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IN RE J.R.*
(AC 37980)
Gruendel, Keller and Prescott, Js.**
Argued October 7—officially released November 17, 2015***
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session, Eschuk, J. [ex
parte temporary custody order]; Rubinow, J.
[judgment].)
Patrick J. Heeran, assigned counsel, with whom, on
the brief, were Erich H. Gaston and Alison P. Gaston,
for the appellant (respondent mother).
Susmita M. Mansukhani, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Benjamin Zivyon, assistant attorney gen-
eral, for the appellee (petitioner).
Opinion
KELLER, J. The respondent mother, N.A. (respon-
dent),1 appeals from the grant of an order of temporary
custody, which vested custody of her minor daughter,
J.R., with the Commissioner of Children and Families.
On appeal, the respondent claims that (1) the court
improperly shifted the burden of proof of underlying
facts from the petitioner to the respondent; and (2)
there was insufficient evidence to support the grant of
an order of temporary custody.2 We affirm the judgment.
The petitioner executed a ninety-six hour hold on
J.R. at 6 o’clock in the evening on February 26, 2015.
The following day, the court granted the petitioner’s
motion for an ex parte order of temporary custody and
vested custody in the petitioner. Beginning on March
13, 2015, the court held a contested hearing on whether
to continue the order, which lasted three days.3 On April
23, 2015, the court issued a memorandum of decision
sustaining the order of temporary custody and finding
facts that are set forth herein.
In its thorough and well reasoned decision, the court
found the following facts that are relevant to this appeal.
In 2012, J.R. lived with her parents, the respondent
and B.R. Veronica Ron-Priola, a physician, referred to
throughout the proceedings as ‘‘Dr. Ron,’’ has been
J.R.’s pediatrician since her birth. In 2012, when J.R.
was seven years old, the respondent, who cleaned J.R.’s
laundry regularly, began noticing stains on J.R.’s under-
wear. Although both of her parents knew about this,
they did not bring J.R. to see Dr. Ron for treatment for
two or three months. After she examined and performed
tests on J.R., Dr. Ron diagnosed her with chlamydia.
Dr. Ron concluded, despite J.R.’s initial denial, that
she had been sexually abused, and notified both the
Department of Children and Families and the respon-
dent, who also told B.R. Dr. Ron then treated J.R.’s
infection with an antibiotic that is considered curative
because it is effective in 97 percent of cases. J.R. ulti-
mately disclosed in a forensic interview that her uncle
had molested her and two of her cousins—one of whom
also tested positive for chlamydia—in 2012. One week
after this disclosure, J.R.’s uncle fled the country.
Despite her disclosures and having told her mother that
she never wanted to play with her uncle again, however,
J.R. never exhibited fear at the prospect of going to
her aunt’s and uncle’s house. J.R. also attended and
completed counseling.
In 2013, J.R., J.R.’s adult brother J, the respondent,
and B.R. moved into a house together. Following B.R.’s
back injury in July, 2014, B.R., as well as S.A., an aunt,
began to supervise J.R. when the respondent was not
at home. At about this time, J moved out of the house,
although he continued to visit the family several times
a week. J.T., an unrelated male adult, moved in. J briefly
resumed living at the house of the respondent and B.R.
for a few weeks in late 2014 or early 2015. B.A., another
aunt of J.R.’s, frequently visited the home of the respon-
dent, and A, the cousin whom J.R. identified as also
having been molested by the uncle who fled, stayed
overnight at the home of the respondent. In sum, S.A.,
J.T., B.A., J, A, the respondent, and B.R. all had access
to J.R. after her 2012 chlamydia diagnosis.
J.R. had annual physical exams in 2013 and 2014.
She was apparently in good health and exhibited no
symptoms of a sexually transmitted disease. In Septem-
ber, 2014, however, J.R. reported to the respondent that
she had begun having vaginal discharge and that she
‘‘felt kind of hot and moist in her private parts.’’ The
respondent checked J.R.’s underwear while doing her
laundry and observed stains. The respondent reported
these developments to B.R. and expressed her concern
to him at some point before January 23, 2015. To allevi-
ate her discomfort, J.R. began a pattern of changing
into lighter clothing and changing her underwear twice
a day.
Despite all of these changes and despite J.R.’s previ-
ous medical history, the respondent and B.R. did not
seek immediate medical attention for J.R., but instead
waited until February 23, 2015, when the respondent
brought J.R. to her prescheduled annual physical exam
with Dr. Ron. When Dr. Ron asked the respondent and
J.R. ‘‘if there were any concerns,’’ the respondent
answered only that J.R. had complained of ear pain the
previous evening. Dr. Ron did discover an ear infection
and prescribed an antibiotic for it. The respondent did
not report J.R.’s genital symptoms. On examining J.R.,
however, Dr. Ron discovered that she had ‘‘abundant
vaginal discharge’’ as well as vulval redness and erosion.
Confronted with these unreported symptoms, the
respondent stated that the discharge had been present
for one month.
On receiving medical confirmation on February 25,
2015, that J.R. had chlamydia, Dr. Ron became con-
cerned that J.R. had again suffered sexual abuse
because J.R. was very unlikely to be suffering a recur-
rence of her 2012 infection after treatment and after
having been symptom free for about two years. Dr.
Ron called the respondent and told her that J.R. had
chlamydia and that chlamydia is contracted only
through sexual contact. Neither the respondent nor B.R.
was able or willing to explain the origin of the new
condition. As she was mandated by law to do, Dr. Ron
reported J.R.’s illness to the department.4 J.R. did not,
however, identify an abuser either to Dr. Ron or to
a multidisciplinary investigative team, each of whom
interviewed her. As occurred when J.R. became
infected in 2012, J.R.’s parents noted no changes in her
behavior apart from her complaints relating to symp-
toms and her pattern of changing into lighter clothing.
On February 26, 2015, the petitioner executed a
ninety-six hour hold on J.R., and the court granted the
petitioner’s ex parte motion for an order of temporary
custody the following day and temporarily vested cus-
tody in the petitioner. In an affidavit in support of the
motion for an order of temporary custody, a department
social worker alleged that ‘‘[J.R.] tested positive for
[c]hlamydia for the second time in a two year period
while under the care of her parents. There is no identi-
fied perpetrator and the family was unable to identify
how the child could have contracted this.’’ Accordingly,
the social worker alleged that J.R. would be ‘‘in immedi-
ate physical danger from her surroundings if she [were]
placed in the care [of] either of her parents and that
immediate removal from such surroundings [was] nec-
essary to ensure [her] safety and further the conditions
or circumstances surrounding the care of said child
[require] that custody be immediately assumed to safe-
guard the welfare of said child.’’ On March 3, 2015, Dr.
Ron reconfirmed J.R.’s chlamydia diagnosis. Following
further testing and confirmation on March 10, 2015, Dr.
Ron prescribed a single dose of an antibiotic for J.R.
to take under department supervision to cure her. Up
to and through the contested custody hearing, Dr. Ron
maintained great concern that J.R. might continue to
be abused if she were returned to her parents.
I
Nominally, the respondent’s principal claim on
appeal is that the court improperly shifted to her the
burden of proof with respect to the granting to the
petitioner of the order of temporary custody. We
disagree.
We begin our analysis with the standard of review
for claims that the court has misallocated the burden
of proof. ‘‘The question of whether a trial court has
held a party to a less exacting standard of proof than
the law requires is a legal one. . . . Accordingly, our
review is plenary. . . . Similarly, plenary review
applies to a question of misallocation of a burden of
proof. . . . Furthermore, if it is not otherwise clear
from the record that an improper standard was applied,
the appellant’s claim will fail on the basis of inadequate
support in the record.’’ (Citations omitted; internal quo-
tation marks omitted.) In re Jason R., 306 Conn. 438,
452–53, 51 A.3d 334 (2012). ‘‘[T]he burden of proof is
always on the state when it seeks to remove children
from the home.’’ In re Juvenile Appeal (83-CD), 189
Conn. 276, 295, 455 A.2d 1313 (1983).
There is no support in the court’s memorandum of
decision for the respondent’s claim that the court
shifted the burden of proof. To the contrary, the court
referred explicitly at several points to the petitioner’s
burden of proof and to the petitioner’s ‘‘substantial
showing,’’ by a fair preponderance of the evidence, that
if J.R. were returned to her surroundings, she more
likely than not would be subjected to immediate physi-
cal danger. The court’s decision also consistently
relates the petitioner’s evidence to the legal grounds
that the petitioner sought to establish, implying that it
was the petitioner who bore the burden of establishing
those grounds. Furthermore, the court cites precedent,
namely, In re Kaurice B., 83 Conn. App. 519, 522–23,
850 A.2d 223 (2004), that requires the petitioner to bear
the burden of proving the grounds for the granting of an
order of temporary custody. Finally, the court’s decision
culminates unequivocally by finding that ‘‘[i]n sum, [the
petitioner] has met [her] burden of proving that the
[order of temporary custody] should be continued
because [J.R.] was the victim of sexual abuse; acquired
chlamydia as a result of the sexual abuse; and the
respondent-parents are either unwilling to disclose how
the abuse occurred or, as they claim, they do not know
how the abuse occurred.’’ (Emphasis added.) The
respondent does not identify any language in the court’s
decision to suggest that the court required anyone other
than the petitioner to bear the burden of proof as to
the granting of the order of temporary custody. The
respondent’s claim fails because there is no support for
its premise in the court’s memorandum of decision.
II
The substance of the respondent’s principal claim
appears to be that there was insufficient evidence to
grant the order of temporary custody because the evi-
dence did not show that J.R.’s 2015 infection was the
result of new abuse, as opposed to a recurrence of her
2012 infection, and because even if the evidence did
indicate a new infection, there was insufficient evidence
to show that the individual responsible lived in J.R.’s
household.5 We disagree.
Our inquiry into the sufficiency of the evidence for
granting the order of temporary custody is limited to
determining whether the court committed clear error
in making the statutorily required findings. In re Sev-
erina D., 137 Conn. App. 283, 291–92, 48 A.3d 86 (2012).
‘‘The proper standard of proof in a trial on an order of
temporary custody is the normal civil standard of a
fair preponderance of the evidence. . . . We note that
[a]ppellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
The trial court’s findings are binding upon this court
unless they are clearly erroneous in light of the evidence
and the pleadings in the record as a whole. . . . We
cannot retry the facts or pass on the credibility of the
witnesses. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . With those principles in mind, we will
review the evidence presented at the hearing on the
[motion] for [an order] of temporary custody to deter-
mine whether the court’s determination is supported by
the evidence in the record.’’ (Internal quotation marks
omitted.) In re Paul O., 125 Conn. App. 212, 218, 6 A.3d
1209 (2010).
The parents’ pattern of inaction with respect to J.R.’s
second infection was such that the court did not commit
clear error by finding that J.R. was in immediate physi-
cal danger from her surroundings and that, as a result,
continuation in her home was contrary to her welfare.6
An order of temporary custody may be granted when
‘‘there is reasonable cause to believe that (1) the child
or youth . . . is in immediate physical danger from the
child’s or youth’s surroundings, and (2) as a result of
said conditions, the child’s or youth’s safety is endan-
gered and immediate removal from such surroundings
is necessary to ensure the child’s or youth’s safety
. . . .’’ General Statutes § 46b-129 (b). ‘‘Connecticut law
is clear that, in the context of a hearing for an order
of temporary custody pursuant to § 46b-129 (b), a find-
ing of immediate physical danger is a prerequisite to
the court’s entry of a temporary order vesting custody
of a child in one other than the child’s parents.’’ In
re Chronesca D., 126 Conn. App. 493, 495–96, 13 A.3d
1106 (2011).
Case law supports the proposition that an order of
temporary custody is appropriate where, as here, a child
has contracted a serious medical condition virtually
certain to have originated in recent sexual abuse, yet her
parent or parents neither seek prompt medical attention
for her nor attempt to protect her from the abuser. In
In re Cassandra C., 316 Conn. 476, 112 A.3d 158 (2015),
our Supreme Court affirmed an order of temporary
custody when the mother of a seventeen year old girl
repeatedly either failed to facilitate or even obstructed
the girl’s course of treatment for Hodgkin’s lymphoma.
See id., 482–87. In In re Felicia D., 35 Conn. App. 490,
646 A.2d 862, cert. denied, 231 Conn. 931, 649 A.2d 253
(1994), this court upheld a termination of parental rights
when the mother of two young girls repeatedly allowed
her daughters to interact with and be harmed by various
male visitors to their home. Id., 501 (‘‘When [one of the
girls] exhibited symptoms that could have resulted only
from sexual abuse, the respondent defended her hus-
band who had been left to watch the girls. While the
respondent did not inflict injury on her children, she
had, despite warnings, exposed them to dangerous char-
acters and failed to protect them.’’ [Footnote omitted.]).
In this case, the court was confronted with a nine
year old child who had contracted a genital infection
that could only have arisen from sexual abuse and that
had caused her to suffer readily identifiable symptoms
for six months. Despite these alarming developments,
and despite the fact that J.R. had contracted a similar
infection and had disclosed sexual abuse two years
earlier, her parents each denied knowledge of the prob-
lem until only one month before its diagnosis at a rou-
tine physical examination. They made no attempts
either to seek treatment or to identify J.R.’s abuser and
isolate J.R. from him or her during any of these time
periods, even though she had been sexually abused by
a close relative in the recent past and had contracted
the same infection as a result. An order of temporary
custody was appropriate: a genital infection of chla-
mydia in a nine year old child and the sexual abuse
that it implicated constituted an immediate physical
danger, which, absent the identification of the perpetra-
tor, and, given her parents’ inaction after learning of
J.R.’s symptoms, justified the removal from the home
to prevent possible recurring sexual abuse that again
would be met with parental indifference. See General
Statutes § 46b-129 (b). The failure of J.R.’s parents to
seek medical attention in a timely fashion, like that of
the mother in In re Cassandra C., supra, 316 Conn.
482–87, placed J.R. in ‘‘immediate physical danger
. . . .’’ General Statutes § 46b-129 (b). The failure of
J.R.’s parents to make any efforts to protect J.R. from
her abuser, like that of the mother in In re Felicia D.,
supra, 35 Conn. App. 501, similarly supports the court’s
decision to grant the order of temporary custody
because the continuing presence of such an abuser
constituted an ongoing and severe threat to J.R., ‘‘and
. . . as a result . . . [J.R.’s] safety [was] endangered
and immediate removal from such surroundings [was]
necessary to ensure [her] safety . . . .’’ General Stat-
utes § 46b-129 (b). The court did not commit clear error
in making the findings necessary to grant the order of
temporary custody.
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.
** This appeal originally was argued before a panel of this court consisting
of Judge Gruendel, Judge Keller and Justice Borden. Thereafter, Judge Pres-
cott replaced Justice Borden. Judge Prescott has read the record and briefs,
and listened to a recording of oral argument prior to participating in this
decision.
*** November 17, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The respondent father, B.R., was also named in the initial motion seeking
an order of temporary custody. Because B.R. did not participate in this
appeal, we refer to the respondent mother as the respondent. Furthermore,
in accordance with the law and with our policy of protecting the privacy
interests of children and of victims of sexual abuse, we decline to use
the child’s name or to identify others through whom her identity may be
ascertained. See General Statutes § 46b-142 (b); Practice Book § 79a-12.
2
We have divided our discussion of the respondent’s first claim in two
because, although it is briefed under a single point heading, it appears to
make two analytically distinct claims. We decline to address the respondent’s
claim that the trial court violated her right to due process of law because
the claim is not adequately briefed. See, e.g., Clelford v. Bristol, 150 Conn.
App. 229, 230, 90 A.3d 998 (2014). Although the respondent’s brief asserts
that the court violated her constitutional rights and invokes review under
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), her brief does not
explain how the evidentiary issues that it identifies could amount to constitu-
tional error, nor does her brief cite any authority that would support such
a contention.
3
The petitioner also filed a neglect petition on February 27, 2015. As of
the date of this opinion, however, the petition has not yet gone to disposition;
thus, the appeal is not yet moot. See In re Forrest B., 109 Conn. App. 772,
776, 953 A.2d 887 (2008).
4
See General Statutes § 17a-101 et seq. (requiring physicians, inter alia,
who, ‘‘in the ordinary course of [their] employment or profession [have]
reasonable cause to suspect or believe that any child under the age of
eighteen years’’; General Statutes § 17a-101a [a]; has suffered abuse to make
oral and written reports detailing such abuse to the Commissioner of Chil-
dren and Families or her designee).
5
We take the respondent at her word that she ‘‘does not seek to retry
the facts’’ of this case, and we therefore do not treat the respondent’s
claim as a request that we determine that the court’s factual findings were
clearly erroneous.
6
Given the respondent’s argument that the evidence was insufficient
because the petitioner did not prove that any particular individual in J.R.’s
home abused her, we emphasize that ‘‘an adjudication of neglect relates to
the status of the child and is not necessarily premised on parental fault. A
finding that the child is neglected is different from finding who is responsible
for the child’s condition of neglect. Although [General Statutes] § 46b-129
requires both parents to be named in the petition, the adjudication of neglect
is not a judgment that runs against a person or persons so named in the
petition; [i]t is not directed against them as parents, but rather is a finding
that the children are neglected . . . .’’ (Internal quotation marks omitted.)
In re David L., 54 Conn. App. 185, 191–92, 733 A.2d 897 (1999). The same
principle applies to a finding of ‘‘immediate physical danger from the child’s
. . . surroundings’’; General Statutes § 46b-129 (b); which requires consider-
ation of the nature and severity of the neglect or abuse alleged in the petition
and whether the child will be safe if allowed to remain in the home for
which the petition is pending.
‘‘If it appears from the specific allegations of the petition and other verified
affirmations of fact accompanying the petition and application, or subse-
quent thereto, that there is reasonable cause to believe that (1) the child
or youth is suffering from serious physical illness or serious physical injury
or is in immediate physical danger from the child’s or youth’s surroundings,
and (2) as a result of said conditions, the child’s or youth’s safety is endan-
gered and immediate removal from such surroundings is necessary to ensure
the child’s or youth’s safety’’; General Statutes § 46b-129 (b); the court is
justified in granting an ex parte order of temporary custody, and, subse-
quently, in sustaining it after a contested hearing. See General Statutes § 46b-
129 (f); Practice Book § 33a-7 (e).
Oftentimes, the facts alleged in support of the grounds for an adjudication
of neglect in a neglect petition and in the accompanying summary of facts
bear a significant similarity to the facts alleged in the verified affirmations
of fact that accompany the application for an order of temporary custody.
See General Statutes § 46b-129 (b) and (f); Practice Book §§ 33a-1 (b), 33a-
6 and 33a-7.
In the present case, the court also found that it was far more likely that
the sexual abuse and infection transmission to which J.R. was subject in
late 2014 or early 2015 was perpetrated in her familial surroundings, and
found it ‘‘highly improbable’’ that the abuse and infection occurred at school.
It also found not credible the parents’ claim that they provided J.R. with
constant one on one supervision by themselves or with selected family
members such that no recurrence of sexual abuse was possible.