In re Alizabeth L.-T.

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IN RE ALIZABETH L.-T. ET AL.*
(AC 44814)
Bright, C. J., and Prescott and Flynn, Js.

Syllabus

Pursuant to statute (§ 46b-129 (g)), at a contested hearing on an order for
temporary custody, ‘‘credible hearsay evidence regarding statements of
the child or youth made to a mandated reporter . . . may be offered
by the parties and admitted by the court upon a finding that the statement
is reliable and trustworthy and that admission of such statement is
reasonably necessary.’’
The respondent father appealed from the judgments of the trial court sus-
taining the ex parte orders granting temporary custody of his three
minor children to the petitioner, the Commissioner of Children and
Families. Following the receipt of an anonymous report that the children
were the victims of physical and sexual abuse and possible sexual
exploitation, the petitioner filed neglect petitions on their behalf, as
well as motions seeking ex parte orders of temporary custody. The trial
court granted the ex parte orders of temporary custody and, after the
children were removed from the family home, held a contested hearing
on the motions. At that hearing, the petitioner offered testimony from
Z, the children’s adult sister-in-law, and B, a social worker for the Depart-
ment of Children and Families. Z testified, inter alia, that she was a
mandated reporter, and the court allowed her to testify, pursuant to
§ 46b-129 (g), as to certain discussions she had with the children in
which they disclosed that they were physically and sexually abused by
the respondent mother and her boyfriends. B also testified with respect
to discussions she had with the children, in which they disclosed to her
instances of abuse, and a forensic interview that she conducted with
one of the children, A. The court also admitted certain exhibits, over
the hearsay objections of the father’s counsel, including a copy of B’s
affidavit, which had accompanied the petitioner’s filings and contained
the children’s hearsay statements, photographs of cell phone screens-
hots showing text messages between the children and Z, and a copy of
a text message from Z to B that memorialized a conversation that Z had
with A. On the respondent father’s appeal, held:
1. The trial court improperly admitted hearsay statements of the minor
children under § 46b-129 (g) because, before the court could rely on
that statutory exception to the hearsay rule to admit the challenged
statements, the petitioner had the burden of establishing some reason-
ably necessary basis as to why the children should not be required to
testify at the contested hearing:
a. Because the term ‘‘reasonably necessary,’’ as used in § 46b-129 (g),
was ambiguous, this court reviewed extratextual evidence, and especially
the legislative history of the statute, to conclude that a trial court is not
required to find that children declarants are unavailable to testify as a
prerequisite to admitting hearsay statements they made to a mandated
reporter but, instead, is required to consider a number of factors in light
of the specific circumstances of the case before it, including the age of
the child involved, the materiality of the offered hearsay statement, the
likelihood of prejudice to the respondent parent due to the inability to
cross-examine the child regarding the hearsay statement, any difficulties
in obtaining the in-person testimony of the child, and whether in-court
testimony could result in emotional or mental harm to the child; more-
over, considering those factors will require trial courts to weigh various
interests, namely, the state’s interest in conducting hearings on orders
of temporary custody in a timely and efficient manner, protecting the
procedural rights of the respondent parents to challenge the evidence
presented by the petitioner, and ensuring that the children who are the
subject of the proceeding are protected from unnecessary psychologi-
cal harm.
b. The trial court abused its discretion in admitting the testimony of Z
and B, each of whom recounted various out-of-court statements made
by the children: the court made no finding that the children would have
suffered psychological harm from testifying or that there was any other
reasonable basis for the petitioner not to have presented the in-court
testimony of the children, and, although the petitioner’s counsel argued
that testifying likely would be difficult and potentially harmful to the
children, the court was not free to accept that representation without
supporting evidence given that counsel for the respondent father con-
tested it, arguing the children were teenagers who easily could be brought
to court to testify; moreover, at the contested hearing, the petitioner’s
counsel focused on the reliability of the statements, apparently believing
that that was sufficient, the allegations of physical and sexual abuse all
involved the mother or her boyfriends, there was little chance of the
children being confronted by her at the hearing, and the court offered
no analysis supporting its conclusion that the admission of the hearsay
statements was reasonably necessary.
c. The trial court improperly admitted certain exhibits that contained
inadmissible hearsay statements or that were authenticated by way of
hearsay statements of the children: the exhibits containing the cell phone
screenshots showing messages between the children and Z and a text
message from Z to B that memorialized a conversation that Z had with
A were inadmissible for the same reasons that the hearsay statements
of the children offered through the testimony of Z and B were improperly
admitted by the court pursuant to § 46b-129 (g); moreover, certain photo-
graphs that were offered by the petitioner as corroborating evidence of
the alleged physical abuse inflicted on the children by the mother were
improperly admitted through Z, who did not have the necessary personal
knowledge to authenticate the photographs but, rather, relied entirely
on the children’s inadmissible hearsay statements in attempting to do so.
d. The court improperly admitted into evidence the affidavit of B, which
was filed in support of the neglect petitions and motions for orders of
temporary custody: although such an affidavit generally is admissible
under the affidavit provision of § 46b-129 (g), B’s affidavit was inadmissi-
ble to the extent that it contained the children’s inadmissible hearsay
statements in light of the general prohibition on hearsay within hearsay.
2. The trial court improperly admitted hearsay statements made by A to B
during the forensic interview on the alternative ground that they fell
under the medical diagnosis or treatment exception to the hearsay rule:
a. The respondent father properly preserved his claim regarding the
medical treatment exception: part and parcel of the objection made by
the respondent father’s counsel to the admission of A’s statements was
that there was no evidence that any medical treatment occurred as a
result of the forensic interview, and counsel’s arguments were sufficient
to put the court on notice to consider whether all necessary requirements
under the medical treatment exception had been satisfied, including
whether the petitioner had demonstrated that A understood her state-
ments to have been made in furtherance of medical treatment.
b. The court was not presented with any evidence from which it reason-
ably could have inferred that A understood the forensic interview to have
a medical purpose: the record suggested that the children understood
the interview to be for investigatory purposes, as they elected to have
only A interviewed by B in order to limit the risk of angering their parents
if they were implicated in wrongdoing, thus indicating that A understood
the purpose of the forensic interview to be to further the investigation
against the parents; moreover, the record was silent as to whether A
understood the interview to potentially involve a medical treatment com-
ponent, and no medical examination or interview with a medical profes-
sional occurred in conjunction with the forensic interview conducted
by B from which such an understanding might have been inferred.
3. The trial court’s evidentiary errors were harmful and, accordingly, this
court reversed the judgments of the trial court and remanded the case
for a new contested hearing on the ex parte orders of temporary custody:
outside of the evidence that this court determined to be inadmissible,
there was nothing in the record from which the court reasonably could
have found that the children presently were in danger of a serious
physical injury or illness, or that they were in immediate physical danger
from their surroundings, as all of the evidence of abuse implicated the
mother, who was living in Puerto Rico, and, although there was testi-
mony that the father intended to have the mother return to the residence,
there was no evidence that her return was imminent; accordingly, with-
out the improperly admitted hearsay testimony and exhibits, it was
likely that the outcome of the hearing would have been different.
Argued January 31—officially released June 29, 2022**

Procedural History

Petitions by the Commissioner of Children and Fami-
lies to adjudicate the respondents’ minor children
neglected, brought to the Superior Court in the judicial
district of Windham, Juvenile Matters, where the court,
Carbonneau, J., issued ex parte orders granting tempo-
rary custody of the children to the petitioner; thereafter,
the court, Chaplin, J., sustained the orders of tempo-
rary custody, and the respondent father appealed to
this court. Reversed; further proceedings.
Robert M. Fitzgerald, for the appellant (respondent
father).
Andrei Tarutin, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Evan O’Roark, assistant attorney general, for
the appellee (petitioner).
Sharon A. Peters, for the minor children.
Opinion

PRESCOTT, J. The respondent father, Benjamin L.,1
appeals from the judgments of the trial court sustaining
ex parte orders granting temporary custody of his minor
children, Alizabeth L.-T., Tanisha L., and Alyson L.-T.,2
to the petitioner, the Commissioner of Children and
Families. The respondent father raises several eviden-
tiary claims on appeal, including that, at the contested
hearing, the court improperly (1) admitted certain hear-
say statements of the children under a statutory excep-
tion to the hearsay rule codified in General Statutes
§ 46b-129 (g),3 and (2) admitted hearsay statements
made by Alizabeth during a forensic interview under
the medical diagnosis or treatment exception to the
hearsay rule.4 See Conn. Code Evid. § 8-3 (5). We agree
with both claims and conclude that these evidentiary
errors, considered together, were not harmless
because, without the improperly admitted hearsay testi-
mony and exhibits, it is likely that the outcome of the
hearing would have been different. Accordingly, we
reverse the judgments of the court and remand the case
for a new contested hearing.
The record reveals the following procedural history.
On May 13, 2021, the Department of Children and Fami-
lies (department) received an anonymous report regard-
ing allegations that Alizabeth, Tanisha, and Alyson were
the victims of physical and sexual abuse as well as
possible sexual exploitation. Specifically, the report
alleged that the respondent mother had permitted boy-
friends with whom she was having extramarital affairs
to sexually assault the children and had directed Alyson
and Tanisha to lose weight so that she could sell photo-
graphs of them. The report also alleged physical abuse
of the children by the respondent mother, and that the
respondent father was aware of the alleged abuses by
the respondent mother but had instructed the children
to lie if they were questioned by the department or
law enforcement about the abuse. On May 21, 2021,
following an investigation by the department into the
allegations, the petitioner filed neglect petitions on
behalf of the children and motions seeking ex parte
orders of temporary custody. An affidavit by a depart-
ment social worker, Kristy Borders, in which she
detailed the various allegations and preliminary investi-
gatory findings of the department, was attached to the
petitioner’s filings. The court, Carbonneau, J., granted
the ex parte orders of temporary custody that same
day and set a preliminary hearing date for May 25, 2021.
The petitioner, on obtaining the ex parte orders,
immediately removed the children from the respondent
parents’ home and placed them in the temporary care
of the children’s older brother, Jamie C., and his wife,
Zesmery F. Zesmery works at an area hospital and is
a mandated reporter;5 see General Statutes § 17a-101
(b); and she was the person who had alerted the depart-
ment of the suspected abuse and neglect.
At the May 25, 2021 preliminary hearing, the respon-
dent father appeared and indicated that he intended to
contest the orders of temporary custody.6 The respon-
dent father waived his right to a hearing within ten
days; see General Statutes § 46b-129 (c) (4); and the
court, Chaplin, J., set a contested hearing date for June
17, 2021.
At the contested hearing, the petitioner offered testi-
mony from Zesmery and Borders, and five exhibits, all
of which were admitted in full by the court over the
objections of the respondent father’s counsel. Exhibit
A was a copy of Borders’ affidavit that had accompanied
the neglect petitions. Exhibit B consisted of photo-
graphs of cell phone screenshots showing text mes-
sages exchanged between Zesmery and Tanisha.
Exhibit C was a photograph purporting to show an
injury to Alizabeth’s ear. Exhibit D was a photograph
of damage to a door purportedly caused when the
respondent mother pushed one of the children into it.
Exhibit E was a copy of a text message from Zesmery
to Borders memorializing a conversation that Zesmery
had with Alyson. The respondent father testified on
his own behalf but offered no exhibits of his own. As
previously noted, the respondent mother did not appear
for the contested hearing. The children were repre-
sented at the hearing by appointed counsel.
Following the presentation of the evidence and clos-
ing arguments, the court rendered a brief oral ruling
from the bench sustaining the ex parte orders of tempo-
rary custody. The court stated that the allegations of
both sexual and physical abuse of the children were
‘‘very, very concerning’’; the court, however, did not
initially delineate who committed the sexual and physi-
cal abuse. It also noted the existence of additional alle-
gations that the respondent parents had coached the
children to lie to the department during its initial investi-
gation. Finally, the court stated that ‘‘[t]here’s also con-
cerns whether or not there is any accuracy as to the
reported nature of the composition of the home cur-
rently, whether [the respondent mother] intends to
return, has the capacity to return, and whether or not
there has been sufficient attention shown to the care
of the girls, their condition, and the allegations that
they’ve provided . . . .’’ In summary fashion, the court
then concluded: ‘‘Based upon all the information pro-
vided to the court, the evidence that’s been before the
court, the court does find that there has been sufficient
credible evidence presented to the court to demonstrate
that there was immediate physical danger; therefore,
the court does find that the reason for commitment or
at least the order of temporary custody existed at the
time and has yet been rectified. Continuation . . . in
the home, or returning to the home, is not in the best
interest of the children, it is contrary to their welfare,
and it is in the best interest of the children that the
[orders of temporary custody] be sustained.’’ The
respondent father timely filed the present appeal.
Following the filing of the appeal, both the petitioner
and the respondent father filed motions for articulation
asking the trial court to set forth the factual basis for
its decision. The trial court granted these motions and
filed a written articulation in which it set forth the
following factual findings: ‘‘Tanisha is the biological
child of the respondent parents. Alizabeth and Alyson
were placed with the respondent parents by the peti-
tioner in July, 2016, and subsequently [were] adopted
by the respondent parents in May, 2019. . . . Jamie and
Zesmery are the current foster parents of the children.
Zesmery has developed a close relationship with the
children over the last year approximately. Zesmery
communicates with the children almost daily on social
media . . . and they visit in person as well. In early
May, 2021, the children were left home alone while the
respondent father traveled to Puerto Rico to address
marital issues with the respondent mother, who was
residing [there] at a home owned by the respondent
parents. Specifically, he wanted to discuss the respon-
dent mother’s infidelity. Zesmery and Jamie brought
the children to stay at their home while the respondent
father was in Puerto Rico. During [that] time . . . [the
children] disclosed incidents of sexual abuse and
exploitation by the respondent mother.7 Jamie called
the respondent father by cell phone to relay the disclo-
sures, and the respondent father directed Jamie not to
worry and that he would take care of these concerns.
‘‘The respondent father returned from Puerto Rico
the next day and the children returned home. The
respondent father informed the children that the
respondent mother remained in Puerto Rico and that
he would bring her back to their home in [Connecticut].
The respondent father instructed the children . . . to
lie to the petitioner. The children informed Zesmery
that they were afraid of the respondent mother
returning home to Connecticut. Alyson called Zesmery
crying and relayed that the respondent parents told her
to lie to the petitioner, to recant all of the disclosures,
and to tell the petitioner that living with Jamie was
unsafe.
‘‘Alizabeth and Alyson disclosed incidents of physical
abuse by the respondent mother and provided pictures
related to these incidents. They believed such incidents
occurred because they [had] told the respondent father
of the respondent mother’s infidelity with other men.
The respondent mother pushed Alyson into a door with
such force that the door was damaged. The respondent
father was present for this incident and pulled the
respondent mother away to stop her from inflicting
further physical abuse. In the days after the disclosure
to Zesmery, but immediately prior to the petitioner’s
home visit, the respondent father replaced the damaged
door. During the course of the petitioner’s removal of
the children from the home, the respondent father
pulled the children into the bathroom and told them to
lie to the petitioner and to recant all of their disclosures.
‘‘After the children were removed from the home,
the respondent father called Tanisha and told her to call
the respondent mother. Tanisha called the respondent
mother. During this call, the respondent mother told
Tanisha to protect [her], to prioritize [her] over Aliza-
beth and Jamie, and to lie to the petitioner. The children
disclosed to Zesmery and . . . Borders that they are
fearful of returning home out of fear of the respondent
parents.’’ (Emphasis added; footnote added.)
The court also found that ‘‘the children ha[d] dis-
closed these incidents of sexual abuse and exploitation
[by the respondent mother] to the respondent father in
April, 2021, prior to their disclosure to Zesmery and
Jamie’’ and that the ‘‘respondent father failed to take
any appropriate action to protect the children from the
respondent mother.’’ The court finally indicated that it
did not credit the respondent father’s testimony at the
contested hearing that ‘‘he told the respondent mother
not to return [from Puerto Rico] to the family home in
[Connecticut].’’ Additional facts and procedural history
will be set forth as necessary.
Before turning to the respondent father’s claims of
error, we first set forth some overarching legal princi-
ples and discuss our standard of review. Section 46b-
129 governs petitions to adjudicate a child neglected,
uncared for, or abused. This court previously has
explained that subsection (b) of § 46b-129 authorizes
courts to issue ‘‘an order ex parte vesting in some suit-
able agency or person the child’s or youth’s temporary
care and custody if it appears, on the basis of the peti-
tion and supporting affidavits, 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) that 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
. . . .’’ (Emphasis added; internal quotation marks
omitted.) In re Kelsey M., 120 Conn. App. 537, 542, 992
A.2d 372 (2010).
‘‘A preliminary hearing on any ex parte custody order
. . . issued by the court shall be held not later than
ten days after the issuance of such order. . . .’’ 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 finding of immedi-
ate 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.’’ (Internal quotation
marks omitted.) In re J.R., 161 Conn. App. 563, 573,
127 A.3d 1155 (2015).
Following the preliminary hearing on an ex parte
order of temporary custody, ‘‘[u]pon request, or upon
its own motion, the court shall schedule a hearing on
the order for temporary custody . . . to be held not
later than ten days after the date of the preliminary
hearing.’’ General Statutes § 46b-129 (f). ‘‘The proper
standard of proof in a [contested hearing] on an order
of temporary custody is the normal civil standard of a
fair preponderance of the evidence.’’ (Internal quotation
marks omitted.) In re J.R., supra, 161 Conn. App. 571;
see also Practice Book § 32a-3.
In an appeal taken from a trial court’s decision to
sustain an ex parte order of temporary custody, the
applicable standard of review depends on the nature
of the claim raised. ‘‘[A]ppellate review of a trial court’s
findings of fact is governed by the clearly erroneous
standard of review. The trial court’s [factual] findings
are binding upon this court unless they are clearly erro-
neous 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 convic-
tion that a mistake has been committed.’’ (Internal quo-
tation marks omitted.) In re Kelsey M., supra, 120 Conn.
App. 543.
‘‘Our standard of review regarding [most] challenges
to a trial court’s evidentiary rulings is that these rulings
will be overturned on appeal only where there was an
abuse of discretion and a showing . . . of substantial
prejudice or injustice. . . . Additionally, it is well set-
tled that even if the evidence was improperly admitted,
the [party challenging the ruling] must also establish
that the ruling was harmful and likely to affect the result
of the trial.’’ (Internal quotation marks omitted.) In re
Tayler F., 111 Conn. App. 28, 35, 958 A.2d 170 (2008),
aff’d, 296 Conn. 524, 995 A.2d 611 (2010).
Finally, to the extent that a claim of error presents
a question of law, such as the proper interpretation of
a statute or a provision of the Connecticut Code of
Evidence, our review is plenary. See, e.g., In re Adrian
K., 191 Conn. App. 397, 403–404, 215 A.3d 1271 (2019);
see also In re Tayler F., 296 Conn. 524, 537, 995 A.2d 611
(2010). ‘‘When construing a statute, [o]ur fundamental
objective is to ascertain and give effect to the apparent
intent of the legislature. . . . In other words, we seek
to determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply. . . . In seeking to determine that meaning,
General Statutes § 1-2z directs us first to consider the
text of the statute itself and its relationship to other
statutes. If, after examining such text and considering
such relationship, the meaning of such text is plain and
unambiguous and does not yield absurd or unworkable
results, extratextual evidence of the meaning of the
statute shall not be considered. . . . When a statute is
not plain and unambiguous, we also look for interpre-
tive guidance to the legislative history and circum-
stances surrounding its enactment, to the legislative
policy it was designed to implement, and to its relation-
ship to existing legislation and common law principles
governing the same general subject matter . . . .
Importantly, ambiguity exists only if the statutory lan-
guage at issue is susceptible to more than one plausible
interpretation. . . . In other words, statutory language
does not become ambiguous merely because the parties
contend for different meanings.’’ (Citations omitted;
internal quotation marks omitted.) In re Elianah T.-T.,
326 Conn. 614, 620–21, 165 A.3d 1236 (2017). With these
principles in mind, we turn to the claims on appeal.
I
The respondent father first claims that the court
improperly admitted out-of-court statements of the chil-
dren into evidence at the contested hearing pursuant
to a hearsay exception set forth in § 46b-129 (g). He
identifies the challenged evidence as falling into four
categories: (1) testimony by Zesmery and Borders
regarding statements made to them by the children; (2)
statements of the children set forth in Borders’ affidavit,
which was admitted as a full exhibit; (3) statements
made by Alizabeth to Borders during a forensic inter-
view;8 and (4) four other exhibits that, according to
the respondent father, either contained inadmissible
hearsay statements or improperly ‘‘were authenticated
by way of hearsay statements of the children.’’
According to the respondent father, the court failed to
interpret properly the terms ‘‘reasonably necessary’’
and ‘‘reliable and trustworthy’’ as used in § 46b-129 (g),
in a manner consistent with prior appellate court inter-
pretations of nearly identical terms found in the resid-
ual, or catchall, exception to the hearsay rule. See Conn.
Code Evid. § 8-9.9 With respect to the ‘‘reasonably neces-
sary’’ requirement in particular, he argues that a proper
construction of the statutory hearsay exception should
have required the petitioner to establish that the chil-
dren were ‘‘unavailable’’ to testify at the contested hear-
ing before the court properly could admit their hearsay
statements, which the petitioner failed to do. See Gen-
eral Statutes § 46b-129 (g); see also In re Tayler F.,
supra, 296 Conn. 537.
The petitioner contends, inter alia, that the respon-
dent father’s interpretation of § 46b-129 (g) to require
the unavailability of the declarant, is not supported by
the language of the statute or the statute’s legislative
history. Furthermore, she contends that interpreting
§ 46b-129 (g) simply to adopt and incorporate the
requirements of the residual hearsay exception, which
already existed as a basis for the admission of hearsay
at a contested hearing on an ex parte order of temporary
custody, would effectively render the statutory lan-
guage superfluous and, thus, violate a cardinal principle
of statutory construction. See, e.g., In re Jusstice W.,
308 Conn. 652, 662 n.9, 65 A.3d 487 (2012). For the
reasons that follow, we agree with the petitioner that
the statute cannot reasonably be construed as merely
codifying, in a more limited context, the residual hear-
say exception as it existed under our common law at the
time the legislature enacted § 46b-129. We nonetheless
also agree with the respondent father that we must give
effect to the legislature’s choice to incorporate the term
‘‘reasonably necessary’’ into the statutory hearsay
exception. We therefore conclude, under these circum-
stances and particularly in light of the advanced ages
of the children involved in the present case,10 that,
before the court could rely on the statutory hearsay
exception to admit the challenged statements, the peti-
tioner had the burden of establishing some ‘‘reasonably
necessary’’ basis why the children should not be
required to testify at the contested hearing.
A
We first set forth the following additional facts and
procedural history, which are relevant to our resolution
of this claim. At the contested hearing, the petitioner’s
counsel first called Zesmery to testify. After answering
a series of questions that established that Zesmery was
a mandated reporter, the petitioner’s counsel asked her
how she became involved in the present case. She
responded that the children had confided certain infor-
mation to her. When the petitioner’s counsel asked what
they had confided to her, the respondent father’s coun-
sel objected on hearsay grounds.
In response to that objection, the petitioner’s counsel
argued that, because Zesmery was a mandated reporter,
any credible hearsay statements made to her by the
children were admissible for purposes of the contested
hearing pursuant to § 46b-129 (g). See footnote 3 of this
opinion. The respondent father’s counsel responded
that the petitioner had yet to establish, however, that the
children’s statements were ‘‘reliable [and] trustworthy’’
and ‘‘reasonably necessary,’’ both of which are required
under § 46b-129 (g) and, according to the respondent
father’s counsel, was language that the legislature
intended to ‘‘track the pre-[Connecticut Code of Evi-
dence] and code understanding of the residual hearsay
exception.’’ The respondent father’s counsel also
argued that our Supreme Court’s holding in In re Tayler
F., supra, 296 Conn. 524, was instructive with regard
to the meaning of both terms and that the court in In
re Tayler F. had held, in his words, that ‘‘it’s not enough
to have a generalized idea [that] the children shouldn’t
be able to testify, nor is it even enough that it be in the
best interest of the children.’’ The respondent father’s
counsel contended that the court was required to make
a specific determination that the children would sustain
psychological harm if they appeared in court before it
could admit into evidence the children’s statements in
their absence.11
The petitioner’s counsel disagreed with the character-
ization by the respondent father’s counsel of the court’s
holding in In re Tayler F. He first explained that In re
Tayler F. involved an appeal taken from the adjudica-
tion of a neglect petition, not an appeal from an order
sustaining an ex parte order of temporary custody.
Next, he argued that the court in In re Taylor F. specifi-
cally addressed the requirements needed to satisfy the
residual exception to the rule against hearsay and not
the statutory exception on which the petitioner relied
in the present case, which, by its terms, does not apply
in a trial on a neglect petition.12 Although the petitioner’s
counsel agreed with the respondent father’s counsel
that, in order to admit hearsay statements pursuant to
the statutory exception, the court must first conclude
that the proffered statements were reliable and trust-
worthy and that their admission was reasonably neces-
sary, he disagreed that the court also had to conclude
that the children would be harmed psychologically if
they were required to testify or that they were otherwise
legally unavailable to testify.13
The court, at first, sustained the objection of the
respondent father’s counsel but only to the extent that
it agreed with him that more foundation was necessary
regarding the reliability and trustworthiness prong. The
court otherwise overruled the objection. The petition-
er’s counsel indicated he was ‘‘[h]appy to do that’’ and
continued with his examination of Zesmery.
The petitioner’s counsel, through the witness’
answers to the additional questions, elicited that Zes-
mery, as the children’s sister-in-law, had known the
children for several years and had a very close relation-
ship with them. In the past, she had visited them at
their home and they would visit and stay overnight with
her and Jamie at their apartment. They always shared
with her what was happening in their lives, whether
about friends or school. The children and Zesmery had
become particularly close over the past year and com-
municated with one another almost daily via social
media. To her knowledge, the children never had lied
to her or provided her with inaccurate information.
The petitioner’s counsel next asked Zesmery to
explain the circumstances that led her to file her report
with the department alleging abuse and/or neglect of
the children. She explained that the children had come
to stay overnight with her and Jamie at their apartment
while the respondent father was in Puerto Rico because
Jamie did not feel comfortable having the children stay
at the respondent parents’ home unsupervised. They
were having dinner together when the conversation
turned to the children’s disclosures.
At this point in Zesmery’s testimony, the petitioner’s
counsel indicated to the court that he believed he had
established that the children’s disclosures to Zesmery
were sufficiently reliable and trustworthy. In particular,
he argued that the children’s statements were reliable
and trustworthy on the basis of Zesmery’s testimony
that she had known the children for years, she never
had any reason to question their veracity, and the state-
ments were made around the dinner table under ordi-
nary circumstances in which the children were staying
with them overnight.
With respect to the ‘‘reasonably necessary’’ require-
ment, the petitioner’s counsel argued, without eviden-
tiary support, that because the subject matter of the
disclosure involved allegations of sexual abuse, ‘‘to put
them on the stand . . . would . . . without a ques-
tion, would be harmful to them. And that alone makes
the admission of these statements reasonably neces-
sary.’’ The petitioner’s counsel also seemed to rely on
the mere relevancy of the statements to the issue before
the court, stating that admitting the statements would
be necessary to ‘‘allow the court to get the perspective
and the necessary background information to explain
what unfolded once the statements had been made.’’
The attorney for the minor child agreed with the
petitioner’s counsel that he had met his burden of estab-
lishing the admissibility of the children’s hearsay state-
ments under § 46b-129 (g). The attorney for the minor
child also suggested that, in deciding whether to admit
the children’s hearsay statements, the court should con-
sider Practice Book § 32a-4, which requires any party
intending to call a child as a witness to file a motion
seeking the permission of the court. See Practice Book
§ 32a-4 (b).14 She suggested that the court reasonably
could assume that the children effectively were unavail-
able to testify, at least in part, because neither side had
filed such a motion.
The respondent father’s counsel argued, with regard
to Practice Book § 32a-4, that this rule should weigh in
his favor, stating: ‘‘[T]he department could have filed
a motion to the court that they intended to call the
girls to testify. And . . . had the court held a hearing,
conducted the inquiry that’s required, and ruled that
they couldn’t call them, then they might have a better
argument that it was reasonably necessary [to admit the
statements, absent the children’s appearance in court].
They chose not to do that; it wasn’t my job to.’’
The respondent father’s counsel then focused on
whether the admission of the hearsay statements was
reasonably necessary, making no arguments at that time
challenging whether the statements were trustworthy
and reliable. With respect to the ‘‘reasonably necessary’’
prong, he argued: ‘‘The department may think this is
necessary in order to prove the allegations in its . . .
petition, but that’s not what reasonably necessary
involves. Reasonably necessary has to do [with]
whether . . . there’s no other way of getting this evi-
dence in. These are not small children, you know, these
are not five year olds, six year olds, eight year olds. A
sixteen year old, [a] fifteen year old, and a thirteen year
old—you know, when we look at the tender [years]
section of . . . the [Connecticut] Code of Evidence—
there’s a criminal statute—the number of which is
escaping me—that has to do with children, and that’s
under twelve as well.15 I think that our code of evidence
and our statutes, you know, kind of assume . . . that
older children and youths are able to testify. It’s their
obligation under . . . In re Tayler F. is the best case
we have, and I know that . . . it’s about the residual
exception, but buried—the language is exactly the
same.
‘‘My client has a right to cross-examine the witnesses.
All I can do now, if you admit this, is cross-examine
someone who’s gonna tell me about what someone else
said. Cross-examin[ation] is the greatest engine of truth
ever invented, I believe Wigmore said, and . . . I claim
it here along, of course, with his statutory rights to
cross-examination and confrontation and to due pro-
cess. I express . . . they haven’t laid any foundation
that allows you to admit this testimony.’’ (Footnote
added.)
The court then made the following ruling: ‘‘[B]ased
upon that foundation provided by the witness regarding
the relationship with the children, the nature of that
relationship, the duration of that relationship, and the
level of what you could call intimacy of that relation-
ship, the court will . . . make requisite findings that
the statement will be reliable and trustworthy and that
admission of it is reasonably necessary, so the state-
ment is permitted.’’ The comments by the court seem
to bear on only the question of the trustworthiness
of the statements and not whether it was reasonably
necessary to admit them.
The respondent father’s counsel indicated to the
court that he likely would have the same objection to
many other questions going forward, to the extent that
they sought to elicit from the witness the content of
additional statements made to her by the children. He
asked the court: ‘‘If I was to say ‘same objection’ on
each one and the court was to understand that it’s
hearsay, it doesn’t meet the statute, that it’s cross-exam-
ination, confrontation, and his due process, would we
be all agreeing?’’ The court answered affirmatively. The
respondent father’s counsel indicated that he would let
the court know if he had any additional or different
grounds for an objection.
Zesmery then testified that the children had indicated
to her during dinner that they were afraid that the
respondent father would be bringing the respondent
mother back with him when he returned from Puerto
Rico. When Zesmery asked them why they were afraid,
Alizabeth responded that one of the respondent moth-
er’s boyfriends had ‘‘molested [her and Tanisha] while
they were in Puerto Rico,’’ and that she, Alizabeth, ‘‘was
made to have sex with one of [the respondent mother’s]
boyfriends . . . .’’ Tanisha told Zesmery that the
respondent mother had told her and Alyson that they
needed to lose weight because they were ‘‘too big’’ and
the respondent mother ‘‘wanted to sell pictures of them
online.’’ In response to their disclosures, Zesmery told
the girls that she may have to contact the department.
Zesmery further testified that Jamie called the
respondent father that same night about the children’s
allegations, and also spoke with him in person after
the respondent father returned from Puerto Rico the
following day. According to Zesmery, she waited one
week before reporting the allegations to the department
because the respondent father had indicated to Jamie
that ‘‘he would take care of it’’ but that he never did.
Zesmery further stated that the ‘‘[respondent mother]
was still in Puerto Rico, and [the respondent father]
was telling the kids that he was going to bring her
home.’’ Zesmery testified that the children told her that
the respondent father had instructed them not to dis-
close anything to the department. She eventually con-
tacted the department about the allegations.
During her testimony, Zesmery also recounted that,
on the day the children were removed from the respon-
dent parents’ care pursuant to the ex parte orders of
temporary custody, Alyson called her crying. Alyson
told Zesmery that the respondent parents had instructed
the children to lie to the department and to tell the
department that the allegations of abuse against the
respondent parents were untrue and that it was unsafe
for them to live with Jamie. The respondent father’s
counsel renewed his hearsay objection to that testi-
mony, which the court overruled. Zesmery also testified
that she sent a text message to Borders that memorial-
ized what Alyson had told her. The petitioner’s counsel
then sought to admit into evidence exhibit E, which
was a copy of the text message that Zesmery had sent
to Borders. The respondent father’s counsel objected,
arguing that the exhibit was cumulative of Zesmery’s
testimony of what Alyson had told her and inadmissible
as a prior consistent statement offered to bolster or
corroborate Zesmery’s testimony. See Conn. Code Evid.
§ 6-11. The court overruled the objections, indicating
that it would ‘‘give it the appropriate weight it deserves.’’
The petitioner’s counsel next elicited testimony from
Zesmery that, prior to contacting the department, she
had exchanged messages on Snapchat with Tanisha and
Alizabeth that she had decided to screenshot and save
to her phone.16 The petitioner’s counsel then sought to
admit into evidence exhibit B, which consisted of three
photographs of cell phone screenshots showing por-
tions of those messages, which the petitioner’s counsel
claimed showed the emotional state of the children
prior to their removal. Zesmery testified that the photo-
graphs were of the saved Snapchat conversations, and
that she knew that these messages were coming from
the children because they had exchanged numerous
messages in the past, their usernames were shown, and
she was familiar with their writing style. The respondent
father’s counsel objected to the admission of the exhibit
on hearsay grounds and on the ground that its admission
would be more prejudicial than probative, given that it
depicted only a part of the Snapchat exchange and,
because of the disappearing nature of Snapchat mes-
sages, he was prevented from putting the remainder of
the exchange into evidence. The court overruled the
objection. The exhibit was admitted in full.17
The petitioner’s counsel then asked Zesmery if,
before she contacted the department, the children had
provided her with any evidence supporting their allega-
tions of physical abuse. Zesmery responded that Aliza-
beth and Alyson had provided her with photographs.
The petitioner’s counsel then sought to introduce these
photographs into evidence. With respect to exhibit C,
Zesmery testified that Alizabeth had told her that the
photograph showed an injury to her ear that happened
after the respondent mother punched her prior to leav-
ing for Puerto Rico. Alizabeth had explained that the
respondent mother was angry because Alizabeth and
Tanisha had disclosed her extramarital affairs to the
respondent father. With respect to exhibit D, Zesmery
testified that Alyson had told her that the photograph
showed damage to a door that was caused when her
mother pushed her into the door. The respondent
father’s counsel objected to the admission of these pho-
tographs on the ground that the only personal knowl-
edge that Zesmery had regarding what was depicted
in the photographs was obtained from the children’s
hearsay statements, and he renewed his prior objection
to the admission of such statements. The court over-
ruled the objection and admitted the photographs as
full exhibits.
The petitioner’s counsel next called Borders to tes-
tify. Borders testified that she spoke with the children
during the investigation conducted by the department
prior to the removal of the children. She also testified
that she had a conversation with the children on the
day she removed them from the respondent parents’
home. When Borders started to recount what the chil-
dren had said to her, the respondent father’s counsel
renewed his hearsay objection. In particular, he argued:
‘‘[E]ssentially, I have the same argument I had last time
with . . . the prior witness. And, again, I come back
to, you know, that it’s not reasonable and necessary,
and it’s not reliable and trustworthy. Your Honor made
a finding I think last time if I’m not mistaken that the
girls’ relationship with . . . their . . . sister-in-law
rendered the testimony somewhat reliable. I think the
court, if you’re gonna let this witness testify to what
the girls said, it has to go through that same process,
and I think [the petitioner] has to lay a foundation that
this is reasonably necessary, reliable, and trustworthy.’’
The petitioner’s counsel argued that he believed that
he had laid the necessary foundation. With respect to
the reasonably necessary prong, the petitioner’s coun-
sel stated that ‘‘the argument does not change; it’s the
same as it was for [Zesmery], Your Honor: It is reason-
ably necessary because we’re dealing with kids and
because the court should hear the entire story.’’ With
regard to whether the statements to Borders were reli-
able and trustworthy, the petitioner’s counsel argued: ‘‘I
have established that [Borders] is a mandated reporter.
I have established that she was assigned to the case. I
have established, Your Honor, that she’s been trained
in interviewing techniques. I have established the partic-
ular circumstances surrounding this particular conver-
sation, and I believe that her testimony was that it was
a long ride home, that the kids at first were standoffish,
that they were listening to the music and not engaging,
then they had to stop after a while, they had a meal,
and the kids started warming up, and slowly but surely,
they first voiced their—or, rather, questioned my client
with regard to their concerns; ‘What’s gonna happen?
Where are we going?’; and so on and so forth. And
only after that, Your Honor, they also volunteered the
statement that’s being objected to, which was, you
know, their unease with the possibility of being
returned home.’’
In response, the respondent father’s counsel argued:
‘‘Your Honor, again, it’s not reasonably necessary
because the girls were available within the subpoena
power of the court. They’re, you know, they’re in the
state of Connecticut. If the department wanted to tell
the court what the girls had said, the department coul-
d’ve put them on the stand. The fact that . . . the wit-
ness is a mandated reporter brings it [under] the provi-
sion . . . of [§] 46b-129 (g). But that provision requires
more than, you know, they . . . could’ve stopped and
said, ‘Anything that someone says to a mandated
reporter comes into evidence.’ It didn’t stop there. It
went on to say, ‘as long as it’s reasonably necessary
and reliable and trustworthy.’
‘‘Again, we go back to In re Tayler F., which sets
out the criteria by which we determine whether this
kind of stuff is reasonable and necessary. And there
has to be a particularized showing of psychological
harm in order to allow this testimony. And they, as far
as I know, have no—no such evidence. It’s more than
whether it would be in the best interest of the child. It
comes entirely down to whether they would actually
be harmed by it. The court’s entitled to every witness’
testimony unless there’s going to be some sort of harm.
‘‘And, so, as a result, as I indicated before, it is—I
would return—well, in addition, it’s neither reliable nor
trustworthy. The witness is an employee of the plaintiff
in this lawsuit. She’s their principal witness. She’s made
a determination, she has a vested interest in doing, you
know, in—in pursuing it. She was interviewing them—
they may not have known this, but she was interviewing
them for the purpose of litigation.
‘‘All those things I think would bode against admitting
this—this type of testimony. So it’s hearsay; it’s a viola-
tion of my client’s due process rights; it’s a violation
of his right to confrontation and cross-examination;
and, on the basis of all those, I would submit . . . the
department hasn’t come close to establishing the neces-
sary foundation to ask hearsay questions of this wit-
ness.’’
The court disagreed, stating, ‘‘based on what I’ve
heard, the court will find that the department has made
a sufficient foundation for this. The court will find it
both reliable and trustworthy and reasonably neces-
sary. And the court will admit the testimony.’’
Borders proceeded to testify that the children told
her that they initially were hesitant to speak with her
because the respondent parents had advised them ‘‘to
keep their head down and not speak’’ to the department.
They asked her what information they needed to tell
her in order not to be returned home. According to
Borders, when she asked them about what information
they had already provided, they told her ‘‘that they had
talked to their sister-in-law and that they had told her
that they had been molested and touched by their moth-
er’s boyfriends, that they had told her that [the respon-
dent mother] wanted the younger two girls to lose
weight in order to take photographs,’’ but that Alizabeth
‘‘was already pretty and skinny’’ and so ‘‘she was gonna
go on PornHub . . . .’’ Borders testified that the chil-
dren also disclosed physical abuse by the respondent
mother of Alizabeth and Alyson. They further indicated
to her that they had told the respondent father about
the abuse. The children told Borders that, although the
respondent father initially had said that ‘‘he was gonna
take care of it,’’ he also indicated that they ‘‘needed to
protect their mother,’’ and, thus, the children ‘‘were
concerned that she was gonna come back to the home
and they were gonna continue to be exposed to the
things that they were exposed to.’’
Borders testified that she introduced the children ‘‘to
the forensic interview process,’’ that they were fearful,
and that Tanisha and Alizabeth had said that ‘‘they
wanted to tell me as little as possible that would meet
the threshold for them not to go home because of the
chance that they ended up back home, what it would
be like for them.’’ Borders testified that the children
told her that ‘‘their mother was never going to change
and that their father wasn’t going to change either’’
because he ‘‘was manipulated by their mother and had
taken her side previously in disagreements within the
household and that they believed he would take her
side, she would return, and they would be in the same
situation they were removed from.’’
Borders testified that after the children were placed
with Jamie and Zesmery, she had another opportunity
to speak with the children during a two day follow
up visit. At that time, the children gave her additional
information about the claimed abuse. Specifically, they
provided her with ‘‘additional information as to the
specific names of the boyfriends that ha[d] been
involved in the sexual abuse. They provided more con-
text to the information regarding the physical abuse.
They provided more context to the information that
[the respondent mother] wanted to take pictures and
videos. They also provided me with locations . . . [at
which the sexual and physical abuse] occurred.’’ Bor-
ders also indicated that Tanisha had contact with the
respondent parents after the removal and that Tanisha
told her that they both had encouraged her to lie to the
department and to recant her allegations. Throughout
Borders’ testimony, the respondent father’s counsel
reiterated his prior hearsay objection, which the court
overruled.
The petitioner’s counsel next asked Borders about a
forensic interview that she conducted of Alizabeth on
June 1, 2021. Borders testified that, during that inter-
view, Alizabeth repeated the accusations that the chil-
dren initially had made regarding physical and sexual
abuse and also provided some new information. When
asked by the petitioner’s counsel what new information
Alizabeth had provided, the respondent father’s counsel
renewed his hearsay objection, arguing that there was
even less indicia of trustworthiness and reliability with
respect to the statements made by Alizabeth during the
forensic interview because those statements, unlike the
earlier ones to Zesmery and Borders, were not made
spontaneously or in confidence but, instead, were made
in response to questioning in ongoing litigation and with
law enforcement present.
The petitioner’s counsel responded that the respon-
dent father’s argument relied on analysis taken from
criminal cases that was not applicable to the present
case, under which the hearsay statements to Borders
were admissible pursuant to § 46b-129 (g) because she
was a mandated reporter. The petitioner’s counsel also
argued, in the alternative, that courts routinely have
determined that hearsay statements made by sexual
assault victims during forensic interviews are admissi-
ble under the medical treatment exception to the hear-
say rule. The court again overruled the hearsay objec-
tion of the respondent father’s counsel.18 Borders then
testified that Alizabeth had told her during the interview
that the children had made the respondent father aware
in April, 2021, of the respondent mother’s infidelity and
the physical and sexual abuse they had suffered but
that the respondent father’s response to the disclosures
was focused on the respondent mother’s infidelity, not
on the abuse allegations.
Finally, during Borders’ testimony, the petitioner’s
counsel sought to admit as a full exhibit Borders’ affida-
vit that had accompanied the neglect petitions and
motions for ex parte orders of temporary custody,
which had been marked for identification as exhibit
A. The respondent father’s counsel objected that the
affidavit was hearsay and that, because Borders was
available to testify, there was no reason for the affidavit
to be admitted. He further argued that, to the extent
that the petitioner was offering the affidavit pursuant
to § 46b-129 (g), which allowed the petitioner to admit
an affidavit from a mandated reporter without the need
for the mandated reporter to appear and testify unless
called by a respondent parent or a child, the petitioner’s
reliance on the statute was misplaced. The respondent
father’s counsel continued: ‘‘[I]t’s apparent to me that
the statute . . . is designed as a means to streamline
the trial. Once the witness has testified . . . I don’t
think it applies any longer. I can get into that there’s
hearsay within hearsay in it as well . . . .’’
The petitioner’s counsel responded that the statute
only contemplates that, at a contested hearing, a court
may admit into evidence an affidavit from a mandated
reporter in lieu of that reporter’s live testimony but
does not expressly preclude the petitioner from offering
both live testimony and an affidavit. As to the issue of
hearsay within hearsay, the petitioner’s counsel gener-
ally relied on the fact that any hearsay statements con-
tained in the affidavit would have been admissible if
provided at the hearing by Borders under the § 46b-129
(g) hearsay exception.
The court overruled the objection of the respondent
father’s counsel and granted the request of the petition-
er’s counsel to admit the affidavit as a full exhibit.
The court agreed with the petitioner’s counsel that the
express language of § 46b-129 (g) addressed a situation
unlike what was currently before the court and, thus,
the statute had ‘‘very limited applicability to the situa-
tion at hand.’’ The court, however, provided no other
legal rationale for its admission of the affidavit. The
court allowed the respondent father’s counsel to make
arguments as to why individual paragraphs of the affida-
vit should be excluded but overruled each such objec-
tion, consistent with its prior rulings, concluding that
hearsay statements made to a mandated reporter met
§ 46b-129 (g)’s admissibility requirements. After the
respondent father’s counsel concluded his cross-exami-
nation of Borders, the petitioner rested. As previously
indicated, the respondent father was the sole witness
to testify on his behalf, and he offered no exhibits.
B
We turn next to a discussion of legal principles rele-
vant to our consideration of the intended meaning and
scope of the hearsay exception in § 46b-129 (g). At the
outset, we note that the rules of evidence—including
the prohibition on the admission of hearsay statements
not covered by an exception—apply to juvenile pro-
ceedings, which include child protection matters, to the
same extent that they do in other civil proceedings. See
General Statutes § 46b-121; see also Conn. Code Evid.
§§ 1-1 (b) and commentary (b) (5), and 8-2 (a).19 ‘‘[C]er-
tain procedural informalities’’ are authorized in juvenile
proceedings under our common law, including ‘‘a liberal
rather than a strict application of the formal rules of
evidence, provided due process is observed.’’ (Citation
omitted; internal quotation marks omitted.) In re Juve-
nile Appeal (85-2), 3 Conn. App. 184, 190, 485 A.2d
1362 (1985). Any such looser application of the rules of
evidence, however, including the rule against hearsay,
is unwarranted ‘‘[if] such evidence is likely to be deter-
minative of the matter,’’ in which case, ‘‘the court should
return to the more formal rules of evidence.’’ (Internal
quotation marks omitted.) Id. Given the significant
rights that a parent has ‘‘in the companionship, care,
custody, and management of his or her children . . .
laxity in procedural safeguards cannot be swept away
by mere reference to the so-called informalities of
[j]uvenile [c]ourt procedure.’’ (Citations omitted; inter-
nal quotation marks omitted.) Anonymous v. Norton,
168 Conn. 421, 425, 362 A.2d 532, cert. denied, 423 U.S.
935, 96 S. Ct. 294, 46 L. Ed. 2d 268 (1975). Accordingly,
unlike in proceedings in which no adherence to the rules
of evidence is required, courts in juvenile proceedings,
despite their inherently informal nature, must remain
cautious in admitting hearsay statements that go to the
very heart of the issue to be decided.
‘‘[O]ut-of-court statements offered to establish the
truth of the matter asserted are hearsay. Such state-
ments generally are inadmissible unless they fall within
an exception to the hearsay rule. A hearsay statement
that does not fall within one of the traditional excep-
tions to the hearsay rule nevertheless may be admissible
under the residual exception to the hearsay rule pro-
vided that [1] the proponent’s use of the statement is
reasonably necessary and [2] the statement itself is
supported by equivalent guarantees of trustworthiness
and reliability that are essential to other evidence admit-
ted under traditional exceptions to the hearsay rule.’’
(Internal quotation marks omitted.) In re Tayler F.,
supra, 296 Conn. 536.
As previously noted in this opinion, § 46b-129 (g) sets
forth a limited statutory exception to the hearsay rule
that, by its express terms, is applicable only at a con-
tested hearing on an ex parte order of temporary cus-
tody. Section 46b-129 (g) was enacted in 1998; see Pub-
lic Acts 1998, No. 98-241, § 5; prior to the adoption
of the Connecticut Code of Evidence, and provides in
relevant part that ‘‘credible hearsay evidence regarding
statements of the child or youth made to a mandated
reporter or to a parent may be offered by the parties
and admitted by the court upon a finding that the state-
ment is reliable and trustworthy and that admission
of such statement is reasonably necessary . . . .’’
(Emphasis added.) It is the meaning of the term ‘‘reason-
ably necessary,’’ and its application in this context, that
is at the heart of the dispute in the present appeal.20
Because our resolution of the respondent father’s
claim requires us to engage in statutory construction,
we first look to the statutory language at issue to deter-
mine whether its meaning is clear and unambiguous.
General Statutes § 1-2z. We conclude that the phrase
‘‘reasonably necessary,’’ as used in § 46b-129 (g) as a
requisite for the admission of evidence, is ambiguous
for the following reasons. First, the phrase ‘‘reasonably
necessary’’ is not expressly defined in the statute itself
or in any directly related statute. Second, the phrase,
in common parlance, is broad, and, as used in this
context, it is susceptible to a number of reasonable
interpretations. For example, as argued by the peti-
tioner, ‘‘reasonably necessary’’ could plausibly and sim-
ply mean that the proffered hearsay statement contains
relevant information needed to prove a material fact
at issue. Likewise, ‘‘reasonably necessary’’ could mean
that admission of the hearsay statement is permitted
because the matter asserted could not be proven by
any other available means. Third, our residual hearsay
exception, as codified in the Connecticut Code of Evi-
dence, uses the similar, albeit not identical, term ‘‘rea-
sonable necessity,’’ which has gained its own meaning
and, thus, adds to the ambiguity of the statutory lan-
guage. Conn. Code Evid. § 8-9. Because the language is
ambiguous, we must consider extratextual sources to
aid our construction, including available legislative his-
tory and similar statutes. See, e.g., Ledyard v. WMS
Gaming, Inc., 338 Conn. 687, 699, 258 A.3d 1268 (2021).
As already indicated, at the time § 46b-129 was
enacted in 1998, an analogous term to ‘‘reasonably nec-
essary’’ already was associated with our common law’s
residual, or catchall, exception to the hearsay rule. In
1985, our Supreme Court stated that, in considering
whether a hearsay statement not admissible under a
traditional hearsay exception nonetheless may be
admissible under the residual hearsay exception, the
proper ‘‘analysis must focus on (1) whether there was
a reasonable necessity for the admission of the state-
ment, and (2) whether the statement was supported by
the equivalent guarantees of reliability and trustworthi-
ness essential to other evidence admitted under the
traditional hearsay exceptions.’’ (Emphasis added.)
State v. Sharpe, 195 Conn. 651, 664, 491 A.2d 345 (1985).
The court explained that reasonable necessity in that
context is established by demonstrating that, ‘‘unless
the hearsay statement is admitted, the facts it contains
may be lost, either because the declarant is dead or
otherwise unavailable, or because the assertion is of
such a nature that evidence of the same value cannot be
obtained from the same or other sources.’’ (Emphasis
added.) Id., 665. The Connecticut Code of Evidence
later adopted the court’s language in Sharpe in its own
statement of the residual hearsay exception. See Conn.
Code Evid. § 8-9 and commentary.
In discussing the unavailability requirement of the
residual hearsay exception as it was later codified in
our code of evidence, the court in In re Tayler F., supra,
296 Conn. 546–47, stated: ‘‘If the opposing party makes
a hearsay objection to the admission of the child’s state-
ment, the party seeking admission of the statement has
the burden to prove the child’s unavailability. . . .
The trial court has discretion to accept an uncontested
representation by counsel for the offering party that
the child is unavailable due to psychological harm. . . .
If the other party challenges that representation, proof
of psychological harm must be adduced at an eviden-
tiary hearing, either from an expert or another uninter-
ested witness with knowledge of the child or from the
court’s in camera interview of the child, with or without
counsel. . . . Finally, a finding of psychological
unavailability requires the court to find that the child
will suffer serious emotional or mental harm if required
to testify. . . . [A] finding that it is not in the best
interest of the child to testify is not equivalent to psycho-
logical harm. . . . Rarely will it be in a child’s best
interest to testify.’’21 (Citations omitted; emphasis
added; footnotes omitted.) Accordingly, the court in In
re Tayler F. established that, in order to demonstrate
a ‘‘reasonable necessity’’ for the admission of a child’s
hearsay statement, the proponent of the admission of
the hearsay statement had to establish the child’s
unavailability to testify in person, either due to a risk
of serious emotional or mental harm or some other
recognized legal basis.
The respondent father argues that the phrases ‘‘reli-
able and trustworthy’’ and ‘‘reasonably necessary’’ as
used in § 46b-129 (g) are nearly identical to the require-
ments found in the residual hearsay exception as dis-
cussed in In re Tayler F. (Internal quotation marks
omitted.) Relying on General Statutes § 1-1 (a),22 he
argues that those phrases have ‘‘ ‘acquired a peculiar
and appropriate meaning in the law’ ’’ identical to the
meanings given to the requirements of the residual hear-
say exception as set forth in In re Tayler F. Therefore,
he argues, the phrases should ‘‘ ‘be construed and
understood accordingly.’ ’’ He further argues that the
statute’s legislative history supports his assertion that
the legislature intended essentially to graft the residual
hearsay rule into the child protection statute. The peti-
tioner responds that the legislative history of the enact-
ment of § 46b-129 (g) supports the contrary conclusion,
namely, that this statutory exception to the hearsay rule
was intended to be less stringent in its application than
the residual hearsay exception.
In support of their disparate interpretations, both
parties focus on testimony given at the March 20, 1998
public hearing on the proposed bill by then Judge, now
Justice, Christine Keller, who, at the time of her testi-
mony, was the Chief Administrative Judge for the Supe-
rior Court for Juvenile Matters. Neither party, however,
brings to our attention the important fact that the bill
that was the subject of Justice Keller’s testimony at the
public hearing did not include the language that is now
in dispute, which was subsequently added by way of
amendment. We conclude, on the basis of our review
of the legislative history, including how and when the
disputed language was added to the legislation, that a
proper interpretation of the statute cuts closer to the
respondent father’s interpretation, although we are not
persuaded that the legislature expressed any intent to
adopt the strict unavailability requirement of the resid-
ual hearsay exception. At this point, a discussion of the
legislative history as well as some additional back-
ground context is required.
C
We begin by noting that the changes that the legisla-
ture enacted in 1998 with respect to ex parte orders of
temporary custody were a direct response to changes
to federal law as well as a pending lawsuit that had been
brought by a respondent mother in a child protection
action, both on behalf of herself and on behalf of ‘‘a
class of persons consisting of all parents in the state
whose children have been or may be seized by the
[department], and who have been or may be denied
their statutory and constitutional right to challenge the
state’s temporary custody in a timely evidentiary hear-
ing.’’ Pamela B. v. Ment, 244 Conn. 296, 299, 709 A.2d
1089 (1998); see id., 307 (appeal considering, inter alia,
justiciability of underlying action); see also 41 H.R.
Proc., Pt. 12, 1998 Sess., p. 4165, remarks of Representa-
tive Christel Truglia. The action was brought against
Judge Aaron Ment, in his capacity as chief court admin-
istrator, and Linda D’Amario Rossi, who, at the time,
was the Commissioner of Children and Families, and
sought both declaratory and injunctive relief. Pamela
B. v. Ment, supra, 299. According to the plaintiff in
Pamela B., courts in this state routinely would order a
continuance of the hearing that was required within ten
days following the granting of an ex parte order of
temporary custody and consolidate that hearing with
the adjudication of the merits of the contemporaneously
filed neglect petition, which meant the ex parte order
could remain in effect for many months without any
opportunity for the respondent parent to challenge it.
See Pamela B. v. Ment, Docket No. CV-XX-XXXXXXX-S,
1997 WL 88212, *1 (Conn. Super. February 13, 1997),
rev’d, 244 Conn. 296, 709 A.2d 1089 (1998). The plaintiff
claimed that this practice violated her due process
rights under our federal constitution as well as under
article first, § 10, of the state constitution, in light of
the significant rights at stake in such proceedings. Id.
The plaintiff alleged that the delay in providing a con-
tested hearing was the result of ‘‘an increase in the
number of [order of temporary custody] applications,
unreasonably crowded juvenile dockets, insufficient
staffing of the juvenile courts and inadequate allocation
of judicial resources . . . .’’ Id.23
With that background in mind, we turn next to a
discussion of the language of this statutory hearsay
exception, both as originally proposed and as eventually
enacted. The language of the bill as first proposed, and
on which Justice Keller and others testified, was as
follows: ‘‘At a contested hearing on the order for tempo-
rary custody or order to show cause credible hearsay
evidence regarding statements of the child or youth
may be offered by the parties and admitted at the
discretion of the court. The petitioner may submit a
signed affidavit executed by a mandated reporter with-
out the need for the mandated reporter to appear and
testify unless called by a respondent, provided the affi-
davits are submitted to all parties appearing at the pre-
liminary hearing. The affidavits, while not conclusive,
shall constitute prima facie evidence of the facts alleged
to support the maintenance of an order of temporary
custody pending a trial on the merits of the petition or
petitions.’’ (Emphasis added.) Substitute House Bill No.
5745, 1998 Sess.
Thus, as originally drafted, the proposed bill gave the
court extremely broad discretion to admit any hearsay
statement that it deemed credible, which we construe
as a far more permissive standard than what appears
in the final bill enacted by the legislature. The amended
language—which added the ‘‘reliable and trustworthy’’
and ‘‘reasonably necessary’’ requirements—first
appeared in a House amendment that was adopted on
May 4, 1998, without any discussion or explanation for
the changes made to the original bill. Substitute House
Bill No. 5745, 1998 Sess., as amended.
At the public hearing on the original bill, Justice Kel-
ler testified that the Judicial Branch was fully support-
ive of the proposed legislation, which would require
courts to hold a contested hearing within ten days if
requested by a parent at the initial hearing on an ex parte
order of temporary custody. See Conn. Joint Standing
Committee Hearings, Judiciary, Pt. 6, 1998 Sess., pp.
1877–78, testimony of Judge Christine Keller. She testi-
fied: ‘‘[W]e can do that, but . . . we see a need to try
to shorten the length of these hearings because the
immediacy of this hearing is to determine whether or
not, pending the outcome of the neglect case, the child
should remain in the custody of [the department] and,
for that reason, we are proposing that you allow us to
submit as prima facie evidence, subject to the parent’s
right to call the witness or call the person and cross-
examine them, affidavits of mandated reporters, and
also allow us to submit credible hearsay. We examined
other states’ procedures in these cases to see if they
do it better or why are they doing it faster and there’s
really two basic reasons why they do it faster in
other states.
‘‘One, is that they allow documents, affidavits, hear-
say statements of the children that are trustworthy and
other credible hearsay into evidence at these hearings,
and two, they have a lower standard. It’s probable cause
in many other states. In our state, by judicial fiat,
[a]ppellate court rulings, it’s fair preponderance of the
evidence, which is a higher standard.’’ (Emphasis
added.) Id., p. 1877.
One representative, Robert Farr, noting written testi-
mony that opposed the new hearsay exception con-
tained in the proposed legislation, asked Justice Keller
to discuss whether this type of hearsay exception was
found in the child protection statutes of other states.
Id., p. 1881. The relevant colloquy was as follows:
‘‘[State Representative] Farr: Let me just ask you,
just for the record, we’ve got some testimony, written
testimony from Paul Chill from the [University of Con-
necticut School of Law] and criticizing some parts of
this. One of the issues is, of course, the hearsay question
and am I correct in understanding your testimony, J[us-
tice] Keller, that this [is] common language in other
states?
‘‘[Justice] Keller: Yes. As a matter of fact, the one
state that we actually had a meeting here on a few
months ago, Rhode Island. They have a rule of evidence
that allows—a statement that a child that the judge
deems would be someone the child trusts would be
admissible.
‘‘I want to point out too that, under our present civil
law, in other kinds of civil cases and our cases are
civil cases and the standard of proof in [an] order of
temporary custody hearing is the same as it is in every
other civil case, fair preponderance of the evidence.
We allow reports of physicians, nurses, doctors, psy-
chologists to be admitted into evidence without the
need for that person to come and testify. We allow that
in the trial on the final merits of the case and the only
cautionary reservation, and we’ve got that proposed, is
that we’re requiring that, if [the department] wishes to
rely on an affidavit of a mandated report, it has to have
that affidavit ready to provide to counsel for the parents
at the preliminary hearing, that’s the hearing held within
the first ten days, and then that parent would have the
right to request that the mandated reporter come to
testify and utilize subpoenas if need be.
‘‘Now, most of our parents are indigent. They cannot
afford subpoenas, but in the juvenile court the proce-
dure which is authorized by Practice Book rule is that
the lawyers representing the indigent parents would
request that the clerk issue summons or subpoenas.
And we only need to do that [eighteen] hours before
the scheduled contested hearing.
‘‘[State Representative] Farr: Let me ask you this. The
language that was proposed—I don’t have it right in
front of me—as I recall it, you said includes other credi-
ble hearsay evidence, which goes beyond the reports
for the mandated reporters.
‘‘[Justice] Keller: Right.
‘‘[State Representative] Farr: What would that
include?
‘‘[Justice] Keller: Well, it’s kind of similar to what we
now have, which is sort of a catchall exception to the
hearsay rule anyway, where the trustworthiness of the
statement makes it so inherently reliable that the court
has been allowed to get it in, even though arguably it
might always be considered hearsay.
‘‘Statements that a child might make to another par-
ent, someone to whom the child trusts, as in the case
in Rhode Island. Also, some statements, not in affidavit
form, might come in anyway under other rules that are
routinely adopted and accepted.
‘‘For example, a police report could come in under
a business records exception without the need for the
actual author of that report to testify. Many [depart-
ment] records would be considered business records.
We have a procedure already in the juvenile court where
social studies, which is the required study that a worker
must have prepared for the courts of its investigation
and conclusions for the court’s assistance in every
neglect or uncared for case. That is allowed in, as long
as the worker is there, prepared to testify, or prepared
to be subjected to cross-examination.
‘‘So, we already have a number of exceptions which—
also, hospital records would be another example. If we
had a seriously abused child or a child who[’s] born
severely addicted to toxic substances and we’re using
that as evidence, even without an affidavit or without
testimony, those hospital records come in as business
records under the exception carved out by [General
Statutes §] 4-104. I don’t think we’re broadening expan-
sively the use of evidence that isn’t already used in many
of our temporary custody hearings.’’ Id., pp. 1881–83.
Attorney Sharon Wicks Dornfeld also provided a writ-
ten statement to the committee that supported the origi-
nal bill’s proposal with respect to the admission of
hearsay statements of children subject to ex parte
orders of temporary custody, noting in relevant part:
‘‘As a practical matter, it is often nearly impossible to
balance the child’s welfare with the rules of evidence.
On the one hand, the child’s statements are often the
best—even only—evidence of the need for protection.
On the other, the experience of testifying against a
parent is often itself damaging to a child, and bringing
him into the courtroom must be a last resort. The pro-
posed language is a reasonable accommodation for this
problem.’’ Conn. Joint Standing Committee Hearings,
Judiciary, Pt. 7, 1998 Sess., p. 2143, statement of Attor-
ney Sharon Wicks Dornfeld. Judge Ment also provided
a written statement to the committee consistent with
Justice Keller’s testimony that ‘‘[a]llowing credible hear-
say at the hearing on the order for temporary custody
is essential for cases to be resolved as quickly as possi-
ble . . . .’’ Id., p. 2146, statement of Judge Aaron Ment.
The committee also received written testimony and
statements offered in opposition to the bill. The Legal
Assistance Resource Center of Connecticut, Inc., rec-
ommended amending the original bill’s proposed hear-
say exception, providing via a statement in relevant
part: ‘‘The bill should . . . be amended in the following
ways . . . Hearsay evidence at the [order of temporary
custody] hearing should not be permitted. A live witness
is needed, not only for cross-examination but also so
that the court can make an independent determination
of the need for an [order of temporary custody].’’ Id.,
p. 2172. Furthermore, Professor Paul Chill of the Univer-
sity of Connecticut School of Law, who represented
the plaintiffs in the Pamela B. case and whose testimony
was referenced by Representative Farr, provided the
following relevant written testimony in opposition to
the bill: ‘‘[H.B.] No. [5745] would further gut due process
protections for parents and children by permitting affi-
davits by mandated reporters to be admitted into evi-
dence in lieu of live testimony. . . . Many affidavits
one sees in juvenile court proceedings are replete with
hearsay, supposition, bald, subjective opinion and bias,
and it is often impossible to tell, although one may
suspect it, just how little education and experience
some mandated reporters have in child protection. This
is where large mistakes are made and compounded. It
would be folly to permit as momentous a decision as
whether a child will remain in foster care for several
months to be based on such documents.’’ Id., p. 2190,
statement of Paul Chill.
As noted, following the public hearing, the proposed
bill was amended in the House of Representatives on
May 4, 1998, without any explanation or further discus-
sion on the record. The amendment added the ‘‘reliable
and trustworthy’’ and ‘‘reasonably necessary’’ require-
ments, the language that ultimately was enacted and
is now found in § 46b-129 (g). It is unclear from the
legislative history itself whether the changes were made
in response to the opposition to the original bill, but it
is undeniable that this added language placed additional
guardrails on the court’s discretion to admit at a con-
tested hearing hearsay statements it deems ‘‘credible.’’
We glean the following conclusions from this legisla-
tive history. First, it is relatively clear from the amend-
ment to the original bill that the legislature was uncom-
fortable with the breadth of the exception to the hearsay
rule that was contained in the original bill. The addition
of the ‘‘reliable and trustworthy’’ and ‘‘reasonably neces-
sary’’ language evinces an intent to narrow, at least to
some extent, the exception contained in the prior ver-
sion of the bill.
Second, we are not persuaded by the respondent
father’s contention that the drafters of the amendment
sought to codify the residual hearsay exception as it
existed at common law. After all, the residual hearsay
exception already was applicable in child protection
proceedings, as indicated by Justice Keller in her testi-
mony, and applied to all hearsay, not just to the hearsay
statements of children made to mandated reporters,
statements that the bill expressly sought to distinguish.
In other words, the statutory exception arguably would
be superfluous because the common-law residual
exception to the hearsay rule was already applicable
to hearings on orders of temporary custody. ‘‘We are
mindful that, [i]n construing statutes, we presume that
there is a purpose behind every sentence, clause, or
phrase used in an act and that no part of a statute is
superfluous.’’ (Internal quotation marks omitted.) In re
Jusstice W., supra, 308 Conn. 664; see id. (refusing to
adopt interpretation of statutory provision that would
render other provision in statute superfluous).
Instead, we view the bill, as enacted, as representing
a compromise between advocates of the position that
credible hearsay statements should be generally admis-
sible without additional safeguards and advocates of
the position that such hearsay statements should be
admitted only if the statements meet the stringent
admissibility requirements of the common-law residual
exception to the hearsay rule, including a showing of
the ‘‘unavailability’’ of the declarant as a witness.
This interpretation is buttressed by consideration of
the underlying goals and concerns that motivated the
legislation. Those goals included ensuring that parents
were provided with an opportunity for a prompt hearing
in light of the significant rights at stake, while also
protecting the best interests of children, including their
interest to be free from physical abuse and neglect. An
additional goal was to make contested hearings more
efficient, given the limited resources of both time and
personnel, thereby increasing the court’s ability to hold
more contested hearings within the desired and short-
ened ten day time frame. One of the ways in which
hearings could be expedited and made more efficient
would be by streamlining the presentation of evidence
and reducing the number of witness needed to be called.
Considering the legislation with those goals in mind,
we construe the addition of the ‘‘reasonably necessary’’
language not as requiring unavailability as a prerequisite
to the admission of hearsay statements made by chil-
dren to a mandated reporter but as requiring the court,
before admitting such a hearsay statement under § 46b-
129 (g), to consider a number of factors in light of
the specific circumstances of the case before it. Those
factors would include, but are not necessarily limited
to: (1) the age of the child involved; (2) the materiality
of the offered hearsay statement; (3) the likelihood of
prejudice to the respondent parent due to the inability
to cross-examine the child regarding the hearsay state-
ment;24 (4) any difficulties in obtaining the in-person
testimony of the child; and (5) consideration of whether
in-court testimony could result in emotional or mental
harm to the child.25 Considering these factors will
require trial courts to weigh the state’s interest in con-
ducting hearings on orders of temporary custody in a
timely and efficient manner, protecting the procedural
rights of the respondent parents to challenge the evi-
dence presented by the petitioner, and ensuring that
the children who are the subject of the proceeding
are protected from unnecessary psychological harm. It
bears emphasizing though that the proponent of the
hearsay evidence has the burden of tipping the balance
in favor of admissibility by establishing that, in light
of these factors, the hearsay evidence is reasonably
necessary. For example, if an older child is readily avail-
able to testify, all else being equal, there would be little
reason to conclude that the introduction of the child’s
hearsay statements was reasonably necessary. The cal-
culus could change though if the proponent of the hear-
say evidence presented evidence that, due to the child’s
relationship with the respondent parent, testifying
would be particularly harmful to the child. Ultimately,
trial courts must use their sound discretion in deciding
whether to employ the statutory exception, and we will
reverse such determinations only for an abuse of that
discretion.
Having construed what ‘‘reasonably necessary’’
means for the purposes of § 46b-129 (g)’s hearsay
exception, we now turn to the evidence identified by the
respondent father that he asserts the court improperly
admitted into evidence at the contested hearing.
D
The first and broadest category of inadmissible hear-
say identified by the respondent father involves the
testimony of Zesmery and Borders, each of whom was
permitted by the court to recount various out-of-court
statements made to them by the children over the hear-
say objections of the respondent father’s counsel. In so
doing, the court never directly addressed the dispute
between the parties regarding the meaning of ‘‘reason-
ably necessary’’ as used in § 46b-129 (g); it simply con-
cluded that the statements were reliable and trustwor-
thy and that their admission was reasonably necessary.
Nevertheless, we may presume that, in ruling in favor
of the petitioner and allowing the testimonial hearsay
statements into evidence, the court accepted the ratio-
nale offered by the petitioner’s counsel, which did not
include any reasoned consideration regarding the avail-
ability of the children to appear and testify. The court
made no finding that the children would have suffered
psychological harm from testifying or that there was
any other reasonable basis for the petitioner not to
have presented the in-court testimony of the children.
Although the petitioner’s counsel argued that testifying
likely would be difficult and potentially harmful to the
children, the court was not free to accept that represen-
tation without some supporting evidence, given that the
respondent father contested it. See In re Tayler F.,
supra, 296 Conn. 546–47. Specifically, the respondent
father’s counsel argued to the court that these were
not young children but teenagers and, thus, they could
easily have been brought to court to testify and that
his inability to cross-examine them was particularly
prejudicial.
In light of our conclusion that the petitioner has the
burden to establish a reasonable basis for why it was
not possible to have the children testify at the contested
hearing in order to establish that the admission of their
hearsay statements were ‘‘reasonably necessary,’’ we
agree with the respondent father that the court abused
its discretion in failing to sustain his counsel’s objec-
tions to the admission of the hearsay statements in the
present case. In arguing in favor of the admissibility
of the children’s hearsay statements, the petitioner’s
counsel focused on the reliability of the hearsay state-
ments rather than on whether it was reasonably neces-
sary that they be admitted as hearsay. In short, the
petitioner’s counsel seemed to believe that it was suffi-
cient to establish that the children’s statements were
made to a mandatory reporter and had some indepen-
dent indicia of reliability. The respondent father’s coun-
sel, however, argued that because the children were
older, they should have been summoned to testify at
the hearing. Other than a bald assertion that the children
would suffer harm if required to testify in person, the
petitioner’s counsel offered nothing to support a finding
of emotional or mental harm, nor did the court make
such a finding. The petitioner’s counsel offered no other
reasonable basis that would justify the decision not to
call the children to testify, other than that their state-
ments were reliable. Moreover, in this case, the allega-
tions of physical and sexual abuse all involved the
respondent mother or her boyfriends. The evidence
before the court was that the respondent mother
remained in Puerto Rico and had been defaulted in the
proceeding, so there was little chance of the children
being confronted by her at the hearing. The court
offered no analysis supporting its conclusion that the
admission of the hearsay statements was ‘‘reasonably
necessary.’’ Having thoroughly reviewed the record and
arguments of the parties, we conclude that the court’s
decision to overrule the hearsay objections of the
respondent father’s counsel, under the circumstances
of the present case, was error.
E
In addition to the court’s erroneous admission of
the children’s various hearsay statements through the
testimony of Borders and Zesmery, the respondent
father also challenges the admission of the petitioner’s
exhibits on hearsay grounds. Exhibits B and E each
contained hearsay statements that the court determined
were admissible under § 46b-129 (g). Exhibit B con-
tained the screenshots of the three Snapchat messages
between the children and Zesmery. Exhibit E was a
copy of a text message from Zesmery to Borders that
memorialized a conversation that Zesmery had with
Alyson. For the same reasons that the hearsay state-
ments of the children offered through the testimony of
Zesmery and Borders were improperly admitted by the
court pursuant to § 46b-129 (g), exhibits B and E should
not have been admitted as full exhibits.
With respect to the admission of exhibits C and D, the
photographs that Zesmery received from the children
of an injury to Alizabeth’s ear and a broken door that
were offered by the petitioner as corroborating evi-
dence of the alleged physical abuse of the children by
the respondent mother, the respondent father argues
that they were improperly admitted into evidence by
the court through Zesmery because she did not have
personal knowledge necessary to authenticate the pho-
tographs. According to the respondent father, in
attempting to authenticate what was depicted in the
photographs, Zesmery relied entirely on what she was
told by the children and not her own knowledge. We
agree that the photographs improperly were authenti-
cated through the use of hearsay and, thus, the court
should have denied the admission of exhibits C and D.
Pursuant to the Connecticut Code of Evidence, ‘‘[t]he
requirement of authentication as a condition precedent
to admissibility is satisfied by evidence sufficient to
support a finding that the offered evidence is what its
proponent claims it to be.’’ (Emphasis added.) Conn.
Code Evid. § 9-1 (a). The Connecticut Code of Evidence,
including its bar against the admissibility of hearsay
statements not covered by an exception, applies equally
to evidence offered for the purposes of authentication.
See Conn. Code Evid. § 1-3 (b), commentary (b) (‘‘Code
applies in making determinations required by [§] 1-3
(b),’’ and evidence offered for purposes of authentica-
tion is ‘‘example of an instance in which the relevance
of evidence to the case depends upon the existence
of another fact or other facts’’ to which § 1-3 (b) of
Connecticut Code of Evidence applies). Although the
code does not apply to ‘‘[p]roceedings involving ques-
tions of fact preliminary to admissibility of evidence
pursuant to [§] 1-3 of the Code’’; Conn. Code Evid. § 1-
1 (d) (2); evidence relating to the authentication of
proffered evidence must itself be in admissible form
because it is ultimately for the trier of fact to determine
whether the evidence is what it purports to be. See
State v. Porfil, 191 Conn. App. 494, 519–21, 215 A.3d
161 (2019), appeal dismissed, 338 Conn. 792, 259 A.3d
1127 (2021). Because we have determined that the chil-
dren’s hearsay statements constituted inadmissible evi-
dence, these statements were equally inadmissible for
the purpose of authenticating exhibits C and D. Accord-
ingly, those exhibits were improperly admitted.
F
Finally, we turn to the court’s admission of exhibit
A, Borders’ affidavit filed in support of the neglect peti-
tions and motions for orders of temporary custody.
Borders’ affidavit was admitted by the court under the
‘‘affidavit provision’’ of the hearsay exception in § 46b-
129 (g). The respondent father’s counsel objected to
the admission of the affidavit. Although he acknowl-
edged that affidavits by mandated reporters such as
Borders generally would be admissible pursuant to the
statute, he argued that the affidavit was inadmissible in
the present case because Borders already had provided
direct testimony consistent with the contents of her
affidavit and because it contained hearsay statements
of the children and, thus, amounted to impermissible
hearsay within hearsay. The court overruled the objec-
tion on the ground that the statute did not expressly
limit the admissibility of affidavits to cases in which
the affiant did not testify, and because the court already
had ruled that the children’s hearsay statements were
themselves admissible under § 46b-129 (g). We agree
that the affidavit was improperly admitted in full
because it contained inadmissible hearsay statements
of the children.
Section 8-7 of the Connecticut Code of Evidence pro-
vides that ‘‘[h]earsay within hearsay is admissible only if
each part of the combined statements is independently
admissible under a hearsay exception.’’ An affidavit is
an out-of-court statement and, thus, generally is inad-
missible to prove the truth of the matter asserted therein
unless it falls within a hearsay exception. See, e.g.,
Burritt Mutual Savings Bank of New Britain v. Tucker,
183 Conn. 369, 375, 439 A.2d 396 (1981). For purposes
of our analysis in the present case, we assume, without
deciding, that Borders’ affidavit was admissible under
§ 46b-129 (g), despite her presence and testimony at
the hearing. Nevertheless, for the same reasons that
Borders’ testimony regarding the children’s hearsay
statements were inadmissible, like statements of the
children remained inadmissible to the extent that they
were repeated in the affidavit.
In sum, we agree with the respondent father that the
court abused its discretion by admitting various hearsay
statements of the children, in their many forms, because
the petitioner failed to meet her burden under the stat-
ute of demonstrating that the admission of those state-
ments was ‘‘reasonably necessary’’ as we have con-
strued that term in the context of a contested hearing
on a motion for an order of temporary custody.
Although we must also address whether the evidentiary
errors were harmful, we turn to that question after
reviewing the alternative basis on which the court
admitted some of the same hearsay statements.
II
The respondent father next claims that the court
improperly admitted those hearsay statements made by
Alizabeth to Borders during the forensic interview on
the alternative ground that they fell under the medical
treatment exception to the hearsay rule. The respon-
dent father argues in particular that the petitioner failed
to demonstrate that Alizabeth understood at the time
that she made the statements that the forensic inter-
view, at least in part, was for a medical purpose. The
petitioner contends that we should reject this claim
because the respondent father failed to raise it before
the trial court and, even if he did, the argument fails
on its merits because there was evidence presented
from which the court reasonably could have inferred
that Alizabeth understood that the interview had a medi-
cal purpose. We agree with the respondent father. The
following additional facts are relevant to our resolution
of this claim.
As stated previously in part I of this opinion, during
her direct testimony, Borders was asked about a conver-
sation that she had with the children on the day they
were removed from the respondent parents’ home and
during their transport to their placement. Borders testi-
fied that, during that conversation, she had ‘‘introduced
them to the forensic interview process,’’ but she pro-
vided no details about what she had told them or
whether her discussion of the ‘‘process’’ included any
discussion of the purpose for a forensic interview. Bor-
ders later testified that she eventually conducted a
forensic interview of Alizabeth on June 1, 2021. Borders
was asked about and testified to her understanding of
the purpose for a forensic interview, which she stated
was ‘‘done in conjunction with law enforcement,’’ and
was ‘‘to interview [the] children in a controlled environ-
ment, neutral environment and gather information so
that we can ensure [their] physical, emotional, mental
safety and well-being.’’ When asked why the other chil-
dren had not participated in the forensic interview, Bor-
ders testified that Alizabeth had told her that ‘‘because
she was the oldest, if somebody was gonna be blamed
for coming forward she wanted it to be her so that her
sisters couldn’t be blamed.’’
The forensic interview was conducted at the Child
Advocacy Center in Danielson. In attendance and
observing the interview from outside of the interview
room were an advocate from the Sexual Assault Crisis
Center of Eastern Connecticut, another forensic inter-
viewer, the director of the Child Advocacy Center, and
three members of law enforcement. Nothing in the
record suggests that any medical professional took part
in the interview or examined or treated Alizabeth either
before or after the interview.
Borders testified that, during the interview, Alizabeth
repeated the accusations that the children initially had
made regarding physical and sexual abuse and also
provided new information. When asked by the petition-
er’s counsel what new information Alizabeth had pro-
vided, the respondent father’s counsel renewed his ear-
lier hearsay objection, arguing with respect to the
statutory hearsay exception that there was even less
indicia of trustworthiness and reliability with respect to
the statements that Alizabeth made during the forensic
interview because those statements, unlike the earlier
statements to Zesmery and Borders, were not made
spontaneously or in confidence. Rather, he argued, the
statements made during the forensic interview were
made in response to questioning in ongoing litigation
and with law enforcement present.
The petitioner’s counsel responded to the objection
of the respondent father’s counsel first by reiterating
that the statements that Alizabeth made to Borders
during the interview were fully admissible under § 46b-
129 (g) because Borders was a mandated reporter. The
petitioner’s counsel also argued in the alternative, how-
ever, that courts routinely found hearsay statements
made by sexual assault victims during forensic inter-
views to be admissible under the medical treatment
exception to the hearsay rule.
With respect to whether the medical treatment excep-
tion provided an alternative basis for the admission
through Borders of Alizabeth’s statements made during
the forensic interview, the respondent father’s counsel
first argued that he believed that the exception is limited
to hearsay statements offered through expert testimony
by a medical professional. After the petitioner’s counsel
disputed that argument as unfounded and after it was
squarely rejected by the court, the respondent father’s
counsel made the additional argument that he had not
‘‘heard any evidence at all that there’s been, you know,
any medical treatment undertaken or planned to be
undertaken on the basis of [the forensic] interview.’’
The court overruled the hearsay objection of the respon-
dent father’s counsel.
Borders then testified that Alizabeth had told her
during the interview that the children had made the
respondent father aware in April, 2021, of the respon-
dent mother’s infidelity and the physical and sexual
abuse they had suffered at the hands of the respondent
mother but that the respondent father’s response to
the disclosure was focused on the respondent mother’s
infidelity, not the abuse allegations. Borders never was
asked by the petitioner and never testified that she had
explained to Alizabeth that one of the purposes of the
forensic interview was to address any potential medical
issues arising from any alleged abuse. No other evi-
dence was presented suggesting that Alizabeth under-
stood that her participation in the forensic interview
was pertinent to a medical diagnosis or treatment.
A
Section 8-3 (5) of the Connecticut Code of Evidence
contains an exception to the hearsay rule for ‘‘[a] state-
ment made for purposes of obtaining a medical diagno-
sis or treatment and describing medical history, or past
or present symptoms, pain, or sensations, or the incep-
tion or general character of the cause or external source
thereof, insofar as reasonably pertinent to the medical
diagnosis or treatment.’’ In discussing this exception,
this court has explained that, ‘‘[r]egardless of whether
the statements were made to a physician, they must all
have been made in furtherance of medical treatment.
. . . In fact, the medical treatment exception is not
limited to physicians and has been extended to include
social workers, as long as the social worker is found
to have been acting within the chain of medical care.
. . . Although [t]he medical treatment exception to the
hearsay rule requires that the statements be both perti-
nent to treatment and motivated by a desire for treat-
ment . . . in cases involving juveniles, our cases have
permitted this requirement to be satisfied inferentially.’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) State v. Juan V., 109 Conn. App. 431,
446–47, 951 A.2d 651, cert. denied, 289 Conn. 931, 958
A.2d 161 (2008). Accordingly, ‘‘[t]he rationale underly-
ing the medical treatment exception to the hearsay rule
is that the patient’s desire to recover his [or her] health
. . . will restrain him [or her] from giving inaccurate
statements to a physician [or other professional]
employed to advise or treat him [or her]. . . . The term
medical encompasses psychological as well as somatic
illnesses and conditions.’’ (Citation omitted; internal
quotation marks omitted.) State v. Freddy T., 200 Conn.
App. 577, 591, 241 A.3d 173 (2020).
As this court explained in Freddy T., however, ‘‘[t]he
statements of a declarant may be admissible under the
medical treatment exception [only] if made in circum-
stances from which it reasonably may be inferred that
the declarant understands that the interview has a
medical purpose. Statements of others, including the
interviewers, may be relevant to show the circum-
stances. . . . [Thus] the focus of the medical treatment
exception is the declarant’s understanding of the pur-
pose of the interview . . . . Accordingly, the inquiry
must be restricted to the circumstances that could be
perceived by the declarant, as opposed to the motiva-
tions and intentions of the interviewer that were not
apparent to the declarant. . . . This focus accords with
the rationale for the medical diagnosis and treatment
exception that patients are motivated to speak truth-
fully to their medical care providers when their own
well-being is at stake.’’ (Citations omitted; emphasis
altered; internal quotation marks omitted.) Id., 592–93.
In other words, under our case law applying the medical
treatment exception, the proponent must show not only
that the forensic interview in fact had some medical
purpose but that the declarant understood this to be
the case.
In Freddy T., we agreed with the defendant that por-
tions of a video recording of a forensic interview con-
taining statements by the victim, a five year old child,
should not have been admitted into evidence under the
medical treatment exception. Id., 585, 590, 593. The
defendant had argued that the real purpose of the inter-
view was to aid the police investigation and not to
provide medical treatment for the child because any
such treatment had concluded by the time the interview
was conducted. Id., 589. We agreed and concluded that
the content of the interview provided no basis from
which to conclude that the child understood that the
interview was for medical treatment purposes. Id., 593.
There was no indication in the record that the child in
Freddy T. had ever been told in advance that she would
be meeting with any medical professionals. Id., 594.
Although there was evidence that medical referrals
were made after the interview concluded, this court
stated that ‘‘[p]ro forma referrals at the end of an inter-
view, even if fulfilled, do not satisfy th[e] requirement’’
that the declarant understand that there was a medical
purpose for the interview at the time the declarant made
the statements the proponent sought to admit under
the medical treatment exception. Id., 595 n.16.
B
We first briefly address whether the respondent
father’s claim on appeal was properly raised before the
trial court so as to preserve it for review. Although the
petitioner argues that the claim is not preserved, we
disagree.
‘‘[T]he standard for the preservation of a claim alleg-
ing an improper evidentiary ruling at trial is well settled.
This court is not bound to consider claims of law not
made at the trial. . . . In order to preserve an eviden-
tiary ruling for review, trial counsel must object prop-
erly. . . . In objecting to evidence, counsel must prop-
erly articulate the basis of the objection so as to apprise
the trial court of the precise nature of the objection
and its real purpose, in order to form an adequate basis
for a reviewable ruling. . . . Once counsel states the
authority and ground of [the] objection, any appeal will
be limited to the ground asserted. . . .
‘‘These requirements are not simply formalities. They
serve to alert the trial court to potential error while
there is still time for the court to act. . . . Assigning
error to a court’s evidentiary rulings on the basis of
objections never raised at trial unfairly subjects the
court and the opposing party to trial by ambush. . . .
‘‘[T]he sina qua non of preservation is fair notice to
the trial court. . . . An appellate court’s determination
of whether a claim has been properly preserved will
depend on a careful review of the record to ascertain
whether the claim on appeal was articulated [in the
trial court] with sufficient clarity to place the trial court
on reasonable notice of that very same claim.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Sease, 147 Conn. App. 805, 813–14, 83 A.3d 1206, cert.
denied, 311 Conn. 932, 87 A.3d 581 (2014).
We conclude that part and parcel of the objection by
the respondent father’s counsel to the admission of
Alizabeth’s forensic interview statements to Borders
was that there was no evidence that any medical treat-
ment or planned medical intervention occurred as a
result of the forensic interview. He argued at one point
that the statements made during the forensic interview
were made in response to questioning in ongoing litiga-
tion and with law enforcement present, suggesting by
implication that there was no basis on which to con-
clude that Alizabeth’s statements were made for the
purpose of obtaining medical treatment. We conclude
that the arguments of the respondent father’s counsel
were sufficient to put the trial court on notice to con-
sider whether all necessary requirements of admission
under the medical treatment exception had been satis-
fied, which included whether the petitioner had met its
burden of demonstrating that Alizabeth understood her
statements to have been made in furtherance of medical
treatment so as to fall within the exception.
C
We now turn to the merits of the respondent father’s
claim that, like in Freddy T., the trial court was not
presented with any evidence from which it reasonably
could have inferred that Alizabeth understood the foren-
sic interview to have a medical purpose. To the con-
trary, the record suggests that Alizabeth and her sisters
understood the interview to be for investigatory pur-
poses. This is borne out by the fact that the children
elected to have only Alizabeth risk providing additional
information to Borders during the forensic interview,
thereby limiting the risk of angering the respondent
parents if they were implicated in wrongdoing. In other
words, it appears clear that Alizabeth understood the
purpose of the forensic interview to be to further the
investigation against the respondent parents. Borders
did testify that she previously had walked the children
through the ‘‘forensic interview process . . . .’’ There
was additional testimony from which to conclude that
Borders herself understood that there was a potential
medical treatment component of the interview. The
record is entirely silent, however, as to whether Aliza-
beth understood this to be the case. No medical exami-
nation or interview with a medical professional
occurred in conjunction with the forensic interview
conducted by Borders from which such an understand-
ing might have been inferred. Accordingly, to the extent
that the court overruled objections to Borders’ testi-
mony about what Alizabeth had told her during the
forensic interview under the alternative theory that the
statements fell under the medical treatment exception
to the hearsay rule, we conclude that it did so in error.
III
Although we have determined that the court improp-
erly admitted a number of hearsay statements and per-
mitted the authentication of exhibits through the use
of inadmissible hearsay, that determination is not itself
fully dispositive of the respondent father’s claims on
appeal. He also must demonstrate that these evidentiary
errors were harmful. In re Tayler F., supra, 111 Conn.
App. 36. The respondent father asserts that the errone-
ous evidentiary rulings were, in total, harmful because
no other admissible evidence supports the court’s con-
clusion that the petitioner met her burden with respect
to sustaining the orders of temporary custody and,
accordingly, the court’s finding to the contrary is clearly
erroneous. The petitioner counters that any errors in
admitting the evidence were harmless because the court
could have sustained the ex parte orders of temporary
custody on the basis of other evidence that was admit-
ted at the hearing. We agree with the respondent father.
As we have previously stated, ‘‘[p]ursuant to . . .
§ 46b-129 (b), the court may issue an order ex parte
vesting in some suitable agency or person the child’s
or youth’s temporary care and custody if it appears, on
the basis of the petition and supporting affidavits, 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 dan-
ger from the child’s or youth’s surroundings, and (2)
that as a result of said conditions, the child’s or youth’s
safety is endangered and immediate removal from such
surroundings is necessary to ensure the child’s or
youth’s safety . . . .
‘‘At a subsequent hearing on an order of temporary
custody, the proper standard of proof . . . is the nor-
mal civil standard of a fair preponderance of the evi-
dence. . . . We note that [a]ppellate review of a trial
court’s findings of fact is governed by the clearly errone-
ous standard of review. The trial court’s findings are
binding upon this court unless they are clearly errone-
ous 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 convic-
tion that a mistake has been committed.’’ (Citation omit-
ted; internal quotation marks omitted.) In re Kelsey M.,
supra, 120 Conn. App. 542–43.
In order to demonstrate that he was harmed by the
court’s evidentiary errors, the respondent father must
show that it is likely that the outcome of the contested
hearing would have been different. See Prentice v.
Dalco Electric, Inc., 280 Conn. 336, 358, 907 A.2d 1204
(2006) (holding that standard in civil case for determin-
ing whether evidentiary ruling was harmful is whether
‘‘ruling [likely] would [have] affect[ed] the result’’ and
citing Swenson v. Sawoska, 215 Conn. 148, 153, 575
A.2d 206 (1990), as having rejected standard ‘‘that would
have required treating as harmless error any evidentiary
ruling, regardless of its effect upon verdict, so long
as evidence not implicated by ruling was sufficient as
matter of law to sustain verdict’’ (internal quotation
marks omitted)), cert. denied, 549 U.S. 1266, 127 S. Ct.
1494, 167 L. Ed. 2d 230 (2007). In evaluating the potential
effect of the court’s evidentiary errors, we remain mind-
ful that it is axiomatic that a prerequisite to a court’s
entry of a temporary order vesting custody of a child
in one other than the child’s parents is a finding that
the child is presently suffering from a serious physical
illness or serious physical injury or is in immediate
physical danger. See In re J.R., supra, 161 Conn.
App. 573.
In arguing in her brief that the court’s decision to
sustain the orders of temporary custody was not clearly
erroneous, the petitioner either relies on evidence that
we have determined was inadmissible or evidence that
fails to demonstrate any immediate need for the
removal of the children. Outside of the inadmissible
evidence, there is nothing in the record from which the
court reasonably could have found that the children
presently were in danger of a serious physical injury
or illness, or that they were in any immediate physical
danger from their surroundings. Even with the hearsay
evidence, the petitioner’s case was not particularly
strong with respect to any immediate need to remove
the children from their home. All the evidence of abuse
implicated the respondent mother, and the evidence
before the court demonstrated that she remained in
Puerto Rico. Although there was testimony that the
respondent father intended to have the respondent
mother return to the residence, there was no evidence
that her return was imminent. In our view, without the
improperly admitted hearsay testimony and exhibits, it
is likely that the outcome of the hearing would have
been different. Accordingly, the evidentiary errors were
harmful and a new hearing on whether to sustain the
orders of temporary custody is warranted.26
The judgments are reversed and the case is remanded
for a new contested hearing on the ex parte orders of
temporary custody.
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.
** June 29, 2022, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The respondent mother, Bernice T., has not contested the temporary
custody orders and has not participated in the present appeal.
2
The children were, respectively, sixteen, fifteen, and thirteen years old
at the time of the contested hearing on the motions for orders of tempo-
rary custody.
3
General Statutes § 46b-129 (g) provides: ‘‘At a contested hearing on the
order for temporary custody or order to appear, credible hearsay evidence
regarding statements of the child or youth made to a mandated reporter or
to a parent may be offered by the parties and admitted by the court upon
a finding that the statement is reliable and trustworthy and that admission
of such statement is reasonably necessary. A signed statement executed by
a mandated reporter under oath may be admitted by the court without the
need for the mandated reporter to appear and testify unless called by a
respondent or the child, provided the statement: (1) Was provided at the
preliminary hearing and promptly upon request to any counsel appearing
after the preliminary hearing; (2) reasonably describes the qualifications of
the reporter and the nature of his contact with the child; and (3) contains
only the direct observations of the reporter, and statements made to the
reporter that would be admissible if the reporter were to testify to them in
court and any opinions reasonably based thereupon. If a respondent or the
child gives notice at the preliminary hearing that he intends to cross-examine
the reporter, the person filing the petition shall make the reporter available
for such examination at the contested hearing.’’
4
The respondent father also claims on appeal that the court improperly
failed to allow him to cross-examine the children’s sister-in-law, who was
called as a witness by the petitioner and was the current foster parent of the
children, about whether she had ever provided the children with marijuana
in the past or to make an offer of proof regarding the same. The petitioner’s
counsel had objected to this line of questioning on relevance grounds,
arguing that placement of the children was an administrative decision by
the department and that the witness’ ability to care for the children was not
an issue before the court at the contested hearing. The petitioner concedes
on appeal that the court should have permitted the respondent father’s
counsel to make an offer of proof with respect to the relevance of the line
of questioning. See Filippelli v. Saint Mary’s Hospital, 319 Conn. 113,
150–51, 124 A.3d 501 (2015). Because, however, we reverse the court’s
judgments and remand the case for a new hearing on the basis of the other
two evidentiary claims and are not convinced that the respondent father’s
third claim is likely to arise again on remand, we do not reach the merits
of this claim.
5
In arguing that the court improperly applied the hearsay exception in
§ 46b-129 (g), the respondent father does not challenge whether Zesmery
was a mandated reporter as defined in General Statutes § 17a-101 (b) at
the time the children made the statements to her that are the subject of
this appeal.
6
The respondent mother never appeared at either the preliminary hearing
or the contested hearing and eventually was defaulted by the court.
7
Zesmery testified at the contested hearing that Alizabeth had disclosed
to her that, while the children were in Puerto Rico with their mother,
Alizabeth and Tanisha had been molested by one of the respondent mother’s
boyfriends and that Alizabeth had been forced to have sex with him. Zesmery
also testified that Tanisha had disclosed to her that the respondent mother
told Tanisha and Alyson that they needed to lose weight so the respondent
mother could sell pictures of them online.
8
The court also admitted statements that Alizabeth made during her foren-
sic interview under the medical treatment exception to the hearsay rule;
Conn. Code Evid. § 8-3 (5); the propriety of which we discuss in part II of
this opinion.
9
Section 8-9 of the Connecticut Code of Evidence provides: ‘‘A statement
that is not admissible under any of the foregoing exceptions is admissible
if the court determines that (1) there is a reasonable necessity for the
admission of the statement, and (2) the statement is supported by equivalent
guarantees of trustworthiness and reliability that are essential to other
evidence admitted under traditional exceptions to the hearsay rule.’’
10
As we have explained herein; see footnote 2 of this opinion; at the time
of the contested hearing, the three children were sixteen, fifteen, and thirteen
years old.
11
The respondent father’s counsel also argued that the admission of the
children’s hearsay statements ‘‘would violate [the respondent father’s] rights
to confrontation and cross-examination under [General Statutes §] 46b-135,
and it would be a denial of due process. . . . [T]he court would have to
apply the [balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 96
S. Ct. 893, 47 L. Ed. 2d 18 (1976)] . . . [a]nd . . . the harm that could befall
[him] greatly outweighs any advantage of shortcutting any of the rules of
evidence.’’ Because we reverse the underlying judgments on the basis of
the court’s improper evidentiary rulings, we do not address the constitutional
arguments of the respondent father’s counsel, to the extent that he has
adequately raised and briefed them on appeal. See, e.g., State v. Genotti,
220 Conn. 796, 804, 601 A.2d 1013 (1992) (court should eschew reaching
constitutional issues on appeal if claim may be disposed of on eviden-
tiary grounds).
12
General Statutes § 46b-129 (g) provides in relevant part: ‘‘At a contested
hearing on the order for temporary custody or order to appear, credible
hearsay evidence regarding statements of the child or youth made to a
mandated reporter or to a parent may be offered by the parties and admitted
by the court upon a finding that the statement is . . . reliable and trustwor-
thy and that admission of such statement is reasonably necessary.’’ (Empha-
sis added.)
13
As explained in the commentary to § 8-6 of the Connecticut Code of
Evidence, our code of evidence ‘‘contains no uniform definition of unavail-
ability.’’ The commentary further provides: ‘‘At common law, the definition
of unavailability has varied with the particular hearsay exception at issue.
. . . More recently, the court has adopted the federal rule’s uniform defini-
tion of unavailability set forth in rule 804 (a) of the Federal Rules of Evi-
dence.’’ (Citations omitted.) Conn. Code Evid. § 8-6, commentary. Although
the potential that a child might suffer psychological harm if required to
testify in court was the basis for the assertion of unavailability considered
and discussed by the court in In re Tayler F., a court could deem a child
unavailable for other reasons, such as the inability of the proponent to
procure the witness at a hearing. See Fed. R. Evid. 804 (a); see also In re
Tayler F., supra, 296 Conn. 542–43.
14
Practice Book § 32a-4 (b) provides: ‘‘Any party who intends to call a
child or youth as a witness shall first file a motion seeking permission of
the judicial authority.’’
15
Connecticut Code of Evidence § 8-10, which sets forth the ‘‘tender years’’
exception to the hearsay rule applicable in criminal or juvenile proceedings,
expressly limits its application to ‘‘a statement by a child twelve years of
age or younger at the time of the statement relating to a sexual offense
committed against that child, or an offense involving physical abuse commit-
ted against that child by the child’s parent or guardian or any other person
exercising comparable authority over the child at the time of the offense
. . . .’’ (Emphasis added.)
16
Snapchat is a widely used social media application that allows its users to
share photographs, videos and messages that disappear from the recipient’s
device after a set period of time. See Mahanoy Area School District v. B.
L., U.S. , 141 S. Ct. 2038, 2043, 210 L. Ed. 2d 403 (2021); State v.
Njoku, 202 Conn. App. 491, 501 n.10, 246 A.3d 33 (2021).
17
The first photograph showed Alizabeth’s texting Zesmery, ‘‘zesy im
scared,’’ to which Zesmery responded, ‘‘Dont be baby, its going to be okay.
We are going to protect you guys.’’ The second photograph showed Alizabeth
texting, ‘‘i want to leave i just don’t know if I can say anything.’’ Finally,
the third photograph showed Tanisha texting, ‘‘Dad told me to tell dcf that
is not true He’s gonna know if I say something And he’s gonna hate me.’’
Zesmery responded: ‘‘He’s not going to know if you tell DCF anything . . .
they dont tell him what you guys say. Also, he is just trying to scare you
guys into protecting your mom.’’ Tanisha replies, ‘‘Yeah Ik and it’s working.’’
The foregoing quoted material constitutes a verbatim recital of the Snap-
chat exchanges contained in exhibit B.
18
In overruling the objection, the court did not indicate whether it was
doing so on the basis of the statutory hearsay exception, the medical treat-
ment exception, or both. We resolve that ambiguity by concluding that the
court determined that the evidence was admissible under both exceptions
offered, in the absence of any statement to the contrary and in light of the
fact that the respondent father and the petitioner address the admission of
the evidence on both grounds. We address the medical treatment exception
in part II of this opinion.
19
Section 1-1 (b) of the Connecticut Code of Evidence provides: ‘‘The
Code [of Evidence] and the commentary apply to all proceedings in the
Superior Court in which facts in dispute are found, except as otherwise
provided by the Code, the General Statutes or any Practice Book rule adopted
before June 18, 2014, the date on which the Supreme Court adopted the
Code.’’ Among the examples given in the commentary, is that ‘‘[t]he Code
applies . . . to . . . juvenile proceedings . . . .’’ Conn. Code Evid. § 1-1
(b), commentary (b) (4).
Section 8-2 (a) of the Connecticut Code of Evidence provides: ‘‘Hearsay
is inadmissible, except as provided in the Code, the General Statutes or any
Practice Book rule adopted before June 18, 2014, the date on which the
Supreme Court adopted the Code.’’
20
Although the respondent father also claims on appeal that the court
incorrectly determined that the children’s statements had adequate indicia
of reliability and trustworthiness, he does not claim that the court miscon-
strued the meaning of the term ‘‘reliable and trustworthy’’ as found in § 46b-
129 (g). Nevertheless, we do not reach the respondent father’s claim regard-
ing the reliable and trustworthy prong in light of our conclusion that the
trial court incorrectly determined that the admission of the hearsay state-
ments was ‘‘reasonably necessary.’’
21
We note that § 35a-23 of our rules of practice was adopted in response
to In re Taylor F., supra, 296 Conn. 524, and provides procedures that
parties and the court must follow whenever a party ‘‘seeks the admission
of a hearsay statement of a child pursuant to the residual exception to the
hearsay rule based upon psychological unavailability . . . .’’ Practice Book
§ 35a-23 (a).
22
General Statutes § 1-1 (a) provides: ‘‘In the construction of the statutes,
words and phrases shall be construed according to the commonly approved
usage of the language; and technical words and phrases, and such as have
acquired a peculiar and appropriate meaning in the law, shall be construed
and understood accordingly.’’
23
As noted by our Supreme Court in its decision in Pamela B. v. Ment,
supra, 244 Conn. 311 n.11, the Judicial Branch had commissioned an indepen-
dent study that concluded that ‘‘ ‘[t]he increase in emergency orders
requested and the time to receive a ten-day emergency hearing has reached
a critical point in Connecticut. State of Connecticut Court Improvement
Project Report (Edmund S. Muskie Institute, University of Southern Maine,
1996) p. 38.’ ’’ The study found ‘‘ ‘widespread evidence that the [ten] day
hearing requirement is an issue of great difficulty in the courts due to
crowded court calendars.’ ’’ Id., p. 39. It found ‘‘ ‘a widespread practice
of convening the initial [ten] day hearing within the statutory guidelines,
introducing the parties into the record to formally initiate the hearing, and
then continuing the hearing at a later date. The range of time for the comple-
tion of [ten] day hearings spanned from [ten] days to six months. This is a
disturbing instance of compliance with the ‘‘letter’’ rather than the ‘‘spirit’’ of
the law regarding temporary custody hearings.’ ’’ Id. The study recommended
‘‘that the state ‘develop a strategy and devote resources to schedule and
hear [ex parte orders of temporary custody] within a reasonable time of
filing.’ Id. at 66.’’ Conn. Joint Standing Committee Hearings, Judiciary, Pt.
7, 1998 Sess., p. 2188, written testimony of Paul Chill.
24
We recognize that the second and third factors raise competing consider-
ations. If the hearsay is particularly material to the custody determination,
there is more reason to find its admission to be reasonably necessary. At
the same time, the more material the information, the greater the potential
prejudice is to the respondent parent. The trial court must weigh these
competing interests under the specific circumstances of the case before it.
For example, a child’s hearsay statement that a respondent parent physically
assaulted the child would be very material to a custody determination but
there may be little prejudice to the respondent parent from a lack of cross-
examination if the statement is corroborated by other evidence, including
physical evidence of an injury. By contrast, an uncorroborated statement
that the respondent parent inappropriately touched the child may be unduly
prejudicial without the opportunity to cross-examine the child.
25
We caution that, in considering this factor, courts need not require proof
of the degree of serious psychological harm that was required in In re Tayler
F. It is equally important, however, to be mindful of the court’s warning in
In re Tayler F. that ‘‘[r]arely will it be in a child’s best interest to testify’’;
In re Tayler F., supra, 296 Conn. 547; and, therefore, courts must be equally
cautious not to so loosely apply this factor such that proof of any possible
discomfort that may accompany a child’s in-court testimony renders the
admission of the child’s hearsay statements ‘‘reasonably necessary . . . .’’
26
The respondent father argues on appeal that, even if some or all of the
challenged evidence pertaining to the claims of past physical and sexual
abuse by the respondent mother properly was admitted and credited by the
court, ‘‘there is still no proof that, at the time of the removal, the children
were in immediate (as opposed to at some time in the past or hypothetically
in the future) danger or that it was necessary (as opposed to preferable or
even desirable) to remove them.’’ (Emphasis omitted.) See In re J.R., supra,
161 Conn. App. 573 (‘‘finding 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’’ (emphasis added; internal quotation marks
omitted)). The respondent father asks us to vacate the ex parte orders of
temporary custody and order the children to be returned to his custody.
Although we acknowledge that vacating an ex parte order of temporary
custody on concluding that insufficient evidence was presented at a con-
tested hearing to sustain such an order is an appropriate appellate remedy,
in evaluating a claim of evidentiary insufficiency, we consider the totality
of the evidence that was before the trier of fact, including any evidence
claimed to have been improperly admitted by the court. See, e.g., State v.
Chemlen, 165 Conn. App. 791, 818, 140 A.3d 347 (‘‘[A]ppellate review of the
sufficiency of the evidence . . . properly includes hearsay evidence even
if such evidence was admitted despite a purportedly valid objection. Claims
of evidentiary insufficiency in criminal cases are always addressed indepen-
dently of claims of evidentiary error.’’ (Emphasis added; internal quotation
marks omitted.)), cert. denied, 322 Conn. 908, 140 A.3d 977 (2016).
Here, because there was evidence admitted at the contested hearing to
support the court’s findings that the allegations of physical abuse of the
children by the respondent mother and of sexual abuse of the children by
the respondent mother’s boyfriends were serious, that the respondent father
intended to have the respondent mother return to the family residence, and
that the possibility of the respondent mother’s presence or imminent return
was not foreclosed by anything in the record, we agree with the petitioner
that the respondent father cannot prevail on appeal on a theory of evidentiary
insufficiency. The proper remedy in the present case is a new hearing.