In re Oreoluwa O. , 321 Conn. 523 ( 2016 )

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IN RE OREOLUWA O.—DISSENT
ESPINOSA, J., dissenting. I agree with the majority
that the trial court’s subordinate factual findings were
not clearly erroneous, specifically, that as of December,
2013, it was unclear when the minor child in the present
case, Oreoluwa O., would be medically able to travel,
and, that as of the date of the trial on the petition for
termination of the parental rights of the respondent
father, Olusegun O., filed by the petitioner, the Commis-
sioner of Children and Families, Oreoluwa was still not
medically cleared to travel. Those subordinate factual
findings, construed together with additional evidence
in the record, including evidence that the respondent
failed to travel to the United States in order to receive
reunification services from the Department of Children
and Families (department), provide sufficient eviden-
tiary support for the trial court’s ultimate factual finding
pursuant to General Statutes (Supp. 2016) § 17a-112 (j)
(1),1 that, given the circumstances, the department
made reasonable efforts toward reunification.2 I there-
fore disagree with the majority that the Appellate Court
improperly affirmed the judgment of the trial court ter-
minating the parental rights of the respondent with
respect to Oreoluwa. See In re Oreoluwa O., 157 Conn.
App. 490, 116 A.3d 400 (2015). The majority’s conclusion
to the contrary fails to accord proper deference to the
trial court’s factual findings. That is, rather than prop-
erly viewing the evidence in the light most favorable
to sustaining the judgment of the trial court and consid-
ering all of the evidence along with the reasonable infer-
ences drawn therefrom to determine whether the
record provides sufficient support for the trial court’s
judgment, the majority draws every inference possible
to reverse that judgment. To be clear, whenever infer-
ences may be drawn from the evidence in the record
or the findings of the trial court, the majority and I
draw opposite inferences—I draw the inference that
supports the judgment of the trial court, while the
majority draws the inference least likely to support
that judgment. In addition, rather than considering the
totality of the evidence, the majority reviews the record
selectively, considering only the evidence that does not
support the judgment of the trial court, and ignoring
or discounting the evidence that does provide support.
Finally, the majority turns the sufficiency of the evi-
dence analysis on its head by grounding its conclusion
that the evidence was insufficient not on a consider-
ation of the evidence that was presented, along with
reasonable inferences drawn therefrom, but on infor-
mation that was not in the record. In other words, the
majority examines the record to determine what was
absent, and concludes that the information that was
missing renders the record insufficient to support the
judgment of the trial court. The majority does not cite
to any authority to justify this approach to a sufficiency
of the evidence inquiry.
Because I conclude that, viewing the evidence in the
light most favorable to sustaining the judgment of the
trial court, the Appellate Court properly affirmed the
trial court’s finding as to reasonable efforts; id., 502; I
address the remainder of the respondent’s claims on
appeal, and conclude that the Appellate Court properly
affirmed the trial court’s finding that the respondent
abandoned Oreoluwa and properly concluded that the
respondent lacked standing to assert a due process
challenge on behalf of Oreoluwa for alleged harms suf-
fered by the respondent.3 Id., 506, 509. Accordingly, I
respectfully dissent.
I
I begin with the issue of whether the department
expended reasonable efforts toward reunification. In
order to grant a petition to terminate parental rights,
the trial court is required to find by clear and convincing
evidence that the department ‘‘has made reasonable
efforts . . . to reunify the child with the parent . . .
unless the court finds . . . that the parent is unable or
unwilling to benefit from reunification efforts . . . .’’
General Statutes (Supp. 2016) § 17a-112 (j) (1). ‘‘The
word reasonable is the linchpin on which the depart-
ment’s efforts in a particular set of circumstances are
to be adjudged . . . . Neither the word reasonable nor
the word efforts is, however, defined by our legislature
or by the federal act from which the requirement was
drawn. . . . [R]easonable efforts means doing every-
thing reasonable, not everything possible.’’ (Internal
quotation marks omitted.) In re Samantha C., 268
Conn. 614, 632, 847 A.2d 883 (2004).
Because the question of whether the department
made reasonable efforts depends on the particular cir-
cumstances of the case, I begin with the facts as evi-
denced in the record and found by the trial court.
Pursuant to the applicable standard; see In re Shane
M., 318 Conn. 569, 587–88, 122 A.3d 1247 (2015); I review
the trial court’s subordinate factual findings for clear
error and its ultimate determinations, including the
determination that the department engaged in reason-
able efforts, for evidentiary sufficiency. That is, I ‘‘con-
sider whether the trial court could have reasonably
concluded, upon the facts established and the reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its [ulti-
mate conclusion].’’ (Internal quotation marks omitted.)
In re Gabriella A., 319 Conn. 775, 789, 127 A.3d 948(2015). Because the majority does not abide by the
applicable standard of review, I emphasize that ‘‘[i]t is
not the function of this court to sit as the [fact finder]
when we review the sufficiency of the evidence . . .
rather, we must determine, in the light most favorable
to sustaining the verdict, whether the totality of the
evidence, including reasonable inferences therefrom,
supports the [judgment of the trial court] . . . . In
making this determination, [t]he evidence must be given
the most favorable construction in support of the [judg-
ment] of which it is reasonably capable. . . . In other
words, [i]f the [trial court] could reasonably have
reached its conclusion, the [judgment] must stand, even
if this court disagrees with it.’’ (Internal quotation marks
omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442,
815 A.2d 119 (2003). It is notable, as I will demonstrate
later in this opinion, that the majority repeatedly and
consistently construes the evidence in the manner least
favorable to sustaining the judgment of the trial court.
The record reveals that the respondent’s actions cre-
ated a situation in which the petitioner was compelled
to intervene in order to save Oreoluwa. Because of his
choices and his actions, the respondent and his wife,
Oreoluwa’s mother, found themselves separated from
their son by an ocean and the department was charged
with the Herculean task of attempting to provide them
with reunification services across that ocean. The trial
court found that shortly before Oreoluwa’s birth, his
mother was among a group of pregnant Nigerian women
who traveled to the United States for the purpose of
giving birth in this country so that their babies would
have dual citizenship in Nigeria and the United States.
Although his wife suffered from mental illness, and had
a history of postpartum depression, the respondent did
not accompany her to the United States.
Although this account was the original explanation
that the respondent and his wife offered for her trip to
a foreign country so shortly before her due date, they
later provided a different reason. They claimed that she
had traveled here to shop for items for Oreoluwa prior
to his birth, and decided to remain and deliver him here
only after an ultrasound revealed that Oreoluwa had
congenital heart defects. This revised account is consis-
tent with the picture painted by the respondent of him-
self and his wife as hapless victims.
By contrast, the version of the story credited by the
trial court reveals that the respondent took a calculated
risk—gambling with the welfare of his mentally ill wife
and his unborn child against the value of United States
citizenship—that backfired on him, and then disavowed
responsibility for the consequences of his actions and
accused the petitioner of ‘‘wrench[ing]’’ his child from
him. Any doubts as to the respondent’s goals are quelled
by his own words, in which he contrasted his chosen
course of action with the choices of ‘‘other [A]fricans
[who] are rushing to [E]urope.’’ The ultimate goal was
immigration—and there is nothing wrong with that—
but it is completely disingenuous for the respondent to
claim that he did not make choices that created a risk
for both his unstable wife and his unborn child.
Accordingly, as a result of the respondent’s own
choices, when Oreoluwa was born in January, 2013,
at Yale-New Haven Hospital (hospital), the respondent
was in Nigeria. At the time of his birth, Oreoluwa was
diagnosed with complex congenital heart disease. Spe-
cifically, he was diagnosed with ‘‘[p]ulmonary [a]tresia,
[v]entricular [s]eptal [d]efect, with [m]ajor [a]ortopul-
monary [c]ollateral [a]rteries including a collateral
from his coronary circulation.’’ Oreoluwa’s condition
required the administration of medication precisely as
prescribed or he was at risk of sudden death. When he
was born, his mother was informed that if Oreoluwa
traveled to Nigeria, he was likely to live for only approxi-
mately one month. On the basis of that information,
she chose to remain in the United States with him so
that he could receive the medical treatment he needed.
Within weeks after Oreoluwa’s birth, it became appar-
ent that the mother was having difficulty caring for
him. In February, Oreoluwa’s pediatrician noted the
mother’s failure to adhere to Oreoluwa’s feeding sched-
ule, which was crucial because he needed to gain weight
before he could have the first of several required surger-
ies. In March, 2013, following Oreoluwa’s first major
surgery, his cardiologist was troubled when he learned
that the mother was incorrectly administering Oreolu-
wa’s medication, that she had moved from her sponsor
family’s home to a Super 8 motel, and that she had no
suitable bed for Oreoluwa. The cardiologist also noted
that the mother displayed a flat affect, giggled inappro-
priately and avoided making eye contact. On the basis
of these observations, Oreoluwa was admitted to the
hospital to allow hospital staff to monitor and assess the
mother’s ability to care for him. He was subsequently
released to her care, but within a few days she brought
him to the emergency department because she was
unable to feed him properly. Oreoluwa was readmitted
due to increased concerns about the mother’s mental
health and her ability to care for him.
In the latter half of April, 2013, during this second
social admission, hospital staff attempted repeatedly to
teach the mother how to properly feed and medicate
Oreoluwa. Their efforts to teach her these basic tasks
were unavailing. Staff also reported that during the hos-
pital stay the mother displayed troubling and erratic
behavior—refusing to care for and feed Oreoluwa,
laughing inappropriately, screaming at staff, walking
away while people were trying to speak to her, and
locking herself in the bathroom. On the basis of all of
these factors, hospital staff advised the petitioner that
an order of temporary custody was necessary in order
to ensure Oreoluwa’s safety. Ultimately, the petitioner
was compelled by these circumstances to remove Oreo-
luwa from his mother’s custody. The mother was subse-
quently diagnosed with psychosis NOS (not otherwise
specified), and was hospitalized.4
At the time that the petitioner removed Oreoluwa
from his mother’s custody, the respondent was still in
Nigeria. A few weeks later, following her release from
the hospital, the mother first visited her cousin in New
York, then returned to Nigeria without informing the
petitioner that she was doing so and without attempting
to visit Oreoluwa. The petitioner learned of her depar-
ture only after she had left the country. Both parents
were now in Nigeria. Their son, Oreoluwa, was in Con-
necticut in the care of the petitioner.
On May 3, 2013, the petitioner filed a petition for
neglect, alleging that Oreoluwa was being denied proper
care and attention, that he was being permitted to live
under conditions injurious to his well-being, and that
his home could not provide the specialized care that
he required. The court held a hearing on the petition
in July, 2013. Neither the respondent nor his wife was
present for the hearing—both were in Nigeria. During
the hearing, the social worker assigned to the case
attempted several times to place a telephone call to
the respondent in Nigeria, in order to allow him to
participate in the proceedings by way of speaker phone.
Although it was confirmed that the respondent had been
served with notice of the hearing, when an operator
put the telephone call through, there was a busy signal
on the other end of the line. At the hearing, the court
heard evidence that the respondent had applied for a
visa and had been denied. The court found that both
the respondent and the mother had defaulted for failure
to appear. The court also found that Oreoluwa was
neglected and ordered him committed to the custody
of the petitioner.
The court approved the preliminary specific steps
that had been issued in May, 2013, and made some
modifications to the orders with respect to the respon-
dent. That is, pursuant to General Statutes § 46b-129
(j), in order for ‘‘the respondent to safely . . . regain
custody’’ of Oreoluwa, he was ordered to take all possi-
ble steps to legally come to the United States to estab-
lish a relationship with Oreoluwa, and to visit him as
often as the department permitted. The court did not
order the department to provide the respondent with
an immigration attorney or to directly aid the respon-
dent with immigration services.5 Instead, the specific
steps direct the department to ‘‘[r]efer the respondent
to appropriate services . . . .’’ At that point, the depart-
ment already had referred the respondent to the appro-
priate services: the Nigerian consulate in New York. The
remainder of the services that the department would be
required to provide to the respondent were designated
as ‘‘to be determined if [the respondent] comes to the
[United States].’’ From the outset, therefore, pursuant
to the trial court’s order, the majority of the services
that the department was obligated to provide to the
respondent were conditioned on his presence in the
United States.
Oreoluwa’s mother returned to Connecticut with her
father on July 31, 2013. The respondent remained in
Nigeria. She stayed in Connecticut for approximately
two weeks, during which time the department helped
her to find a hotel in the area and provided her with
information regarding available apartments. The
department scheduled an administrative case review
meeting while the mother was here so that she could
participate and provided her transportation to the meet-
ing. During the case review meeting, it was explained
to the mother that in order for reunification to take
place, she needed to be present in the United States.
While the mother was here, the department provided
her with supervised visitation with Oreoluwa, and pro-
vided her with transportation to visits. The department
included the mother in a medical appointment for Oreo-
luwa, during which she was able to speak to and ask
questions of his physicians. The department also facili-
tated a meeting between the mother and Oreoluwa’s
foster parents, during which she was able to ask ques-
tions about his daily schedule, current care and overall
strengths and needs. She returned to Nigeria on August
13, 2013, stating that she needed to return to her normal
routine to maintain her mental health stability.
By December, 2013, when Oreoluwa was eleven
months old, the respondent had never met him. Follow-
ing the birth of Oreoluwa, the respondent had filed
applications for a visa to come to the United States on
two occasions, but had been denied each time. His
second visa application was denied in October, 2013,
and the respondent had informed the department of
the denial at that time. There was no indication that
the respondent would be able to comply with the most
basic and essential specific step ordered by the trial
court: travel legally to the United States in order to
establish a relationship with Oreoluwa. Indeed, because
the only available evidence was that the respondent
twice had been denied a visa, there was clear and con-
vincing evidence that he would be unsuccessful in ful-
filling this key specific step.
As for the mother, although she had Oreoluwa in her
care for the first three months of his life, she had not
seen him since her brief visit in August, 2013. Addition-
ally, it was the mother’s mental illness that compelled
the petitioner to remove Oreoluwa and that prevented
her from staying in the country to receive reunification
services. As a result, she had had contact with Oreoluwa
for only three and one-half months during his first
eleven months, and she had not seen him at all for the
past four months. Following her return to Nigeria and
the expiration of her visa, the mother had informed the
department that she did not intend to apply for another
visa. When the petition for termination of parental rights
was filed, the mother continued to require treatment
in Nigeria for her mental illness. There was no reason,
therefore, to believe that the mother would be able to
comply with her court-ordered specific steps.
On December 23, 2013, on the basis of all these facts,
the petitioner filed the petition to terminate the respon-
dent’s parental rights. The petitioner asserted that the
department had made reasonable efforts to reunify the
respondent with Oreoluwa or the respondent was
unable or unwilling to benefit from reunification efforts.
As grounds for termination of the respondent’s parental
rights, the petitioner alleged that: (1) the respondent
had abandoned Oreoluwa; and (2) there was no ongoing
parent-child relationship.6
Shortly before the trial on the petition to terminate
parental rights, the court approved the department’s
permanency plan, which recommended termination of
the parental rights of both the respondent and his wife,
and the adoption of Oreoluwa by his foster parents. The
permanency plan relied on many of the same factors on
which the petition for termination of parental rights
relied, including that the absence of the parents from
this country prevented the department from being able
to offer them reunification services, and that they had
thus far failed to comply with most of the court-ordered
specific steps. Specifically, the only steps that the par-
ents had complied with were the ones requiring them
to maintain communication with the department and
to obtain and maintain adequate housing. Additionally,
because it was unlikely that the parents would obtain
visas, it was improbable that they would be able to
achieve significant compliance with the specific steps.
Finally, Oreoluwa had bonded with his foster family,
who wished to adopt him, and with whom he had lived
since he was five months old. The foster family had
been present for all of his medical procedures and major
surgeries since he came into their care, and he was
receiving routine regular and specialty medical care in
the foster home. The department concluded that Oreo-
luwa’s adoption by his foster family was in his best
interest.
At the trial on the petition for the termination of
parental rights, it was clear that the extraordinary
nature of the particular circumstances in the present
case played a major role in the court’s finding that
the department made reasonable efforts to reunify the
respondent with Oreoluwa. By the time of the trial,
Oreoluwa was approximately fourteen months old, and
the respondent had yet to secure a visa to come to this
country. As the court later explained in an articulation
of its decision, the respondent’s absence from this coun-
try ‘‘limited the type and number of services that the
department has been able to provide to him.’’ For
instance, because the respondent was in Nigeria, the
mere act of maintaining communication with him pre-
sented the department with significant challenges. Tes-
timony established that when social workers assigned
to the case attempted to place telephone calls to the
respondent, the telephone calls routinely did not go
through, or, if they did, the connection was not good,
and the calls frequently were cut off. The social workers
had to rely on e-mails to communicate with the respon-
dent. Sometimes, the respondent responded to the
e-mails directly; at other times, he attempted to place
a telephone call in response.
Viewed in light of the circumstances, the testimony
and exhibits offered at the trial provided sufficient evi-
dence to support the trial court’s finding that the depart-
ment made reasonable efforts to provide the respondent
with reunification services. Specifically, despite the
aforementioned difficulties with communication, the
department maintained telephone and e-mail communi-
cation with the respondent to keep him updated on
Oreoluwa’s well-being and developments in his case.
Additionally, the department consulted with its immi-
gration specialist, William Rivera, and referred the
respondent to the Nigerian consulate in New York. The
department also explored possible placement options
with family and friends of the respondent. When the
respondent identified an alternative placement for Ore-
oluwa with a Pennsylvania family known to Oreoluwa’s
maternal grandfather, the department contacted the
head of that family, Attorney Ayo Turton, but the
respondent subsequently informed the department that
he no longer wished it to consider placing Oreoluwa
with Turton.7 The department also contacted a maternal
cousin, but that individual was not able to serve as a
placement resource. Because the respondent had
requested to be able to view Oreoluwa via Skype, an
Internet based computer software application that per-
mits video conferencing, the department attempted,
albeit unsuccessfully, to obtain a computer device, such
as an iPad, for the department’s offices that would sup-
port Skype. The department also approached Oreolu-
wa’s foster parents to determine whether they would
allow the respondent to view Oreoluwa through Skype
using their home computers, but the foster parents were
uncomfortable with this suggestion.
At the trial on the petition, the respondent argued
that there were reasonable efforts that the department
could have made on the respondent’s behalf, but did
not. In addition to the services already provided, the
respondent argued that the department should have
given him more time to obtain a visa and also should
have obtained an iPad to allow him to communicate
with Oreoluwa via Skype. With respect to the provision
of Skype technology, although the department
attempted to comply with the respondent’s request, the
department contested the efficacy of using video con-
ferencing technology to build a relationship between
an infant and a complete stranger. Accordingly, the
department argued, providing such a means of ‘‘commu-
nication’’ between the respondent and Oreoluwa did not
constitute a ‘‘reasonable’’ effort. As for the respondent’s
argument that he should have been allowed more time
to obtain a visa, the department responded that further
delay would be detrimental to Oreoluwa, and, as of
the day of the trial, the respondent had provided no
evidence that either he or his wife had taken any steps
toward applying for a visa. The couple had merely
offered the department the vague assertion that they
were ‘‘working on it,’’ without providing any details
such as whether they had an appointment with the con-
sulate.
In an oral decision, the court found by clear and
convincing evidence that the department had made rea-
sonable efforts to reunify the respondent with Oreo-
luwa. The court indicated that it was the respondent’s
failure to comply with the court-ordered specific step
that he travel to the United States that prevented the
department from being able to facilitate visitation with
Oreoluwa, as the provision of that essential service
depended on his presence in this country.8 Because
the trial court found that the department had made
reasonable efforts to provide reunification services, it
was not required to reach the question of whether the
respondent was able to benefit from such services,
which would have served as an alternative ground for
terminating the respondent’s parental rights. See In re
Jorden R., 293 Conn. 539, 552–53, 979 A.2d 469 (2009)
(‘‘[T]he department must prove either that it has made
reasonable efforts to reunify or, alternatively, that the
parent is unwilling or unable to benefit from reunifica-
tion efforts. [General Statutes (Rev. to 2005) §] 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.]). The court also found that the petitioner had
proven by clear and convincing evidence both grounds
relied on to support termination of the respondent’s
parental rights, and further found that termination was
in the best interest of the child.
In its subsequent articulation of its decision, the trial
court made more detailed factual findings, emphasizing
that the respondent’s absence from this country greatly
limited the ability of the department to provide him
with reunification services. Under those circumstances,
the court found that the department maintained com-
munication with the respondent, explored alternative
placement options, attempted to set up its computers
for Skype communication, and referred the respondent
to the Nigerian consulate, providing him with the rele-
vant contact information. The court also made the
express factual finding that Oreoluwa was not medically
cleared to travel as of the date of the trial. Significantly,
the court stated that it had relied on trial testimony in
arriving at its findings and emphasized the principle
that the trial court is the sole arbiter of the credibility
of witnesses. Clearly, the trial court found the testimony
of the petitioner’s witness, Cynthia Pfeifer, a social
work supervisor with the department, who was the only
witness to testify at the trial, to be credible.
Subsequent to the trial on the termination petition,
the respondent moved for reargument and reconsidera-
tion, and sought a stay of the order granting the petition
for termination of the respondent’s parental rights. Dur-
ing the initial hearing on the motions, the respondent,
who had retained immigration counsel, both in Con-
necticut and in Nigeria, argued that ‘‘[t]he single biggest
obstacle for reunification was the visa application
. . . .’’ The respondent contended that the provision of
court-appointed counsel to represent him in the termi-
nation proceedings themselves was not sufficient—he
claimed he was also entitled to immigration services,
including appointed immigration counsel. He argued
that the failure of the department to provide such coun-
sel and services necessitated the finding that the depart-
ment had failed to make reasonable efforts to reunify
the respondent with Oreoluwa. Counsel for the respon-
dent summarized his view of the present case in his
request for supplemental briefing on the following
issue: ‘‘What . . . is [the] department’s obligation to
help a parent obtain a visa?’’
As to this claim, I agree with the Appellate Court,
which properly concluded that the department was not
required to provide the respondent with immigration
counsel in order to satisfy the ‘‘reasonable efforts
requirement.’’ In re Oreoluwa O., supra, 157 Conn. App.
498. The respondent cites to no statute or regulation
that contemplates that the department should provide
immigration services to noncitizen parents living in a
foreign country. The department’s immigration practice
guide in its policy manual does not address this factual
scenario. The manual contemplates the provision of
some immigration assistance to adult clients who are
in this country, stating that its social workers ‘‘shall
assist undocumented adult clients with issues related to
their immigration status.’’ Dept. of Children & Families,
Policy Manual § 31-8-13. Even that assistance is some-
what limited, however. The manual defines ‘‘[a]ssist’’
to mean, ‘‘for example, to help fill out forms and provide
a referral to an immigration attorney. [The department]
shall not pay for legal services or otherwise take respon-
sibility for an adult client’s immigration status.’’
(Emphasis in original.) Id. Moreover, the respondent’s
claim that the department has a duty to provide immi-
gration services to noncitizen parents who are living
abroad and whose child has been committed to the care
of the petitioner, implicates significant public policy
concerns that are properly resolved by the legislature,
not the courts.9
As I have explained, there was sufficient evidence in
the record to support the trial court’s ultimate factual
finding that under the facts of the present case, there
was clear and convincing evidence that the department
made reasonable efforts toward reunification. The
majority, however, focuses its analysis on Oreoluwa’s
ability to travel, specifically on the question of whether,
as of the time of the trial, it was possible to determine
when he would be able to travel. This issue is a red
herring. As I will explain herein, this issue was not
raised at the trial court. The parents barely raised the
issue of whether he was medically cleared to travel as
of the date of the trial, but the trial court made a finding
as to that issue, stating that Oreoluwa could not travel
as of the date of the trial. The parents, however, did
not raise the question of whether it was still not possible
to determine, as of the date of the trial, when Oreoluwa
might be able to travel. Moreover, I question how this
issue is relevant to the determination of whether the
department made reasonable efforts toward reunifica-
tion. The specific steps ordered by the trial court all
contemplated that reunification efforts by the depart-
ment were contingent on the respondent being present
in this country. The majority, by contrast, implicitly
suggests that the department should have attempted
to provide reunification services to the respondent by
sending Oreoluwa to Nigeria.
For example, the majority states that if the record had
established that Oreoluwa would have been medically
cleared to travel ‘‘at some point in the not so distant
future, it would likely have been reasonable for the
department to conduct a home study of the respondent
in Nigeria.’’ See footnote 10 of the majority opinion.
The requirement to conduct a home study is predicated
on the premise that it would be reasonable to require
the department to provide reunification services to the
respondent in Nigeria, after sending Oreoluwa to that
country. This assumption is highly questionable in light
of the concession at the termination trial that there is
nothing akin to the Interstate Compact on the Place-
ment of Children; see General Statutes § 17a-175; that
would govern relations between Connecticut and Nige-
ria in this context, and there is no department liaison
in Nigeria.
Evidence adduced at the trial on the termination peti-
tion supports the conclusion that there are simply no
statutes, regulations or procedures in place to dictate
whether and how the department should send a child
born in the United States to a foreign country to live
with his or her parents. Specifically, after Pfeifer testi-
fied that Oreoluwa was not medically cleared to travel,
the respondent’s counsel engaged her in the follow-
ing colloquy:
‘‘Q. Now, in your direct testimony, you stated that
you’ve been in the department’s . . . employment for
about sixteen years, roughly fifteen years?
‘‘A. Yes.
‘‘Q. In your experience, have you had situations where
children were born in the United States and were then
sent to their country of origin of their parents?
‘‘A. Directly under my supervision?
‘‘Q. Yeah.
‘‘A. No.’’
In Pfeifer’s experience of fifteen or sixteen years with
the department, the department had never sent a child
born in the United States to a foreign country to live
with his or her parents. Never. During a hearing on the
respondent’s motion for reargument, reconsideration
and a stay of judgment, the respondent’s counsel con-
firmed that his ‘‘exhaustive’’ research confirmed that
Pfeifer’s personal experience was not isolated. He was
unable to uncover a single instance in which the depart-
ment had done or had been held required to do what
the respondent now insists it is statutorily required to
undertake as part of its reasonable efforts to reunify
him with Oreoluwa—sending the child to a foreign
country to live with parents who are completely
unknown to him.
The majority relies on authority from other jurisdic-
tions to support its dicta that a home study would be
reasonable if it were determined that Oreoluwa would
be medically cleared to travel at some point in the
future. I observe that those authorities do not speak to
the uncontroverted fact that in this state an undertaking
of this sort has never been done, there is an absence
of any applicable statutes, regulations or procedures
that would serve to effectuate it, and there is a conceded
lack of any liaison in Nigeria.
I further observe that the authorities relied on by the
majority do not provide support for the conclusion that
it would be reasonable under Connecticut law to require
the department to conduct a home study in Nigeria.
The majority relies on two decisions. The first, In re
E.N.C., 384 S.W.3d 796, 798 (2012), involved a father
who had been deported to Mexico after living with his
wife and children in Texas for eight or nine years. There
was testimony at trial that the father ‘‘was a good father
who provided support for the children.’’ Id., 799. Even
after he had been deported, the father continued to
visit with the children, who traveled to Mexico for that
purpose. Id. Testimony at trial established that after
visits, the children ‘‘did not want to come home and
. . . wanted to stay with their father in Mexico.’’ Id.
More importantly, nothing in the decision discusses the
relevant Texas statutes and regulations providing for
home studies in Mexico, so that case sheds no light on
whether it would be reasonable to impose the same
requirements on the department in the present case.
The second case relied on by the majority, In re Doe,
153 Idaho 258, 281 P.3d 95 (2012), is even less on point.
That decision says nothing about whether it would be
reasonable for Idaho child protection authorities to con-
duct a home study in Mexico, where the father lived.
The decision merely notes that Mexican authorities con-
ducted a home study, and reports the results of that
study. Id., 263.
I also observe that the majority relies on an article
that details the case management services provided by
the International Social Service-USA Branch Intercoun-
try Case Management Division. F. Northcott & W. Jeff-
ries, ‘‘Forgotten Families: International Family Connec-
tions for Children in the American Public Child-Welfare
System,’’ 47 Fam. L.Q. 273 (2013). Despite the fact that
services were provided in forty different states, the
article makes no mention whatsoever of such services
being provided in Connecticut. Id.The majority also claims that by looking to Pfeifer’s
testimony and the respondent’s concession that the
department has never sent a child born in the United
States to a foreign country to live with his or her parents,
I engage in fact-finding. To the contrary, I apply the
proper standard of review, which the majority fails to
do. That is, I construe the evidence in the light most
favorable to sustaining the judgment of the trial court.
Finally, I observe that there are significant problems
with the majority’s suggestion that it would be reason-
able to require the department to send Oreoluwa to
Nigeria for the provision of reunification services in
that country. For instance, even assuming that there
were sufficient mechanisms in place to allow the depart-
ment to facilitate reunification services in Nigeria,
where would Oreoluwa stay while these services were
being provided? With the complete strangers who made
the choices that resulted in the petitioner being required
to take custody of him? The respondent had never met
Oreoluwa. The respondent’s wife was psychotic, and
unable to take care of Oreoluwa. If Oreoluwa could not
reside with them, then where should he stay? Is there
an agency in Nigeria where he could be placed? Once
the child is in Nigeria, outside the jurisdiction of Con-
necticut, how would the department be able to guaran-
tee that reunification services would be performed at
all? Because I conclude that it would not have been
reasonable to require the department to send Oreoluwa
to Nigeria in order to provide reunification services
there, I would end the sufficiency inquiry without delv-
ing into the issue of Oreoluwa’s ability to travel.
Even assuming that the majority is correct that it
would have been reasonable to require the department
to send Oreoluwa to Nigeria and to provide reunifica-
tion services in that country, however, I would conclude
that there was sufficient evidence to support the trial
court’s ultimate finding that the department made rea-
sonable efforts toward reunification. Before I discuss
the arguments, evidence and findings of the trial court
on this issue, I offer the following clarification of the
majority’s analysis. Although the majority does not
directly state so, it appears to suggest that the question
of whether Oreoluwa was medically cleared to travel
is broken down into two distinct factual questions that
are relevant to whether the department satisfied its
burden to establish reasonable efforts toward reunifica-
tion. The majority concedes that the trial court made an
express finding as to the first factual question, namely,
whether Oreoluwa was medically cleared to travel as
of the date of the trial on the termination petition. As
to that question, the trial court found that Oreoluwa
‘‘was still not cleared to travel as of the date of the
trial.’’ The majority admits that the court’s finding was
not clearly erroneous. The second factual question is
whether, as of the date of the trial, it had become possi-
ble to determine when Oreoluwa would be able to
travel, and, if the answer to that question was yes, when
the child would be medically cleared to travel. The
majority relies on the failure of the trial court to make
these very specific, express factual findings to reverse
the judgment of the Appellate Court affirming the trial
court’s judgment terminating the respondent’s parental
rights. That is, I understand the majority to be claiming
that, in the absence of a finding by the trial court that
at the time of the trial on the petition, it was still not
possible to determine when Oreoluwa would be able
to travel, there was insufficient evidence in the record
to support the trial court’s ultimate factual finding that
the department made reasonable efforts toward reunifi-
cation. I disagree.
The majority is only able to arrive at its conclusion
by ignoring the applicable standard of review, which
requires this court to consider all of the evidence in
the record, along with reasonable inferences drawn
therefrom, and construe the record in the light most
favorable to sustaining the judgment of the trial court.
In arriving at its conclusion, the majority applies pre-
cisely the opposite presumption, viewing the evidence
in the light least favorable to sustaining the judgment,
and drawing inferences least likely to support the judg-
ment. By doing so, the majority is able to discount
evidence that would support the conclusion that even
in the absence of an express finding by the trial court,
there was sufficient evidence in the record to support
a finding that as of the date of the trial, it remained
unclear when Oreoluwa would be cleared to travel.
A careful reading of the trial court’s articulation is
the best starting point. The court did not merely find
that Oreoluwa was not cleared to travel as of the date
of the trial. It stated: ‘‘As of December, 2013, [Oreoluwa]
was not able to travel to Nigeria due to his medical
status, and it was not clear when he could do so. . . .
He was still not cleared to travel as of the date of the
trial.’’ (Emphasis added.) The trial court failed expressly
to include, after the word ‘‘still,’’ that as of the date of
the trial, it remained unclear when Oreoluwa would be
able to travel. That failure creates an ambiguity as to
whether the trial court found that as of the date of
the trial it remained unclear when Oreoluwa would be
cleared to travel. It is not, however, unreasonable to
read the trial court’s articulation to implicitly make that
finding. The standard of review requires that we resolve
such ambiguities consistent with the judgment of the
trial court. The majority, however, does not feel bound
by the standard of review and resolves the ambiguity
in the manner most consistent with its view of how the
case should be resolved. In contrast to the majority, I
read the articulation pursuant to the standard of review
and resolve the ambiguity consistent with the trial
court’s judgment. That is, I read the articulation to
implicitly find that, as of the date of the trial, it still
could not be determined when Oreoluwa would be able
to travel. Given that implicit finding, this court could
reverse the Appellate Court’s judgment only if the trial
court’s finding was clearly erroneous, and it was not.
Even in the absence of that implicit finding, I would
conclude that there was sufficient evidence in the
record to support the ultimate finding of the trial court
as to reasonable efforts. The question of whether, as of
the date of the trial, it remained unclear when Oreoluwa
would be medically able to travel to Nigeria, was not
the primary focus at the trial on the petition to terminate
parental rights. At the trial on the petition, both parents
touched very briefly on the issue of whether Oreoluwa
was medically cleared to travel as of the date of the
trial, and simply speculated that Oreoluwa might be
medically able to travel. The parents suggested that the
department could not reasonably rely on the reports
of Oreoluwa’s cardiologists, provided as recently as
January 14, 2014, stating that Oreoluwa was not medi-
cally cleared to travel and that it was at that time unclear
when he would be.
Similarly, the majority’s conclusion suggests that the
only evidence in the record relevant to whether it could
be determined as of the date of the trial when Oreoluwa
would be medically cleared to travel was the April 29,
2013 affidavit by Oreoluwa’s treating cardiologists. In
fact, the majority incorrectly states that ‘‘the only evi-
dence presented at trial that related to when Oreoluwa
would be cleared to travel indicated that, before he was
born, physicians expected that he would be unable to
travel for at least one year from his birth.’’ That state-
ment ignores evidence that supports the judgment of
the trial court. Specifically, the petition for termination
of parental rights, which was admitted into evidence
at the trial, relies on much more recent reports offered
by Oreoluwa’s physicians, reports that provide ample
support for the trial court’s finding, particularly given
the highly deferential standard of review accorded to
the trial court’s subordinate factual findings. It is helpful
to review the evidence in detail.
As I have noted, the trial court expressly found that
Oreoluwa was not medically cleared to travel as of the
date of the trial. The issue first was raised during the
respondent’s cross-examination of Pfeifer, who was
asked whether, as of the day of the trial, Oreoluwa had
been medically cleared to travel. She responded without
qualification that he was not. Specifically, she testified
that when Oreoluwa was born, his physicians informed
his mother that he would be unable to travel for at least
one year, and further testified that, as of the date of
the trial, at which time Oreoluwa was more than one
year old, he was still not cleared to travel. That testi-
mony regarding the original estimate of when Oreoluwa
would be able to travel was corroborated by an April
29, 2013 affidavit by Oreoluwa’s treating cardiologists,
which stated that they anticipated that Oreoluwa would
have the second of ‘‘several’’ required surgeries some-
time around his first birthday. Neither the respondent
nor his wife challenged Pfeifer’s testimony as to this
matter and they did not offer any evidence to controvert
it. Moreover, at oral argument before this court, the
respondent conceded that Oreoluwa’s original progno-
sis was that he would be medically unable to travel for
at least one year. That original prognosis, therefore,
suggested that Oreoluwa’s travel status might change
after his first year.
Subsequently, however, Oreoluwa’s physicians pro-
vided an updated, less definite estimate of when he
would be able to travel. That more updated estimate is
set forth in the social studies in support of the petition
for termination and the permanency plan, both of which
were introduced into evidence. Each social study
includes a section detailing the most recent reports that
the department had received from Oreoluwa’s numer-
ous physicians. Specifically, when the petition for termi-
nation of parental rights was filed, Oreoluwa’s
physicians reported to the department that his most
recent surgery had taken place on October 10, 2013,
during which cardiologists replaced a shunt, which led
from his innominate artery to the right pulmonary
artery, with a conduit. Although that procedure had
gone well, as had a cardiac catheterization procedure,
the physicians’ most recent estimate provided to the
department and recorded in the social study was that
‘‘Oreoluwa is not able to travel to Nigeria due to his
medical status and it is unclear at this time when he
would be cleared to travel.’’
This estimate, provided when Oreoluwa was eleven
months old, differs from the one that was provided
at the time of Oreoluwa’s birth, which established a
possible end date of one year. By contrast, the more
recent estimate provided no potential end date. That
is, as compared to the initial estimate that Oreoluwa
might be able to travel by his first birthday, the most
recent report from his physicians, reflected in the social
study that was filed when Oreoluwa was eleven months
old, did not provide any estimate of the earliest date
on which Oreoluwa could travel. I draw the reasonable
inference from those two pieces of evidence, viewed
together, in the light most favorable to sustaining the
judgment of the trial court, that it remained unclear, at
the time of the trial, when Oreoluwa would be medically
cleared to travel. It would indeed be reasonable to infer
that, if anything, it had become less certain when Oreo-
luwa would be medically cleared to travel.
The study in support of the permanency plan, pre-
pared on January 14, 2014, more than one month after
the study in support of the petition for termination,
includes additional, updated information relayed to the
department from Oreoluwa’s treating physicians. The
study reports that Oreoluwa’s December 3, 2013 cardiac
catheterization went well. One of his physicians
reported that he had closed one of Oreoluwa’s arteries
during the procedure, and that there was another artery
that he could close off. The success of that procedure,
however, did not prevent both the treating cardiologist
and Oreoluwa’s pediatric cardiologist, Bevin Weeks,
from emphasizing that Oreoluwa continued to need
additional cardiac surgeries and procedures. The study
further reflects that at the time of its preparation, Oreo-
luwa’s travel status had not changed—he was still not
medically able to travel, and it was still not able to be
determined when he would be cleared to travel. This
piece of evidence provides further support for the deter-
mination that, as of the date of the trial, Oreoluwa was
not medically able to travel and it was still not possible
to determine when he would be cleared to travel.
Although the majority initially ignores the evidence
in the social studies entirely, it later attempts to dis-
count that evidence in response to this dissent, sug-
gesting that because the studies were ‘‘prepared and
written in the department’s own language,’’ the informa-
tion contained therein somehow does not accurately
reflect the most recent information received from Oreo-
luwa’s physicians, despite the fact that the notations in
the social studies indicate that the information recorded
was received from those physicians. See footnote 8
of the majority opinion. The majority thus draws an
inference based on the evidence that is inconsistent
with the judgment of the trial court. The majority also
complains that the studies were ‘‘not accompanied by
any medical reports or documentation,’’ again calling
into question the accuracy of the information contained
in the social studies. Id. It was the trial court’s duty,
not the majority’s, to weigh the evidence and determine
whether to credit it. By contrast, the majority has no
difficulty relying on those same social studies as reliable
and accurate when the information provided therein
supports the majority’s conclusion. For instance, the
majority does not question the accuracy or the source
of the information in the social studies to the extent
that they reflect that Oreoluwa was not suffering devel-
opmental delays from his medical condition. Thus, the
majority selectively relies only on the evidence that
supports its conclusion and undercuts the conclusion of
the trial court. This is not consistent with the applicable
standard of review.
Moreover, the majority questions the estimated date
of Oreoluwa’s ability to travel set forth in the social
studies because the language in the social study in sup-
port of the permanency plan regarding Oreoluwa’s abil-
ity to travel was the same as that in the study in support
of the petition for termination. Rather than inferring
that the lack of change in the language in the social
studies reflected a lack of change in Oreoluwa’s status,
the majority dismisses that lack of change in his status
because the social study in support of the permanency
plan ‘‘repeated the same lines’’ that were used in the
social study in support of the petition for termination.
The majority suggests, therefore, that the department
personnel who prepared the January, 2014 social study
in support of the permanency plan, just cut and pasted
the same sentence into the report, and those statements
did not reflect that Oreoluwa’s travel status had not
changed since the filing of the petition. Although the
majority’s inference is certainly one that the trial court
could have drawn, the trial court’s judgment is consis-
tent with the opposite inference, namely, that the
department’s statement in the social study in support
of the permanency plan reflects updated information on
Oreoluwa’s travel status. That inference is a reasonable
one because the social study clearly reflects that the
department was in frequent communication with and
received ongoing updates from the cardiologists, stating
repeatedly that various physicians ‘‘reported’’ the rele-
vant information that was recorded by date in the social
study. The majority’s inference to the contrary is not
consistent with the role of a reviewing court.
Finally, the majority claims that, by noting the differ-
ence in the two estimates, and construing that evidence
in the manner most favorable to sustaining the judgment
of the trial court, I engage in ‘‘fact-finding.’’ See footnote
8 of the majority opinion. The majority appears to forget
that when this court engages in a sufficiency of the
evidence inquiry, we examine the facts as found by the
trial court, and the totality of the evidence, including
reasonable inferences drawn therefrom, construed in
the light most favorable to sustaining the judgment of
the trial court. Consistent with that standard, I do what
the majority should have done, and review the record
to determine what evidence was presented that would
support the judgment of the trial court. When evidence
lends itself to a reasonable inference that supports the
judgment of the trial court, and, therefore, on which
the trial court reasonably could have relied, I draw that
inference. Only after reviewing the entire record in this
manner is it appropriate to inquire whether there is
sufficient evidence to support the trial court’s ultimate
factual finding that the department made reasonable
efforts toward reunification. In re Gabriella A., supra,
319 Conn. 790. Observing that the original estimate of
when Oreoluwa would be able to travel was more defini-
tive because it provided a possible end date, as com-
pared with later estimates, which provided no end date,
is a reasonable inference drawn when those two facts
are considered together. The majority draws no such
inferences that would support the judgment of the trial
court, notwithstanding the clear requirement under the
standard of review that this court, as a reviewing court,
must do so in determining whether the evidence is suf-
ficient.
The revised, more conservative estimate that cardiol-
ogists provided as to when Oreoluwa would be medi-
cally able to travel, taken together with Pfeifer’s
testimony, which the court found to be credible, and
the trial court’s specific findings in the articulation,
when construed in the light most favorable to sustaining
the judgment, provide sufficient evidentiary support for
the conclusion that as of the date of the trial on the
petition for termination, it remained unclear when Ore-
oluwa would be cleared to travel. The majority con-
strues the evidence in a different light—declining to
infer that the difference between the initial estimate
given to the department by Oreoluwa’s cardiologists,
as testified to by Pfeifer, and the later estimate that the
cardiologists provided to the department, as noted both
in the social study in support of the termination petition
and the social study in support of the permanency plan,
had any meaning. Certainly, it is possible to construe
the evidence in the manner that the majority does. I do
not dispute that, nor is it necessary to do so. The mere
fact that the majority’s construction of the evidence
is one possible manner of viewing it, however, is not
sufficient given the standard of review, which requires
us to construe the evidence in the light most favorable
to sustaining the judgment. The majority’s rationale
would be supported only if it could demonstrate that
the construction of the evidence that I suggest is not
a reasonable one. And that, the majority cannot do.
Another illustration of the majority’s lack of defer-
ence to the trial court’s findings is its selective summary
of the facts. For example, the majority cites to the report
by Oreoluwa’s physician that Oreoluwa was ‘‘doing well
and [could] start on whole milk and more solid foods.’’
That report is only part of the story. The majority com-
pletely ignores the fact that at the time that the termina-
tion petition was filed, Oreoluwa continued to require
regular monitoring of his oxygen levels and in-home
nursing services twice a week. If the majority had
applied the proper standard of review, it would have
considered the facts in the record that actually support
the trial court’s ultimate factual finding. Instead, the
majority ignores those facts entirely, and highlights only
the evidence that supports reversal.
The majority also relies on the fact that Oreoluwa
was scheduled to have appointments with his pediatric
cardiologist in January and March, 2014, as a basis for
its conclusion that the trial court’s finding that the
department made reasonable efforts was not supported
by sufficient evidence. This reading of the record turns
the applicable standard of review on its head. First,
the majority’s inquiry does not properly focus on the
evidence that was presented, and whether that evi-
dence, considered cumulatively with all appropriate
inferences drawn therefrom, was sufficient, but instead
focuses on what was not admitted into evidence. That
is contrary to the very nature of a sufficiency of the
evidence inquiry, in which the reviewing court exam-
ines what is actually in the record and asks whether
it is sufficient. Second, the majority continues to draw
inferences least favorable to sustaining the judgment
of the trial court. It should come as no shock that a
child with Oreoluwa’s serious condition had regular,
ongoing medical appointments with specialists. Read-
ing this evidence in the light most favorable to sus-
taining the judgment of the trial court, the majority
should reason that those scheduled appointments fur-
ther demonstrated that although Oreoluwa’s treatment
was progressing well, he was still a child who needed
significant, highly skilled care and frequent monitoring
by specialists. Rather than relying on this additional
information in the record as further evidence that the
evidence was sufficient to demonstrate that it remained
unclear when Oreoluwa would be cleared to travel,
however, the majority infers, without directly stating so,
that there could have been information to the contrary
presented at the meeting of Oreoluwa’s physicians. The
majority offers no explanation as to how such an inquiry
is part of the inquiry as to whether the evidence that
was presented was sufficient—and the only evidence
in the record is that Oreoluwa’s team of cardiologists
had recently declined to provide any estimate as to
when he would be medically cleared to travel.
On the basis of the foregoing, and applying the proper
standard of review, I conclude that the trial court’s
subordinate finding that Oreoluwa was not medically
able to travel was not clearly erroneous, and, therefore,
that the trial court’s ultimate factual finding that the
department made reasonable efforts was supported by
sufficient evidence. I would accordingly affirm the judg-
ment of the Appellate Court, concluding that the depart-
ment made reasonable efforts toward reunification of
the respondent and Oreoluwa.
II
I next address the respondent’s claim that the Appel-
late Court improperly concluded that the trial court’s
finding that he abandoned Oreoluwa was not clearly
erroneous. Because I conclude that there is sufficient
evidence in the record to support the trial court’s finding
that the respondent abandoned Oreoluwa, I would
affirm the judgment of the Appellate Court.
‘‘For purposes of termination proceedings, abandon-
ment has been defined as a parent’s fail[ure] to maintain
a reasonable degree of interest, concern or responsibil-
ity as to the welfare of the child . . . . General Statutes
[Rev. to 2015] § 17a-112 (j) (3) (A). Maintain [as used
in that statute] implies a continuing, reasonable degree
of interest, concern, or responsibility and not merely a
sporadic showing thereof.’’ (Internal quotation marks
omitted.) In re Santiago G., 318 Conn. 449, 472, 121
A.3d 708 (2015). ‘‘Abandonment focuses on the parent’s
conduct.’’ In re Juvenile Appeal (Docket No. 9489),
183 Conn. 11, 14, 438 A.2d 801 (1981). ‘‘The commonly
understood general obligations of parenthood entail
these minimum attributes: (1) express love and
affection for the child; (2) express personal concern
over the health, education and general well-being of
the child; (3) the duty to supply the necessary food,
clothing, and medical care; (4) the duty to provide an
adequate domicile; and (5) the duty to furnish social and
religious guidance.’’ (Internal quotation marks omitted.)
Id., 15.
The following additional facts are relevant to the
resolution of this claim. The trial court found that the
respondent ‘‘demonstrated some degree of interest in
and concern for the welfare of Oreoluwa.’’ The trial
court specifically noted that the respondent had main-
tained communication with the department, calling
approximately four times per month to check on Oreo-
luwa, and also had inquired as to how he could provide
financial support for him. The department responded
to the respondent and requested that he provide verifi-
cation of his income in the form of pay stubs or tax
information, to enable the department to establish a
rate for the respondent to pay child support. The
respondent did not send the information and never
responded to the request. The court also found that
although the department provided the respondent with
information so that he could send correspondence,
cards or gifts to Oreoluwa, he had not done so.10
Although the Appellate Court agreed with the trial
court that the record revealed that the respondent had
demonstrated ‘‘ ‘some degree’ ’’ of interest in Oreolu-
wa’s welfare, it also concurred with the trial court’s
observation that the statutory standard required more
than that. In re Oreoluwa O., supra, 157 Conn. App.
504. I agree that the record supports the conclusion
that the respondent demonstrated only ‘‘ ‘some degree
of interest’ ’’ in Oreoluwa. Id. The respondent must dem-
onstrate that he maintained a ‘‘reasonable degree of
interest, concern or responsibility as to the welfare of
the child . . . .’’ General Statutes (Supp. 2016) § 17a-
112 (j) (3) (A). On the basis of the court’s subordinate
factual findings, which were not clearly erroneous,
there was more than sufficient evidence to support the
ultimate finding of the trial court that the respondent
abandoned Oreoluwa.
The respondent’s primary claim on appeal is that the
trial court’s finding that he abandoned Oreoluwa was
improper because abandonment requires that the par-
ent be ‘‘at fault.’’ That is, the respondent argues that in
order for a court to find that a parent abandoned his
child, the record must support a finding that the parent
engaged in conduct that rendered the relationship
impossible, or that created the separation or lack of
parental involvement. It is unnecessary for me to deter-
mine whether the respondent’s legal theory is correct,
because the trial court did make such a finding, and
that finding has ample support in the record. As I
already have set forth in my initial review of the facts
in the present case, the trial court made the factual
finding that the respondent and his wife determined
that she would travel to the United States alone, when
she was seven months pregnant, with the purpose of
giving birth to her child here. As I also detail in this
dissenting opinion, the record reveals that the mother
suffered from mental illness and had a history of post-
partum depression. In light of these facts, the respon-
dent’s claim that he is without fault is ironic. He chose
to risk his unborn child’s welfare by remaining home
and sending his wife to deliver their child in a foreign
country, despite her mental health history. The trial
court’s findings and the record provide more than suffi-
cient support for the conclusion that the respondent
created the separation. His claims to the contrary find
no support in the record.
III
Finally, I address the respondent’s claim, which he
asserted on behalf of Oreoluwa, that ‘‘the guarantee of
due process under the fourteenth amendment [to the
United States constitution] required the trial court to
(1) advise him that he could participate in the termina-
tion trial via telephone, video-conference or through
the use of reasonable continuances to permit [the]
respondent time to review the trial exhibits and tran-
scripts prior to presenting his defense, and (2) take
reasonable efforts to use those alternat[ives].’’ (Internal
quotation marks omitted.) In re Oreoluwa O., supra,
157 Conn. App. 507. I agree with the Appellate Court
that the respondent lacked standing to raise this claim.
Id., 507–508.
‘‘If a party is found to lack standing, the court is
without subject matter jurisdiction to determine the
cause. . . . Subject matter jurisdiction involves the
authority of the court to adjudicate the type of contro-
versy presented by the action before it. . . . [A] court
lacks discretion to consider the merits of a case over
which it is without jurisdiction . . . . The objection of
want of jurisdiction may be made at any time . . .
[a]nd the court or tribunal may act on its own motion,
and should do so when the lack of jurisdiction is called
to its attention. . . . The requirement of subject matter
jurisdiction cannot be waived by any party and can be
raised at any stage in the proceedings. . . .
‘‘Standing is not a technical rule intended to keep
aggrieved parties out of court; nor is it a test of substan-
tive rights. Rather it is a practical concept designed to
ensure that courts and parties are not vexed by suits
brought to vindicate nonjusticiable interests and that
judicial decisions which may affect the rights of others
are forged in hot controversy, with each view fairly and
vigorously represented. . . . Two broad yet distinct
categories of aggrievement exist, classical and statu-
tory. . . . Classical aggrievement requires a two part
showing. First, a party must demonstrate a specific,
personal and legal interest in the subject matter of the
decision, as opposed to a general interest that all mem-
bers of the community share. . . . Second, the party
must also show that the . . . decision has specially
and injuriously affected that specific personal or legal
interest. . . . Statutory aggrievement exists by legisla-
tive fiat, not by judicial analysis of the particular facts
of the case. In other words, in cases of statutory
aggrievement, particular legislation grants standing to
those who claim injury to an interest protected by that
legislation.’’ (Citation omitted; internal quotation marks
omitted.) In re Christina M., 280 Conn. 474, 480–81,
908 A.2d 1073 (2006).
The respondent argues that our case law supports
the conclusion that he has standing to assert a constitu-
tional claim on his child’s behalf for a harm that he
allegedly suffered. The cases cited by the respondent,
however, are distinguishable, and provide support only
for the conclusion that a parent has standing ‘‘to raise
concerns about his or her child’s representation’’;
(emphasis added) id., 481; or that a child has standing
to raise concerns about the fairness of the proceedings
terminating a respondent parent’s rights. In re Melody
L., 290 Conn. 131, 157, 962 A.2d 81 (2009) (children had
standing to challenge judgment terminating parental
rights of respondent mother), overruled in part on other
grounds by State v. Elson, 311 Conn. 726, 746–47, 91
A.3d 863 (2014). In each of those circumstances, the
party who was conferred standing would have been
unable to assert the subject claims on his or her own
behalf. The respondent does not claim that he would
lack standing to assert the due process claim at issue
in the present case, because he clearly would have
standing to do so. The respondent cites to no authority
that supports the proposition that a party who undeni-
ably would have standing to assert a constitutional
claim on his own behalf nonetheless has standing to
assert the same claim on behalf of another. Such a
proposition would constitute an unwarranted expan-
sion of our current case law.
For the foregoing reasons, I respectfully dissent.
1
See footnote 3 of the majority opinion.
2
As the majority opinion explains, after the release of the Appellate Court
opinion, which applied clear error review to all of the trial court’s factual
findings, we clarified the applicable standard of review. See In re Gabriella
A., 319 Conn. 775, 789–90, 127 A.3d 948 (2015); In re Shane M., 318 Conn.
569, 587–88, 122 A.3d 1247 (2015). Consistent with those decisions, I review
the trial court’s subordinate factual findings for clear error and the ultimate
findings for evidentiary sufficiency.
3
Because the judgment of the Appellate Court may be affirmed on the
basis of only one ground for termination and because I conclude that there
was sufficient evidence to support the finding that the respondent abandoned
Oreoluwa, I need not address the respondent’s claim that the trial court
improperly found that the petitioner met her burden to prove that there
was no ongoing parent-child relationship. See In re Luis C., 210 Conn. 157,
170, 554 A.2d 722 (1989).
4
The mother previously had been diagnosed with schizophrenia and had
been prescribed medication in Nigeria. She also had suffered from postpar-
tum depression following the birth of at least one of her other children.
She was not diagnosed with postpartum depression following the birth
of Oreoluwa.
5
Although the respondent was not provided with court-appointed immi-
gration counsel at the hearing on the neglect petition, as he subsequently
claimed was his right, the court appointed counsel to represent the respon-
dent in the present case. Ultimately, the respondent’s court-appointed coun-
sel referred him to an immigration attorney, whose services the
respondent retained.
6
As to the mother, the petitioner cited three grounds supporting termina-
tion of her parental rights: (1) abandonment; (2) no ongoing parent-child
relationship; and (3) a prior adjudication of neglect as to Oreoluwa, and
the failure of the mother to ‘‘achieve the degree of personal rehabilitation
that would encourage the belief that within a reasonable time, considering
the age and needs of the child or youth, [she] could assume a responsible
position in the life of the child . . . .’’
7
The social study also reports that Turton contacted the department to
report that he no longer wished to serve as a resource for Oreoluwa because
he believed that the respondent’s motives were not in the best interest of
Oreoluwa. According to Turton, the respondent was ‘‘just trying to use
[Oreoluwa’s] medical condition in order to secure a visa to this country.’’
8
The court’s finding that it was the respondent’s failure to travel to this
country that prevented the department from being able to provide him with
services is supported by the extensive services that were provided to the
mother during her initial mental health hospitalizations following Oreoluwa’s
birth and during her brief visit to the United States in August, 2013.
9
I observe that the present case is the second appeal in the past two
years that has raised the question of whether the department should be
required to provide immigration services to a noncitizen parent whose child,
a citizen of the United States, has been committed to the custody of the
petitioner. See In re Gabriella A., 154 Conn. App. 177, 182, 104 A.3d 805(2014), aff’d, 319 Conn. 775, 127 A.3d 948 (2015). Although the respondent
mother in In re Gabriella A. did not pursue at this court her claim regarding
immigration services, she argued at the Appellate Court that the department
had failed to make reasonable efforts to reunify her with the child because
the department, inter alia, ‘‘terminated the only assistance . . . that [the
respondent] was receiving with regard to her immigration status.’’ Id. Such
claims are likely to increase in the coming years, suggesting the prudence
of a legislative determination of whether and to what extent the department’s
duty to provide reasonable efforts to reunify a parent with his or her child
includes the provision of immigration services to the parent.
10
I agree with the Appellate Court that it would be improper to consider
the extra-record evidence now offered by the respondent to challenge this
finding. In re Oreoluwa O., supra, 157 Conn. App. 505 n.10.