In re Elijah C. , 326 Conn. 480 ( 2017 )

 IN RE ELIJAH C.*
(SC 19695)
Rogers, C. J., and Palmer, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.**
Syllabus
The respondent mother appealed from the judgment of the Appellate Court,
which dismissed her appeal from the trial court’s judgment terminating
her parental rights with respect to her minor child, E. The trial court
found by clear and convincing evidence, as required by statute (§ 17a-
112 [j] [1]), that the Department of Children and Families had made
reasonable efforts to reunify the respondent and E, and that the respon-
dent was unable to benefit from those efforts. In dismissing the respon-
dent’s appeal as moot, the Appellate Court concluded that the respon-
dent had inadequately briefed her claim that the trial court’s finding
that she was unable to benefit from the department’s reunification efforts
was clearly erroneous, and, because the trial court’s judgment could be
sustained on the basis of either that finding or the court’s finding that
the department had made reasonable reunification efforts, the Appellate
Court could afford the respondent no practical relief on appeal. On the
granting of certification, the respondent appealed to this court, claiming,
inter alia, that the Appellate Court improperly determined that her appeal
was moot and that the trial court incorrectly determined that she had
been unable to benefit from the department’s reunification efforts. Held:
1. This court could not conclude that the respondent’s challenge to the trial
court’s finding that she was unable to benefit from the department’s
reunification services was inadequately briefed in the Appellate Court,
and, therefore, that court improperly dismissed the respondent’s appeal
as moot; although the respondent’s argument regarding that finding was
not comprehensive, cited no authority apart from the applicable statutes
and rules of practice, failed to address certain evidence that strongly
supported that finding, and was relegated to the section of her brief
contesting the finding regarding whether the department’s reunification
efforts were reasonable, her claim was reasonably discernable from the
record and sufficiently clear to permit the Appellate Court to address
it on the merits, in light of the relative simplicity and interdependence
of the respondent’s briefed claims regarding the trial court’s finding
regarding the reasonableness of the department’s reunification efforts,
the impact that the department’s alleged reduction of its reunification
services had on the success of the respondent’s reunification efforts,
and the department’s failure to provide the reunification services that
the trial court previously had determined were reasonable and appro-
priate in view of the respondent’s cognitive deficits.
2. The respondent could not prevail on her claim that the trial court incor-
rectly determined that she had been unable to benefit from the depart-
ment’s reunification efforts because, several months before the termi-
nation hearing, the department reduced the number of the respondent’s
weekly visits with E and replaced the agency tasked with supervising
one of those weekly visits with an agency whose employees were not
trained to work with persons with cognitive disabilities, such as the
respondent, and because the department could have done more to iden-
tify services that might have assisted her in her reunification efforts:
the evidence supported the trial court’s finding that that the respondent
was unable to benefit from the department’s reunification efforts, the
trial court having properly relied on the expert opinion testimony of
two evaluating psychologists that the respondent’s cognitive deficits
and psychological conditions were so severe that she could not be left
alone with children and that the only way reunification could be achieved
was through a program involving around-the-clock supervision of both
the respondent and E, which was not available in this state; moreover,
this court declined to address the respondent’s claim that the department
should have looked out of state to find a program that could provide
around-the-clock supervision, she having failed to raise that claim in
the trial court, and, in any event, the respondent cited no authority to
support her claim that reasonable reunification efforts required the
department to provide her with in-state or out-of-state around-the-
clock supervision.
The role that the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101
et seq.), the provisions of which cannot be relied on as a defense in a
child neglect or termination of parental rights proceeding, plays in child
welfare proceedings, discussed.
Argued January 17—officially released August 9, 2017***
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights as to
their minor child, brought to the Superior Court in the
judicial district of Windham, Child Protection Session
at Willimantic, and tried to the court, Hon. Francis J.
Foley III, judge trial referee, who, exercising the powers
of the Superior Court, rendered judgment terminating
the respondents’ parental rights, from which the respon-
dent mother appealed to the Appellate Court, DiPen-
tima, C. J., and Beach and Flynn, Js., which dismissed
the appeal for lack of subject matter jurisdiction, and
the respondent mother, on the granting of certification,
appealed to this court. Improper form of judgment;
judgment directed.
James P. Sexton, assigned counsel, with whom were
Michael S. Taylor, assigned counsel, and, on the brief,
Emily Graner Sexton, Matthew C. Eagan and Marina
L. Green, assigned counsel, for the appellant (respon-
dent mother).
Michael Besso, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Dan Barrett, Daniel J. Krisch, and Shira T.
Wakschlag filed a brief for the Arc of the United States
et al. as amici curiae.
Joshua Michtom, assistant public defender, filed a
brief for the Office of the Chief Public Defender as
amicus curiae.
Opinion
PALMER J. In this certified appeal, the respondent,
Marquita C., appeals from the judgment of Appellate
Court, which dismissed her appeal from the judgment
of the trial court terminating her parental rights as to
her son, Elijah C.1 See In re Elijah C., 164 Conn. App.
518, 519, 137 A.3d 944 (2016). The respondent claims
that the Appellate Court incorrectly concluded that she
had failed to adequately brief one of the two indepen-
dent grounds for reversing the judgment of the trial
court and, consequently, that her appeal was moot. She
further claims that the trial court incorrectly deter-
mined, first, that the Department of Children and Fami-
lies (department) made reasonable efforts to reunify
her with Elijah and, second, that she was unable to
benefit from those efforts.2 We agree with the respon-
dent that the Appellate Court improperly dismissed her
appeal as moot. We further conclude, however, that the
evidence supports the trial court’s determination that
the respondent was unable to benefit from reunification
efforts. Because our resolution of that issue constitutes
an independent basis for affirming the trial court’s judg-
ment, we need not address the respondent’s claim that
the trial court incorrectly concluded that the depart-
ment made reasonable efforts to reunify her with Elijah.
We therefore vacate the judgment of the Appellate
Court and remand the case to that court with direction
to affirm the trial court’s judgment.3
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘The
[trial] court granted the petitioner, the Commissioner
of Children and Families, an ex parte order of temporary
custody of Elijah shortly after he was born.4 The peti-
tioner filed a neglect petition on February 21, 2014, on
the basis of the doctrine of predictive neglect as a result
of the respondent’s diminished cognitive abilities.5 The
order granting temporary custody of Elijah was sus-
tained four days later.
‘‘The court, Dyer, J., held a neglect trial on September
15, 2014. On October 2, 2014, the court adjudicated
Elijah as neglected and ordered his care, custody, and
guardianship [be] committed to the petitioner. Addition-
ally, the court ordered the department (1) to contact
[the Department of Mental Health and Addiction Ser-
vices (DMHAS) and the Department of Developmental
Services (DDS)] to inquire about additional services for
the respondent, (2) to ascertain from those agencies
whether a group home existed where the respondent
could potentially be reunified with Elijah and receive
various forms of instruction, (3) to request the behav-
ioral health center that was providing the respondent
with psychotropic medications to conduct a medication
management review, and (4) to file a written report
with the court addressing various issues.
‘‘On November 4, 2014, the petitioner filed a motion
for review of the permanency plan seeking to terminate
the parental rights of the respondent. Judge Dyer held
a trial on January 22, 2015, and, six days later, the court
issued its memorandum of decision. After considering
the evidence presented, the court concluded that it was
in the best interest of Elijah . . . ‘[to afford the respon-
dent] . . . a limited period of additional time to pursue
reunification efforts,’ namely, to continue with the ser-
vices provided by the department. . . . The time
period, the court believed, ‘should not exceed six or
seven months.’ [Accordingly], the court rejected the
department’s permanency plan of termination of paren-
tal rights.
‘‘On February 24, 2015, the petitioner filed a petition
pursuant to General Statutes § 17a-1126 to terminate the
parental rights of the respondent and Paul Y. . . . On
September 8 and 10, 2015, the court, Hon. Francis J.
Foley III, judge trial referee, held a hearing on the . . .
petition.7 On September 18, 2015, the court issued a
comprehensive memorandum of decision. The court
found by clear and convincing evidence that ‘[the
department had] made reasonable efforts to reunify
[Eliljah] with [the respondent] . . . [and that the
respondent was] unable to benefit from reunification
services.’ Consequently, the court terminated the paren-
tal rights of the respondent. . . .
‘‘The court’s memorandum of decision from the ter-
mination hearing sets forth the following facts . . . .
Shortly after Elijah was born, the hospital personnel
were concerned because the respondent ‘appeared to
have cognitive limitations and serious mental health
problems (schizophrenia) and . . . was reported to
have poor judgment and no insight into parenting.’ Thus,
the hospital contacted the department, [which] sent a
social worker to observe the respondent and Elijah.
The social worker concluded that the respondent could
not care for Elijah because of the severity of her limi-
tations.
‘‘The respondent’s lengthy and exceptionally sad
involvement in the child welfare system provides . . .
context to the present appeal. The respondent was born
prematurely, addicted to cocaine and alcohol, and suf-
fered serious medical conditions. In April, 1989, the
respondent was placed in foster care with Gwendolyn
C. and [Gwendolyn’s] . . . husband. In 1993, Gwendo-
lyn and her . . . husband adopted the respondent and
another girl unrelated to the respondent. In 1994, the
respondent’s adoptive parents divorced. Between 1997
and 1999, Gwendolyn adopted three more children.
‘‘The respondent’s childhood with Gwendolyn was
difficult. Under her care, the respondent and the other
children were ‘cruel[ly] discipline[d] . . . [by her]
making them run up and down stairs, standing them
on one leg with their arms outstretched holding a book
in each arm, [and] beating [them] with a stick and with
a belt.’ In July, 2001, just prior to the respondent’s thir-
teenth birthday, Gwendolyn abandoned three of her
adoptive children, including the respondent, at the
department’s Meriden office. Gwendolyn explained that
she could no longer care for [them]. All three children
were underweight, which lent credence to claims that
Gwendolyn routinely withheld food from [them].
‘‘After being abandoned by Gwendolyn, the respon-
dent remained in the custody of the petitioner as a
committed child for approximately six years. The
respondent qualified for postmajority services through
[DDS] and [DMHAS]. The department developed a post-
majority plan in which both agencies were to provide
the respondent with ‘life skills, vocational training, and
supportive housing.’ The postmajority plan, however,
never came to fruition because, prior to her nineteenth
birthday, the respondent returned to Gwendolyn’s care.
The respondent resided with Gwendolyn for the next
several years before cohabitating with Paul Y. After
the respondent and Paul Y.’s relationship ended, she
returned to Gwendolyn’s home. Approximately four
months later, Elijah was born.
‘‘The court’s memorandum of decision also detailed
the department’s efforts to reunite Elijah with the
respondent. It noted that the department offered the
respondent case management services, three in-home
visits per week with a parenting skills component, the
opportunity to attend Elijah’s medical visits by provid-
ing transportation, and services from two agencies
[namely, Nurturing Seeds and Family Network] to pro-
vide supervised visitation and training in basic childcare
skills. Concerned that the respondent was ‘being over-
whelmed with too many services,’ the department
sought and was granted permission for the respondent
to undergo psychological evaluations.
‘‘The respondent underwent two psychological evalu-
ations that informed the court’s decision. The first eval-
uation, conducted by Madeleine Leveille, a licensed
psychologist, was completed in August, 2014, prior to
the neglect trial. In addition to providing the court with
the respondent’s background, Leveille’s evaluation
[contained] key observations and opinions. For exam-
ple, when discussing her mental illness, the respondent
told Leveille that she regularly saw a ‘shadow,’ which
Leveille characterized as a visual hallucination. Leveille
concluded that the respondent had a ‘limited conceptual
understanding, [was] highly dependent socially on oth-
ers, and [had] odd and occasionally paranoid and cyni-
cal thought processes.’ Moreover, the respondent’s
‘thinking processes show[ed] clear evidence of her
[i]ntellectual [d]isability, [s]chizophrenia and a mood
disorder.’ Leveille was unequivocal that ‘[h]aving an
[i]ntellectual [d]isability does not mean that one cannot
parent a child. In [the respondent’s] case, however,
her intellectual disability, coupled with her psychiatric
conditions, particularly her personality disorder, ren-
der[ed] her incapable of parenting a child indepen-
dently.’
‘‘Approximately two months before the termination
trial, in July, 2015, the respondent underwent a second
evaluation. This evaluation was funded by the depart-
ment in an effort to assess the respondent on an ‘individ-
ualized basis.’ The ‘Cognitive/Adaptive Functioning
Evaluation’ was conducted by Stephanie Stein Leite, a
licensed psychologist. Leite concluded that the respon-
dent had an [intelligence] quotient that placed her in
the ‘[e]xtremely [l]ow range,’ i.e., at the ‘bottom [one]
percentile of the [population] . . . .’ Leite’s evaluation
also concluded that the respondent’s personal and
social skills, adaptive behavior, [and] ability to perform
daily living skills . . . were in the [1] percent range, i.e.,
‘[99 percent] of the population [have] better adaptive
functioning skills than . . . [the respondent].’ Leite’s
assessment indicated that the respondent’s ‘eating,
dressing, and hygiene skills [were] commensurate with
[those of] a six year old . . . [that] [s]he complete[d]
household chores at the level of an eleven year old,
and use[d] time, money, and communication tools at the
level of a [thirteen] year old.’ In short, Leite’s evaluation
demonstrated that the respondent, pursuant to General
Statutes § 1-1g,8 was intellectually disabled. On the basis
of these results, Leite opined that the respondent was
‘unlikely to be able to independently care for herself,
which means she [would] not [be] able to care for [Eli-
jah]. Because many of [the respondent’s poor adaptive
skills were] rooted in her lower intellectual functioning,
though she is educable, the deficits are not, overall,
likely to be responsive to remediation.’ Leite concluded
that the respondent could only care for Elijah if the
respondent was under someone’s care.’’ (Footnotes
altered.) In re Elijah C., supra, 164 Conn. App. 520–25.
Although well aware of the respondent’s love for
Elijah and the fact that her parenting deficiencies are
due to extremely unfortunate circumstances not of her
own making, the trial court concluded in relevant part
that, ‘‘[r]egrettably, [the respondent’s] condition is
such’’ that ‘‘[s]he is not able to care for a child by herself
and would require twenty-four hour assistance by a
surrogate parent or a group home with the capacity to
monitor [her] day and night’’ for her ‘‘to achieve any
form of reunification. There are no known, available
support programs that offer that level of care.’’ And
‘‘[t]here is no doubt that [the respondent] and even
[Gwendolyn] love Elijah. ‘The sad fact is there is a
difference between parental love and parental compe-
tence.’ In re Christina, 90 Conn. App. 565, 575 [877
A.2d 941] (2005) [aff’d, 280 Conn. 474, 908 A.2d 1073
(2006)]. There is abundant evidence that [the respon-
dent] is only marginally able to care for herself.’’
On appeal to the Appellate Court, the respondent
claimed that the trial court incorrectly determined that
the department had made reasonable efforts to reunite
her with Elijah when, within two weeks of the trial
court’s January 28, 2015 order directing the department
to continue the services it was then providing to the
respondent, the department ‘‘removed one of the ser-
vices that was most crucial to her progress . . . .’’ In re
Elijah C., Conn. Appellate Court Briefs & Appendices,
February Term, 2016, Respondent’s Brief p. 8. More
specifically, the respondent argued that the department
had reduced the number of weekly supervised visits
from three to two and had changed the agency responsi-
ble for supervising one of the visits from Nurturing
Seeds, whose employees were trained to work with
people with cognitive disabilities, to Family Network,
whose employees were not.9 See id., pp. 7–8. In the
respondent’s view, those actions by the department
deprived the trial court of the information necessary
to determine whether she, in fact, was unable to benefit
from reunification services. Thus, the respondent
claimed that, ‘‘[b]ecause [Judge Dyer], on January 28,
2015, defined reasonable efforts [to reunite the respon-
dent and Elijah] for the petitioner, and because the
department acted in opposition to that order, [Judge
Foley’s] subsequent holding that . . . clear and con-
vincing evidence showed that the petitioner made rea-
sonable efforts and that the respondent was unable to
benefit from [them] is clearly erroneous.’’ Id., p. 11.
The petitioner maintained, inter alia, that the respon-
dent’s appeal must be dismissed as moot because, as
we explained in In re Jorden R., 293 Conn. 539, 552–53,
979 A.2d 469 (2009), either one of the trial court’s find-
ings—that the department made reasonable reunifica-
tion efforts or that the respondent was unable to benefit
from them—was sufficient to sustain the trial court’s
judgment, but, in her brief to the Appellate Court, the
respondent had challenged only one of those findings.
See In re Elijah C., supra, 164 Conn. App. 525. Conse-
quently, the petitioner argued, the respondent could
not obtain any practical relief on appeal because the
Appellate Court was bound to affirm the trial court’s
judgment on the basis of that court’s unchallenged find-
ing that the respondent was unable to benefit from
reasonable reunification efforts. See id.; see also In re
Jorden R., supra, 555–57. The Appellate Court agreed
with the petitioner, concluding that the respondent had
inadequately briefed her claim challenging the trial
court’s finding that the respondent was unable to bene-
fit from reunification efforts. In re Elijah C., supra,
526. The Appellate Court stated that, ‘‘[a]lthough the
respondent’s main brief does use language suggesting
a challenge to the court’s second finding, the argument
was far from complete, lacking legal authority and anal-
ysis. As a result, the respondent ha[d] failed to ade-
quately brief any challenge [to] the court’s second
finding that she was unable to benefit from the reunifi-
cation efforts.’’ Id., 529. The court further explained
that, to the extent that the respondent’s brief could be
read as challenging the trial court’s second finding, the
argument consisted of a mere seven sentences and was
improperly located in the section of the respondent’s
brief addressing her claim that the trial court incorrectly
determined that the department made reasonable reuni-
fication efforts. See id., 529 and n.6. This certified appeal
followed. Additional facts and procedural history will
be set forth as necessary.
On appeal, the respondent claims that the Appellate
Court incorrectly determined that her appeal was moot.
She further claims that the department’s reunification
efforts failed to comport with the Americans with Disa-
bilities Act of 1990 (ADA), Pub. L. No. 101-336, 104 Stat.
327, codified as amended at 42 U.S.C. § 12101 et seq.
(2012)10 and, therefore, that the trial court’s finding that
those efforts were reasonable for purposes of § 17a-
112 (j) (1) is clearly erroneous. Finally, the respondent
argues that the trial court incorrectly determined that
she was unable to benefit from reunification efforts.
We agree with the respondent that the Appellate Court
incorrectly determined that her appeal was moot. We
agree with the petitioner, however, that the record sup-
ports the trial court’s finding by clear and convincing
evidence that the respondent was unable to benefit
from reunification efforts, which serves as an indepen-
dent basis for sustaining the judgment of the trial court.
In light of our determination, we need not decide
whether the trial court correctly determined that the
department’s reunification efforts were reasonable.
I
We first address the respondent’s claim that the
Appellate Court incorrectly determined that her appeal
was moot. ‘‘Mootness raises the issue of a court’s sub-
ject matter jurisdiction and is therefore appropriately
considered even when not raised by one of the parties.
. . . Mootness is a question of justiciability that must
be determined as a threshold matter because it impli-
cates [a] court’s subject matter jurisdiction . . . .
Because courts are established to resolve actual contro-
versies, before a claimed controversy is entitled to a
resolution on the merits it must be justiciable. Justicia-
bility requires (1) that there be an actual controversy
between or among the parties to the dispute . . . (2)
that the interests of the parties be adverse . . . (3) that
the matter in controversy be capable of being adjudi-
cated by judicial power . . . and (4) that the determi-
nation of the controversy will result in practical relief
to the complainant. . . . [I]t is not the province of
appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the
determination of which no practical relief can follow.
. . . In determining mootness, the dispositive question
is whether a successful appeal would benefit the plain-
tiff or defendant in any way.’’ (Citations omitted; empha-
sis omitted; internal quotation marks omitted.) In re
Jorden R., supra, 293 Conn. 555–56.
In concluding that the appeal was moot, the Appellate
Court relied on In re Jorden R.; see In re Elijah C.,
supra, 164 Conn. App. 526–28; in which this court deter-
mined that, ‘‘[a]s part of a termination of parental rights
proceeding, § 17a-112 (j) (1)11 requires the department
to prove by clear and convincing evidence that it has
made reasonable efforts to locate the parent and to
reunify the child with the parent, unless the court finds
. . . that the parent is unable or unwilling to benefit
from reunification efforts . . . .
‘‘Because the two clauses are separated by the word
unless, [§ 17a-112 (j) (1)] plainly is written in the con-
junctive. Accordingly, the department must prove either
that it has made reasonable efforts to reunify or, alterna-
tively, that the parent is unwilling or unable to benefit
from reunification efforts. Section 17a-112 (j) clearly
provides that the department is not required to prove
both circumstances. Rather, either showing is sufficient
to satisfy this statutory element.’’ (Emphasis omitted;
footnote added.) In re Jorden R., supra, 293 Conn.
552–53.
Accordingly, we concluded in In re Jorden R. that
when, as in the present case, the trial court finds that
the department has proven both statutory elements—
the department made reasonable reunification efforts
and the respondent was unable to benefit from them—
the respondent’s failure to challenge both findings on
appeal renders the appeal moot because either one
constitutes an independent, alternative basis for
affirming the trial court’s judgment. Id., 557 (no practi-
cal relief can be afforded to parent who fails to chal-
lenge both findings because ‘‘trial court’s ultimate
determination that the requirements of § 17a-112 [j] [1]
were satisfied remain unchallenged and intact’’).
The Appellate Court relied on these principles in con-
cluding that the respondent’s appeal was moot because
she had failed to adequately brief her claim that the
trial court’s second finding was clearly erroneous. See
In re Elijah C., supra, 164 Conn. App. 526–29; see also
Connecticut Light & Power Co. v. Dept. of Public Utility
Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003) (appel-
late courts ‘‘are not required to review issues that have
been improperly presented . . . through an inadequate
brief’’ [internal quotation marks omitted]). We review
the Appellate Court’s determination that a claim was
inadequately briefed for an abuse of discretion. E.g.,
State v. Buhl, 321 Conn. 688, 724–25, 138 A.3d 868
(2016).
Notwithstanding this deferential standard of review,
we are unable to conclude that the respondent’s claim
challenging the trial court’s second finding was inade-
quately briefed. To be sure, the respondent’s argument
was neither comprehensive nor painstaking, cited no
authority, apart from the applicable statutes and rules
of practice, and was relegated to the section of her brief
contesting the trial court’s finding that the department
made reasonable efforts to reunite her with Elijah.
Nonetheless, the extent of the briefing required to
ensure that a claim will be reviewed by this court or
the Appellate Court is highly dependent on the nature
of the claim being asserted, such that the more nuanced
and complex the claim, the more extensive the required
analysis. See, e.g., id., 726 (citing cases and explaining
that analytical complexity of claim generally dictates
nature of briefing required). Ordinarily, ‘‘[c]laims are
inadequately briefed when they are merely mentioned
and not briefed beyond a bare assertion. . . . Claims
are also inadequately briefed when they . . . consist of
conclusory assertions . . . with no mention of relevant
authority and minimal or no citations from the record
. . . .’’ (Citation omitted; internal quotation marks
omitted.) Electrical Contractors, Inc. v. Dept. of Educa-
tion, 303 Conn. 402, 444 n.40, 35 A.3d 188 (2012). As a
general matter, the dispositive question in determining
whether a claim is adequately briefed is whether the
claim is ‘‘reasonably discernible [from] the record
. . . .’’ (Internal quotation marks omitted.) McCook v.
Whitebirch Construction, LLC, 117 Conn. App. 320, 322
n.3, 978 A.2d 1150 (2009), cert. denied, 294 Conn. 932,
987 A.2d 1029 (2010). We agree with the respondent
that her challenge to the trial court’s second finding in
the Appellate Court satisfied this standard, albeit min-
imally.
The respondent’s claims in the Appellate Court,
which she viewed as inextricably linked, were straight-
forward. The respondent argued, first, that the trial
court’s finding that the department made reasonable
efforts to reunite her with Elijah was clearly erroneous
because, inter alia, shortly after the trial court issued
its January 28, 2015 order directing the department to
continue the services it was then providing to the
respondent, the department eliminated one of the ser-
vices that the respondent considered most crucial to
the success of her reunification efforts. See In re Elijah
C., Conn. Appellate Court Briefs & Appendices, supra,
Respondent’s Brief p. 8. In a closely related vein, the
respondent further argued that the trial court’s finding
that she could not benefit from reunification efforts was
clearly erroneous in light of the department’s failure to
provide the reunification services that the trial court
previously had determined were reasonable and appro-
priate in light of the respondent’s cognitive deficits, and
that the court had ordered be continued for a period
not to exceed six or seven months so that it could better
determine whether the respondent was able to benefit
from them.12 See id, pp. 9–10. Considering the relative
simplicity and interdependence of these claims, we
believe, contrary to the determination of the Appellate
Court, that the respondent’s second claim was suffi-
ciently clear to permit that court to address it on the
merits.13
We disagree with the petitioner that the respondent’s
second claim was inadequately briefed because the
respondent’s argument failed to take into account the
evidence that supported the trial court’s finding that
she was unable to benefit from reunification services.
As we explain more fully hereinafter, the petitioner is
correct that the respondent, in addressing her second
claim, failed to address certain evidence that strongly
supported the trial court’s second finding. We have
never held, however, that an appellant’s failure to con-
sider every countervailing argument renders a claim
inadequately briefed. Of course, in the interests of effec-
tive advocacy, an appellant should address both the
strengths and weaknesses of her case, but we cannot
say that the failure to do so necessarily renders the
claim inadequately briefed.
Nor are we persuaded by the petitioner’s contention
that the respondent’s claim was inadequately briefed
because she failed to address the holding of In re Jorden
R., which the petitioner maintains ‘‘rejected’’ the logic
underlying the respondent’s second claim, namely,
‘‘that, without the department first providing reasonable
[services], a trial court’s finding that [the respondent]
was unable to benefit from [such services] must neces-
sarily fail.’’ We disagree with the petitioner’s character-
ization of the respondent’s claim in the Appellate Court.
The respondent did not claim in that court that the
department’s failure to provide reunification services
necessarily precludes a finding by the trial court that
a parent is unable to benefit from such services. To the
contrary, the respondent acknowledges that, in some
cases, the department may be under no obligation to
pursue a permanency plan of reunification. The respon-
dent argued, rather, that, in light of the department’s
failure to provide the services that the trial court pre-
viously had determined were reasonable in light of the
respondent’s disabilities and necessary for a determina-
tion of whether reunification was feasible, that court’s
finding that she was unable to benefit from such ser-
vices was not supported by the evidence.
Accordingly, although it is true that a finding that the
department made reasonable reunification efforts is not
a necessary predicate to a finding that a parent is unable
to benefit from such efforts, this does not mean that a
trial court could never view those two issues as interre-
lated. Cf. In re Gabriella A., 319 Conn. 775, 814, 127 A.3d
948 (2015) (Robinson, J., dissenting) (‘‘[T]he question
of whether the petitioner made reasonable efforts to
reunify the respondent with her child is inextricably
linked to the question of whether the respondent can
benefit from such efforts. Because the petitioner’s
efforts were unreasonable, we cannot determine
whether the respondent could have benefited from rea-
sonable efforts.’’ [Emphasis omitted; footnote omit-
ted.]). Nothing that we stated in In re Jorden R. suggests
otherwise. Depending on the case, a trial court might
well conclude that the department’s reunification
efforts were so lacking as to preclude both a finding
that the department made reasonable reunification
efforts and that a parent is unable to benefit from such
efforts. Cf. In re Fried, 266 Mich. App. 535, 541, 702
N.W.2d 192 (2005) (reasonableness of reunification
efforts affects sufficiency of evidence supporting
grounds for termination). Although the respondent
believed in good faith that this is such a case and tai-
lored her arguments accordingly, as we explain herein-
after, we disagree with the merits of the respondent’s
view of that issue.
II
We turn, therefore, to the respondent’s claim that the
trial court incorrectly determined that she was unable
to benefit from reunification efforts. As we have
explained, the respondent views the success of this
claim as dependent on the success of her claim that the
trial court incorrectly determined that the department
made reasonable efforts to reunite her with Elijah. Spe-
cifically, the respondent argues that the trial court
incorrectly determined that she was unable to benefit
from reunification services because, seven months
before the termination hearing, the department reduced
the number of the respondent’s weekly visits with Elijah
from three to two and replaced the agency tasked with
supervising one of the visits, Nurturing Seeds, with Fam-
ily Network, whose employees, in contrast to the
employees of Nurturing Seeds, were not trained to work
with clients with cognitive disabilities. The respondent
maintains that, because the evidence indicates that her
parenting skills were improving under Nurturing Seeds,
the only reasonable conclusion to be drawn is that her
skills would have continued to improve but for the
department’s substitution of agencies. The respondent
also faults the department for failing to do more to
identify services that might have assisted her in her
reunification efforts.
The petitioner counters that there is no evidence that
the change from Nurturing Seeds to Family Network
had any adverse effect on the respondent’s reunification
efforts. To the contrary, the petitioner maintains that
the only evidence related to this issue indicates that
the services provided by the two agencies were indistin-
guishable in terms of outcomes. The petitioner further
argues that the respondent does not identify a single
available reunification service that the department
failed to offer her, and, therefore, her assertion that the
department could have done more to assist her in her
reunification efforts is entirely speculative. Finally, the
petitioner contends that, even if the respondent is cor-
rect that the department’s reunification efforts were
somehow lacking, she nonetheless cannot prevail
because the evidence overwhelmingly supports the trial
court’s determination that she was unable to benefit
from reunification services, regardless of what services
were provided or how long they were provided for. We
agree with the petitioner.
The following principles guide our analysis of this
claim. ‘‘Pursuant to § 17a-112 (j), the trial court must
make certain required findings after a hearing before
it may terminate a party’s parental rights. It is well
established that, [u]nder § 17a-112, a hearing on a peti-
tion to terminate parental rights consists of two phases:
the adjudicatory phase and the dispositional phase. Dur-
ing the adjudicatory phase, the trial court must deter-
mine whether one or more of the . . . grounds for
termination of parental rights set forth in § 17a-112 [(j)
(3) exist] by clear and convincing evidence. . . . In
contrast to custody proceedings, in which the best inter-
ests of the child are always the paramount consider-
ation and in fact usually dictate the outcome, in
termination proceedings, the statutory criteria must be
met before termination can be accomplished and adop-
tion proceedings begun. . . . Section [17a-112 (j) (3)]
carefully sets out . . . [the] situations that, in the judg-
ment of the legislature, constitute countervailing inter-
ests sufficiently powerful to justify the termination of
parental rights in the absence of consent. . . . If the
trial court determines that a statutory ground for termi-
nation exists, then it proceeds to the dispositional
phase. During the dispositional phase, the trial court
must determine whether termination is in the best inter-
ests of the child.’’ (Footnote omitted; internal quotation
marks omitted.) In re Oreoluwa O., 321 Conn. 523,
531–32, 139 A.3d 674 (2016). ‘‘Also, as part of the adjudi-
catory phase, the department is required to prove, by
clear and convincing evidence, that it has made reason-
able efforts . . . to reunify the child with the parent,
unless the court finds . . . that the parent is unable or
unwilling to benefit from reunification . . . .’’ (Internal
quotation marks omitted.) Id., 532. ‘‘Because a respon-
dent’s fundamental right to parent his or her child is at
stake, [t]he statutory criteria must be strictly complied
with before termination can be accomplished and adop-
tion proceedings begun.’’ (Internal quotation marks
omitted.) In re Elvin G., 310 Conn. 485, 500–501, 78
A.3d 797 (2013).
On appeal, we evaluate the trial court’s subordinate
factual findings for clear error. E.g., In re Gabriella A.,
supra, 319 Conn. 789. We review the trial court’s ulti-
mate determination that a parent is unable to benefit
from reunification efforts, however, for evidentiary suf-
ficiency; e.g., id., 790; ‘‘that is, we consider whether the
trial court could have reasonably concluded, [on the
basis of] the facts established and the reasonable infer-
ences drawn therefrom, that the cumulative effect of
the evidence was sufficient to justify its [ultimate con-
clusion]. . . . When applying this standard, we con-
strue the evidence in a manner most favorable to
sustaining the judgment of the trial court.’’ (Internal
quotation marks omitted.) Id., 789.
Although the trial court made numerous findings in
deciding to terminate the respondent’s parental rights,
two in particular, either alone or in combination, sup-
port that court’s determination that the respondent was
unable to benefit from reunification services. First, as
we previously discussed, the trial court credited the
opinions of Leveille and Leite, the two psychologists
who evaluated the respondent at different stages of
the case, that the respondent’s cognitive deficits and
psychological conditions were so severe that the only
way that reunification could be achieved would be if
the respondent and Elijah lived in a setting in which
they both received around-the-clock supervision. See,
e.g., In re Shane M., 318 Conn. 569, 590, 122 A.3d 1247
(2015) (‘‘[c]ourts are entitled to give great weight to
professionals in parental termination cases’’ [internal
quotation marks omitted]); In re Juvenile Appeal
(Anonymous), 177 Conn. 648, 667, 420 A.2d 875 (1979)
(in termination proceeding, ‘‘[p]sychological testimony
from professionals is rightly accorded great weight’’).
It was for this reason that the trial court, following
the neglect hearing, ordered the department to contact
DMHAS and DDS to ascertain whether there were any
assisted living programs in Connecticut that provided
the level of care that the respondent needed for a perma-
nency plan of reunification to proceed. The department
subsequently communicated with staff from both agen-
cies, who informed the department that there were no
such programs in the state.14
The trial court also relied on the fact that, three
months before the termination hearing, the respondent
was hospitalized for eight days following a period of
‘‘homicidal ideation toward her mother, mood swings,
auditory hallucinations and visions of hitting others in
the head with a hammer and enjoying it,’’ a development
that the court aptly described as a ‘‘significant safety
concern’’ for Elijah. The court further observed that
the respondent’s hospital admission form indicated that
she had been ‘‘aggressive toward her three year old
nephew on the day prior to [her] admission,’’ and that
the respondent’s adoptive mother, Gwendolyn, had tes-
tified ‘‘that [the respondent was] not allowed unsuper-
vised contact with [any of Gwendolyn’s] twelve grand-
children.’’ The court concluded that, ‘‘[a]s this ha[d]
only recently occurred, it [was] unlikely that [the
respondent’s] anger toward her mother and aggression
toward [her] nephew [had] been addressed in therapy.’’
It bears emphasis, moreover, as it relates to the trial
court’s finding that the respondent was unable to bene-
fit from reunification services, that, at the time of her
June, 2015 hospitalization, the respondent had been
receiving reunification services, including individual
counseling and psychotropic medication management
services, for fifteen months and yet was still experienc-
ing hallucinations and had not progressed to a point at
which she could be left alone with children. Subse-
quently, approximately two months before the termina-
tion hearing, Leite conducted a court ordered ‘‘Cog-
nitive/Adaptive Functioning Evaluation’’ of the respon-
dent. (Internal quotation marks omitted.) In re Elijah
C., supra, 164 Conn. App. 524. In her report, which the
trial court credited, Leite stated that the respondent
‘‘continued to have visual and auditory hallucinations,’’
which ‘‘likely impacts her ability to tolerate stressful
situations, such as when a baby cries, and her ability
to engage in creative problem solving, as both the psy-
choticism and the mental retardation make it difficult
[for her] to extrapolate learned information to new situ-
ations.’’ In light of these and other facts, the trial court
reasonably concluded by clear and convincing evidence
that the respondent, albeit through no fault of her own,
was simply unable to benefit from reunification services
to the extent required for her reunification with Elijah.
Notably, the respondent does not address the trial
court’s findings regarding the events preceding her
June, 2015 hospitalization, much less explain why those
findings do not support that court’s determination that
she was ultimately unable to benefit from reunification
services. Moreover, the respondent’s only response to
the trial court’s finding that there were no assisted living
programs in this state that offered the level of care
and supervision that she and Elijah would require for
reunification efforts to proceed is to argue, for the first
time on appeal, that the petitioner should have looked
out of state to find such a program. We agree with the
petitioner that the proper place for the respondent to
have raised her claim concerning an out-of-state place-
ment was in the trial court, where the issue could have
been litigated and a factual record developed as to
whether reasonable reunification efforts required the
department to search for an out-of-state placement.
E.g., Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 142, 84 A.3d
840 (2014) (‘‘[i]t is well settled that [o]ur case law and
rules of practice generally limit [an appellate] court’s
review to issues that are distinctly raised at trial’’ [inter-
nal quotation marks omitted]). In the absence of such
a record, we can only speculate as to whether such a
program existed, what it would have cost or whether
the respondent even would have agreed to participate
in it.15
We note, finally, that, even if the respondent’s claim
concerning an out-of-state placement had been pre-
served, the respondent cites no authority for the propo-
sition that reasonable reunification efforts required the
department to provide her with around-the-clock par-
enting assistance—in state or out of state. To our knowl-
edge, only one court has considered such a claim, and
that court flatly rejected it. See In re Terry, 240 Mich.
App. 14, 27–28, 610 N.W.2d 563 (2000) (‘‘[The] [p]eti-
tioner had no other services available that would
address [the] respondent’s deficiencies while allowing
her to keep her children. The ADA does not require
[the] petitioner to provide [the] respondent with full-
time, live-in assistance with her children. See Bartell
v. Lohiser, 12 F. Supp. 2d 640, 650 [E.D. Mich. 1998
(claim that ADA required state to provide in-home assis-
tance to mentally disabled mother to care for her son
was unsupported by law), aff’d, 215 F.3d 550 (6th Cir.
2000)]. [The] [r]espondent’s contention that she needed
even more assistance from [the] petitioner to properly
care for her children merely provides additional support
for the family court’s decision to terminate her parental
rights.’’); accord In re Ozark, Michigan Court of
Appeals, Docket No. 256851 (December 16, 2004).
In light of our determination that the evidence sup-
ported the trial court’s finding that the respondent was
unable to benefit from reunification services, we need
not address the respondent’s claim that, by substituting
agencies, the department’s reunification efforts violated
the ADA and, therefore, that the trial court incorrectly
concluded that the department’s efforts were reason-
able under § 17a-112 (j) (1). We nevertheless take this
opportunity to clarify the ADA’s role in child welfare
proceedings given the apparent misapprehension of the
respondent and the amici curiae that the ADA is inappli-
cable to child welfare proceedings merely because it
cannot be raised as a defense in such proceedings. The
respondent argues, for example, that, under our current
law, ‘‘the ADA does not apply to child protection cases
and, therefore, [can offer] no insight into what reunifica-
tion efforts are reasonable . . . .’’ This assertion is sim-
ply not accurate.
As we previously noted, Title II, § 202, of the ADA
provides that ‘‘no qualified individual with a disability
shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected
to discrimination by any such entity.’’ 42 U.S.C. § 12132
(2012). For purposes of the ADA, a ‘‘ ‘qualified individ-
ual with a disability’ ’’ is ‘‘an individual with a disability
who, with or without reasonable modifications to rules,
policies, or practices, the removal of architectural, com-
munication, or transportation barriers, or the provision
of auxiliary aids and services, meets the essential eligi-
bility requirements for the receipt of services or the
participation in programs or activities provided by a
public entity.’’ 42 U.S.C. § 12131 (2) (2012).
This court previously has explained that, ‘‘subsequent
to the passage of the ADA in 1990, the [General Assem-
bly] amended . . . related statutes to strengthen pro-
tections for the disabled in accordance with the ADA
itself. See Public Acts 2001, No. 01-28, § 9 [P.A. 01-
28] (adding subsection [c] to General Statutes § 46a-77,
requiring that state agencies comply with ADA to the
same extent that it provides rights and protections for
persons with physical or mental disabilities beyond
those provided for by the laws of this state). . . . Pub-
lic Act 01-28 . . . specifically engraft[ed] the require-
ments of the ADA, including reasonable accommo-
dation, on state agencies.’’ (Footnote omitted; internal
quotation marks omitted.) Curry v. Allan S. Goodman,
Inc., 286 Conn. 390, 411–12, 944 A.2d 925 (2008). General
Statutes § 46a-71 (a) further provides that the ‘‘services
of every state agency shall be performed without dis-
crimination based upon race, color, religious creed, sex,
gender identity or expression, marital status, age,
national origin, ancestry, intellectual disability, mental
disability, learning disability or physical disability,
including, but not limited to, blindness.’’ Accordingly,
it is the law of this state that child welfare proceedings
are subject to the provisions of the ADA insofar as
they involve the services, programs, or activities of any
state agency.
This court has nonetheless explained, consistent with
the view of the vast majority of courts that have
addressed the issue,16 that the ADA is not properly
raised as a defense in a termination of parental rights
or neglect proceeding because such an action is not a
service, program, or activity of a state agency within
the meaning of the ADA. See In re Joseph W., 305 Conn.
633, 650–51, 46 A.3d 59 (2012). The ADA is not properly
raised as a defense in such proceedings also because,
as the Michigan Court of Appeals explained in In re
Terry, supra, 240 Mich. App. 14, ‘‘[t]he focus at the
dispositional hearing must be on the parent’s rights to
the child and the best interests of the child . . . and
the parties and the court should not allow themselves
to be distracted by arguments regarding the parent’s
rights under the ADA.’’ Id., 26–27 n.5; see also Adoption
of Gregory, 434 Mass. 117, 121, 747 N.E.2d 120 (2001)
(‘‘Although the [Massachusetts] [D]epartment [of Social
Services] is a public entity and therefore subject to the
ADA . . . nothing in the ADA suggests that a violation
of the [ADA] would interfere with the right of the state
to terminate parental rights. To allow the provisions of
the ADA to constitute a defense to termination proceed-
ings would improperly elevate the rights of the parent
above those of the child.’’ [Citation omitted; internal
quotation marks omitted.]).
This is not to say that the ADA plays no role in child
welfare proceedings. To the contrary, as §§ 46a-71 (a)
and 46a-77 (c) make eminently clear, ‘‘the department
is required, pursuant to § 17a-112 (c) (1) [and the ADA],
to take into consideration [a parent’s] mental condition
when determining what ‘reasonable efforts’ to make at
reunification.’’ In re Antony B., 54 Conn. App. 463, 475,
735 A.2d 893 (1999). Accordingly, the fact that the ADA
cannot be interposed as a defense in a termination
proceeding ‘‘[does] not [mean] that the ADA does not
apply to the reunification services and programs that
the department must [provide] to meet the parents’
specialized needs. . . . [Section] 17a-112 requires the
department to make reasonable efforts at reunification.
This includes taking the parent’s mental condition into
consideration. A failure to provide adequate services
because of the parent’s mental condition would violate
not only § 17a-112, but [also] the ADA . . . .’’ (Citations
omitted.) Id., 473 n.9; see also In re Devon B., 264 Conn.
572, 583, 825 A.2d 127 (2003) (‘‘the petitioner statutorily
is obligated to effectuate the respondent’s reunification
with her child, and, in order to accomplish that obliga-
tion, the petitioner [must] address the respondent’s
. . . needs in light of her mental disability’’); In re Eden
F., 250 Conn. 674, 708 n.35, 741 A.2d 873 (1999) (‘‘any
. . . bias [against parents with mental illness] would
be intolerable, and vigilance must be exercised to
ensure that the parental rights of mentally ill persons
are afforded the full protections provided under our
stringent [child protection] statutory scheme’’).
Furthermore, as a practical matter, under our statu-
tory scheme, the department’s failure to make reason-
able modifications to its services, programs or activities
to accommodate a parent’s disability would likely pre-
clude a finding under § 17a-112 (j) (1) that the depart-
ment’s reunification efforts were reasonable under the
circumstances. Cf. Lucy J. v. State, Dept. of Health &
Social Services, Office of Children’s Services, 244 P.3d
1099, 1116 (Alaska 2010) (‘‘if [the Alaska Office of Chil-
dren’s Services] fails to take into account the parents’
limitations or disabilities and [to] make any reasonable
accommodations, then it cannot be found that reason-
able efforts were made to reunite the family’’ [internal
quotation marks omitted]); In re Hicks/Brown,
Mich. , 893 N.W.2d 637, 640 (2017) (‘‘Absent reason-
able modifications to the services or programs offered
to a disabled parent, the [Michigan] Department [of
Health and Human Services] has failed in its duty under
the ADA to reasonably accommodate a disability. In
turn, the [Michigan] Department [of Health and Human
Services] has failed in its duty under the Probate Code
to offer services designed to facilitate the child’s return
to his or her home . . . and has, therefore, failed in its
duty to make reasonable efforts at reunification . . . .’’
[Citation omitted.]); In re Hicks, 315 Mich. App. 251,
269–70 n.5, 890 N.W.2d 696 (2016) (‘‘[g]iven that the
court must consider whether reasonable efforts were
made to reunite the family, precluding specific refer-
ence to the ADA at the dispositional hearing is not
likely to make any difference in terms of the outcome’’),
vacated in part on other grounds sub nom. In re Hicks/
Brown, Mich. , 893 N.W.2d 637 (2017).
Our understanding of the interplay between the ADA
and our child welfare statutes fully comports with the
guidance recently issued by the United States Depart-
ments of Justice and Health and Human Services ‘‘to
assist state and local child welfare agencies and courts
to ensure that the welfare of children and families is
protected in a manner that also protects the civil rights
of parents . . . with disabilities.’’ (Footnote omitted.)
United States Dept. of Health and Human Services &
United States Dept. of Justice, Protecting the Rights
of Parents and Prospective Parents with Disabilities:
Technical Assistance for State and Local Child Welfare
Agencies and Courts under Title II of the Americans
with Disabilities Act and Section 504 of the Rehabilita-
tion Act (August, 2015), available at https://www.ada.
gov/doj_hhs_ta/child_welfare_ta.html (last visited
August 3, 2017). That document provides in relevant
part: ‘‘Individuals with disabilities must be provided
opportunities to benefit from or participate in child
welfare programs, services, and activities that are equal
to those extended to individuals without disabilities.
This principle can require the provision of aids, benefits,
and services different from those provided to other
parents . . . [when] necessary to ensure an equal
opportunity to obtain the same result or gain the same
benefit, such as family reunification.
‘‘This does not mean lowering standards for individu-
als with disabilities; rather, in keeping with the require-
ments of individualized treatment, services must be
adapted to meet the needs of a parent . . . who has a
disability to provide meaningful and equal access to the
benefit. In some cases, it may mean ensuring physical
or programmatic accessibility or providing auxiliary
aids and services to ensure adequate communication
and participation, unless doing so would result in a
fundamental alteration to the nature of the program or
undue financial and administrative burden. For exam-
ple, a child welfare agency must provide an interpreter
for a father who is deaf when necessary to ensure that
he can participate in all aspects of the child welfare
interaction. In other instances, this may mean making
reasonable modification to policies, procedures, or
practices, unless doing so would result in a fundamental
alteration to the nature of the program. For example,
if a child welfare agency provides classes on feeding
and bathing children and a mother with an intellectual
disability needs a different method of instruction to
learn the techniques, the agency should provide the
mother with the method of teaching that she needs.’’
(Footnotes omitted.) Id.
We therefore continue to encourage trial courts to
look to the ADA for guidance in fashioning appropriate
services for parents with disabilities. Furthermore,
there is nothing in the record before us to suggest that
the trial court deviated in any way from ADA principles,
which, as we have explained, are incorporated by refer-
ence into our state’s own stringent antidiscrimination
statutes, in adjudicating the neglect and termination
petitions in the present case. To the contrary, the record
reflects that the trial court was keenly aware of, and
sensitive to, the respondent’s intellectual deficits when
it ordered specific steps to facilitate reunification.
Although extremely unfortunate, in the end, those defi-
cits, along with the respondent’s psychological condi-
tions, proved to be an insurmountable barrier to
reunification.
The form of the judgment of the Appellate Court is
improper, the judgment of the Appellate Court is
vacated, and the case is remanded to that court with
direction to affirm the judgment of the trial court.
In this opinion the other justices concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the full 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.
** The listing of justices reflects their seniority status on this court as of
the date of oral argument.
*** August 9, 2017, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
‘‘The [trial] court also terminated the parental rights of Elijah’s putative
father, Paul Y., during the same proceedings. Paul Y., however, did not
challenge the [trial] court’s judgment’’; In re Elijah C., 164 Conn. App.
518, 519 n.1, 137 A.3d 944 (2016); and, consequently, he is not a party to
this appeal.
2
We granted the respondent’s petition for certification to appeal, limited
to the following questions: First, ‘‘[d]id the Appellate Court incorrectly deter-
mine that the respondent’s appeal should be dismissed as moot due to a
lack of adequate briefing of her claim that the trial court incorrectly deter-
mined that she was unable to benefit from services?’’ In re Elijah C., 321
Conn. 917, 136 A.3d 1275 (2016). Second, ‘‘[i]f the answer to the first question
is in the affirmative, did the trial court correctly determine that the petitioner
had made reasonable efforts and that the respondent was unable to benefit
from reunification efforts?’’ Id.
3
After this appeal was filed, we granted the applications of the Arc of
the United States, the American Civil Liberties Union, the American Civil
Liberties Union Foundation of Connecticut, and the Office of the Chief
Public Defender for permission to file amicus curiae briefs in support of
the respondent’s claims.
4
Elijah was born on February 15, 2014.
5
‘‘A finding of neglect is not necessarily predicated on actual harm . . .
but can exist when there is a potential risk of neglect.’’ (Internal quotation
marks omitted.) In re Elijah C., supra, 164 Conn. App. 520 n.2.
6
General Statutes § 17a-112 provides in relevant part: ‘‘(a) In respect to
any child in the custody of the Commissioner of Children and Families in
accordance with section 46b-129 . . . the commissioner . . . may petition
the court for the termination of parental rights with reference to such
child. . . .
***
‘‘(j) The Superior Court, upon notice and hearing as provided in sections
45a-716 and 45a-717, may grant a petition filed pursuant to this section if
it finds by clear and convincing evidence that (1) the Department of Children
and Families has made reasonable efforts to locate the parent and to reunify
the child with the parent in accordance with subsection (a) of section
17a–111b, unless the court finds in this proceeding that the parent is unable
or unwilling to benefit from reunification efforts . . . .’’
7
‘‘Prior to the commencement of the hearing on the termination petition,
the respondent filed a motion to transfer guardianship to Gwendolyn C.,
the respondent’s adoptive mother. The court denied this motion, and that
ruling was not challenged on appeal.’’ In re Elijah C., supra, 164 Conn. App.
521 n.3.
8
General Statutes § 1-1g provides: ‘‘(a) Except as otherwise provided by
statute, ‘intellectual disability’ means a significant limitation in intellectual
functioning existing concurrently with deficits in adaptive behavior that
originated during the developmental period before eighteen years of age.
‘‘(b) As used in subsection (a) of this section, ‘significant limitation in
intellectual functioning’ means an intelligence quotient more than two stan-
dard deviations below the mean as measured by tests of general intellectual
functioning that are individualized, standardized and clinically and culturally
appropriate to the individual; and ‘adaptive behavior’ means the effectiveness
or degree with which an individual meets the standards of personal indepen-
dence and social responsibility expected for the individual’s age and cultural
group as measured by tests that are individualized, standardized and clini-
cally and culturally appropriate to the individual.’’
9
The record reflects that two of the respondent’s three weekly visits with
Elijah were also supervised by department staff.
10
Title II, § 202, of the ADA provides in relevant part that ‘‘no qualified
individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such
entity.’’ Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104
Stat. 337, codified at 42 U.S.C. § 12132 (2012). Title V, § 504, of the Rehabilita-
tion Act of 1973 provides in relevant part that a qualified disabled person
shall not ‘‘solely, by reason of his or her disability, be excluded from the
participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance . . . .’’
29 U.S.C. § 794 (a) (2012).
11
See footnote 6 of this opinion.
12
For example, the respondent argued that, ‘‘because the department
acted in opposition to [the court’s earlier] order, the trial court’s subsequent
holding that the clear and convincing evidence showed that the petitioner
made reasonable efforts and that the respondent was unable to benefit from
[them] is clearly erroneous.’’ In re Elijah C., Conn. Appellate Court Briefs &
Appendices, supra, Respondent’s Brief p. 11. The respondent also argued
that ‘‘[t]he trial court’s eventual holding that the respondent was unable to
benefit from services cannot stand if reasonable services were taken away
from [her].’’ Id.
13
Because the respondent reasonably viewed her first and second claims
as inextricably linked, for purposes of the present case, it is not dispositive
that the two claims were set forth in the same section of her brief. See
State v. Buhl, supra, 321 Conn. 727 n.32 (‘‘some claims may logically be
combined under one heading’’). We, however, strongly encourage litigants
to raise each separate and independent claim under its own heading.
14
In its January 28, 2015 memorandum of decision on the department’s
motion for review of the permanency plan, the trial court found in relevant
part: ‘‘In compliance with final specific steps orders issued by this court at
the time of the neglect judgment, [the department] contacted DDS and
DMHAS about the existence of the type of supervised reunification facility
described by the psychological evaluator. . . . The department was
informed by representatives of those agencies that such a facility does not
exist in this state. . . . [A department social worker also] testified credibly
that she [was] unaware of any [department] funded residential program or
facility in Connecticut where [the respondent] and Elijah could live together
while the [respondent] received supervised parenting training and support.’’
15
As the petitioner contends, the record indicates that the respondent
had a history of rejecting the department’s advice with respect to such
matters. The trial court expressly stated in its memorandum of decision
that, over the department’s strong objections, the respondent decided to
reside with Gwendolyn when she reached the age of majority, and, in doing
so, she had abandoned the housing, educational and vocational services
that the department had arranged for her. The respondent also continued
to live with Gwendolyn throughout the neglect and termination proceedings,
even though the trial court, early on in the proceedings, made it abundantly
clear that reunification was not possible as long as the respondent resided
in Gwendolyn’s home.
Despite the trial court’s ruling that Gwendolyn’s home was not a suitable
placement for Elijah, and knowing that there were no state programs that
provided the level of care and supervision that she and Elijah required to
achieve reunification, the respondent never once requested that the depart-
ment investigate an out-of-state placement. The respondent instead asked
the court to reconsider its prior decision to deny Gwendolyn’s motion to
be Elijah’s legal guardian, a request that the court flatly denied, citing, as
reasons, Gwendolyn’s ‘‘catastrophic . . . failures’’ as a parent, the ‘‘diaboli-
cally cruel’’ punishment she inflicted on her own children, and the ‘‘ ‘toxic
and controlling’ ’’ relationship that existed between her and the respondent
at the time of the termination proceedings.
16
See, e.g., People ex rel. T.B., 12 P.3d 1221, 1223 (Colo. App. 2000) (‘‘the
ADA cannot be raised as a defense to a termination of parental rights
proceeding’’); In re Doe, 100 Haw. 335, 340, 60 P.3d 285 (2002) (‘‘a termination
proceeding is not a ‘service, program, or activity’ within the definition of
the ADA, and, consequently, the ADA does not apply to such proceedings’’);
Adoption of Gregory, 434 Mass. 117, 121, 747 N.E.2d 120 (2001) (proceedings
to terminate parental rights are not ‘‘ ‘services, programs, or activities’ ’’
under ADA, and, thus, ‘‘the ADA is not a defense to such proceedings’’); In
re Terry, supra, 240 Mich. App. 24–25 (‘‘[t]ermination of parental rights
proceedings do not constitute ‘services, programs or activities’ [under the
ADA, and, therefore] . . . a parent may not raise violations of the ADA as
a defense to [such] proceedings’’); In re Kayla N., 900 A.2d 1202, 1208 (R.I.
2006) (‘‘a termination-of-parental-rights proceeding does not constitute the
sort of service, program, or activity that would be governed by the dictates
of the ADA’’), cert. denied sub nom. Irving N. v. Rhode Island Dept. of
Children, Youth, and Families, 549 U.S. 1252, 127 S. Ct. 1372, 167 L. Ed.
2d 159 (2007); In re B.S., 166 Vt. 345, 351–52, 693 A.2d 716 (1997) (‘‘[T]he
ADA does not directly apply to TPR proceedings. . . . TPR proceedings
are not services, programs or activities within the meaning of [t]itle II of
the ADA . . . .’’ [Citation omitted; internal quotation marks omitted.]); In
re Torrance P., 187 Wis. 2d 10, 16, 522 N.W.2d 243 (1994) (ADA claim ‘‘is
not a basis to attack [a] TPR order’’).
To be sure, court proceedings may be services, programs, or activities
within the meaning of the ADA in certain circumstances—for instance,
insofar as they implicate the ADA’s accessibility protections. Cases involving
the ADA’s application to such proceedings, however, invariably involve
the need for reasonable accommodations, such as the removal of physical
barriers to access. See, e.g., Arneson v. Arneson, 670 N.W.2d 904, 911 (S.D.
2003) (‘‘[m]ost cases concerning the application of the ADA in court proceed-
ings deal with reasonable courthouse accommodations’’); In re K.C., 362
P.3d 1248, 1251 (Utah 2015) (distinguishing between courthouse proceedings
and termination of parental rights proceedings under ADA).