In re Tresin J. ( 2020 )

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IN RE TRESIN J.—CONCURRENCE
ECKER, J., with whom PALMER and McDONALD,
Js., join, concurring. I agree with and join Chief Justice
Robinson’s opinion holding that neither the virtual
infancy nor the interference exception to the statutory
lack of an ongoing parent-child relationship ground for
the termination of parental rights is applicable to the
facts of this case, and, therefore, I am compelled to
conclude that the parental rights of the respondent
father, Aceion B., properly were terminated, even
though he was incarcerated for most of his young child’s
life. I write separately to describe very briefly the social
reality operating beneath the surface of this and many
other such cases involving incarcerated parents who
lose their children as a collateral consequence of the
separation that incarceration entails. The problem I
describe is not, in my opinion, well suited for judicial
resolution on a case-by-case basis in the first instance,
at least in the absence of more particularized legislative
guidance regarding the proper legal considerations and
standards that judges should take into account when
deciding these cases. A legislative solution also offers
the advantage of including nonjudicial remedial compo-
nents that the legislature may deem necessary and
appropriate on the basis of the many policy considera-
tions that presumably would inform any such initiative.
There are approximately 2.2 million people incarcer-
ated in the United States, and more than half of them
have children under the age of eighteen. E. Hager & A.
Flagg, The Marshall Project, ‘‘How Incarcerated Parents
Are Losing Their Children Forever,’’ (December 2, 2018),
available at http://www.themarshallproject.org/2018/12/
03/how-incarcerated-parents-are-losing-their-children
-forever (last visited December 30, 2019); see also 3 M.
Mushlin, Rights of Prisoners (4th Ed. 2009) § 16:4, pp.
488–90. Of the estimated 74 million children in the
United States in 2007, 2.3 percent, or approximately 1.7
million children, had an incarcerated parent. L. Glaze &
L. Maruschak, Office of Justice Programs, United States
Department of Justice, ‘‘Parents in Prison and Their
Minor Children,’’ Bureau Just. Stat. Spec. Rep. (Rev.
March 30, 2010) p. 2, available at http://www.bjs.gov/
content/pub/pdf/pptmc.pdf (last visited December 30,
2019). These statistics are even bleaker in minority com-
munities; ‘‘[one] in [ten] black children have a parent
behind bars, compared with about [one] in [sixty] white
youth . . . .’’ E. Hager & A. Flagg, supra.1
The rise in incarceration rates over the past fifty years
has been the subject of much attention and controversy.
See, e.g., National Research Council et al., ‘‘The Growth
of Incarceration in the United States: Exploring Causes
and Consequences’’ (J. Travis et al. eds. 2014) p. 260
(reporting on recent study showing that number of chil-
dren with father in prison rose from 350,000 in 1980 to
2.1 million in 2000, or ‘‘about 3 percent of all U.S. chil-
dren in 2000’’). Whatever its causes, the rise in the
United States prison population has coincided with
changes in child welfare policy, which are intended
‘‘to reduce children’s stay in foster care in favor of a
permanent home . . . .’’ A. Iskikian, Note, ‘‘The Sen-
tencing Judge’s Role in Safeguarding the Parental Rights
of Incarcerated Individuals,’’ 53 Colum. J.L. & Soc.
Probs. 133, 135 (2019). Under the Adoption and Safe
Families Act, for example, ‘‘the State shall file a petition
to terminate the parental rights of’’ a parent whose child
‘‘has been in foster care under the responsibility of the
State for 15 of the most recent 22 months . . . .’’2 42
U.S.C. § 675 (5) (E) (2012). Because the average sen-
tence of incarceration exceeds fifteen months,3 incar-
cerated parents whose children are placed in foster
care have their parental rights terminated at a ‘‘dispro-
portionate rate . . . .’’ A. Iskikian, supra, 135. Indeed,
‘‘[o]ne in eight children placed into foster care due
to a parent’s incarceration alone will lose that parent
forever.’’ E. Hager & A. Flagg, supra. ‘‘Female prisoners,
whose children are five times more likely than those
of male inmates to end up in foster care, have their
rights taken away most often.’’ Id.
Part of the problem fueling this ‘‘family separation
crisis’’; (internal quotation marks omitted) id.; is the
fact that many termination of parental rights statutes,
like General Statutes § 17a-112 (j) (3) (D), focus on the
existence of an ‘‘ongoing parent-child relationship.’’ See
generally G. Sarno, Annot., ‘‘Parent’s Involuntary Con-
finement, or Failure to Care for Child As Result Thereof,
As Evincing Neglect, Unfitness, or the Like in Depen-
dency or Divestiture Proceeding,’’ 79 A.L.R.3d 417(1977). In Connecticut, an ‘‘ongoing parent-child rela-
tionship’’ is statutorily defined as ‘‘the relationship that
ordinarily develops as a result of a parent having met
on a day-to-day basis the physical, emotional, moral
and educational needs of the child . . . .’’ General Stat-
utes § 17a-112 (j) (3) (D). A parent who is separated
from his or her child by a sentence of incarceration
cannot develop and/or maintain the type of parent-child
relationship that ordinarily results from day-to-day con-
tact. Although this court has been careful to ‘‘avoid
placing insurmountable burden[s] on noncustodial par-
ents’’ by ‘‘explicitly reject[ing] a literal interpretation
of the statute,’’ we nonetheless find ourselves con-
strained by the language of the statute to require, at the
very least, a showing that ‘‘the child has some present
memories or feelings for the natural parent that are
positive in nature.’’ (Internal quotation marks omitted.)
In re Jacob W., 330 Conn. 744, 757, 200 A.3d 1091 (2019).
I am inclined to believe that many incarcerated par-
ents—including loving and devoted parents—could
have tremendous difficulty making the required show-
ing under some circumstances. As this court has
acknowledged, ‘‘when a parent has been incarcerated
for much or all of his or her child’s life . . . the normal
parent-child bond that develops from regular contact
. . . is weak or absent.’’ (Internal quotation marks omit-
ted.) Id., 756–57. The fact of incarceration also inter-
feres with ‘‘the parent’s ability to make and demonstrate
the changes that would enable reunification of the fam-
ily’’; (internal quotation marks omitted) id., 756; because
incarcerated parents cannot attend juvenile court hear-
ings, visit the child, attend parenting classes, or provide
financial support. A. Iskikian, supra, 53 Colum. J.L. &
Soc. Probs. 158–59. ‘‘Parents in prison thus face a high
likelihood of incurring the double punishment of both
incarceration and the permanent deprivation of their
relationship[s] with their children.’’ Id., 165–66.
Depending on the age of the child, the financial
resources of the family, the willingness of the custodial
parent or guardian to facilitate contact, and the
resourcefulness of the incarcerated parent and his or
her ability to navigate the maze of logistical impedi-
ments that accompany the loss of liberty in prison, it
may be difficult or impossible for the incarcerated par-
ent to meet the existing statutory standard.
Several states have responded to this increasingly
serious problem by enacting legislation to protect the
fundamental rights of incarcerated parents and to pre-
serve the parent-child bond. For example, California
and New York have enacted legislation requiring that
incarcerated parents be provided with reunification ser-
vices, such as parenting classes and visitation with their
minor children. See Cal. Welf. & Inst. Code § 361.5 (e)
(1) and (2) (Deering Supp. 2018);4 N.Y. Soc. Serv. Law
§ 384-b (7) (f) (McKinney Cum. Supp. 2019).5 Nebraska
and New Mexico have gone even further by enacting
legislation prohibiting the state from terminating paren-
tal rights if the sole basis for the termination is parental
incarceration. See Neb. Rev. Stat. § 43-292.02 (2) (b)
(Cum. Supp. 2018);6 N.M. Stat. Ann. § 32A-4-28 (D)
(2010).7
Within constitutional limits, it is a question of public
policy how best to strike the appropriate balance
between and among the competing values and interests
at stake, and, ‘‘[i]n areas where the legislature has spo-
ken . . . the primary responsibility for formulating
public policy must remain with the legislature.’’ State
v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987).
As I previously explained, § 17a-112 (j) (3) (D) in its
present form plainly provides for the termination of
parental rights if, among other things, the child has no
positive memories or feelings for the natural parent.
Despite the nearly insurmountable hurdles posed by
incarceration to many inmates who find themselves
unable in the prison setting to develop and maintain the
parental relationship necessary to satisfy the statutory
standard, I agree with Chief Justice Robinson’s opinion
holding that the trial court did not commit error
applying the statutory standard on this record. Accord-
ingly, I concur in Chief Justice Robinson’s opinion.
1
The statistics recited in this concurring opinion reflect national data and
are not specific to Connecticut. I would be surprised if the relevant statistics
in Connecticut differed materially from the national numbers, but I cannot
be certain because the local information is not readily available. The need
for more empirical information of this kind is another reason why the
legislature is far better equipped in the first instance to consider the matter
and devise proper legal standards for case-by-case application.
2
Connecticut has codified this federal statutory requirement at General
Statutes § 17a-111a (a), which provides in relevant part that ‘‘[t]he Commis-
sioner of Children and Families shall file a petition to terminate parental
rights pursuant to section 17a-112 if (1) the child has been in the custody
of the commissioner for at least fifteen consecutive months, or at least
fifteen months during the twenty-two months, immediately preceding the
filing of such petition . . . .’’
3
‘‘The average time served by state prisoners released in 2016, from their
date of initial admission to their date of initial release, was 2.6 years. The
median amount of time served (the middle value in the range of time served,
with 50 [percent] of offenders serving more and 50 [percent] serving less)
was 1.3 years . . . .’’ D. Kaeble, Bureau of Justice Statistics, Office of Justice
Programs, ‘‘Time Served in State Prison, 2016,’’ U.S. Dept. Just. Bull., Novem-
ber, 2018, p. 1, available at http://www.bjs.gov/content/pub/pdf/tssp16.pdf
(last visited December 30, 2019).
4
Section 361.5 (e) of the California Welfare and Institutions Code provides
in relevant part: ‘‘(1) If the parent or guardian is incarcerated, institutional-
ized, or detained by the United States Department of Homeland Security,
or has been deported to his or her country of origin, the court shall order
reasonable services unless the court determines, by clear and convincing
evidence, those services would be detrimental to the child. In determining
detriment, the court shall consider the age of the child, the degree of parent-
child bonding, the length of the sentence, the length and nature of the
treatment, the nature of the crime or illness, the degree of detriment to the
child if services are not offered and, for children 10 years of age or older,
the child’s attitude toward the implementation of family reunification ser-
vices, the likelihood of the parent’s discharge from incarceration, institution-
alization, or detention within the reunification time limitations described in
subdivision (a), and any other appropriate factors. In determining the content
of reasonable services, the court shall consider the particular barriers to
an incarcerated, institutionalized, detained, or deported parent’s access to
those court-mandated services and ability to maintain contact with his or
her child, and shall document this information in the child’s case plan.
Reunification services are subject to the applicable time limitations imposed
in subdivision (a). Services may include, but shall not be limited to, all of
the following:
‘‘(A) Maintaining contact between the parent and child through collect
telephone calls.
‘‘(B) Transportation services, when appropriate.
‘‘(C) Visitation services, when appropriate.
‘‘(D) (i) Reasonable services to extended family members or foster parents
providing care for the child if the services are not detrimental to the child.
‘‘(ii) An incarcerated or detained parent may be required to attend counsel-
ing, parenting classes, or vocational training programs as part of the reunifi-
cation service plan if actual access to these services is provided. The social
worker shall document in the child’s case plan the particular barriers to an
incarcerated, institutionalized, or detained parent’s access to those court-
mandated services and ability to maintain contact with his or her child.
‘‘(E) Reasonable efforts to assist parents who have been deported to
contact child welfare authorities in their country of origin, to identify any
available services that would substantially comply with case plan require-
ments, to document the parents’ participation in those services, and to
accept reports from local child welfare authorities as to the parents’ living
situation, progress, and participation in services.
‘‘(2) The presiding judge of the juvenile court of each county may convene
representatives of the county welfare department, the sheriff’s department,
and other appropriate entities for the purpose of developing and entering
into protocols for ensuring the notification, transportation, and presence of
an incarcerated or institutionalized parent at all court hearings involving
proceedings affecting the child pursuant to Section 2625 of the Penal Code.
The county welfare department shall utilize the prisoner locator system
developed by the Department of Corrections and Rehabilitation to facilitate
timely and effective notice of hearings for incarcerated parents.’’
5
Section 384-b (7) (f) of the New York Social Services Law requires an
‘‘authorized agency’’ of the state to make ‘‘ ‘diligent efforts’ . . . to assist,
develop and encourage a meaningful relationship between the parent and
child’’ by ‘‘(5) making suitable arrangements with a correctional facility and
other appropriate persons for an incarcerated parent to visit the child within
the correctional facility, if such visiting is in the best interests of the child.
When no visitation between child and incarcerated parent has been arranged
for or permitted by the authorized agency because such visitation is deter-
mined not to be in the best interest of the child, then no permanent neglect
proceeding under this subdivision shall be initiated on the basis of the lack
of such visitation. Such arrangements shall include, but shall not be limited
to, the transportation of the child to the correctional facility, and providing or
suggesting social or rehabilitative services to resolve or correct the problems
other than incarceration itself which impair the incarcerated parent’s ability
to maintain contact with the child. When the parent is incarcerated in a
correctional facility located outside the state, the provisions of this subpara-
graph shall be construed to require that an authorized agency make such
arrangements with the correctional facility only if reasonably feasible and
permissible in accordance with the laws and regulations applicable to such
facility; and
‘‘(6) providing information which the authorized agency shall obtain from
the office of children and family services, outlining the legal rights and
obligations of a parent who is incarcerated or in a residential substance
abuse treatment program whose child is in custody of an authorized agency,
and on social or rehabilitative services available in the community, including
family visiting services, to aid in the development of a meaningful relation-
ship between the parent and child. Wherever possible, such information shall
include transitional and family support services located in the community
to which an incarcerated parent or parent participating in a residential
substance abuse treatment program shall return.’’
6
Section 43-292.02 (2) (b) of the Nebraska Revised Statutes provides in
relevant part that ‘‘[a] petition shall not be filed on behalf of the state to
terminate the parental rights of the juvenile’s parents or, if such petition
has been filed by another party, the state shall not join as a party to the
petition if the sole factual basis for the petition is that . . . the parent or
parents of the juvenile are incarcerated. . . .’’
7
Section 32A-4-28 (D) of the New Mexico Statutes Annotated provides
that ‘‘[t]he department shall not file a motion, and shall not join a motion
filed by another party, to terminate parental rights when the sole factual
basis for the motion is that a child’s parent is incarcerated.’’