In re Jacob W. ( 2019 )

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IN RE JACOB W. ET AL.*
(SC 20063)
Palmer, McDonald, D’Auria, Mullins, Kahn, Ecker and Vertefeuille, Js.
Syllabus
Pursuant to statute (§ 45a-717 [g] [1] and [2] [C]), a court may approve a
petition terminating parental rights if it finds, upon clear and convincing
evidence, that termination is in the best interests of the child, there is
no ongoing parent-child relationship, and to allow further time for the
establishment or reestablishment of the parent-child relationship would
be detrimental to the best interests of the child.
The respondent father appealed from the judgment of the Appellate Court,
which reversed the trial court’s judgments denying petitions for the
termination of his parental rights with respect to his three minor chil-
dren, J, N and C, filed by the petitioner, the children’s grandmother.
The respondent, who had been married to M, the mother of the children
and the petitioner’s daughter, was arrested and charged with multiple
crimes as a result of his repeated sexual assault of A, the petitioner’s
minor child and M’s younger sister. M was charged with conspiracy in
connection with those sexual assaults. After the respondent and M were
incarcerated, the petitioner and her husband were appointed guardians
of the children. In addition, a standing criminal protective order was
issued, barring the respondent from contacting A and others with whom
contact would be likely to cause annoyance or alarm to A. At the time
the protective order was issued, A lived in the same home with the
children and the petitioner. The respondent subsequently was convicted
of multiple counts of sexual assault, among other crimes, and was
sentenced to a term of twenty-nine years of incarceration. The petitioner
sought to terminate the parental rights of both the respondent and
M. M consented to termination, and the case proceeded against the
respondent. The petitioner alleged as a ground for termination under
§ 45a-717 (g) (2) (C) that there was no ongoing parent-child relationship
between the respondent and the children. The trial court denied the
petitions, concluding, inter alia, that the petitioner had failed to prove
that ground by clear and convincing evidence. In reaching its conclusion,
the trial court relied on the respondent’s efforts while he was incarcer-
ated to maintain contact with the children in light of the protective
order, including his request that the grandparents provide him with
updates concerning the children. The trial court found that the grandpar-
ents had interfered with the respondent’s efforts to maintain a relation-
ship with the children, citing the grandparents’ failure to provide the
respondent with any updates about the children and their false explana-
tion to the children that the respondent was incarcerated for a domestic
violence incident involving M that the children previously had witnessed.
In reversing the trial court’s judgments and remanding the case for a
new termination hearing, the Appellate Court concluded that the trial
court applied an incorrect legal test in determining that the petitioner
had failed to prove the lack of an ongoing parent-child relationship. On
the granting of certification, the respondent appealed to this court. Held:
1. The Appellate Court properly reversed the trial court’s judgments on the
ground that the trial court applied an incorrect legal test in determining
that the petitioner had failed to prove the lack of an ongoing parent-
child relationship by clear and convincing evidence pursuant to § 45a-
717 (g) (2) (C): this court clarified that, when a custodial parent or
guardian seeks to terminate the parental rights of a noncustodial parent,
and that parent or guardian has engaged in conduct that inevitably leads
to the noncustodial parent’s lack of an ongoing parent-child relationship,
the custodial parent or guardian cannot rely on the lack of such a
relationship to terminate the noncustodial parent’s rights, and, except
in cases involving infant children, the existence of an ongoing parent-
child relationship is determined by looking at the present feelings or
memories of the child toward the respondent parent rather than by the
respondent parent’s conduct in maintaining that relationship; further-
more, the trial court failed to determine that the grandparents’ conduct
inevitably led to the lack of an ongoing parent-child relationship between
the respondent and the children, as it failed to explain how the grandpar-
ents’ failure to update the respondent about the children or how the
grandparents’ failure to explain the real reason for the respondent’s
incarceration would have affected the children’s feelings toward the
respondent, and, in the absence of such a determination, the trial court
could not conclude that the petitioner could not rely on the lack of an
ongoing parent-child relationship as a basis for termination; moreover,
the court, in denying the petitions, improperly focused on the respon-
dent’s conduct rather than focusing on whether the children had present
memories or feelings for the respondent that were positive in nature.
2. The respondent could not prevail on his claim that, even if the trial court
had applied an incorrect legal test in concluding that the petitioner had
failed to prove the lack of an ongoing parent-child relationship, this
court must reverse the Appellate Court’s judgment on the ground that
the trial court also determined that the petitioner had failed to prove
by clear and convincing evidence that allowing the respondent additional
time to reestablish the parent-child relationship would be detrimental
to the best interests of the children, as that determination was predicated
on a clearly erroneous factual finding that there was no evidence pre-
sented with respect to that issue; the trial court’s finding that there was
no evidence presented that would support a claim that additional time
to reestablish such a relationship would be detrimental to the children’s
best interests could not be reconciled with the record, which revealed
the existence of such evidence, including evidence regarding J’s and
N’s negative feelings toward the respondent, the fact that C had little
or no memory of the respondent, the preclusive effect that the protective
order had on the respondent’s ability to maintain a relationship with
the children, and the fact that the Department of Children and Families,
and the guardian ad litem and attorney for the minor children recom-
mended termination of the respondent’s parental rights.
(Three justices dissenting in one opinion)
Argued September 11, 2018—officially released February 15, 2019**
Procedural History
Petitions to terminate the respondents’ parental
rights with respect to their minor children, brought
to the Probate Court for the district of Ellington and
transferred to the Superior Court in the judicial district
of Tolland, Juvenile Matters at Rockville, where the
respondent mother consented to termination; there-
after, the case was tried to the court, Westbrook, J.;
judgments denying the petitions as to the respondent
father, from which the petitioner appealed to the Appel-
late Court, DiPentima, C. J., and Prescott and Miha-
lakos, Js., which reversed the trial court’s judgments
and remanded the case to that court for a new trial, and
the respondent father, on the granting of certification,
appealed to this court. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, with
whom, on the brief, was Amir Shaikh, assigned counsel,
for the appellant (respondent father).
James P. Sexton, assigned counsel, with whom were
Matthew C. Eagan, assigned counsel, and, on the brief,
Megan L. Wade, assigned counsel, for the appellee (peti-
tioner).
Opinion
KAHN, J. This certified appeal requires us to clarify
the circumstances under which a petitioner is precluded
from relying on an alleged lack of an ongoing parent-
child relationship as a basis for terminating a noncusto-
dial parent’s rights.1 The respondent father, Daniel W.,
appeals from the judgment of the Appellate Court,
which reversed the judgments of the trial court denying
the petitions for termination of the respondent’s paren-
tal rights with respect to his three minor children and
remanded the case for a new trial. In re Jacob W.,
178 Conn. App. 195, 219, 172 A.3d 1274 (2017). The
respondent contends that the Appellate Court improp-
erly concluded that the trial court had applied an incor-
rect legal test in determining that the petitioner,2 the
maternal grandmother of the minor children, had failed
to prove the nonexistence of an ongoing parent-child
relationship by clear and convincing evidence. See id.,
207. The respondent claims that, in so concluding, the
Appellate Court incorrectly reasoned that the trial court
improperly rested its analysis on inconsistent proposi-
tions.3 The respondent further contends that, even if
the trial court applied an incorrect legal test to deter-
mine that the petitioner had failed to prove the lack of
an ongoing parent-child relationship, the judgment of
the trial court may be upheld on the basis that the
court also found that the petitioner failed to prove that
allowing further time for a parent-child relationship to
develop would be detrimental to the best interests of
the children. Although we agree with the Appellate
Court that the trial court applied an incorrect legal test,
our conclusion rests on different grounds. Specifically,
we conclude that the trial court incorrectly concluded
that, under the facts of the present case, it was required
to depart from the usual test to determine whether a
petitioner has established a lack of an ongoing parent-
child relationship. As we explain in this opinion, the
facts as found by the trial court did not support a depar-
ture from the ordinary inquiry and instead required the
court to base its decision on the present feelings and
memories of the children rather than the actions of the
respondent. We further conclude that the trial court’s
determination that the petitioner failed to prove that
allowing further time for a parent-child relationship to
develop would be detrimental to the best interests of the
children was predicated on a clearly erroneous factual
finding. Accordingly, we affirm the judgment of the
Appellate Court.
The record reveals the following relevant facts, found
by the trial court or otherwise undisputed, and proce-
dural history. The respondent and his then wife, J, had
three children, Jacob, born in 2006, N, born in 2008,
and C, born in 2012. Jacob, N and C have been living
in the home of their maternal grandparents since May,
2012, when the respondent, J and the children moved
in with them. When the grandfather asked the respon-
dent to leave in October, 2012, he moved in with his
mother, while J and the children remained with the
grandparents. The respondent continued to have con-
tact with the children until he was arrested on April 2,
2014, and charged with multiple counts of sexual assault
of a minor. On July 3, 2014, J also was arrested and
charged with conspiracy in connection with the same
set of incidents that gave rise to the respondent’s arrest.
As a result of the criminal charges against him, the
respondent was convicted, following a jury trial, of six
counts of risk of injury to a child in violation of General
Statutes (Rev. to 2013) § 53-21 (a) (2), five counts of
sexual assault in the first degree in violation of General
Statutes (Rev. to 2013) § 53a-70 (a) (2), one count of
attempt to commit sexual assault in the first degree in
violation of § 53a-70 (a) (2) and General Statutes § 53a-
49, one count of sexual assault in the fourth degree in
violation of General Statutes (Rev. to 2013) § 53a-73a
(a) (1) (A), one count of risk of injury to a child in
violation of § 53-21 (a) (1), one count of conspiracy to
commit risk of injury to a child in violation of § 53-21
(a) (2) and General Statutes § 53a-48, and one count of
attempt to commit risk of injury to a child in violation
of §§ 53-21 (a) (2) and 53a-49. The respondent was sen-
tenced to a total effective term of twenty-nine years
of incarceration, followed by sixteen years of special
parole. See State v. Daniel W., 180 Conn. App. 76, 79,
84, 182 A.3d 665, cert. denied, 328 Conn. 929, 182 A.3d
638 (2018).
The minor that the respondent was convicted of
assaulting was J’s younger sister, A, the children’s aunt.
At the time of the respondent’s arrest, a criminal protec-
tive order was put in place preventing the respondent
from contacting A ‘‘in any manner, including by written,
electronic or telephone contact . . . .’’ The order also
barred the respondent from contacting A’s ‘‘home,
workplace or others with whom the contact would be
likely to cause annoyance or alarm to [A].’’ At the
respondent’s January, 2016 sentencing hearing, the
court issued a standing criminal protective order to
remain in effect until September 6, 2068. During the
sentencing hearing, upon the request of the respon-
dent’s counsel for clarification of the scope of the order,
the court explained that the standing protective order,
which was identical to the one already in place, barred
the respondent from having contact not only with A,
but also with her immediate family, including her par-
ents, the children’s grandparents, but not the respon-
dent’s children themselves. Because the children lived
with A in their grandparents’ home, the protective order
had the practical effect of prohibiting the respondent
from contacting the children’s home and the children’s
guardians. During the sentencing hearing, the respon-
dent did not request any modification to the scope of
the standing criminal protective order.
On the day that J was arrested, the grandparents
petitioned the Probate Court for the district of Ellington
for immediate temporary custody of the children on
the basis that both parents were now incarcerated. The
court granted the petitions and, five months later,
granted the grandparents’ petitions for the removal of
the parents and the appointment of the grandparents
as the guardians of the children, to which both the
respondent and J consented. Approximately one year
after the grandparents were appointed guardians of the
children, the petitioner filed the petitions to terminate
the parental rights of both the respondent and J. The
respondent indicated through counsel his intent to con-
test the termination, and, on that basis, the guardian
ad litem for the children filed a motion pursuant to
General Statutes § 45a-715 (g) to transfer the case from
the Probate Court to the Superior Court, which the
court granted. J subsequently consented to the termina-
tion of her parental rights, and the case proceeded
against the respondent alone.
The original petitions alleged that the children had
been denied the care, guidance, or control necessary
for their physical, educational, moral, or emotional well-
being, by reason of acts of parental commission or
omission. In an amendment to the petitions filed on
November 16, 2016, the petitioner withdrew that allega-
tion and instead alleged abandonment and the lack of
an ongoing parent-child relationship as grounds for ter-
mination.
Following a trial, the court denied the petitions. In
its memorandum of decision, the trial court first turned
to the question of whether the petitioner had proven
that the respondent abandoned the children pursuant
to General Statutes § 45a-717 (g) (2) (A). In concluding
that she had not, the court relied on the actions under-
taken by the respondent to maintain contact with the
children. Prior to the respondent’s incarceration, the
court found that he provided for the children financially,
participated in their daily activities and had hosted
birthday parties for the children. The court evaluated
the respondent’s efforts to maintain contact with the
children during his incarceration in light of the protec-
tive order, which greatly limited his ability to contact
them. The court observed that, despite that obstacle, the
respondent had made some efforts to maintain contact
with the children. The court noted that the respondent
had requested assistance from the Department of Chil-
dren and Families (department) in facilitating visitation
with the children4 and, in 2014, participated in a program
that sends Christmas gifts to children of incarcerated
parents. The trial court also found that, in 2014, during
a Probate Court proceeding, the respondent requested
that the grandparents provide him with updates on the
children. Relying on these facts, the court concluded
that the petitioner had failed to prove by clear and
convincing evidence that the respondent had aban-
doned the children.
The court next turned to the petitioner’s claim that
there was no ongoing parent-child relationship pursuant
to § 45a-717 (g) (2) (C). The court began its analysis
by recognizing that § 45a-717 (g) (2) (C) requires a two
part inquiry. Turning to the first part of the inquiry—
whether the petitioner had established no ongoing par-
ent-child relationship by clear and convincing evi-
dence—the court cited to the same facts it had relied
on to conclude that the petitioner had failed to prove
abandonment, that is, the court looked to the respon-
dent’s conduct. Although the court had made findings
regarding the children’s negative feelings toward or lack
of memory of the respondent, it did not consider the
feelings or memories of the children in resolving the
first part of the inquiry under § 45a-717 (g) (2) (C).
In its analysis, the court cited to an Appellate Court
decision, In re Carla C., 167 Conn. App. 248, 251, 143
A.3d 677 (2016), which held that a custodial parent
or guardian who has ‘‘interfered [with a noncustodial
parent’s] visitation and other efforts’’ cannot terminate
the noncustodial parent’s rights on the basis of an
alleged lack of an ongoing parent-child relationship.
The trial court found that the grandparents had inter-
fered with the respondent’s efforts to maintain a rela-
tionship with his children. In support of that finding,
the court cited to the failure of the grandparents to
provide updates to the respondent concerning the chil-
dren. In reaching its finding of interference, the trial
court also relied on evidence that the grandparents had
not told the children the truth about why the respondent
was incarcerated. Specifically, the grandparents ini-
tially had not provided the children with any explana-
tion for the respondent’s absence, and, when they
eventually told the children that the respondent was
incarcerated, rather than tell them that he had sexually
assaulted their aunt, the grandparents told the children
he was in prison for beating J.
As a consequence of its finding that the grandparents
had interfered with the respondent’s efforts to maintain
a relationship with the children, the trial court did not
conclude that the petitioner was barred from relying
on the ground of no ongoing parent-child relationship as
a basis for termination. Instead, the trial court suggested
that the combination of two of its findings—namely,
that the grandparents had interfered and that the
respondent had made efforts to maintain contact with
the children—supported the conclusion that the peti-
tioner had not proven by clear and convincing evidence
a lack of an ongoing parent-child relationship.
The court next turned to the second part of the inquiry
under § 45a-717 (g) (2) (C)—whether the petitioner had
proven by clear and convincing evidence that allowing
the respondent additional time to reestablish the parent-
child relationship would be detrimental to the best
interests of the children. The court’s entire discussion
of this prong encompassed two sentences: ‘‘There was
no evidence presented by the petitioner at trial that
would support a claim that additional time to reestab-
lish a relationship with the children would be detrimen-
tal. The statements of dislike by very young children
with false information about their father does not estab-
lish by clear and convincing evidence that reestablish-
ing a relationship would be detrimental.’’
The petitioner appealed from the trial court’s judg-
ments denying the petitions to the Appellate Court. That
court concluded that the trial court had applied an
incorrect legal test in denying the petitions. In so con-
cluding, the court focused on inconsistencies that it
had discerned in the trial court’s memorandum of deci-
sion. See In re Jacob W., supra, 178 Conn. App. 198–99.
The Appellate Court identified two inconsistencies in
the trial court’s analysis: (1) a conclusion that an ongo-
ing parent-child relationship existed and simultane-
ously did not exist because the grandparents’
‘‘unreasonable interference inevitably prevented the
respondent from maintaining an ongoing parent-child
relationship’’; id., 211; and (2) a finding ‘‘both that the
grandparents’ unreasonable conduct constituted inter-
ference and that there was no evidence of unreasonable
interference by any person.’’ Id., 215–16.
I
We first consider whether the Appellate Court prop-
erly concluded that the trial court applied an incorrect
legal test to determine whether the petitioner had
proven by clear and convincing evidence the lack of
an ongoing parent-child relationship. Because that ques-
tion presents a question of law, our review is plenary.
See In re Egypt E., 327 Conn. 506, 525–26, 175 A.3d 21
(setting forth applicable standards of review for subor-
dinate factual findings [clear error], ultimate conclusion
that ground for termination has been proven [eviden-
tiary sufficiency] and legal questions [plenary]), cert.
denied sub nom. Morsy E. v. Commissioner, Dept. of
Children & Families, U.S. , 139 S. Ct. 88, 202
L. Ed. 2d 27 (2018).
Section 45a-717 (g) provides in relevant part: ‘‘At the
adjourned hearing or at the initial hearing where no
investigation and report has been requested, the court
may approve a petition terminating the parental rights
. . . if it finds, upon clear and convincing evidence,
that (1) the termination is in the best interest of the
child, and (2) . . . (C) there is no ongoing parent-child
relationship which is defined as the relationship that
ordinarily develops as a result of a parent having met on
a continuing, day-to-day basis the physical, emotional,
moral and educational needs of the child and to allow
further time for the establishment or reestablishment
of the parent-child relationship would be detrimental
to the best interests of the child . . . .’’ We have
explained that the inquiry under § 45a-717 (g) (2) (C)
is a two step process. First, the court must determine
whether the petitioner has proven the lack of an ongoing
parent-child relationship. Only if the court answers that
question in the affirmative may it turn to the second
part of the inquiry, namely, ‘‘whether allowance of fur-
ther time for the establishment or reestablishment of
the relationship would be contrary to the child’s best
interests.’’ (Emphasis omitted.) In re Juvenile Appeal
(Anonymous), 177 Conn. 648, 675–76, 420 A.2d 875
(1979); see id. (‘‘[t]he ‘best interests’ standard . . .
comes into play only if it has been determined that no
ongoing parent-child relationship exists, in order to
decide whether allowance of further time for the estab-
lishment or reestablishment of the relationship would
be contrary to the child’s best interests’’ [emphasis
altered]); see also In re Carla C., supra, 167 Conn. App.
265 (‘‘[t]he best interest standard . . . does not
become relevant until after it has been determined that
no parent-child relationship exists’’ [emphasis added;
internal quotation marks omitted]); In re Michael M.,
29 Conn. App. 112, 128, 614 A.2d 832 (1992) (same); In
re Juvenile Appeal (84-3), 1 Conn. App. 463, 480, 473
A.2d 795, cert. denied, 193 Conn. 802, 474 A.2d 1259
(1984) (same).
In interpreting the parameters of § 45a-717 (g) (2)
(C), we must be mindful of what is at stake. ‘‘[T]he
termination of parental rights is defined, in [what is
now General Statutes § 45a-707 (8)], as the complete
severance by court order of the legal relationship, with
all its rights and responsibilities, between the child and
his parent . . . . It is, accordingly, a most serious and
sensitive judicial action. . . . Although the severance
of the parent-child relationship may be required under
some circumstances, the United States Supreme Court
has repeatedly held that the interest of parents in their
children is a fundamental constitutional right that unde-
niably warrants deference and, absent a powerful coun-
tervailing interest, protection. Stanley v. Illinois, 405
U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972)
. . . .’’ (Citation omitted; internal quotation marks
omitted.) In re Valerie D., 223 Conn. 492, 514, 613 A.2d
748 (1992).
Moreover, because the respondent is incarcerated,
we emphasize that ‘‘the fact of incarceration, in and of
itself, cannot be the basis for a termination of parental
rights. . . . At the same time, a court properly may
take into consideration the inevitable effects of incar-
ceration on an individual’s ability to assume his or her
role as a parent. See, e.g., In re Katia M., 124 Conn.
App. 650, 661, 6 A.3d 86 (parent’s unavailability, due
to incarceration, is an obstacle to reunification), cert.
denied, 299 Conn. 920, 10 A.3d 1051 (2010); see also In
re Gwynne P., 346 Ill. App. 3d 584, 597–98, 805 N.E.2d
329 (2004) (parent’s repeated incarceration may lead
to diminished capacity to provide financial, physical,
and emotional support for . . . child . . . ), aff’d, 215
Ill. 2d 340, 830 N.E.2d 508 (2005). Extended incarcera-
tion severely hinders the department’s ability to offer
services and the parent’s ability to make and demon-
strate the changes that would enable reunification of
the family. . . . This is particularly the case when a
parent has been incarcerated for much or all of his or
her child’s life and, as a result, the normal parent-child
bond that develops from regular contact instead is weak
or absent.’’ (Citations omitted; internal quotation marks
omitted.) In re Elvin G., 310 Conn. 485, 514–15, 78 A.3d
797 (2013).
The lack of an ongoing parent-child relationship is a
‘‘ ‘no fault’ ’’ statutory ground for the termination of
parental rights. In re Juvenile Appeal (Anonymous),
supra, 177 Conn. 669. This court has explained that the
ground of ‘‘ ‘no ongoing parent-child relationship’ ’’ for
the termination of parental rights contemplates ‘‘a situa-
tion in which, regardless of fault, a child either has
never known his or her parents, so that no relationship
has ever developed between them, or has definitively
lost that relationship, so that despite its former exis-
tence it has now been completely displaced.’’ Id., 670.
The ultimate question is whether the child has ‘‘some
present memories or feelings for the natural parent
that are positive in nature.’’ (Internal quotation marks
omitted.) In re Jessica M., 217 Conn. 459, 469, 586 A.2d
597 (1991).
In its interpretation of the language of § 45a-717 (g)
(2) (C), this court has been careful to avoid placing
‘‘insurmountable burden[s]’’ on noncustodial parents.
Id., 467. Because of that concern, we have explicitly
rejected a literal interpretation of the statute, which
defines the relationship as one ‘‘that ordinarily develops
as a result of a parent having met on a continuing, day-
to-day basis the physical, emotional, moral and educa-
tional needs of the child . . . .’’ General Statutes § 45a-
717 (g) (2) (C). ‘‘[D]ay-to-day absence alone,’’ we clari-
fied, is insufficient to support a finding of no ongoing
parent-child relationship. In re Jessica M., supra, 217
Conn. 470. We also have rejected the notion that termi-
nation may be predicated on the lack of a ‘‘meaningful
relationship,’’ explaining that the statute ‘‘requires that
there be no relationship.’’ (Emphasis added.) In re Juve-
nile Appeal (Anonymous), supra, 177 Conn. 675.
We have emphasized that, as to noncustodial parents,
‘‘[t]he evidence regarding the nature of the [parent’s]
relationship with [his] child at the time of the termina-
tion hearing must be reviewed in the light of the circum-
stances under which visitation had been permitted.’’ In
re Jessica M., supra, 217 Conn. 473. For instance, in In
re Jessica M., we concluded that there was insufficient
evidence to prove a lack of an ongoing parent-child
relationship between a noncustodial mother and her
child. Id., 472–73. Although that conclusion was based
primarily on the fact that the child had ‘‘present memo-
ries or feelings for her mother [and] that at least some
aspects of [those] memories and feelings [were] posi-
tive’’; id., 474–75; we also took into account the circum-
stances under which visitation had been permitted.
Specifically, we considered it relevant that the child’s
legal guardians, who had petitioned for termination of
the mother’s parental rights, had placed restrictions on
her ability to visit the child during the duration of their
guardianship. Id., 472–73.
We later applied these principles to conclude that,
when the department engages in conduct that inevitably
leads to a noncustodial parent’s lack of an ongoing
parent-child relationship, the department cannot rely
on the lack of that relationship to terminate the noncus-
todial parent’s rights. In re Valerie D., supra, 223 Conn.
531, 535. In other words, we did not hold that the con-
sequence of such conduct was that the test for deter-
mining whether there was an ongoing parent-child
relationship was altered. Instead, we held that, as a
result of its conduct, the department was precluded
from relying on that ground as a basis for termination.
Id., 532. In In re Valerie D., the department was granted
temporary custody of the child within days after she
was born, primarily because the mother, who had used
cocaine throughout her pregnancy, had injected herself
with cocaine hours prior to delivery, as a result of which
the child was born addicted to cocaine and suffered
from withdrawal. Id., 499–504. Soon after it had
obtained temporary custody, the department filed
coterminous petitions for custody and termination of
the parental rights of the mother. Id., 499–503. The
amended petition for termination relied, inter alia, on
the ground that there was no ongoing parent-child rela-
tionship. Id., 504. As a result of the department’s success
in obtaining custody of the child, from the time that
the department was granted temporary custody a few
days after the child’s birth to the date of the termination
hearing three and one-half months later, the child
remained in foster care. Id., 527. During that time, pri-
marily due to the placement of the child in a foster
home, the mother had been able to visit the child only
eight times. Id., 528.
Two factors led this court to conclude that, under the
circumstances of that case, termination of the mother’s
parental rights could not be permitted on the basis that
there was no ongoing parent-child relationship. Id., 532.
First, the court observed that, at the time of the termina-
tion hearing, the child was not yet four months old. Id.,
527. The court recognized that the usual test for an
ongoing parent-child relationship is not appropriate
when the child is ‘‘virtually a newborn infant whose
present feelings can hardly be discerned with any rea-
sonable degree of confidence.’’ Id., 532. Under those
circumstances, the court reasoned, it simply makes no
sense to inquire as to whether an infant has some pre-
sent memories or feelings for the natural parent that
are positive in nature. Id. Instead, ‘‘the inquiry must
focus, not on the feelings of the infant, but on the
positive feelings of the natural parent.’’ Id.
Second, even assuming that the department had
established that the mother lacked such positive feel-
ings, the court concluded that principles of statutory
construction precluded the department from gaining
and maintaining ‘‘custody of a newborn infant pursuant
to [General Statutes] § 46b-129 under circumstances
. . . that will lead almost inevitably’’ to termination on
the basis of a lack of an ongoing parent-child relation-
ship. Id., 532 n.34, 533. The statutory problem, the court
explained, stemmed from the different standards gov-
erning custody and termination. Under the facts of the
case, ‘‘a factual predicate for custody, established by
the lesser standard of a preponderance of the evidence,
led inexorably, for all practical purposes, to the factual
predicate for termination required to be established by
the higher standard of clear and convincing evidence.’’
Id., 533–34. The problem highlighted by the court in In
re Valerie D. was that it was the very party who peti-
tioned to terminate the mother’s parental rights—the
department—whose conduct inevitably had led to the
lack of a parent-child relationship. That is, by filing the
petitions coterminously in the case of a child who was
so young, the department virtually ensured that, upon
the grant of custody at the lower standard of proof,
and in the absence of heroic efforts by the mother or
significant additional services provided by the depart-
ment, there would be no parent-child bond by the time
of the termination hearing.
This court has not had the opportunity to consider
whether the principle we relied on in In re Valerie D.
would apply to a petitioner who is a private party. The
Appellate Court, however, has extended the holding of
In re Valerie D. to apply to a custodial parent whose
conduct inevitably led to the noncustodial parent’s lack
of an ongoing parent-child relationship. In In re Carla
C., supra, 167 Conn. App. 251, the court concluded that,
under those circumstances, the petitioner was pre-
cluded from relying on the lack of an ongoing parent-
child relationship as a basis for termination. Specifi-
cally, the court held that ‘‘a parent whose conduct inevi-
tably has led to the [other parent’s] lack of an ongoing
parent-child relationship may not terminate parental
rights on this ground.’’ Id., 262. The petitioner in that
case, the mother and custodial parent of the child, used
her status as the custodial parent and engaged in con-
duct that interfered in a variety of ways with the ability
of the father, who was incarcerated, to maintain a rela-
tionship with the child. The mother’s interference with
the father’s efforts to maintain contact with the child
began after she ‘‘met and began a relationship with
[Steve], whom she described as a ‘real man’ and ‘[the]
father figure that [Carla] deserves.’ ’’ Id., 252. The moth-
er’s interfering conduct included the following. She
obtained an order from the MacDougall-Walker Correc-
tional Institution, where the father was incarcerated,
directing him to cease all oral and written communica-
tion with her and the child, either directly or through
a third party, or face disciplinary action. Id., 253. She
also threw away cards and letters that the father had
sent to the child, without first showing them to the
child. Id. She later successfully moved to suspend the
father’s visitation, on the basis that the existing arrange-
ment, which relied on the paternal grandmother to facil-
itate visitation, had proven unworkable. Id., 255–56.
Under those circumstances, the Appellate Court con-
cluded, the mother was precluded from relying on the
lack of an ongoing parent-child relationship as a ground
for termination of the father’s parental rights because
it was her conduct that had inevitably led to the lack
of that relationship. Id., 262.
We agree with the Appellate Court that the reasoning
of In re Valerie D., supra, 223 Conn. 492, should extend
to individuals who are custodial parents or guardians.
We observe that, in In re Carla C., supra, 167 Conn.
App. 280, the Appellate Court accurately characterized
the mother’s conduct as ‘‘interference.’’ The concept of
‘‘interference’’ fit particularly well with the facts of that
case. We consider it unnecessary, however, as a general
rule, to limit the exception that we set forth in In re
Valerie D. to instances in which the actions of a custo-
dial parent or guardian necessarily constitute ‘‘interfer-
ence.’’ That term carries with it the connotation that
the conduct at issue was undertaken with the express
purpose of preventing the noncustodial parent from
having access to the child. The question is not whether
a petitioner—the department or a private party—
intends to interfere with the noncustodial parent’s visi-
tation or other efforts to maintain a relationship with
the child. For example, there was no suggestion in In
re Valerie D., supra, 223 Conn. 492, that the department
filed coterminous petitions with the express purpose
of preventing the mother from having access to her
child, nor did the department’s intent play any part in
our analysis. It was sufficient that the department’s
conduct inevitably led to the lack of an ongoing parent-
child relationship. Id., 533. Our inquiry properly focuses
not on the petitioner’s intent in engaging in the conduct
at issue, but on the consequences of that conduct. In
other words, the question is whether the petitioner
engaged in conduct that inevitably led to a noncustodial
parent’s lack of an ongoing parent-child relationship.
If the answer to that question is yes, the petitioner will
be precluded from relying on the ground of ‘‘no ongoing
parent-child relationship’’ as a basis for termination
regardless of the petitioner’s intent—or not—to
interfere.
In summary, the following is the proper legal test to
apply when a petitioner seeks to terminate a parent’s
rights on the basis of no ongoing parent-child relation-
ship pursuant to § 45a-717 (g) (2) (C). We reiterate that
the inquiry is a two step process. In the first step, a
petitioner must prove the lack of an ongoing parent-
child relationship by clear and convincing evidence. In
other words, the petitioner must prove by clear and
convincing evidence that the child has no present mem-
ories or feelings for the natural parent that are positive
in nature. If the petitioner is unable to prove a lack
of an ongoing parent-child relationship by clear and
convincing evidence, the petition must be denied and
there is no need to proceed to the second step of the
inquiry. If, and only if, the petitioner has proven a lack
of an ongoing parent-child relationship, does the inquiry
proceed to the second step, whereby the petitioner must
prove by clear and convincing evidence that to allow
further time for the establishment or reestablishment
of the relationship would be contrary to the best inter-
ests of the child. Only then may the court proceed to
the disposition phase.
There are two exceptions to the general rule that
the existence of an ongoing parent-child relationship
is determined by looking to the present feelings and
memories of the child toward the respondent parent.
The first exception, which is not at issue in the present
case, applies when the child is an infant, and that excep-
tion changes the focus of the first step of the inquiry. As
we have explained, when a child is ‘‘virtually a newborn
infant whose present feelings can hardly be discerned
with any reasonable degree of confidence,’’ it makes
no sense to inquire as to the infant’s feelings, and the
proper inquiry focuses on whether the parent has posi-
tive feelings toward the child. In re Valerie D., supra,
223 Conn. 532. Under those circumstances, it is appro-
priate to consider the conduct of a respondent parent.
The second exception, which is at issue in this appeal,
applies when the petitioner has engaged in conduct that
inevitably has led to the lack of an ongoing parent-child
relationship between the respondent parent and the
child. This exception precludes the petitioner from rely-
ing on the lack of an ongoing parent-child relationship
as a basis for termination. Under these circumstances,
even if neither the respondent parent nor the child has
present positive feelings for the other and, even if the
child lacks any present memories of the respondent
parent, the petitioner is precluded from relying on § 45a-
717 (g) (2) (C) as a basis for termination.
In view of the foregoing principles, it is clear that
the Appellate Court correctly concluded that the trial
court applied an incorrect legal test to deny the petitions
to terminate the respondent’s parental rights. Nowhere
in the trial court’s decision did the court suggest that
it had determined that the conduct of the grandparents
or their alleged interference inevitably led to the lack
of an ongoing parent-child relationship between the
respondent and the children. The only conduct of the
grandparents that the trial court pointed to in its deci-
sion was their failure to provide the respondent with
updates about the children and to tell the children the
truth about the reason for the respondent’s incar-
ceration.
As to the updates, the court provided no explanation
as to how those updates, even if the respondent had
received any, would have affected the children’s feel-
ings toward him. We also observe that, at the termina-
tion hearing, the respondent conceded that the
protective order rendered it impossible for the grand-
parents to provide any such updates to the respondent.
Similarly, the trial court did not explain how the chil-
dren’s feelings toward the respondent would have
improved had the grandparents told them the truth—
that their father was incarcerated for sexually
assaulting their aunt when she was between seven and
twelve years old. See State v. Daniel W., supra, 180
Conn. App. 80–81. We observe that the court suggested
that the children’s negative feelings toward the respon-
dent were at least in part due to the false information
provided to them by the grandparents, including both
the initial failure to provide any explanation for the
respondent’s absence and the subsequent false explana-
tion provided to the children—that the respondent was
incarcerated for beating J. That suggestion falls far
short of the required determination for purposes of
applying the exception—that the false information pro-
vided to the children by the grandparents inevitably led
to the lack of an ongoing parent-child relationship. In
the absence of a determination that the grandparents
engaged in conduct that inevitably led to the lack of
an ongoing parent-child relationship, the trial court
improperly concluded that the exception applied.
We further observe that the department’s studies sub-
mitted to the court in connection with the petitions for
temporary custody and removal of guardianship, both
of which were admitted into evidence at the termination
hearing, reflect that the children had witnessed the
respondent beating J. According to the studies, the
department received a referral on June 14, 2013, alleging
physical and emotional neglect of Jacob, N and C by
the respondent and J. The department’s investigation
of the allegations revealed that, on June 6, 2013, J
reported to the police that the respondent had placed
her in a headlock and hit her in the face several times
in the presence of all three children. Jacob confirmed
J’s account, informing the police when questioned that
he had witnessed the respondent hitting J, despite
Jacob’s pleas to the respondent to ‘‘stop,’’ and that he
had seen the respondent ‘‘physically hurting’’ J on a
prior occasion. The respondent admitted that the chil-
dren were present during the incident. As a result of
the investigation, the allegation of emotional neglect
was substantiated regarding Jacob. At the termination
hearing, the respondent did not challenge the evidence
that the children had witnessed him beating J.
In light of this evidence, the trial court’s failure to
provide any explanation as to how the grandparents’
prevarication to the children prejudiced them against
the respondent is puzzling. The only misrepresentation
conveyed to the children was that the domestic violence
was the reason for the respondent’s incarceration. If
anything, the grandparents’ prevarication painted the
respondent in a more favorable light than the facts
warranted. Rather than inform the children of the new
information about their father’s incarceration that likely
would have reinforced or even increased their already
negative feelings toward the respondent, the grandpar-
ents told the children that he was in prison for a misdeed
of which the children were already aware and had per-
sonally witnessed. Evidence was presented at trial that
the children were unaware that the respondent had
been convicted of sexually assaulting their aunt.
Accordingly, by determining that the grandparents had
prejudiced the children against the respondent when
they attributed his incarceration to the domestic vio-
lence against J that the children had witnessed, the trial
court implied that the children somehow would have
held more positive views of him if they had known that
he not only had beaten their mother but had also been
convicted of sexually assaulting their aunt.
It is significant that the trial court acknowledged that
it was the protective order that prevented the respon-
dent from contacting the children, rather than any
actions of the grandparents. It is undisputed that the
grandparents played no role in setting the protective
order. Accordingly, the present case is distinguishable
from In re Carla C., supra, 167 Conn. App. 253, in which
the petitioner mother obtained an order from the prison
barring the respondent father from all oral or written
communication with her and the child. Because protec-
tive orders are commonly issued in cases of sexual
assault, applying the rule of In re Valerie D., supra, 223
Conn. 492, and In re Carla C., supra, 253, to the present
case would yield the bizarre result that a noncustodial
parent who has been convicted of a sexual assault that
results in a protective order that has the direct or practi-
cal effect of preventing the parent from maintaining a
relationship with his or her child would nonetheless
automatically be immune from termination on the basis
of no ongoing parent-child relationship.
Even if the trial court had determined that the grand-
parents had engaged in conduct that inevitably pre-
vented the respondent from maintaining a relationship
with his children, the court’s subsequent analysis did
not properly apply the applicable exception. Specifi-
cally, rather than concluding that, as a result of the
court’s finding of ‘‘interference,’’ the petitioner was pre-
cluded from seeking termination of the respondent’s
parental rights on the basis of no ongoing parent-child
relationship, the court appears to have determined that
the conduct of the grandparents justified a departure
from the ordinary inquiry as to whether the petitioner
had proven no ongoing parent-child relationship. That
is, in denying the petitions, rather than considering the
children’s feelings, the trial court looked to the respon-
dent’s conduct.
As we have explained, however, an inquiry that
focuses on the conduct of the respondent parent to
resolve a petition for termination on the basis of § 45a-
717 (g) (2) (C) is appropriate only upon a finding by
the trial court that a child is ‘‘virtually’’ an infant whose
present feelings and memories cannot be determined
by the court. See In re Valerie D., supra, 223 Conn.
532. An inquiry that focuses on a respondent parent’s
conduct also is the key inquiry under the abandonment
ground pursuant to § 45a-717 (g) (2) (A); see, e.g., In
re Juvenile Appeal (Docket No. 9489), 183 Conn. 11,
14, 438 A.2d 801 (1981) (‘‘[a]bandonment focuses on the
parent’s conduct’’); the court already had independently
addressed and rejected the ground of abandonment
in its memorandum of decision, applying the correct
principles to that ground. An inquiry similar to that of
the abandonment ground cannot be applied to assess
whether a petitioner has established a lack of an ongo-
ing parent-child relationship unless the child is an infant
at the time of the inquiry. The court made no finding
that any of the children, even the youngest child, was
an infant at the time of trial.5 The trial court, therefore,
improperly considered the respondent’s conduct in
determining that the petitioner had failed to prove a
lack of an ongoing parent-child relationship. Because
no exception to the general rule applied under the facts
found by the trial court, the court’s inquiry properly
should have focused on the present feelings and memo-
ries of the children.6 The Appellate Court properly con-
cluded that the trial court had applied an incorrect legal
test to determine whether the petitioner had proven
the lack of an ongoing parent-child relationship.
II
We next turn to the respondent’s claim that, even if
the trial court applied an incorrect legal test to conclude
that the petitioner failed to prove the lack of an ongoing
parent-child relationship, we must reverse the Appellate
Court’s judgment on the basis that the trial court found
that the petitioner had failed to prove by clear and
convincing evidence that allowing the respondent addi-
tional time to reestablish the parent-child relationship
would be detrimental to the best interests of the chil-
dren. We agree with the petitioner, however, that the
trial court’s finding was clearly erroneous.
We begin by observing that the trial court correctly
turned to the second prong of § 45a-717 (g) (2) (C)
only after first addressing whether the petitioner had
established the first prong—whether the petitioner had
established the lack of an ongoing parent-child relation-
ship. Although a petitioner must establish both prongs
by clear and convincing evidence, and, accordingly, a
petition may fail under either prong, the inquiries under
the two prongs are intertwined. That is, logic dictates
that the question of whether it would be detrimental
to the children’s interests to allow further time for the
development of a parent-child relationship will depend
to some extent on the findings made and reasoning
employed by the trial court in resolving whether there
was an ongoing parent-child relationship. See, e.g., In
re Juvenile Appeal (Anonymous), supra, 177 Conn.
675–76; In re Carla C., supra, 167 Conn. App. 265; In
re Michael M., supra, 29 Conn. App. 128; In re Juvenile
Appeal (84-3), supra, 1 Conn. App. 480.7
The trial court, however, did not provide any analysis
as to the second prong of § 45a-717 (g) (2) (C). Instead,
the court grounded its decision on the conclusory find-
ing that ‘‘[t]here was no evidence presented by the peti-
tioner at trial that would support a claim that additional
time to reestablish a relationship with the children
would be detrimental [to their best interests].’’ That
finding cannot be reconciled with the record, which
reveals that there was evidence presented that was
relevant to this question.
‘‘Appellate review of a trial court’s findings of fact is
governed by the clearly erroneous standard of review.
. . . A finding of fact is clearly erroneous when there
is no evidence in the record to support it . . . or when
although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and
firm conviction that a mistake has been committed.’’
(Internal quotation marks omitted.) Powell-Ferri v.
Ferri, 326 Conn. 457, 464, 165 A.3d 1124 (2017).
In arriving at its finding that the petitioner had pre-
sented no evidence that it would be detrimental to allow
the respondent more time to develop or reestablish a
relationship with the children, the trial court did not
accord any effect to evidence that had been presented
at trial that was relevant to that precise question. ‘‘ ‘Rele-
vant evidence’ means evidence having any tendency to
make the existence of any fact that is material to the
determination of the proceeding more probable or less
probable than it would be without the evidence.’’ Conn.
Code Evid. § 4-1. By finding that no evidence was pre-
sented as to the second prong, the court did not con-
sider the negative feelings that Jacob and N had
expressed toward the respondent, despite the fact that
the court made a finding that the children had those
negative feelings.8 Specifically, evidence was presented
during the termination hearing that both Jacob and N
had told department social workers that they ‘‘hate,’’
‘‘fear,’’ and ‘‘distrust’’ the respondent. The court also
had evidence before it that Jacob had told his teachers
at school that the respondent was a ‘‘bad parent’’ and
that both Jacob and N had told a department social
worker that they did not want any present contact with
the respondent. Indeed, as of the time of trial, none of
the children was requesting opportunities to visit with
or speak to the respondent, and both Jacob and N had
indicated that they never wanted to see him again. Both
Jacob and N specifically refused to call him ‘‘Dad,’’
insisted on referring to him by his first name, and indi-
cated that they wished to have their last name changed.
Regarding C, who was approximately four years old at
the time of trial, the court heard evidence that she had
no present recollection of the respondent. The intensity
of the negative feelings that Jacob and N harbored
toward the respondent, as well as C’s lack of any mem-
ory of him, was highly relevant to the likelihood that
the respondent could succeed in reestablishing a rela-
tionship with them, and, if so, how long that would
take. The court should have been considered both of
those factors in determining whether allowing more
time would have been detrimental to the children’s
best interests.
It is particularly problematic that the court provided
the same explanation for its refusal to consider the
negative feelings of Jacob and N toward the respondent
that it had provided for its conclusion that the grandpar-
ents had ‘‘interfered’’ with the respondent’s efforts to
maintain a relationship with them. As we explained in
part I of this opinion, one of the flaws of the trial court’s
analysis of the first prong of § 45a-717 (g) (2) (C) was
its determination to discount the negative feelings of
the children on the basis of the grandparents’ alleged
‘‘interference.’’ The trial court relied on that same prin-
ciple in declining to consider the children’s negative
feelings in the second prong. Thus, the court’s finding
as to the second prong suffers from the same flaw.
Specifically, in its analysis of the first prong, the court
discounted those negative feelings on the basis that the
children had been biased against the respondent as a
result of the grandparents’ failure to tell them that he
was incarcerated because he was convicted of sexually
assaulting their aunt. As we explained in part I of this
opinion, this aspect of the trial court’s reasoning is
questionable at best. Moreover, the grandparents’ false
explanation of the reason for the respondent’s incarcer-
ation has no relevance whatsoever to C’s lack of any
memories of the respondent. The court took no account
of the fact that C did not remember the respondent.
This failure cannot be reconciled with the ‘‘ ‘paramount
importance’ ’’ of the feelings of the child in the applica-
tion of § 45a-717 (g) (2) (C). See In re Alexander C.,
67 Conn. App. 417, 422, 787 A.2d 608 (2001), aff’d, 262
Conn. 308, 813 A.2d 87 (2003).
In addition to expressly declining to consider the
relevant evidence regarding Jacob’s and N’s negative
feelings toward the respondent, the court failed to con-
sider significant, additional relevant evidence that had
been presented, which would have supported a finding
that allowing further time for a relationship to develop
would be detrimental to the children’s best interests.
The elephant in the room, so to speak, was the protec-
tive order. As we have noted, even the respondent con-
ceded at trial the overarching preclusive effect that
the protective order had on his ability to maintain a
relationship with the children. We note that the respon-
dent has not claimed that he ever attempted to have
the protective order modified. See id., 425 (deeming
respondent parent’s failure to seek modification of pro-
tective order relevant to analysis under § 45a-717 [g]
[2] [C]). That order, which will remain in effect until
2068—long after the children reach adulthood—would
function as a significant obstacle to any future efforts
that the respondent might make to reestablish a rela-
tionship with the children. It is also relevant that the
respondent will not be released from prison until 2043,
long after the children have reached adulthood. See In
re Elvin G., supra, 310 Conn. 514–15 (recognizing that,
although incarceration cannot be sole basis for termina-
tion of parental rights, courts properly may consider
length of incarceration and its effects on parent-child
bond). The court also failed to take into account the
positions of the department, the guardian ad litem, and
the attorney for the minor children, all of whom recom-
mended termination of the respondent’s parental rights.
The department based its position in part on its conclu-
sion that, with the protective order in place and the
respondent incarcerated, the respondent could not be
expected to be able to reestablish a relationship with the
children until they reached adulthood. The unlikelihood
that the respondent will be able to reestablish a relation-
ship with the children prior to adulthood is relevant to
the question of whether allowing further time would
be detrimental to the best interests of the children.
This court has repeatedly recognized that ‘‘stability and
permanence’’ are ‘‘necessary for a young child’s healthy
development.’’ In re Egypt E., supra, 327 Conn. 531;
see also In re Davonta V., 285 Conn. 483, 495, 940 A.2d
733 (2008) (‘‘[t]ermination of a biological parent’s rights,
by preventing further litigation with that parent, can
preserve the stability a child has acquired in a successful
foster placement and, furthermore, move the child
closer toward securing permanence by removing barri-
ers to adoption’’).
In light of the abundance of evidence in the record
contrary to the trial court’s statement that there was
no evidence presented that it would be detrimental to
the best interests of the children to allow additional
time for the respondent to develop a relationship with
them, we are left with a firm conviction that a mistake
has been made and, therefore, conclude that the trial
court’s finding was clearly erroneous.
We emphasize that we take no position as to whether
the trial court, after considering all of the relevant evi-
dence, properly could have found that the petitioner
failed to prove by clear and convincing evidence that it
would be detrimental to the children’s interests to allow
the respondent more time to reestablish the relationship.
Our conclusion that the trial court’s finding was clearly
erroneous is predicated on the court’s reliance on its
determination that the petitioner had presented no evi-
dence relevant to this issue. That determination finds no
support in the record. The trial court’s failure to consider
its own express factual findings regarding Jacob’s and
N’s negative feelings toward the respondent, to provide
any relevant explanation for discounting its finding that
C had little to no memory of the respondent, as well as
to acknowledge the abundant, additional relevant evi-
dence pertaining to this issue leaves us with a firm con-
viction that a mistake has been made.9 The court should
have considered all of the relevant evidence before
resolving the issue.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, MULLINS and VERTE-
FEUILLE, Js., 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.
** February 15, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
This court granted the respondent father’s petition for certification to
appeal, limited to the following issue: ‘‘Did the Appellate Court correctly
reverse the trial court’s judgment[s] denying the custodian’s petition[s] to
terminate the father’s parental rights when it determined that the trial court’s
judgment[s] [were] legally and logically inconsistent?’’ In re Jacob W., 328
Conn. 902, 177 A.3d 563 (2018). After hearing the parties and considering
the case more fully, we conclude that the certified question does not properly
frame the issues presented in the appeal because it inaccurately reflects
the holding of the Appellate Court. The Appellate Court reversed the judg-
ments of the trial court on the basis that the trial court applied an incorrect
legal test to determine whether the petitioner had proven the lack of an
ongoing parent-child relationship. In re Jacob W., 178 Conn. App. 195, 198–99,
172 A.3d 1274 (2017). We therefore rephrase the certified issue as whether
the Appellate Court properly reversed the trial court’s judgments on the
basis that the court applied an incorrect legal test to deny the petitions.
See, e.g., Stamford Hospital v. Vega, 236 Conn. 646, 656, 674 A.2d 821 (1996)
(court may rephrase certified question to more accurately reflect issues
presented on appeal).
2
As the Appellate Court explained, ‘‘[t]he maternal grandmother is the
petitioner pro forma. Both maternal grandparents are currently custodians,
and the maternal grandfather signed the applications for termination of
parental rights . . . .’’ In re Jacob W., 178 Conn. App. 195, 198 n.1, 172 A.3d
1274 (2017).
3
Because we do not rest our affirmance of the judgment of the Appellate
Court on the basis of any inconsistent statements in the trial court’s memo-
randum of decision, we need not resolve whether the Appellate Court prop-
erly concluded that any inconsistent statements in the memorandum of
decision required the conclusion that the trial court applied an incorrect
legal test.
4
Because the children were not in its custody, the department was unable
to assist the respondent.
5
The respondent reiterates his claim, rejected by the Appellate Court; In re
Jacob W., supra, 178 Conn. App. 209 n.12; that the ‘‘virtual infancy exception’’
should apply to C, who was one year old at the time of the respondent’s
incarceration. As the Appellate Court acknowledged, the parties ‘‘concede’’
that the virtual infancy exception applied to C. Id. That court correctly
concluded, however, that the parties’ concession was irrelevant. The trial
court did not rely on the virtual infancy exception and made no finding that
C qualified as an infant. We further observe that the parties are incorrect.
It is not C’s age at the time of the respondent’s incarceration three years
prior to the termination hearing that controls for purposes of the application
of the virtual infancy exception, but C’s age, four years old, at the time of
the termination hearing. To determine whether a petitioner has established
the lack of an ongoing parent-child relationship, the trial court must be able
to discern a child’s present feelings toward or memories of a respondent
parent. The virtual infancy exception takes account of the particular problem
that is presented when a child is too young to be able to articulate those
present feelings and memories. See In re Valerie D., supra, 223 Conn. 532
(referring to difficulty of trial court’s discerning child’s ‘‘present’’ feelings).
It would make no sense to require a trial court to resolve whether a child’s
feelings could have been determined at some time prior to the termination
hearing. The inability of the court to discern or to be presented with evidence
regarding a virtual infant’s present feelings drives the exception. That finding
must be made at the time of the termination hearing. The present case
serves as an apt illustration. The trial court had no difficulty discerning C’s
present memories of or feelings toward the respondent. The court expressly
found that C had ‘‘little to no memory’’ of him. Accordingly, there was no
need to apply the virtual infancy exception.
6
The respondent contends that, even if we conclude that the Appellate
Court properly held that the trial court applied an improper legal test to
conclude that the petitioner had failed to prove the lack of an ongoing
parent-child relationship, the error was harmless because the trial court
independently determined in the disposition phase that termination was not
in the best interests of the children. The respondent’s claim ignores the fact
that the trial court’s analysis of the best interests of the children was affected
by its application of an incorrect legal test during the adjudicatory phase.
The court’s consideration of the children’s best interests reflects the same
focus on the facts that the court improperly relied on in concluding that
the petitioner had failed to prove no ongoing parent-child relationship. Spe-
cifically, in determining that termination was not in the best interests of
the children, the court relied heavily on the possible motives of the grandpar-
ents in failing to tell the children the true reason for the respondent’s
incarceration, the efforts that the respondent had made to maintain a rela-
tionship with the children, and the grandparents failure to provide updates
about the children to the respondent.
7
We emphasize that our decision today is grounded in our review of the
trial court’s analysis of both prongs of § 45a-717 (g) (2) (c).
8
We note that the court also found that Jacob had previously had more
positive feelings toward the respondent. It is the child’s present feelings
and memories, however, that are relevant for purposes of § 45a-717 (g)
(2) (C).
9
Of course, because this court cannot engage in fact-finding, we cannot
go any farther than to conclude that the trial court’s finding—that there
was no evidence in the record to support the petitioner’s claim that allowing
further time for a parent-child relationship to develop would be detrimental
to the children’s best interests—was clearly erroneous. Accordingly, we
disagree with the dissent’s statements that the majority opinion ‘‘awards
the petitioner no real practical relief’’ and that it would have been appropriate
for this court to direct judgment terminating the respondent’s parental rights.
The petitioner did not request that this court order a directed judgment.
Even if she had, we could not order that relief. Our decision today merely
affirms the judgment of the Appellate Court setting aside the denial of the
petitions. The respondent retains the right to present evidence and to hold
the petitioner to her burden of proof. The proper venue for the respondent
to exercise that right is in the trial court. The petitioner received the sole
relief that she sought from this court: the affirmance of the judgment of the
Appellate Court, which remanded the case to the trial court for a new
termination hearing. Further, whether the petitioner would file new petitions
for termination if we were to reverse the judgment of the Appellate Court
is not relevant to our decision today.