had left for work. He stated that he had to use

the bathroom and, while in the bathroom, he left the

baby on the bed in their bedroom. When he returned
he found the baby, lying on her back, on the floor. He

proceeded to call for help.’’

At Yale New Haven Children’s Hospital, doctors diagnosed Avah with a head trauma, which resulted in a

subdural hemorrhage and retinal hemorrhages. Avah

also had three leg fractures, which included two healing

fractures and one acute fracture, and facial bruising.

Three days after her admission to the hospital, Avah

experienced seizures related to her head injury. Lisa R.

Pavlovic, a pediatrician and child abuse specialist at

Yale New Haven Children’s Hospital, examined Avah

after she was admitted to the hospital. The trial court

credited Pavlovic’s opinion ‘‘that Avah’s injuries [were]

due to severe physical abuse’’ and that ‘‘more than one

episode of abuse took place.’’

On October 17, 2016, the petitioner invoked a ninetysix hour hold on behalf of Avah and Lilyana. See General

Statutes § 17a-101g (f). On October 21, 2016, the petitioner filed ex parte motions for orders of temporary

custody and neglect petitions on behalf of the children.

On the same day, the court granted the petitioner’s ex

parte motions on the basis of its findings that the children were in immediate physical danger from their surroundings and that their continuing to remain in the

home was contrary to the welfare of the minor children,

and vested temporary custody of the children in the petitioner.

Christopher Loesche, an investigator from the

Department of Children and Families, testified on

behalf of the petitioner at trial. Loesche interviewed

the respondent on October 14, 2016, while Avah was

in the pediatric intensive care unit. The respondent told

Loesche that she had noticed bruises on Avah during

the last few months and that she believed the bruising

was due to Nexium, a medication Avah was prescribed

for acid reflux. The respondent also speculated that

Avah’s bruising could have been caused by the child

hitting her face against plastic toys attached to a swing

in which she sometimes sat. The respondent told

Loesche that she had reported Avah’s bruising to

Michelle Macchio, a visiting nurse who came to the

apartment regularly, and that Macchio had consulted

with Avah’s pediatrician about the injuries.

Macchio, who treated Avah from April to October,

2016, testified about the bruising Avah experienced

prior to her hospitalization. On October 3, 2016, Macchio observed a bruise on the top inner part of Avah’s

ear and the respondent informed her that Avah had a

nosebleed. On October 6, 2016, the respondent sent

Macchio a photograph of Avah with substantial bruising

on her face. Macchio said the bruising could be a rare

side effect of Nexium, but that she had ‘‘never seen

anything like that . . . .’’ Concerned because of Avah’s

bruising, Macchio called Avah’s pediatrician and scheduled an appointment for Avah the next morning. The
respondent told Macchio that she had attended the

appointment and that the doctor told her to discontinue

the Nexium. Later, Macchio discovered that the respondent had not attended the appointment.

Detective Albert Palatiello of the Bridgeport Police

Department testified on behalf of the petitioner about

interviews he conducted with the respondent on October 24 and November 10, 2016. During the October 24

interview, the respondent said that she believed William

could have caused Avah’s injuries. She also told Palatiello that she believed Avah’s injuries could have been

caused by the Nexium and the toys attached to Avah’s

swing. During the November 10 interview, the respondent told Palatiello that she and William had been

involved in one domestic violence incident in the past,

and that William smoked marijuana on a daily basis

and had used heroin. The respondent described an incident in which Avah was crying and William yelled something to the effect of ‘‘will you shut the baby . . . up

. . . .’’ The respondent also spoke of a time when William helped Avah blow her nose and, afterward, the

respondent noticed that Avah’s nose was bright red,

which she thought was strange.

The court also heard testimony at trial from medical

professionals who treated Avah or were familiar with

her medical record. Six physicians, all of whom treated

Avah at the time of her injuries or shortly thereafter,

testified on behalf of the petitioner.5 These witnesses

provided substantial evidence that Avah’s injuries were

nonaccidental. Two physicians testified on behalf of

the respondent: Joseph M. Scheller, a board certified

pediatrician and child neurologist, and Jack Levenbrown, an expert in pediatric radiology. Scheller and

Levenbrown testified that, based on Avah’s medical

records, her injuries were accidental or the result of a

preexisting medical condition. The court found Scheller

and Levenbrown’s testimony unpersuasive6 and after

‘‘carefully review[ing] and assess[ing] all the medical

testimony presented during the trial . . . conclude[d]

. . . that Avah was the victim of child abuse.’’

The court also heard testimony from those

acquainted with the respondent and William, including

their landlord, Allen Brooks, and Brooks’ daughter. The

court credited Brooks’ testimony that the respondent

and William were using drugs, and that Brooks constantly smelled marijuana in the hallway. Brooks also

testified that he was concerned that the respondent

and William were selling drugs from their apartment.

Brooks’ daughter testified that the respondent and William fought constantly, and that both could be aggressive at times. She also testified that, during the week

before Avah’s hospitalization, there were three consecutive nights that she heard Avah cry so hard that she

thought the baby might hurt herself.

On November 15, 2017, after the close of evidence,
the court, on its own motion, pursuant to Practice Book

§ 34a-1 (d), sought to amend the respondent’s termination petition to include § 17a-112 (j) (3) (C) as a ground

for termination as to Lilyana. The respondent objected

to the motion and was given an opportunity to be heard

on the issue. Ultimately, the court overruled the respondent’s objection and amended the petition.

The court issued a thorough and thoughtful memorandum of decision on February 1, 2018, in which it

found that the petitioner had proved, by clear and convincing evidence, grounds (C) and (F) of § 17a-112 (j)

(3) as to Lilyana and ground (C) as to Avah. The trial

court, therefore, terminated the respondent’s parental

rights as to Lilyana and Avah. The respondent appealed

from the decision as to Lilyana only. Additional facts

and procedural history will be set forth as necessary.

The respondent’s first claim on appeal is that the

trial court erred when it terminated her parental rights

pursuant to § 17a-112 (j) (3) (F). Specifically, the

respondent argues that the trial court improperly

applied ground (F) and, alternatively, that there was

insufficient evidence for the court to find, pursuant to

that ground, that she committed a deliberate, nonaccidental assault that resulted in the injury of Avah. We

disagree.

We begin by setting forth the applicable standards of

review. ‘‘Although the trial court’s subordinate factual

findings are reviewable only for clear error, the court’s

ultimate conclusion that a ground for termination of

parental rights has been proven presents a question of

evidentiary sufficiency. . . . That conclusion is drawn

from both the court’s factual findings and its weighing

of the facts in considering whether the statutory ground

has been satisfied. . . . On review, we must determine

whether the trial court could have reasonably concluded, upon the facts established and the reasonable

inferences drawn therefrom, that the cumulative effect

of the evidence was sufficient to justify its [ultimate

conclusion]. . . . When applying this standard, we

construe the evidence in a manner most favorable to

sustaining the judgment of the trial court. . . . To the

extent we are required to construe the terms of § 17a112 (j) (3) [(F)] or its applicability to the facts of this

case, however, our review is plenary.’’ (Citations omitted; internal quotation marks omitted.) In re Egypt E.,

327 Conn. 506, 525–26, 175 A.3d 21, cert. denied sub

nom. Morsy E. v. Commissioner of Children & Families (U.S. October 1, 2018) (No. 17-1549).

‘‘Proceedings to terminate parental rights are governed by § 17a-112. . . . Under [that provision], 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. The [petitioner] . . . in petitioning to terminate

those rights, must allege and prove one or more of the

statutory grounds.’’ (Citation omitted; internal quotation marks omitted.) Id., 526.

One such statutory ground is set forth in § 17a-112

(j) (3) (F), which provides that a trial court may grant

a petition for termination of parental rights if it finds

by clear and convincing evidence that ‘‘the parent has

killed through deliberate, nonaccidental act another

child of the parent or has requested, commanded,

importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate,

nonaccidental act that resulted in serious bodily injury

of another child of the parent . . . .’’

The trial court terminated the respondent’s parental

rights as to Lilyana pursuant to § 17a-112 (j) (3) (F).

The respondent first argues that the trial court could

not have found that she committed a deliberate, nonaccidental assault on Avah because it was unable to determine whether she or William was responsible for Avah’s

injuries. This argument hinges on the trial court’s statement that the respondent ‘‘[could not] be excluded as

the source of any of the other injuries Avah sustained.’’

The respondent cites In re Brianna T., Superior Court,

judicial district of Middlesex, Child Protection Session

at Middletown, Docket Nos. U06-CP-05-005012A, U06-

CP-05-005015A, U06-CP-05-005013A and U06-CP-05-

005014A, 2009 WL 659196 (February 10, 2009), and In re

Egypt E., Superior Court, judicial district of Middlesex,

Child Protection Session at Middletown, Docket Nos.

H14-CP-13-010981A and H14-CP-13-010982A, 2015 WL

4005340 (June 1, 2015), rev’d, In re Egypt E., 322 Conn.

231, 140 A.3d 210 (2016), in support of the proposition

that § 17a-112 (j) (3) (F) cannot be satisfied when the

court is unable to determine which of two parents

abused a child. In In re Brianna T., supra, 2009 WL

659196, *22, the court was unable to ‘‘determine from

the evidence which of the two [parents] inflicted the

fatal blow to [the child’s] head’’ and, therefore, declined

to find that the child’s father killed her through a deliberate, nonaccidental act. In In re Egypt E., supra, 2015

WL 4005340, *18, the trial court found that § 17a-112

(j) (3) (F) was not satisfied as to the father because

‘‘clear and convincing evidence on the issue of the identity of the perpetrator [was] lacking.’’ These cases, however, are distinguishable from the present case. In both

In re Brianna T. and In re Egypt E., the trial court

was unable to determine whether one of two parents

had any role in the child’s abuse. In contrast, the court

in the present case found that ‘‘[the respondent] and

[William] . . . engaged in a course of conduct that

makes them both the direct cause for Avah’s serious

bodily injuries.’’

The respondent argues that even if the trial court
did not misinterpret § 17a-112 (j) (3) (F), there was

insufficient evidence to establish that she committed a

deliberate, nonaccidental assault on Avah. The trial

court heard extensive evidence on which it based its

finding that the respondent ‘‘was not just a party who

simply stood by and watched her infant suffer serious

injuries, but, rather, she was an active participant with

regard to those injuries.’’ The trial court relied on the

following evidence in support of its determination that

the respondent participated in Avah’s abuse: ‘‘[The

respondent’s] deceptive behavior, coupled with the fact

that there was medical testimony that the bruising on

Avah’s face was consistent with a slap mark made by

a hand similar in size to that of [the respondent] . . . .’’

In addition to this evidence, the trial court heard a

recording from a phone conversation William had with

his sister, during which he said that the respondent

once threw Avah onto a couch.7 This evidence comports

with credible medical testimony and other evidence

that October 14, 2016, was not the only time that Avah

was abused.

Moreover, the trial court was not convinced that the

respondent was wholly uninvolved in the October 14,

2016 episode, stating: ‘‘[T]he court is troubled by the

testimony that when [the respondent] left for work that

day, she noted bruises on Avah’s cheeks in the morning

and a bruise on her forehead right before she left for

work in the early evening. Within an hour the child was

rushed to the hospital. There was testimony that [the

respondent] was the primary caregiver for Avah. She

was in close physical proximity to Avah when she sustained her serious physical injuries.’’

On the basis of the foregoing, we conclude that the

trial court properly applied the law, and that its legal

conclusion that the petitioner established the elements

of § 17a-112 (j) (3) (F) is supported 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.

** November 7, 2018, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 The respondent’s parental rights were also terminated as to her minor

child, Avah L. The respondent has not appealed from the trial court’s judgment with respect to Avah. The parental rights of the respondent father

were terminated only as to Avah. Because the father has not appealed from

that judgment, we refer in this opinion to Britney N. as the respondent.

2 The respondent also claims, on appeal, that the trial court abused its

discretion in amending the termination of parental rights petition as to

Lilyana to include § 17a-112 (j) (3) (C) as a basis for the termination of

parental rights, and that the trial court erred when it determined, pursuant

to that ground, that Lilyana had been denied, by reason of an act of commission or omission by the respondent, the care, guidance, or control necessary

for the child’s physical, educational, moral, or emotional well-being. The

petitioner needed to prove only one of the grounds in § 17a-112 (j) (3) by
clear and convincing evidence for the trial court to terminate the respondent’s parental rights as to Lilyana. See In re Egypt E., 327 Conn. 506, 526,

175 A.3d 21, cert. denied sub nom. Morsy E. v. Commissioner of Children &

Families (U.S. October 1, 2018) (No. 17-1549). This court’s holding that the

trial court correctly determined that the petitioner satisfied § 17a-112 (j) (3)

(F) as to the respondent is sufficient to uphold the termination of the

respondent’s parental rights as to Lilyana. We, therefore, decline to review

the respondent’s additional claims with regard to § 17a-112 (j) (3) (C).

3 The respondent has a third minor child, Amelia B., whose father is Ruben

B. Amelia lives with Ruben, and neither was involved in the underlying

petitions.

4 Avah’s father, William L., was also named in the petition as to Avah, and

his parental rights as to Avah ultimately were terminated. William’s parental

rights were not terminated as to Lilyana because, on May 18, 2017, the trial

court found that William was not Lilyana’s biological father.

5 The following physicians testified on behalf of the petitioner: Erin Bowen,

Avah’s pediatrician; Pavlovic, the pediatrician and child abuse expert at

Yale New Haven Children’s Hospital; Brendon Graeber, an expert in pediatric

radiology; Michael L. DiLuna, chief of pediatric neurosurgery at Yale New

Haven Hospital; Brian Smith, a pediatric orthopedic surgeon at Yale New

Haven Hospital; and Kathleen Stoessel, an ophthalmologist at Yale New

Haven Hospital.

6 The trial court explained that it did not find Scheller and Levenbrown’s

testimony persuasive because they ‘‘never examined Avah, never consulted

with the treating physicians, and never interviewed the respondent [or William] regarding Avah’s injuries.’’ The trial court went on to find: ‘‘[Scheller

and Levenbrown] presented a piecemeal analysis of Avah’s injuries that

supported an agenda rather than a credible assessment of the totality of

Avah’s injuries. The more credible testimony presented at trial was by Dr.

Bowen, Dr. Pavlovic, Dr. DiLuna, Dr. Stoessel, Dr. Smith and Dr. Graeber.’’

7 William was incarcerated during this time, and his phone conversations

were recorded by the Department of Correction.