In re Madison C. ( 2020 )

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released as a slip opinion. The operative date for the
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IN RE MADISON C. ET AL.*
(AC 43721)
Bright, C. J., and Suarez and Lavery, Js.
Syllabus
The respondent mother appealed from the judgments of the trial court
terminating her parental rights with respect to her three minor children.
She claimed that the trial court deprived her of her substantive due
process rights under the United States constitution because termination
of her parental rights was not the least restrictive means necessary to
ensure the state’s compelling interest in protecting the best interests of
the children, and that the record disclosed that narrower means were
available to protect the children from harm and afford them statutory
permanency. Held that this court declined to review the respondent’s
unpreserved constitutional claim because the inadequate record failed
to satisfy the requirement of the first prong of State v. Golding (213
Conn. 233); the evidence at trial supported the decision of the petitioner,
the Commissioner of Children and Families, to pursue termination of
the respondent’s parental rights, the respondent did not propose any
alternative permanency plans, and, after the trial court granted the
termination petitions, the respondent did not attempt to raise her claim
by filing a motion to reargue or reconsider, nor did she ask the court to
articulate whether it had considered other options, and the respondent’s
failure to pursue any of these avenues left the record devoid of evidence
and findings necessary to review her constitutional claim.
Argued September 9—officially released October 29, 2020**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor children, brought to the Superior
Court in the judicial district of New Britain, Juvenile
Matters, where the petitions were withdrawn as to the
respondent father; thereafter, the matter was tried to
the court, Aaron, J.; judgments terminating the respon-
dent mother’s parental rights, from which the respon-
dent mother appealed to this court. Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent mother).
Alina Bricklin-Goldstein, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, and Benjamin Zivyon, assistant attorney gen-
eral, for the appellee (petitioner).
Opinion
SUAREZ, J. The respondent mother, Patricia K.,
appeals from the judgments of the trial court rendered
in favor of the petitioner, the Commissioner of Children
and Families, terminating her parental rights with respect
to each of her three minor children on the ground that
the respondent failed to achieve a sufficient degree
of personal rehabilitation pursuant to General Statutes
§ 17a-112 (j) (3) (B) (i).1 On appeal, the respondent
claims that the court deprived her of her substantive
due process rights as guaranteed by the fourteenth
amendment to the United States constitution because
termination of her parental rights was not the least
restrictive means necessary to ensure the state’s com-
pelling interest in protecting the best interests of the
children. As part of her claim, the respondent further
asserts that the record disclosed that narrower means
other than termination were available to protect the
children from harm and afford them statutory perma-
nency. We conclude that the record was inadequate
to review the respondent’s constitutional claim, and,
accordingly, we affirm the judgments of the trial court.
The following facts, as found by the court, and proce-
dural history are relevant to the claim raised on appeal.
Madison, Ryan, and Andrew were born to the respon-
dent and their father, Chester C. The Department of
Children and Families (department) became involved
with the family in November, 2013, when Madison
tested positive for marijuana and methadone upon her
birth. Upon discharge from the hospital, Madison was
released into the care of her parents. In December,
2015, the respondent gave birth to Ryan, who also tested
positive for marijuana and methadone. Ryan subse-
quently was released from the hospital to the care of
his parents.
On April 25, 2017, the Plymouth Police Department
responded to reports of a domestic dispute between
the respondent and Chester C. The Plymouth police
found the couple’s home in deplorable condition and
located drug paraphernalia inside the home. On May
2, 2017, Madison and Ryan were removed from their
parents’ home, pursuant to an order of temporary cus-
tody filed by the petitioner and granted by the court. The
children were placed in a licensed, nonrelative foster
home. The petitioner also filed a neglect petition alleg-
ing that the children were being permitted to live under
conditions, circumstances, or associations injurious to
their well-being. The order of temporary custody was
sustained by agreement of the parties on May 12, 2017.
In November, 2017, the respondent gave birth to
Andrew, who tested positive for marijuana, methadone,
and cocaine. On November 20, 2017, the court granted
an order of temporary custody as to Andrew, and he
was placed in his current, nonrelative foster family upon
discharge from the hospital. On the same date, the peti-
tioner filed a neglect petition as to Andrew on the basis
of predictive neglect.
The neglect petitions with respect to all three children
were consolidated on November 30, 2017. The court
adjudicated the children neglected and committed the
children to the care and custody of the petitioner until
further order by the court. On the same date, the court
ordered specific steps with which the parents were
required to comply.
On February 1, 2019, the petitioner filed termination
of parental rights petitions with respect to the parental
rights of the respondent and Chester C. as to their three
children on the grounds that the court in the prior
proceeding found the children to have been neglected,
and they had failed to achieve the degree of personal
rehabilitation that would encourage the belief that,
within a reasonable time and considering the ages and
needs of the children, they could assume a responsible
position in their children’s lives.
The respondent has a long history of substance abuse,
specifically with heroin, and has been on methadone
maintenance intermittently since 2012. The department
reported that ‘‘[h]er success in treatment has oscillated,
with periods of sobriety interrupted by intense
relapses.’’
The respondent’s substance abuse issues have led to
numerous interactions with the criminal justice system.
In April, 2017, the respondent was arrested and charged
with risk of injury to a child in connection with the
incident that led to the removal of Madison and Ryan.
In July, 2018, the respondent was arrested for stealing
a generator from Home Depot and later charged with
fifth degree larceny. On July 17, 2018, she was arrested
and later charged with driving with a suspended license
and other motor vehicle charges. On October 18, 2018,
due to possessing hypodermic needles and crack pipes,
the respondent was arrested and later charged with,
inter alia, possession of drug paraphernalia, possession
of cocaine and five bags of heroin, and operating a
motor vehicle with a suspended license. On March 10,
2019, the respondent was arrested and charged with
breach of the peace. She also has a history of not
appearing in court and has resultant failure to appear
charges. During the underlying termination of parental
rights trial, the respondent was incarcerated as a result
of the April, 2017 arrest for risk of injury to a minor,
having been sentenced on April 17, 2019, to seven years
of incarceration, execution suspended after eighteen
months, and three years of probation.
A trial was held on August 5, 6, 7, and 16, 2019. The
petitioner called three witnesses and entered seventeen
exhibits into evidence. The respondent did not call any
witnesses and did not introduce any exhibits. On August
16, the petitioner withdrew its termination petitions as
to Chester C.
On November 8, 2019, the court, in a thorough memo-
randum of decision, granted the termination petitions
as to the respondent. In the adjudicatory phase of the
trial, the court found, by clear and convincing evidence,
that the department made reasonable efforts to reunify
the respondent with the children pursuant to § 17a-112
(j) (1), and that she remained unwilling or unable to
benefit from services. The court based its decision on
the respondent’s failure to follow through with the spe-
cific steps that were agreed upon and ordered by the
court, along with her unwillingness or inability to main-
tain her sobriety.
The court further found, by clear and convincing evi-
dence, that the respondent had not and will not achieve
the degree of personal rehabilitation that would encour-
age the belief that within a reasonable time, considering
the ages and needs of all three children, she could
assume a responsible position in their lives. The court
stated that the petitioner remained unable to be an
appropriate caretaker for the children and that there
was no evidence or reason to believe that she would
be able to assume a responsible position in the chil-
dren’s lives within a reasonable time.
In the dispositional phase, the court made findings
on the seven criteria set out in § 17a-112 (k) as to the
best interests of the children. The court examined the
relevant factors related to the children’s development,
mental and emotional health, safety, long-term stability,
their relationship with their respective foster parents,
and their relationship with the petitioner. The court
noted that the respondent had not successfully taken
advantage of or complied with the services provided
by the department and had not shown a willingness or
ability to provide a safe and nurturing environment
in which she appropriately could parent the children.
Additionally, the court found that there was credible
evidence to suggest that the ‘‘toxic relationship between
the parents and [the] respondent’s overbearing and
manipulative behavior toward [Chester C.] is an impedi-
ment to [Chester C.’s] effective parenting of the chil-
dren.’’ This appeal followed. Additional facts and proce-
dural history will be set forth as necessary.
On appeal, the respondent does not challenge the
trial court’s adjudicatory findings. Rather, she claims
that the court deprived her of her substantive due pro-
cess rights as guaranteed by the fourteenth amendment
to the United States constitution because termination
of her parental rights was not the least restrictive means
necessary to ensure the state’s compelling interests in
protecting the best interests of the children. The respon-
dent argues that narrower means, other than termina-
tion, were available to protect the children from harm
and afford them statutory permanency. She concedes
that this claim of constitutional error was not presented
at trial. Accordingly, she seeks review under the bypass
doctrine codified in State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel
R., 317 Conn. 773, 781, 120 A.3d 1188 (2015). The peti-
tioner responds that the record is inadequate for review
of the claim. We agree with the petitioner.
‘‘Under Golding, a [party] can prevail on a claim of
constitutional error not preserved at trial only if the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the [party] of a fair
trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions,
the [party’s] claim will fail. The appellate tribunal is
free, therefore, to respond to the [party’s] claim by
focusing on whichever condition is most relevant in the
particular circumstances.’’ (Internal quotation marks
omitted.) In re Adelina A., 169 Conn. App. 111, 119,
148 A.3d 621, cert. denied, 323 Conn. 949, 169 A.3d
792 (2016).
‘‘In assessing whether the first prong of Golding has
been satisfied, it is well recognized that [t]he [respon-
dent] bears the responsibility for providing a record
that is adequate for review of [her] claim of constitu-
tional error. If the facts revealed by the record are
insufficient, unclear or ambiguous as to whether a con-
stitutional violation has occurred, we will not attempt
to supplement or reconstruct the record, or to make
factual determinations, in order to decide the [respon-
dent’s] claim. . . . The reason for this requirement
demands no great elaboration: in the absence of a suffi-
cient record, there is no way to know whether a viola-
tion of constitutional magnitude in fact has occurred.’’
(Citations omitted; internal quotation marks omitted.)
In re Anthony L., 194 Conn. App. 111, 114–15, 219 A.3d
979 (2019), cert. denied, 334 Conn. 914, 221 A.3d 447
(2020).
In the present appeal, the crux of the respondent’s
argument is that there were less restrictive alternatives
to the termination of her parental rights and that the
court violated her substantive due process rights by
failing to consider these alternatives. She argues that
when the petitioner withdrew the termination petitions
as to Chester C., the state’s plan was no longer to place
the children for adoption but to reunify them with him.
The respondent argues that after this decision was
made, termination of her parental rights was no longer
necessary. The respondent asserts that alternatives to
termination were appropriate because the court did not
base its decision on a finding that she posed a physical
threat to the safety of the children or that she would
abuse her parental status in ways that could harm the
children if the children were reunified with Chester
C. Rather, she argues, the court based its decision to
terminate on its concern that she was ‘‘an impediment
to [the] father’s effective parenting of the children.’’
She contends that the trial court’s concerns about the
potential for her to undermine Chester C.’s parenting
could have been addressed through further orders lim-
iting her guardianship, rather than by terminating her
parental rights. Her brief, however, lacks specificity as
to how she believes the trial court should have
addressed its concerns.
In In re Azareon Y., 309 Conn. 626, 72 A.3d 1074
(2013), our Supreme Court addressed a similar claim.
On appeal, the respondent in In re Azareon Y. sought
review under Golding of a claim that she previously
had not advanced, ‘‘namely, that the trial court’s applica-
tion of § 17a-112 to her was unconstitutional because
substantive due process required the trial court to find
by clear and convincing evidence that termination of
her parental rights was the least restrictive means nec-
essary to ensure the state’s compelling interest in pro-
tecting the children’s safety and well-being (best inter-
ests), and no such finding was made.’’ Id., 630. At trial,
the respondent did not request the court to consider
any alternatives to the petitioner’s permanency plan.
Id., 632. The trial court’s memorandum of decision did
not indicate whether the court considered a perma-
nency plan other than the one advocated by the peti-
tioner, and the respondent did not ask the court to
articulate whether it had considered other options. Id.,
632–33. In determining that the record was inadequate
for review under Golding’s first prong, our Supreme
Court stated that the respondent was attempting to
‘‘characterize her claim as a mere question of law lack-
ing factual predicates beyond those she has cited.’’ Id.,
637. The court declined to reach the merits of the claim.
See id., 638.
More recently, this court considered an appeal in
which a respondent mother claimed that the trial court
had violated her substantive due process rights during
its best interest analysis by failing to conduct a factual
inquiry into the petitioner’s permanency plans, which
called for the termination of her parental rights and
adoption. In re Anthony L., supra, 194 Conn. App. 112–
13. The respondent in In re Anthony L. claimed that,
‘‘because adoption was not going to occur immediately,
due process required the court to determine whether
the permanency plans secured a more permanent and
stable life for each of the children compared to that
which she could provide if she were given time to reha-
bilitate herself.’’ Id., 113. She did not raise or pursue
this claim at trial, however, nor did she make the trial
court and the petitioner aware that she would assert
this claim on appeal. Id. This court stated that ‘‘the
respondent’s claim mirrors that of the respondent in
In re Azareon Y.,’’ and we went on to apply the same
reasoning as our Supreme Court in that case. Id., 118.
Accordingly, this court determined that the record con-
tained insufficient evidence and declined to review the
respondent’s request for Golding review in light of an
inadequate record. Id., 120.
Here, the facts are analogous to both In re Anthony
L. and In re Azareon Y. At trial, the petitioner called
three witnesses to testify. Each witness’ testimony pro-
vided support for the petitioner’s decision to pursue
termination of the respondent’s parental rights. Derek
A. Franklin, a licensed clinical psychologist and the
court-appointed evaluator, testified that it was unlikely
that the respondent would be able to achieve a degree
of rehabilitation that is sustainable. He stated that the
respondent had co-opted Chester C. and that they had a
pathological, one-sided relationship. He further opined
that any consideration of the children’s reunification
with Chester C. would be contingent upon Chester C.’s
distancing himself from the respondent because, other-
wise, reunification would serve as a conduit for the
respondent to have access to the children. On cross-
examination by counsel for Chester C., Franklin testi-
fied that Chester C. appeared to be unduly influenced
by the respondent such that, even if he followed through
with all of the other steps for rehabilitation, reunifica-
tion may not be viable.
Chanel Cranford, a social worker for the department,
testified that at the time the department received the
case, its plan was to pursue reunification. This plan
changed, however, when the department determined
that Chester C. still lacked insight into how the respon-
dent’s substance abuse and untreated mental health
issues would affect the children. This decision was fur-
ther influenced by the department’s findings that the
respondent was not participating in the substance abuse
and mental health treatment programs that the depart-
ment provided for her.
Rachelle Chevalier-Jackson, the owner of Ahava
Family Services (Ahava), testified about the parent edu-
cation program and supervised visitation services in
which the respondent participated. After participating
in Ahava’s parent education program for several weeks,
the respondent withdrew from the program and indi-
cated that she no longer wanted to take direction from
its staff. Chevalier-Jackson also testified that there were
instances in which the respondent was argumentative
with staff members. When staff members relayed con-
cerns about the respondent’s behavior to Chester C.,
he decided to start visiting the children separately.
At trial, the respondent did not propose any alterna-
tive permanency plans. In fact, the only possible refer-
ence to an alternative plan came, not during the presen-
tation of evidence, but during closing arguments when
the respondent’s counsel stated: ‘‘If your plan is to
reunify with the father and not free these children for
adoption, I submit that my client’s parental rights
should not be terminated in this matter.’’
After the trial court granted the termination petitions,
the respondent did not attempt to raise this claim by
filing a motion to reargue or reconsider, nor did she
ask the court to articulate whether it had considered
other options. The respondent’s failure to pursue any
of these avenues left the record devoid of evidence and
findings necessary to review her constitutional claim.
The respondent attempts to rely on our Supreme
Court’s decision in In re Brayden E.-H., 309 Conn.
642, 72 A.3d 1083 (2013). In that case, the trial court
terminated a respondent mother’s parental rights on
the basis of evidence of substance abuse and mental
health issues, a ‘‘chronic history of relapses and failed
substance abuse treatment,’’ and numerous interactions
with the criminal justice system. (Internal quotation
marks omitted.) Id., 647–49. The trial court granted
permanent legal guardianship to the children’s paternal
great-aunt and her husband, and declined to terminate
the father’s parental rights. Id., 644 and n.1. After the
trial court issued its decision, the respondent filed a
motion to reargue in which she asserted that the sub-
stantive due process clauses of the state and federal
constitutions required the petitioner to prove that termi-
nation was the least restrictive permanency plan avail-
able to secure the best interests of the children. Id.,
653–54. She presented less restrictive alternatives to
termination, including ‘‘severely circumscrib[ing] visita-
tion rights with her children,’’ which would have
addressed the court’s concerns while allowing her to
maintain a legal relationship with her children. (Internal
quotation marks omitted.) Id., 654.
Our Supreme Court found that the respondent pre-
served this constitutional claim by filing a motion to
reargue but it declined to address the constitutional
question, in part, because the record made it ‘‘readily
apparent’’ that the respondent was not entitled to the
relief she sought. Id., 656–57. The court also noted that,
even if it was to assume that such a right existed; id.,
657; the trial court’s decision revealed that the standard
was met because it concluded that ‘‘any avenue that
would permit the respondent to exert any further con-
trol or influence over the children would undermine
the guardians’ relationship with the children and would
be contrary to the children’s best interests.’’ (Emphasis
in original.) Id., 661–62.
Unlike the respondent in In re Brayden E.-H., the
respondent here never proposed a plan that would have
addressed the court’s concerns while allowing her to
maintain a legal relationship with the children. In the
absence of such a proposal, the court had no factual
predicates upon which to make a finding.
‘‘Our role is not to guess at possibilities, but to review
claims based on a complete factual record developed
by the trial court. . . . Without the necessary factual
and legal conclusions furnished by the trial court . . .
any decision made by us respecting [the respondent’s
claims] would be entirely speculative.’’ (Internal quota-
tion marks omitted.) In re Anthony L., supra, 194 Conn.
App. 119–20. Accordingly, we decline to review the
respondent’s unpreserved constitutional claim because
the inadequate record fails to satisfy the requirement
of Golding’s first prong.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** October 29, 2020, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Counsel for the three minor children have each adopted the brief filed
by the petitioner.