327 Conn. 506
Conn.2018Background
- Parents Morsy and Natasha E. had two daughters, Mariam (injured in 2013) and Egypt (not injured); Mariam suffered multiple nonaccidental fractures while in parents’ exclusive care.
- DCF removed both children, filed termination petitions (§ 17a-112(j)(3)(C)) in October 2013; first trial (2015) terminated rights but was reversed and remanded for retrial.
- On remand the petitioner amended certain allegations; the court set September 13, 2016 as the adjudicatory date, allowing consideration of post-removal conduct up to that date.
- At retrial evidence showed parents gave inconsistent explanations, Morsy ultimately pleaded guilty (Alford) to reckless endangerment, and both parents long refused to fully acknowledge responsibility for Mariam’s injuries.
- Experts testified that (a) acknowledgment of abuse is prerequisite for effective treatment and safety, and (b) removal and prolonged separation cause psychological harm to young children.
- The trial court again terminated parental rights to both children under § 17a-112(j)(3)(C); the parents appealed as to Egypt, arguing the statute requires actual pre-removal harm to the child named in the petition.
Issues
| Issue | Plaintiff's Argument (DCF) | Defendant's Argument (Parents) | Held |
|---|---|---|---|
| Whether § 17a-112(j)(3)(C) permits termination based on predictive harm or requires actual harm to the child named in petition | Statute requires actual harm, but Egypt was harmed indirectly by parents’ postremoval omissions (prolonged separation, lack of care) which fell within adjudicatory window | Termination as to Egypt impermissibly based on predictive/speculative harm; Egypt suffered no harm before removal so § 17a-112(j)(3)(C) inapplicable | Court: Statute is retrospective (requires actual harm), but here parents’ postremoval omissions (before adjudicatory date) caused actual harm to Egypt via prolonged separation; termination upheld |
| Whether court could consider postremoval conduct that occurred after original petition but before amended-adjudicatory date | Postremoval conduct occurred before last amendment (adjudicatory date) so properly considered | Parents argued adjudicatory date couldn’t be extended to rely on postremoval conduct to terminate rights | Held: Court properly considered postremoval conduct because petitions were amended and adjudicatory date extended to Sept. 13, 2016 |
| Whether Mariam’s injuries improperly shifted burden to parents re: Egypt | DCF: court did not rely on prima facie shift for Egypt; it required proof by clear and convincing evidence based on omissions harming Egypt | Parents: trial court used Mariam’s injuries to shift burden and find prima facie case as to Egypt | Held: No improper burden shift as to Egypt; court grounded termination on parents’ omissions and resulting harm to Egypt, not on prima facie clause tied to Mariam |
| Whether evidence of psychological harm to Egypt was sufficient | Experts testified removal and prolonged separation cause psychological harm; reports and mother’s statements corroborated Egypt’s distress | Parents argued expert testimony was general, not Egypt-specific, and no direct proof Egypt suffered harm pre-removal | Held: Expert testimony and factual record provided sufficient evidence that Egypt suffered emotional harm during prolonged separation attributable to parents’ omissions |
Key Cases Cited
- In re Shane M., 318 Conn. 569 (2015) (standard of review and adjudicatory/dispositional phases in TPR proceedings)
- In re Valerie D., 223 Conn. 492 (1992) (statute not meant to apply to parental acts predating a child’s birth)
- In re Theresa S., 196 Conn. 18 (1985) (parental acts causing physical and psychological harm support termination)
- In re Kezia M., 33 Conn. App. 12 (1993) (multiple statutory grounds may be satisfied by same conduct)
- In re Brian T., 134 Conn. App. 1 (2012) (failure to rehabilitate and denial of care grounds can coexist)
- In re Kelly S., 29 Conn. App. 600 (1992) (retrospective focus of statute; speculative harm insufficient)