In re James O., Jr. , 322 Conn. 636 ( 2016 )

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IN RE JAMES O., JR., ET AL.*
(SC 19579)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.**
Argued May 5—officially released August 12, 2016***
David J. Reich, for the appellant (respondent
mother).
Frank H. LaMonaca, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gregory T. D’Auria, solicitor general, Benjamin
Zivyon, assistant attorney general, and Romiesha
Briscoe, certified legal intern, for the appellee (peti-
tioner).
Opinion
ROGERS, C. J. The sole issue in this certified appeal
is whether the trial court made an improper comparison
between the respondent mother, Marjorie H., and Paula
M., the therapeutic foster mother of the respondent’s
minor children, James O., Jr., and Jolene O., during
the adjudicative phase of its judgment terminating the
respondent’s parental rights.1 The respondent2 appeals
from the judgment of the Appellate Court affirming the
trial court’s decision to terminate her parental rights
as to James and Jolene, and to appoint the petitioner,
the Commissioner of Children and Families, as their
statutory parent. In re James O., 160 Conn. App. 506,
508, 127 A.3d 375 (2015). The respondent claims that
the Appellate Court improperly affirmed the trial court’s
judgment terminating her parental rights pursuant to
General Statutes (Rev. to 2013) § 17a-112 (j) (3) (B)3
because the trial court engaged in an improper compari-
son between the parenting abilities of the respondent
and those of Paula M. to support the court’s conclusion
that the respondent had failed to reach a sufficient level
of personal rehabilitation. We disagree and affirm the
judgment of the Appellate Court.
The following facts, which the trial court found by
clear and convincing evidence, and procedural history
are relevant to the resolution of this appeal. During the
spring of 2011, staff at James’ school became concerned
with the fact that James, then seven years old, was
making suicidal and homicidal statements and was
physically harming himself. The school staff attempted
to work with the respondent to secure a psychological
evaluation and appropriate treatment for James.
Around the same time, James’ therapist reported that
James disclosed to her that he ‘‘had a secret, that he
[heard] voices, and that he hurts himself at home.’’
The therapist also recommended that James receive a
psychological evaluation, but the respondent refused
to allow an evaluation unless the school paid for both
children to be evaluated. The therapist did not believe
that the respondent grasped the seriousness of
James’ condition.
School staff also referred James for Intensive In-
Home Child and Adolescent Services (in-home ser-
vices). The respondent refused to allow the services in
her home. The respondent removed the children from
the school, intending to homeschool them, claiming
that James had psychotic episodes only at school and
would behave normally at home. During 2011, the chil-
dren’s school made a referral for both children to the
Department of Children and Families (department).
On June 9, 2011, the petitioner filed neglect petitions
and sought and received an order of temporary custody
as to both children based on the children’s exposure
to substance abuse and domestic violence, evidence of
James’ serious mental health issues, the failure of both
parents; see footnote 2 of this opinion; to follow through
with recommended services for both children, and the
withdrawal of the children from school and the resulting
lack of visibility in the community. The petitioner
included as an additional ground educational neglect
arising from the children having missed thirty days of
school.
At the time of their removal from the respondent’s
custody, both children displayed highly disturbing
behaviors. After removal, outside the presence of his
parents, James disclosed to Danbury Hospital staff that
he was hearing voices and that his head was telling him
to do things. James threatened to harm another child
in his first foster home, stating that he would kill and
eat the child. Jolene, then six years old, displayed sexu-
alized behavior including frequent public masturbation,
talk about sex, and attempts to engage other children,
including her brother, in inappropriate sexual acts.
Based on Jolene’s conduct, her first foster mother ques-
tioned whether Jolene had a history of sexual abuse.
Despite Jolene’s behavior, the respondent and the
department reached an agreement whereby the order
of temporary custody would remain in effect for James,
who was to be hospitalized at Yale-New Haven Hospital
for psychiatric treatment, while the order would dis-
solve for Jolene on June 23, 2011, upon the condition
that the respondent would take Jolene to therapy. On
June 24, 2011, during her therapy in-take interview,
Jolene disclosed to the therapist that her father had
physically abused her and inappropriately touched her.
The department invoked a ninety-six hour hold and
removed Jolene from the respondent’s custody for the
second time.
While at Yale-New Haven Hospital, James continued
to make suicidal statements and homicidal statements
about killing and eating other children. The respondent
attributed his conduct to a cartoon he watched on televi-
sion. The hospital staff also reported bizarre interac-
tions between James and Jolene. They observed that
the parents did not set appropriate limits on the chil-
dren’s behavior.
The department placed James and Jolene in a Safe
Home placement, which would provide more stability,
allow the children to receive mental health services
directly at the facility, and allow the department to
more directly assess their needs. While the children
were at the Safe Home, the department determined that
the children would need a family that would understand
and be able to handle their ongoing behavioral issues.
James was still having suicidal ideation, had a tendency
to fixate, and had a fragile emotional state. In addition
to sexual behavior, Jolene was reluctant to bathe, was
very hyperactive and aggressive, cursed and made
threats to others. She also exhibited excessive animal
behaviors, at times walking on all fours and making
animal noises, and had a skewed sense of reality. Safe
Home staff described her ‘‘as one of the most trauma-
tized children they have seen.’’
The department determined that the children needed
to be placed in a therapeutic foster home with a care-
giver who could understand and manage their behaviors
and provide more intensive therapeutic support. In
October, 2011, the department placed the children with
Paula M., a licensed therapeutic foster care provider.
The trial court described Paula M. as ‘‘part of a team
that includes [the department], the children’s therapists,
and Wheeler Clinic . . . .’’ Paula M. met with the chil-
dren’s therapists weekly, attended special education
planning and placement meetings, informed the chil-
dren’s therapists of issues that arose with the children,
and helped to implement at home what the children
learned in therapy, such as specific coping skills when
they became anxious. Paula M. also worked with the
in-home service providers in the home twice weekly,
once with James and a second time without the children
present to train her to work with James.
Beginning in October, 2011, Jolene was referred for
treatment to the Child Abuse Treatment Services Pro-
gram at Klingberg Family Centers. That program uses
trauma focused cognitive behavioral therapy to assist
children who have experienced physical or sexual
abuse or have witnessed domestic violence. At the time
of the referral, the therapists were not able to begin
trauma focused cognitive behavioral therapy with
Jolene because the respondent refused to give her
consent.
In February, 2012, both children separately made dis-
closures of sexual abuse to Paula M. Using the coping
skills he learned in therapy, James wrote a narrative that
included numerous explicit descriptions of a variety
of sexual contact involving James, Jolene, and their
parents. While attending church with Paula M., Jolene
asked for paper and a pencil and then drew figures of
what looked like a child and an adult, including one
that suggested sexual activity between the two figures.
Paula M., in her capacity as a mandatory reporter, pro-
vided a copy of Jolene’s drawings to the department.
Jolene subsequently disclosed to her therapist that the
drawings depicted her abuse.
On June 19, 2012, after the trial court had already
taken evidence in the contested neglect petitions over
several days, the respondent and the children’s father
entered nolo contendere pleas to neglect. The court
adjudicated the children neglected and committed them
to the custody of the petitioner.
Because of Jolene’s commitment to the petitioner’s
custody, she was able to begin trauma focused cognitive
behavioral therapy. The goal of her therapy was treat-
ment of the symptoms of trauma and abuse, rather
than investigation of alleged sexual abuse. Jolene was
diagnosed with post-traumatic stress disorder (PTSD).
By June, 2013, Jolene exhibited a successful reduction
in trauma symptoms, developed coping and relaxation
skills, and, as a result, was successfully discharged from
the trauma focused cognitive behavioral therapy
program.
James also exhibited a marked improvement to his
therapists. At the time of his initial commitment, James
presented with suicidal ideation, hypervigilance, high
anxiety, frequent tantrums, a great deal of fear, diffi-
culty sleeping, and paranoia. He was diagnosed with
PTSD and autism. By the time his most recent therapist
was assigned to him in June, 2013, he was no longer
presenting with suicidal ideations and his anxiety had
decreased significantly. James continued to exhibit
issues with boundaries and social skills, which caused
behavioral issues for him at school. James’ therapist
noted that he required the lessons and skills he was
taught in therapy to be mirrored in the parenting he
received at home, with a caregiver who is firm, but also
very calm, warm, and supportive of him.
At the time that the respondent entered her nolo
contendere pleas to neglect, the respondent agreed to
specific steps to facilitate reunification with James and
Jolene, including attending individual therapy for the
purpose of gaining insight into domestic violence and its
impact on the children, improving her communication
skills, learning how to problem solve without escalating
to violence, and understanding appropriate boundaries
with respect to sexual abuse and the needs of children
who have disclosed sexual abuse.
The respondent declined to see a department recom-
mended therapist and instead selected one who dis-
agreed with most of the treatment goals outlined in the
court-ordered specific steps. Rather than work with the
respondent to address the steps provided by the court,
the psychologist focused, instead, on discrediting the
children’s reports of sexual abuse. The trial court found
that while the respondent attended individual therapy,
she failed to advance any of the goals of such therapy
as agreed to in her specific steps.
During the children’s commitment, the department
provided the respondent with supervised visitation with
the children and parent education support, as well as
assistance with transportation to visitations. The
respondent worked with two parent educators along
with visitation supervisors. Both parent educators
attempted to provide feedback to the respondent on
her interactions with the children, but the respondent
reacted negatively to any perceived criticism, at times
yelling at the educators or the department social
worker. The parent educators observed that the respon-
dent continued to have difficulty setting appropriate
limits for the children or setting consequences if the
children failed to comply with limits.
As part of her specific steps, the respondent was also
required to improve her communication skills in order
to allow her to effectively communicate and work with
the children’s therapy providers. The respondent was
permitted, and encouraged, to communicate with the
children’s therapists and school social workers and psy-
chologists. The respondent declined to do so.
The respondent was also required to take steps to
acknowledge her role in the removal of her children.
The respondent focused, instead, on denying the allega-
tions of sexual abuse. She also failed to acknowledge
the disturbing behavior that initially led to her children’s
removal or the impact of substance abuse and domestic
violence on the children. While she acknowledged that
the children’s father had a substance abuse issue and
could be violent, she minimized the impact that his
behavior had on the children and did not acknowledge
her own propensity for violence. According to the
respondent, the father’s substance abuse and violence
would not impact the children in the future because
she was then divorced from the father and he did not
have visitation rights under the dissolution agreement.
The trial court found, however, that the respondent and
the father entered into a visitation agreement in order
for it to appear to the department that the respondent
was protecting the children when, in reality, the respon-
dent and the father still had a relationship and he was
often present in her home.
On April 24, 2013, the petitioner, pursuant to § 17a-112
(j) (3) (B), filed a petition to terminate the respondent’s
parental rights as to both children on the ground that
she had failed to achieve the degree of personal rehabili-
tation that would encourage the belief that within a
reasonable time, considering the age and particular
needs of the children, she could assume a responsible
position in their lives.
On November 13, 2014, the trial court terminated the
respondent’s parental rights as to both children. The
court found that the department had made reasonable
efforts to reunify the respondent with both children, but
that she failed to acknowledge the children’s disturbing
behavior and her role in causing their removal. The
court further found that the respondent had failed to
achieve a reasonable level of rehabilitation. The court
finally found that it was in the best interest of the
children for the court to terminate the respondent’s
parental rights.
On March 3, 2015, the respondent appealed the trial
court’s termination of her parental rights to the Appel-
late Court, claiming that the court had made an
improper comparison between the respondent and
Paula M. in the adjudicative portion of its memorandum
of decision.4 Thereafter, the Appellate Court affirmed
the judgment of the trial court. In re James O., supra,
160 Conn. App. 507, 528. The Appellate Court ‘‘con-
strue[d] the language relied on by the respondent, not
as making a direct comparison between the respondent
and Paula M., so much as clarifying that the children
needed and continued to need an environment that is
calm, in which their needs are understood, and in which
their caregiver can manage their anxiety in an appro-
priate manner.’’ Id., 520. This appeal followed.
The respondent claims that the Appellate Court
improperly held that the trial court did not engage in
an improper comparison between the parenting abilities
of the respondent and Paula M. in the adjudicative por-
tion of its memorandum of decision terminating the
respondent’s parental rights. In the respondent’s view,
certain language in the trial court’s memorandum of
decision evidences its improper reasoning. The respon-
dent contends that any comparison at all between a
parent and a foster parent is a violation of Practice
Book § 35a-7 (b),5 should be presumed to influence the
trial court’s determination in the adjudicatory phase,
and requires reversal.6
The petitioner agrees that if the trial court based its
determination that the respondent had failed to reach
an adequate level of rehabilitation on a finding that
Paula M. was a better parent or was a preferable parent
to the respondent, that would be a due process violation
and grounds for reversal. The petitioner contends that,
when read within the context of the entire memoran-
dum of decision, the challenged language does not con-
stitute a comparison between the respondent and Paula
M. Rather, the court was discussing the specific needs
of the children as a predicate to considering the respon-
dent’s ability to meet those needs. Within this context,
the examination of Paula M.’s role in the children’s
therapy and the environment of the foster home are
merely evidence of what is actually required to meet
the children’s specific needs, which is a necessary con-
sideration during the adjudicative phase of a termina-
tion of parental rights determination when the ground
for termination is a failure to rehabilitate. The petitioner
further emphasizes that the respondent failed to reach
even a minimally sufficient ability to assume a role as an
appropriate caregiver and refused to even acknowledge
the children’s particular needs. Therefore, according
to the petitioner, the court did not make an improper
comparison that would require reversal. We agree with
the petitioner.
We first set forth the applicable standard of review
and general principles. ‘‘The interpretation of a trial
court’s judgment presents a question of law over which
our review is plenary. . . . As a general rule, judgments
are to be construed in the same fashion as other written
instruments. . . . The determinative factor is the inten-
tion of the court as gathered from all parts of the judg-
ment. . . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
judgment should admit of a consistent construction as
a whole. . . . If there is ambiguity in a court’s memo-
randum of decision, we look to the articulations that the
court provides.’’7 (Citations omitted; internal quotation
marks omitted.) Olson v. Mohammadu, 310 Conn. 665,
682, 81 A.3d 215 (2013).
‘‘In order to terminate a parent’s parental rights under
§ 17a-112, the petitioner is required to prove, by clear
and convincing evidence, that: (1) the department has
made reasonable efforts to reunify the family; General
Statutes § 17a-112 (j) (1); (2) termination is in the best
interest of the child; General Statutes § 17a-112 (j) (2);
and (3) there exists any one of the seven grounds for
termination delineated in § 17a-112 (j) (3).’’ (Internal
quotation marks omitted.) In re Melody L., 290 Conn.
131, 148–49, 962 A.2d 81 (2009), overruled in part on
other grounds by State v. Elson, 311 Conn. 726, 746–47,
754, 91 A.3d 862 (2014). When the petitioner seeks to
terminate a parent’s parental rights on the ground that
the parent has failed to rehabilitate, ‘‘[t]he trial court is
required, pursuant to § 17a-112, to analyze the [parent’s]
rehabilitative status as it relates to the needs of the
particular child, and further . . . such rehabilitation
must be foreseeable within a reasonable time.’’ (Empha-
sis added; internal quotation marks omitted.) In re
Shane M., 318 Conn. 569, 585, 122 A.3d 1247 (2015).
Therefore, the trial court must first determine the needs
of the particular child before determining whether a
parent has achieved a sufficient rehabilitative status to
meet those needs. See, e.g., In re Shyliesh H., 56 Conn.
App. 167, 175, 743 A.2d 165 (1999) (respondent’s rehabil-
itative status viewed in light of child’s medical and
psychiatric conditions).
Turning to the ability of a trial court to consider
evidence of the abilities of a foster parent when adjudi-
cating a petition to terminate parental rights, we have
recognized that such determinations ‘‘are particularly
vulnerable to the risk that judges or social workers will
be tempted, consciously or unconsciously, to compare
unfavorably the material advantages of the child’s natu-
ral parents with those of prospective adoptive parents
and therefore to reach a result based on such compari-
sons rather than on the statutory criteria.’’8 In re Juve-
nile Appeal (Anonymous), 177 Conn. 648, 672–73, 420
A.2d 875 (1979). ‘‘ ‘It is . . . essential, in considering a
petition to terminate parental rights, to sever com-
pletely the issues of whether termination is statutorily
warranted and whether a proposed adoption is desir-
able. Although petitions for termination are presumably
seldom brought unless prospective adoptive parents
are available, there still must be a two-step process to
determine, first, the threshold question of whether
cause for termination . . . has been proved.’ [Id., 673];
see also Matter of Corey L v. Martin L, 45 N.Y.2d 383,
391, 380 N.E.2d 266, 408 N.Y.S.2d 439 (1978). Accord-
ingly, we have held that ‘[o]nly if a ground for termina-
tion exists may the suitability and circumstances of
adoptive parents, in an appropriate proceeding, be con-
sidered.’ In re Juvenile Appeal (Anonymous), 181
Conn. 638, 645, 436 A.2d 290 (1980).’’ In re Baby Girl
B., 224 Conn. 263, 275, 618 A.2d 1 (1992).
We do not permit foster or preadoptive parents to
intervene in termination proceedings because to do so
would ‘‘permit them to shape the case in such a way
as to introduce an impermissible ingredient into the
termination proceedings.’’ (Internal quotation marks
omitted.) Id., 278. We have never held, however, that
a foster parent may not testify during the adjudicative
phase of a termination proceeding or that a trial court
may not consider evidence that arises within the con-
text of a foster placement that is relevant to one of the
statutory grounds raised for termination of parental
rights. See In re Juvenile Appeal (Docket No. 10718),
188 Conn. 259, 266–67, 449 A.2d 165 (1982) (Shea, J.,
dissenting) (‘‘Unquestionably the foster parents . . .
would have been permitted to testify, as the foster
mother did, during the adjudicative phase of the termi-
nation proceedings. The majority opinion does not ques-
tion that her testimony was highly relevant to the
grounds alleged for termination of parental rights.’’);
see also In re Anthony H., 104 Conn. App. 744, 752,
936 A.2d 638 (2007) (trial court noted, and Appellate
Court did not question, that child needed ‘‘a substantial
amount of structure, which his prior therapeutic foster
homes were able to provide’’ within context of specific
needs of child), cert. denied, 285 Conn. 920, 943 A.2d
1100 (2008); In re Vincent D., 65 Conn. App. 658, 665–66,
783 A.2d 534 (2001) (foster parent may not intervene
in adjudicative phase of proceeding, but may be called
as witness for petitioner on issues that may be consid-
ered during dispositional phase); In re Shyliesh H.,
supra, 56 Conn. App. 171–72 (child’s interactions with
foster mother, in contrast to interactions with others,
were evidence of psychiatric condition relevant to spe-
cific needs of child in adjudicative phase).
We must determine, therefore, whether the trial court
properly considered evidence of the children’s foster
placement as relevant to an aspect of an adjudicatory
ground for termination, or rather, as the respondent
contends, it improperly reasoned that termination was
warranted because Paula M. was a better or preferable
parent than the respondent. Looking to the trial court’s
memorandum of decision, the court made the following
findings that are relevant to this determination.
At the outset of its analysis on the respondent’s failure
to rehabilitate, the trial court quoted law stating that
rehabilitation must be assessed with reference to the
needs of the particular children at issue. Thereafter,
the court emphasized that ‘‘[p]ivotal to this court’s find-
ings and the starting point for its analysis is the . . .
determination of the age and needs of James . . . and
Jolene.’’ The court went on to describe the children’s
history of disturbing behavior, the respondent’s contin-
uing failure to acknowledge that behavior, and her role
in causing it, opining that such failure was an ‘‘enor-
mous impediment to reunification.’’9
The trial court next noted that ‘‘[t]he most credible,
persuasive and reliable evidence of the children’s needs
is the testimony of the children’s therapists, as mani-
fested by the therapeutic approach they utilized and
the importance of the caregivers’ role in helping the
children address and heal from the trauma they have
endured.’’ The court went on to describe the goals of
the children’s therapy and the roles of various therapy
providers, including Paula M., in documenting any dis-
closures made by the children.
The next paragraph of the memorandum of decision
is the subject of this appeal. In its entirety, it reads:
‘‘More important than the disclosures, however, is the
clear and convincing evidence that the children have
made extraordinary progress while living with Paula
M., in an environment that is calm and understanding
of the children’s needs. As both therapists have made
clear, the children have needed a caregiver who is calm,
patient, able to set appropriate limits, willing to partici-
pate intensively in the children’s therapy, and able to
help the children with coping skills to manage their
anxiety. The children have also needed someone who
would believe their statements about the source of their
trauma. [The children’s therapist] credibly testified that
the [trauma focused cognitive behavioral therapy]
model requires that a child be understood and treated in
the context of their living environment. As the children’s
progress, relationship and work with Paula M. makes
clear, the process of healing and recovery must also
occur in a home environment which the children have
come to learn is safe and caring. Given Paula M.’s train-
ing and participation in therapy sessions, it is clear that
this process cannot be limited to the one hour per week
session that a child has, even with a trusting therapist.
In contrast, [the respondent] is volatile and prone to
violence, unable to set appropriate limits, unwilling to
talk with the children’s therapists and, therefore, unable
to help them use coping skills to manage their anxiety
and ultimately, unwilling to believe the children’s state-
ments regarding the trauma. In short, [the respondent]
has none of the qualities [that] the children have
required to stabilize and to continue to heal from the
traumas they experienced while in their parents’ care.’’
In the very next paragraph, the trial court reiterates
that ‘‘the most credible and reliable evidence of the age
and needs of the children, around which the [respon-
dent’s] rehabilitation is evaluated and assessed, neces-
sarily comes from the work done by the children’s
therapeutic team, which includes the work of [Paula
M.], the reliable and credible evidence regarding the
children’s severely disturbed behaviors and the degree
to which the children’s behaviors have greatly stabi-
lized. The evidence that the children have, in fact, made
such dramatic improvement in their functioning, under
the conditions which their therapists and caregivers
have been able to dictate and nurture, is itself confirma-
tion of the expertise, skill and knowledge of these pro-
fessionals.’’ Thereafter, the trial court concluded the
adjudicatory phase, finding ‘‘that the petitioner has met
its burden, by clear and convincing evidence, [that] the
[respondent has] failed to rehabilitate, given the age
and needs of both children.’’
After considering the challenged portion of the mem-
orandum of decision within the context of the trial
court’s overall analysis, we conclude that the court’s
adjudicative findings are appropriately centered on the
specific needs of James and Jolene, a necessary consid-
eration when determining whether a respondent has
failed to rehabilitate. The beginning of the court’s analy-
sis makes it abundantly clear that the court is focused
on James’ and Jolene’s particular needs, as seriously
traumatized children, and is assessing the respondent’s
state of rehabilitation with reference to those needs.
Additionally, the court twice indicates its belief that
the best evidence of those needs is an examination of
the children’s course of therapy and its positive results,
including the roles of their therapists and caregivers.
In essence, the court recognized that, whoever the chil-
dren’s caregiver is, he or she necessarily must play
an important role in helping the children continue to
address and heal from their trauma.
It is within this overall framework that the trial court
made the findings that the respondent alleges are an
improper comparison of the respondent and Paula M.
Here, while the court does specifically discuss Paula
M., it does so in light of what the children’s therapists
have testified are the specific needs of the children.
The court notes generally that, ‘‘[a]s both therapists
have made clear, the children have needed a caregiver
who is calm, patient, able to set appropriate limits,
willing to participate intensively in the children’s ther-
apy, and able to help the children with coping skills to
manage their anxiety. The children have also needed
someone who would believe their statements about the
source of their trauma.’’ (Emphasis added.) The court
is basing the level of care needed not on what Paula M.
is providing to the children, but on what the children’s
therapists have testified the children need from a care-
giver. Although the court then discusses the progress
made by the children while they were living with Paula
M., we interpret that discussion as merely evidence
that supports the recommendations of the children’s
therapists as to the children’s particular needs. In short,
the improvements seen from Paula M.’s implementation
of the therapeutic recommendations proved the need
for and efficacy of the recommended approach. Import-
antly, the court never opined that only Paula M. could
meet the children’s needs or that Paula M. ought to
be the person to meet their needs. The court merely
explained that, when the children were in an environ-
ment that did meet their particular needs, they were
able to make extraordinary progress.
Appropriately, the trial court then began its assess-
ment of the respondent’s ability to meet the particular
needs of the children. The respondent advocates that
the sentence beginning ‘‘[i]n contrast’’ evidences an
improper comparison of the abilities of the respondent
and those of Paula M. Reading that sentence in context,
however, we disagree. Rather, the language following
‘‘[i]n contrast’’ directly parallels the language the court
previously had used to describe generally the qualities
of a caregiver who would meet the children’s particular
needs. In establishing the children’s particular needs,
the court found that ‘‘the children have needed a care-
giver who is calm, patient, able to set appropriate limits,
willing to participate intensively in the children’s ther-
apy, and able to help the children with coping skills to
manage their anxiety . . . [and] also . . . someone
who would believe their statements about the source
of their trauma.’’ Then in evaluating the respondent,
the court found that, ‘‘[i]n contrast, [the respondent] is
volatile and prone to violence, unable to set appropriate
limits, unwilling to talk with the children’s therapists
and, therefore, unable to help them use coping skills
to manage their anxiety and ultimately, unwilling to
believe the children’s statements regarding the trauma.’’
It is clear that the contrast drawn by the court is
between the qualities of a caregiver who meets the
particular needs of the children, as described by the
children’s therapists, and those of the respondent.
Most importantly, after comparing the needs of the
children with the abilities of the respondent, the trial
court found that the respondent ‘‘has none of the quali-
ties the children have required to stabilize and to con-
tinue to heal from the traumas they experienced while
in their parents’ care.’’ (Emphasis added.) Quite simply,
the court found that the respondent did not have the
minimum ability to meet her children’s particular needs
and refused to even acknowledge what those needs
were. While we are sensitive to the risks of a court
comparing the abilities of a natural parent who can
meet the basic needs of her children with the abilities
of a foster parent who is more capable of meeting those
needs and then making an adjudicatory determination
based on who can better meet the needs of the particular
children, those risks do not materialize when a court
has found that a respondent has failed to achieve any
level of rehabilitation and has none of the qualities
necessary to meet the needs of the particular children.10
Therefore, because the trial court found that the
respondent had none of the qualities necessary to meet
her children’s needs, we conclude that the court did
not improperly compare the abilities of the respondent
and Paula M. in making its finding during the adjudica-
tory phase that the respondent failed to achieve a rea-
sonable degree of rehabilitation.
The judgment of the Appellate Court is affirmed.
In this opinion PALMER, EVELEIGH and ESPINOSA,
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.
** This case originally was scheduled to be argued before a panel of
this court consisting of Chief Justice Rogers and Justices Palmer, Zarella,
Eveleigh, McDonald, Espinosa and Robinson. Although Chief Justice Rogers
was not present when the case was argued before the court, she has read
the briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
*** August 12, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We granted the respondent’s petition for certification to appeal limited
to the following issue: ‘‘Did the Appellate Court properly determine that the
trial court’s comparison between the [respondent’s] ability to parent and
[Paula M.’s] abilities to parent did not improperly factor into the court’s
determination that the [respondent] had failed to rehabilitate?’’ In re James
O., 319 Conn. 956, 125 A.3d 533 (2015). Because the Appellate Court con-
cluded that the trial court did not make such a comparison, the issue before
this court, more accurately rephrased, is whether the trial court made an
improper comparison between the respondent and Paula M. during the
adjudicatory phase of its decision. See State v. Ouellette, 295 Conn. 173,
184, 989 A.2d 1048 (2010) (court may reframe certified question to more
accurately reflect issue).
2
The trial court also terminated the parental rights of the children’s father,
James O., Sr. The respondent father has not appealed from that judgment.
We refer to the mother as the respondent in this opinion.
3
General Statutes (Rev. to 2013) § 17a-112 (j) provides in relevant part:
‘‘The Superior Court, upon notice and hearing as provided in sections 45a-
716 and 45a-717, may grant a petition [terminating parental rights] if it finds
by clear and convincing evidence that . . . (3) . . . (B) the child (i) has
been found by the Superior Court or the Probate Court to have been
neglected or uncared for in a prior proceeding . . . (ii) . . . and the parent
of such child has been provided specific steps to take to facilitate the return
of the child to the parent pursuant to section 46b-129 and has failed to
achieve such degree of personal rehabilitation as would encourage the belief
that within a reasonable time, considering the age and needs of the child,
such parent could assume a responsible position in the life of the child
. . . .’’
Section 17a-112 (j) (3) (B) was amended in 2015. See Public Acts 2015,
No. 15-159, § 1. For purposes of clarity, we refer to the 2013 revision of the
statute, which was in effect at the time of the relevant proceedings.
4
The respondent also raised two additional grounds for reversal: (1) that
the trial court improperly concluded that the petitioner proved by clear and
convincing evidence that the department had made reasonable efforts to
reunify the respondent and the children; and (2) that the trial court abused
its discretion in admitting into evidence two statements made by the children.
The Appellate Court affirmed the judgment of the trial court with respect
to the first additional ground and declined to review the second ground as
it was inadequately briefed. See In re James O., supra, 160 Conn. App. 525,
526. The respondent did not seek certification of these issues to this court.
5
Practice Book § 35a-7 (b) provides: ‘‘In the discretion of the judicial
authority, evidence on adjudication and disposition may be heard in a nonbi-
furcated hearing, provided disposition may not be considered until the adju-
dicatory phase has concluded.’’
6
The respondent also claims that the comparison of the parenting skills
of the respondent and Paula M. violated her due process rights and was
plain error, both requiring reversal. Because both claims rely on a determina-
tion that the trial court improperly compared the respondent and Paula M.,
and we conclude that no such comparison was made, we do not reach these
additional claims.
7
We note that in the present case, the respondent did not seek an articula-
tion of the trial court’s memorandum of decision. In the absence of an
articulation, ‘‘[w]e read an ambiguous trial court record so as to support,
rather than contradict, its judgment.’’ (Internal quotation marks omitted.)
In re Jason R., 306 Conn. 438, 453, 51 A.3d 334 (2012). The concurring
justices acknowledge that certain of the trial court’s findings are susceptible
to varying interpretations, yet construe them as undermining the judgment,
contrary to this tenet.
8
We note that, while not all foster parents are proposed adoptive parents,
the consideration of the relative merits of a foster parent or an adoptive
parent raises similar issues. See In re Juvenile Appeal (Docket No. 10718),
188 Conn. 259, 261–62, 449 A.2d 165 (1982) (foster parents do not have
standing to intervene in proceeding on termination of parental rights of
natural parents).
9
In finding that the department had made reasonable efforts to reunify
the respondent and the children, the trial court also emphasized that ‘‘both
parents have seriously discounted and/or not acknowledged the extent to
which domestic violence and substance abuse have been a significant source
of trauma to their children. Having focused exclusively on the allegations
of sexual abuse, the parents have failed to acknowledge the degree to which
their children presented with profoundly disturbing behaviors, which has
not been credibly disputed. Despite opportunities to talk to her children’s
therapists, [the respondent] has refused to do so and thus has actively chosen
to ignore her children’s problems and how their needs can be addressed.’’
10
In light of this circumstance, we disagree with the reasoning of the
concurrence that the trial court engaged in an impropriety, albeit a harmless
one. In short, because the respondent, considered in isolation, had com-
pletely failed to reach the level of rehabilitation necessary to reunite her
with her children, there simply was no practical reason for the court to
engage in a comparison between her and Paula M., as the respondent was
not going to regain custody regardless of their relative merits as parents.
Stated otherwise, because the respondent herself clearly had failed to reha-
bilitate, the court did not, in violation of our jurisprudence, ‘‘compare unfa-
vorably the material advantages of the [children’s] natural parents with
those of prospective adoptive parents and therefore . . . reach a result
based on such comparisons rather than on the statutory criteria.’’ (Empha-
sis added.) In re Juvenile Appeal (Anonymous), supra, 177 Conn. 672–73.