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In a
short decision, the Connecticut Appellate Court affirmed a trial
court's order of temporary custody ("OTC") involving a young girl.
While the opinion is factually based, two issues raised in the opinion
are worth noting.
First,
the court indicated that the respondent stepmother brought the appeal
challenging the OTC, not her father. The court indicated that the
father was not a party to the appeal, and that the stepmother had
standing to appeal, based on the facts of this particular case,
and the supplemental briefs filed with the court.
Second,
the court reiterated the legal standards present in OTC challenges
raised on appeal. In ex parte proceedings, the trial court is charged,
pursuant to Conn. Gen. Stat. § 46b-129(b) with the responsibility
of finding reasonable cause to believe that (1) the child or youth
is suffering from some serious physical illness or serious physical
injury or is immediate physical danger her surroundings, and (2)
that as a result of the conditions, the child's safety is endangered
and immediate removal from such surrounding is necessary to ensure
the child's safety. In a contested OTC proceeding, the court must
find by a fair preponderance of the evidence that custody should
be granted to the commissioner of the Department of Children and
Families under the aforementioned criteria.
On appeal
the court is bound by the "clearly erroneous" standard of review,
whereby the trial court's findings are binding on the appellate
court unless they are clearly erroneous in light of the evidence
and pleadings in the record as a whole. 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 is left with the "definite and firm conviction that a mistake
has been committed." See In re Michael L., 56 Conn. App.
688 (2000)
In this
case, the court reviewed a record replete with allegations of physical
abuse and intimidation perpetrated on the child by her father and
stepmother. Thus, the court had no difficulty upholding the OTC.
The case
may be accessed by accessed by going to the Judicial Branch website
at www.jud.state.ct.us/external/supapp/Cases/AROap/AP83/83ap359.pdf.
(JES
7/04)
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