In re Skylar B. ( 2021 )

****************************************************************
The ‘‘officially released’’ date that appears near the
beginning of this opinion is the date the opinion was
released as a slip opinion. The operative date for the
beginning of all time periods for filing postopinion
motions and petitions for certification is the ‘‘officially
released’’ date appearing in the opinion.
This opinion is subject to revisions and editorial
changes, not of a substantive nature, and corrections
of a technical nature prior to publication in the
Connecticut Law Journal.
****************************************************************
IN RE SKYLAR B.*
(AC 43916)
Lavine, Elgo and Palmer, Js.**
Syllabus
The respondent father appealed to this court from the judgment of the trial
court terminating his parental rights as to his minor child, S. On appeal,
the father claimed that the court deprived him of his right to substantive
due process because transfer of guardianship to S’s relative foster par-
ents would have been a less restrictive means than termination of his
parental rights to achieve permanency. Held that this court declined to
review the respondent father’s unpreserved constitutional claim because
the record was inadequate for review under the first prong of State v.
Golding (213 Conn. 233): the father failed to file a motion to modify
disposition and/or transfer guardianship to the relative foster parents,
and neither the trial court, the petitioner, the Commissioner of Children
and Families, nor S and the proposed guardians, whose lives would
have been most affected by whether the father’s parental rights remained
intact, were on notice at the outset of the trial on the termination of
parental rights petition that the father would be arguing for an alternative
disposition; only a proper motion filed by a respondent serves to provide
the requisite notice to all interested parties and the court of such an
alternative disposition and the evidence that is particularly relevant to
a disposition of a transfer of guardianship, as opposed to a termination
of parental rights and adoption.
Argued October 6, 2020—officially released May 17, 2021***
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of New Haven, Juvenile
Matters, and tried to the court, Marcus, J.; judgment
terminating the respondents’ parental rights, from
which the respondent father appealed to this court.
Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent father).
Rosemarie T. Weber, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Benjamin Zivyon and Evan O’Roark, assistant
attorneys general, for the appellee (petitioner).
David B. Rozwaski, counsel for the minor child.
Opinion
ELGO, J. The respondent father, Jeffrey B., appeals
from the judgment of the trial court rendered in favor
of the petitioner, the Commissioner of Children and
Families, terminating his parental rights with respect
to his minor child, Skylar B.,1 on the ground that the
respondent failed to rehabilitate in accordance with
General Statutes § 17a-112 (j) (3) (B) (i).2 On appeal,
the respondent claims that the court deprived him of
his right to substantive due process as guaranteed by the
fourteenth amendment to the United States constitution
because transfer of guardianship is a less restrictive
means than termination of his parental rights to achieve
permanency. We conclude that the record is inadequate
to review the respondent’s claim and, accordingly,
affirm the judgment of the trial court.
The following facts and procedural history are rele-
vant to this appeal. Skylar was born in November, 2017,
and is the child of Easter M. (mother) and the respon-
dent. The Department of Children and Families (depart-
ment) had a long history of involvement with both par-
ents due to the mother’s mental health issues and
extensive use of illicit substances, as well as the respon-
dent’s extensive involvement in the criminal justice sys-
tem and history of intimate partner violence with the
mother.3 At the time of Skylar’s birth, a referral was
made by a hospital social worker to the department
because both Skylar and her mother tested positive for
opiates.4 In the referral, the social worker also reported
that the mother had been hospitalized in June, 2017,
after being assaulted by the respondent while she was
pregnant with Skylar.
On November 20, 2017, the department executed a
ninety-six hour hold on Skylar and eventually placed
her with the relative foster home of her maternal aunt
and uncle. In the course of their investigation, the
department eventually located the respondent, who at
that time was incarcerated at the New Haven Correc-
tional Center (facility). On November 22, 2017, the
department filed an ex parte motion for an order of
temporary custody, which the court granted. The order
was sustained by agreement on December 1, 2017. On
January 16, 2018, the court adjudicated Skylar neglected
and committed her to the care and custody of the peti-
tioner. The respondent was present and represented by
counsel at the above hearings and was provided specific
steps to facilitate reunification, which were duly
approved and ordered by the court.
The respondent was released from the facility in June,
2018, but he failed to keep in contact with the depart-
ment. In July, 2018, the respondent informed the depart-
ment that he was serving parole in New York and he
indicated his intention to have his parole transferred
to Connecticut to be closer to Skylar and her mother.
Although the department found service providers for
the respondent in New York, the respondent declined
to use them. The respondent also refused monthly visi-
tation with Skylar, claiming that he did not want his
daughter to see him while he was living in a hotel. In
September, 2018, the respondent successfully trans-
ferred his parole from New York to Connecticut. The
department referred the respondent to services for visi-
tation, as well as substance abuse, intimate partner
violence treatment, and parenting services.
Unbeknownst to the department, a no contact order
was in place in connection with the respondent’s parole,
which prohibited him from contacting the mother.
Despite that order, the respondent asked the depart-
ment to arrange a joint visit with himself, the mother,
and Skylar. A visit occurred in September, 2018, which
led to the respondent’s arrest for violating the condi-
tions of his parole. The petitioner subsequently
remained incarcerated until November, 2018. As a
result, the services that the respondent was required
to complete were placed on hold until his release.
On November 19, 2018, the petitioner filed a petition
for termination of the respondent’s parental rights,
alleging that the respondent failed to achieve a suffi-
cient degree of rehabilitation in accordance with § 17a-
112 (j) (3) (B) (i)5 and that he had no ongoing parent-
child relationship with Skylar. See General Statutes
§ 17a-112 (j) (3) (D).6 While that termination proceeding
was pending, the respondent was arrested on federal
charges stemming from gang related activities in
New Haven.
A two day trial was held on the petition for termina-
tion of the respondent’s parental rights, at which the
respondent, who remained in federal custody, partici-
pated via video conference. On December 30, 2019, the
court issued a memorandum of decision, in which it
terminated the parental rights of the respondent.7 In its
findings of fact, the court relied heavily on an evaluation
of the respondent conducted on March 28, 2019, by a
court-appointed psychologist, Jessica Biren Caverly.8
In her report, Caverly noted: ‘‘There are a number of
concerns about the negative aspects of [the respon-
dent’s] history, including his significant legal history,
arrests for substances that he denied using, and his
minimization of intimate partner violence. These fac-
tors can be indicative of a personality disorder such
as [a]ntisocial [p]ersonality [d]isorder or [n]arcissistic
[p]ersonality [d]isorder. . . . In regard to substances,
[the respondent’s] recent urine tests [were] clean of all
substances, but it is highly likely he is abstaining from
substances solely so he can complete his parole.’’ (Inter-
nal quotation marks omitted.) Caverly was particularly
troubled by his blatant violation of parole orders requir-
ing no contact with the mother, reporting that the
respondent telephoned the mother during her own eval-
uation with Caverly. The court noted in its memoran-
dum of decision that ‘‘[t]his is indicative of [the respon-
dent’s] failure to change his behavior even on a minimal
basis.’’ The court also found that ‘‘[i]t is apparent from
the description . . . of the father-child [interaction]
that the [respondent] presently is unable to meet Sky-
lar’s needs.’’ In light of the foregoing, the court found
by clear and convincing evidence that the respondent
failed to rehabilitate pursuant to § 17a-112 (j) (3) (B) (i).9
Having found an adjudicatory ground for termination,
the court turned to the dispositional phase of its ruling.
The court determined by clear and convincing evidence
that termination of the respondent’s parental rights was
in Skylar’s best interest, and expressly considered the
factors outlined in § 17a-112 (k).10 In so doing, the court
emphasized the respondent’s failure to benefit from
services that were timely offered to him and the fact
that there was insufficient time for Skylar to develop
a relationship with the respondent due to his incarcera-
tion following parole. The court, pursuant to § 17a-112
(k), also considered Skylar’s emotional ties with her
maternal aunt and uncle, in whose physical care and
custody she has remained since birth. To that end, the
court credited Caverly’s testimony that Skylar was ‘‘well
bonded to her foster parents . . . and . . . looked to
them for support,’’ observing that they were her psycho-
logical parents and that their home was the only home
she has ever known. Finally, the court found that the
foster family had committed to being an adoptive
resource for Skylar. The court thus found, by clear and
convincing evidence, that it was in Skylar’s best interest
to have the respondent’s parental rights terminated, and
appointed the petitioner as Skylar’s statutory parent.
This appeal followed.
On appeal, the respondent generally does not chal-
lenge the trial court’s factual findings and conclusions
of law with respect to its determination that he failed
to achieve a sufficient degree of personal rehabilitation
pursuant to § 17a-112 (j) (3) (B) (i).11 Rather, he claims
that the court deprived him of his right to substantive
due process, as guaranteed by the fourteenth amend-
ment to the United States constitution, because the
petitioner ‘‘was without a compelling reason to termi-
nate his parental rights’’ given that Skylar was placed
with relative foster parents ‘‘within the meaning of [Gen-
eral Statutes] § 17a-111a (b) (1).’’12 The respondent con-
tends that, in light of Skylar’s placement with relative
foster parents, the petitioner ‘‘improperly allowed the
relatives to select a permanency plan for the child call-
ing for a termination of the respondent’s parental rights,
instead of using [her] authority under the statute to
effectuate a transfer of guardianship to the relatives as
a less restrictive means of permanency . . . .’’
The respondent’s counsel conceded at oral argument
before this court that §§ 17a-111a and 17a-112 do not
contain such ‘‘least restrictive means’’ language.
Instead, the respondent relies primarily on footnote 11
of In re Unique R., 170 Conn. App, 833, 845 n.11, 156
A.3d 1 (2017), and on In re Azareon Y., 309 Conn. 626,
634–37, 72 A.3d 1074 (2013), to support his claim that
§ 17a-111a ‘‘must be interpreted to preclude the peti-
tioner from filing [petitions] to terminate parental rights
under § 17a-112 if the child’s health and safety can be
protected by transferring guardianship of the child to
a relative as a less restrictive means of permanency.’’
This, the respondent claims, is the only way ‘‘to save
[§§ 17a-111a and 17a-112] from constitutional infirmity
. . . .’’13 The respondent acknowledges that he did not
raise this issue before the trial court and, thus, seeks
review of this unpreserved constitutional claim under
State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823(1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015).
In Golding, our Supreme Court held that ‘‘a [respon-
dent] can prevail on a claim of constitutional error not
preserved at trial only if all of the following conditions
are met: (1) the record is adequate to review the alleged
claim of error; (2) the claim is of constitutional magni-
tude alleging the violation of a fundamental right; (3)
the alleged constitutional violation . . . exists and
. . . deprived the [respondent] of a fair trial; and (4)
if subject to harmless error analysis, the state has failed
to demonstrate harmlessness beyond a reasonable
doubt.’’ (Emphasis in original; footnote omitted.) State
v. Golding, supra, 213 Conn. 239–40; see also In re
Yasiel R., supra, 317 Conn. 781. ‘‘[T]he inability to meet
any one prong requires a determination that the [respon-
dent’s] claim must fail. . . . The appellate tribunal is
free, therefore, to respond to the [respondent’s] claim
by focusing on whichever condition is most relevant in
the particular circumstances.’’ (Citation omitted; inter-
nal quotation marks omitted.) State v. Soto, 175 Conn.
App. 739, 755, 168 A.3d 605, cert. denied, 327 Conn. 970,
173 A.3d 953 (2017).
‘‘In assessing whether the first prong of Golding has
been satisfied, it is well recognized that [t]he [respon-
dent] bears the responsibility for providing a record
that is adequate for review of [his] claim of constitu-
tional error. If the facts revealed by the record are
insufficient, unclear or ambiguous as to whether a con-
stitutional violation has occurred, we will not attempt
to supplement or reconstruct the record, or to make
factual determinations, in order to decide the [respon-
dent’s] claim. . . . The reason for this requirement
demands no great elaboration: in the absence of a suffi-
cient record, there is no way to know whether a viola-
tion of constitutional magnitude in fact has occurred.’’
(Citations omitted; internal quotation marks omitted.)
In re Anthony L., 194 Conn. App. 111, 114–15, 219 A.3d
979 (2019), cert. denied, 334 Conn. 914, 221 A.3d 447(2020).
In In re Azareon Y., supra, 309 Conn. 632, the respon-
dent sought Golding review of her unpreserved claim
that substantive due process required the court to deter-
mine that the permanency plan of termination of the
respondent’s parental rights was the least restrictive
means to ensure the state’s compelling interest in pro-
tecting the child’s best interests. In determining that
the record was inadequate for review under Golding’s
first prong, our Supreme Court observed that the
respondent did not request that the trial court consider
any alternatives to the petitioner’s permanency plan,
the court’s memorandum of decision did not indicate
whether it had considered a permanency plan other
than the one advocated by the petitioner, and the
respondent did not ask the court to articulate whether
it had considered other options. Id., 632–33. Because
‘‘the petitioner was never put on notice of the respon-
dent’s proposed constitutional gloss to § 17a-112,’’ the
court concluded that ‘‘it [would have been] manifestly
unfair to the petitioner . . . to reach the merits of the
respondent’s claim . . . .’’ (Internal quotation marks
omitted.) Id., 638; see also In re Madison C., 201 Conn.
App. 184, 193, 241 A.3d 756, cert. denied, 335 Conn. 985,
242 A.3d 480 (2020); In re Anthony L., supra, 194 Conn.
App. 112–13.
In the present case, the respondent claims that his
right to substantive due process was violated by the
termination of his parental rights because transfer of
guardianship to the relative foster parents would have
been a less restrictive means of achieving permanency
for Skylar.14 The respondent does not dispute the fact
that he did not file a motion before the court seeking
a transfer of guardianship to the relative foster parents.
He nevertheless contends that the record is adequate
for review under the first prong of Golding because, at
trial, his counsel argued during closing arguments that
the court should transfer guardianship to the relative
foster parents instead of terminating his parental rights.
The respondent further asserts that ‘‘[i]t is certain from
the record . . . that Skylar’s relatives would have kept
her in their care under any arrangement that did not
result in Skylar being given back [to her parents] and
taken away again’’ and suggests that the mere fact that
they told the petitioner that they ‘‘preferred’’ an adoption
does not mean that they opposed a transfer of guardian-
ship. (Internal quotation marks omitted.) Because the
respondent failed to file a motion to modify disposition
and/or to transfer guardianship to the relative foster
parents pursuant to General Statutes § 46b-129 (j) and
Practice Book § 35a-16 or § 35a-12A, we do not agree
that there is an adequate record for review.
Our Supreme Court’s decisions in In re Azareon Y.,
supra, 309 Conn. 626, and In re Brayden E.-H., 309
Conn. 642, 72 A.3d 1083 (2013), which were both
released on July 30, 2013, are instructive. In In re Azar-
eon Y., the court concluded there was an inadequate
record to review the respondent’s substantive due pro-
cess claim and specifically noted the absence of critical
factual findings in the record to support the claim that
viable alternatives to termination and adoption existed.
In re Azareon Y., supra, 637. By contrast, the court in
In re Brayden E.-H. reached the merits of a similar
substantive due process claim because the trial court
had made specific findings regarding the dispositional
alternatives to termination sought by the respondent
parents. In re Brayden E.-H., supra, 651, 655–56. In
that case, the trial court, in determining whether to
terminate the parental rights of both parents, was pre-
sented with the respondent father’s motion to transfer
permanent guardianship to the paternal great-aunt and
her husband, as well as the respondent mother’s motion
to transfer guardianship. Id., 650. The trial court ulti-
mately terminated the respondent mother’s parental
rights, but it denied the petition to terminate the respon-
dent father’s parental rights and granted the father’s
motion to transfer permanent guardianship to the pater-
nal relatives. Id., 644, 653. On appeal, the respondent
mother argued that the trial court violated her right to
substantive due process because termination was not
required given that the court had granted permanent
guardianship to the paternal relatives. Id., 644–45. Our
Supreme Court concluded that it was unnecessary to
decide whether substantive due process requires that
a court determine whether termination is the least
restrictive means to protect a child’s best interest and,
instead, held that, even if substantive due process
required such a determination, the trial court’s decision
in that case satisfied that standard. Id., 645.
In so concluding, the court relied heavily on the find-
ings of fact made by the trial court pursuant to the
relevant statutory scheme, including the termination of
parental rights provisions and the relevant transfer of
guardianship provisions of § 46b-129 (j) (6) and Practice
Book § 35a-20, as asserted by the father and the respon-
dent mother relevant to their respective motions. Id.,
648–51. Our Supreme Court emphasized the court’s
findings with respect to the respondent’s relationship
with the proposed guardian, including its conclusion
that the it would be impossible for the proposed guard-
ian to accommodate the respondent, that the respon-
dent was ‘‘confrontational, unpredictable and aggres-
sive,’’ and that the respondent ‘‘would . . . [take] every
possible opportunity to undermine and destabilize [the
proposed guardian’s] position as principal caretaker
by filing motions for reinstatement of guardianship.’’
(Internal quotation marks omitted.) Id., 659. The court
also underscored the trial court’s finding that ‘‘[t]he
children could never confidently attach and would be
tormented by divided loyalties.’’ (Internal quotation
marks omitted.) Id. It further emphasized the trial
court’s observation that ‘‘giving [the respondent
mother] any opportunity to further litigate would be
disastrous to the children and to the guardians. As it is
now, the statute does not address specifically visitation
and thus could provide her with an opportunity to liti-
gate. That possibility does not exist if her parental
rights are terminated. The intention of the court was
to prevent her from having any further control or influ-
ence over the children, including visitation, during
which time she could undermine the authority of the
guardians.’’ (Emphasis in original.) Id., 661. Our
Supreme Court noted the trial court’s conclusion that
‘‘any avenue that would permit the respondent to exert
any further control or influence over the children would
undermine the guardians’ relationship with the children
and would be contrary to the children’s best interests.’’
(Emphasis in original.) Id., 661–62. ‘‘Finally, the fact that
the court declined to terminate [the father’s parental]
rights but determined that termination of the respon-
dent’s rights was necessary reflects the court’s conclu-
sion that nothing short of terminating the respondent’s
rights would adequately protect the children’s best
interests.’’15 Id., 662.
Although the findings made by the trial court in In
re Brayden E.-H. are specific to that case, the trial
court’s application of the established best interest stan-
dard to the relevant motions in that case resulted in a
record that the Supreme Court could review for pur-
poses of the respondent’s substantive due process
claim. That record, to the extent that permanent guard-
ianship was sought, required factual findings and a
determination that ‘‘[a]doption of the child or youth is
not possible or appropriate’’ pursuant to what is now
§ 46b-129 (j) (6) (B). See id., 652. Moreover, because
of the juxtaposition of both termination of parental
rights petitions and the motions to transfer guardian-
ship, the trial court in that case was required to evaluate
a variety of considerations which, while not exclusive
to motions for transfer of guardianship—such as the
ability to attach, divided loyalties, undermining the
authority of proposed guardian or caretaker, and the
ability to use the legal system to exert control or influ-
ence over a child—have heightened importance when
evaluating whether guardianship affords the child suffi-
cient security and permanency when a parent, for whom
adjudicatory grounds have been found, nevertheless,
seeks to retain his parental rights.
In the present case, by contrast, neither the trial
court, the petitioner, nor the minor child and the pro-
posed guardians, whose lives would be most affected by
whether the respondent’s parental rights remain intact,
were on notice at the outset of the trial that the respon-
dent would be arguing for an alternative disposition.
Only a proper motion filed by a respondent serves to
provide the requisite notice to all interested parties and
the court of such an alternative disposition and the
evidence that is particularly relevant to a disposition
of a transfer of guardianship, as opposed to a termina-
tion of parental rights and adoption. See, e.g., In re
Azareon Y., supra, 309 Conn. 641 (lack of evidence as
to whether maternal aunt would have agreed to long-
term foster care or conventional guardianship).
As this court repeatedly has observed, ‘‘[o]ur role is
not to guess at possibilities, but to review claims based
on a complete factual record developed by the trial
court. . . . Without the necessary factual and legal
conclusions furnished by the trial court . . . any deci-
sion made by us respecting [the respondent’s claims]
would be entirely speculative.’’ (Internal quotation
marks omitted.) In re Madison C., supra, 201 Conn.
App. 196. Because the respondent has failed to provide
this court with an adequate record for review, his claim
fails Golding’s first prong. We, therefore, decline to
review the merits of the respondent’s claim.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
*** May 17, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The attorney for the minor child has filed a statement, pursuant to
Practice Book §§ 67-13 and 79a-6 (c), adopting the brief of the Commissioner
of Children and Families.
2
The court also terminated the parental rights of Skylar’s mother, Easter
M., in the same proceeding on the same grounds. Skylar’s mother did not
appeal from this judgment, and, therefore, we refer to Jeffrey B. as the
respondent in this opinion.
3
As the court noted in its memorandum of decision, in 2011, the Probate
Court transferred guardianship of another child of the mother and the respon-
dent to a maternal great-aunt.
4
Skylar’s mother tested positive for opiates on November 7, 2017, and
later in November, 2017, on the date of Skylar’s birth.
5
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing . . . may grant a petition filed pursuant to
this section if it finds by clear and convincing evidence that . . . (3) . . .
(B) the child (i) has been found by the Superior Court or the Probate Court
to have been neglected, abused, or uncared for in a prior proceeding . . .
and has failed to achieve such degree of personal rehabilitation as would
encourage the belief that within a reasonable time, considering the age and
needs of the child, such parent could assume a responsible position in the
life of the child . . . .’’
6
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing . . . may grant a petition filed pursuant to
this section if it finds by clear and convincing evidence that . . . (3) . . .
(D) there is no ongoing parent-child relationship, which means the relation-
ship 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 and to allow further time for the establishment or reestablishment of
such parent-child relationship would be detrimental to the best interest of
the child . . . .’’
7
The court also terminated the parental rights of Skylar’s mother.
8
Caverly’s parenting/psychological evaluation report was admitted into
evidence as state’s exhibit D.
9
In light of that determination, the court declined to address the depart-
ment’s alternative statutory ground for termination pursuant to § 17a-112
(j) (3) (D).
10
General Statutes § 17a-112 (k) provides: ‘‘Except in the case where
termination of parental rights is based on consent, in determining whether
to terminate parental rights under this section, the court shall consider and
shall make written findings regarding: (1) The timeliness, nature and extent
of services offered, provided and made available to the parent and the child
by an agency to facilitate the reunion of the child with the parent; (2)
whether the Department of Children and Families has made reasonable
efforts to reunite the family pursuant to the federal Adoption and Safe
Families Act of 1997, as amended from time to time; (3) the terms of any
applicable court order entered into and agreed upon by any individual or
agency and the parent, and the extent to which all parties have fulfilled
their obligations under such order; (4) the feelings and emotional ties of
the child with respect to the child’s parents, any guardian of such child’s
person and any person who has exercised physical care, custody or control
of the child for at least one year and with whom the child has developed
significant emotional ties; (5) the age of the child; (6) the efforts the parent
has made to adjust such parent’s circumstances, conduct, or conditions to
make it in the best interest of the child to return such child home in the
foreseeable future, including, but not limited to, (A) the extent to which
the parent has maintained contact with the child as part of an effort to
reunite the child with the parent, provided the court may give weight to
incidental visitations, communications or contributions, and (B) the mainte-
nance of regular contact or communication with the guardian or other
custodian of the child; and (7) the extent to which a parent has been
prevented from maintaining a meaningful relationship with the child by
the unreasonable act or conduct of the other parent of the child, or the
unreasonable act of any other person or by the economic circumstances of
the parent.’’
11
The respondent does allege, in a footnote in his principal appellate brief,
that one of the trial court’s factual findings in the dispositional phase was
clearly erroneous—namely, that there was insufficient time for Skylar to
develop a relationship with him under § 17a-112 (k) (4). That claim is without
merit. ‘‘A finding is clearly erroneous when either there is no evidence in
the record to support it, or the reviewing court is left with the definite and
firm conviction that a mistake has been made. . . . [G]reat weight is given
to the judgment of the trial court because of [the trial court’s] opportunity
to observe the parties and the evidence. . . . [An appellate court does] not
examine the record to determine whether the trier of fact could have reached
a conclusion other than the one reached. . . . [Rather] every reasonable
presumption is made in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) In re Keyashia C., 120 Conn. App. 452, 455, 991 A.2d 1113,
cert. denied, 297 Conn. 909, 995 A.2d 637 (2010).
In the present case, the court concluded that the time that the respondent
spent with Skylar was insufficient because the respondent ‘‘only began
visitation with Skylar in November, 2018, and was incarcerated in July, 2019,
on his federal charges.’’ The respondent argues that this conclusion was
clearly erroneous because, between his return from parole in New York in
September, 2018, and his subsequent incarceration on federal charges in
July, 2019, he consistently visited with Skylar for weekly one hour visits
for more than ten months. However, during this visitation period, the respon-
dent was arrested in September, 2018, and incarcerated until November,
2018, for violating a no contact order with Skylar’s mother. Although the
court acknowledged that there were visits subsequent to his November,
2018 incarceration, it found at the time of trial that ‘‘he is now incarcerated
again for a lengthy period of time and is no longer available to her.’’ Moreover,
the court’s finding that there was insufficient time for Skylar to bond with
the respondent is supported by the expert testimony of Caverly. According
to Caverly, at the time of her evaluation, the respondent ‘‘ha[d] only recently
begun visitation and therefore their relationship [was] new and likely [did]
not have any positive memories.’’ In light of that evidence, the court’s finding
was not clearly erroneous.
12
General Statutes § 17a-111a provides: ‘‘(a) The Commissioner of Chil-
dren 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;
(2) the child has been abandoned as defined in subsection (j) of section
17a-112; or (3) a court of competent jurisdiction has found that (A) the
parent has killed, through deliberate, nonaccidental act, a sibling of the
child or has requested, commanded, importuned, attempted, conspired or
solicited to commit the killing of the child or a sibling of the child; or (B)
the parent has assaulted the child or a sibling of a child, through deliberate,
nonaccidental act, and such assault resulted in serious bodily injury to
such child.
‘‘(b) Notwithstanding the provisions of subsection (a) of this section, the
commissioner is not required to file a petition to terminate parental rights
in such cases if the commissioner determines that: (1) The child has been
placed under the care of a relative of such child; (2) there is a compelling
reason to believe that filing such petition is not in the best interests of the
child; or (3) the parent has not been offered the services contained in the
permanency plan to reunify the parent with the child or such services were
not available, unless a court has determined that efforts to reunify the parent
with the child are not required.’’
13
Neither In re Unique R., supra, 170 Conn. App. 833, nor In re Azareon
Y., supra, 309 Conn. 626, supports the respondent’s claim that § 17a-111a
precludes the filing of a termination petition if there is a less restrictive means
of permanency. Indeed, far from supporting the respondent’s contentions,
a careful review of In re Unique R. suggests a contrary conclusion. In that
case, this court concluded that the trial court did not improperly terminate
the respondent’s parental rights due to the petitioner’s alleged failure to
conduct an adequate investigation of his relatives as placement resources.
See In re Unique R., supra, 835–36. Specifically, we held that reasonable
efforts to reunify the respondent with his child pursuant to § 17a-112 (j) (1)
did not require investigation and placement with relative resources. Id.,
844–45. Notably, in footnote 14 of that opinion, we compared § 17a-111a
(a), which requires the petitioner to file a termination of parental rights
petition when a child has been in the custody of the petitioner for a substan-
tial period of time, with § 17a-111a (b), which, when a child is placed with
relatives, does not require the filing of a termination petition. Id., 853–54
n.14. Observing that ‘‘[t]he use of the word shall in conjunction with the
word may confirms that the legislature acted with complete awareness of
their different meanings,’’ we concluded that the phrase ‘‘not required’’ is
discretionary language and, therefore, even when a child has been placed
with relatives, § 17a-111a (b) does not prevent the petitioner from filing a
termination petition. (Internal quotation marks omitted). Id. In contrast,
footnote 11 references the respondent’s substantive due process claim rela-
tive to the reasonable efforts requirement of § 17a-112 (j) (1), which is not
the provision implicated in the present case. Id., 845 n.11.
Although the respondent does not direct us to authority for his specific
claim that the petitioner must have ‘‘a compelling reason to terminate his
parental rights’’ when a child is placed with relatives, we note that the plain
language of § 17a-111a (b) (2) requires the petitioner to provide a compelling
reason when she does not file a termination of parental rights petition within
the statutory guidelines.
14
The genesis and application of the ‘‘less or least restrictive means of
permanency’’ concept is unclear in our jurisprudence, such that our courts
have noted confusion in how these claims have been presented on appeal.
See, e.g., In re Azareon Y., supra, 309 Conn. 637 (noting various ways in
which claim was framed on appeal); In re Adelina A., 169 Conn. App. 111,
120, 148 A.3d 621 (court compelled to clarify various usages of term), cert.
denied, 323 Conn. 949, 169 A.3d 792 (2016). Nevertheless, the consistent
and express purpose of the various iterations of the concept has been to
challenge what we have previously acknowledged is the legislative prefer-
ence for termination and adoption.
In In re Adelina A., we observed that ‘‘[t]he Adoption and Safe Families
Act (ASFA), Pub. L. No. 105-89, 111 Stat. 2115 (1997), and parallel state law,
has established a clear preference for termination followed by adoption
when reunification with a parent is not a viable permanency plan. . . .
ASFA also requires the petitioner to file a petition for termination of parental
rights if the child has been under the responsibility of the state for fifteen
of the last twenty-two months, subject to limited exceptions. 42 U.S.C. § 675(5) (E) (2012); see 45 C.F.R. § 1356.21 (i); see also General Statutes § 17a-
111a (a). Finally, state law requires a court to find by clear and convincing
evidence that adoption is not possible or appropriate prior to issuing an
order for permanent legal guardianship. General Statutes § 46b-129 (j) (6)
(B).’’ (Citations omitted.) In re Adelina A., supra, 121 n.14. Such efforts are
consistent with federal law which, pursuant to 42 U.S.C. § 675 (1) (F) (v)
(2018), requires that child protection agencies document that they have
advised prospective guardians that adoption is the more permanent alterna-
tive to legal guardianship.
We further note that the concept of ‘‘least or less restrictive alternative
to permanency’’ espoused by the respondent should be distinguished from
the phrase ‘‘least restrictive placement,’’ which is an established term of art
governing placement of a child while in foster care, and which specifically
emanates from the federal Adoption Assistance and Child Welfare Act of
1980, Pub. L. 96–272, 94 Stat. 500, as amended by the Adoption and Safe
Families Act of 1997, Pub. L. No. 105–89, 111 Stat. 2115. See 42 U.S.C. § 671et seq. (2018). Pursuant to federal funding requirements, state and local
child protection agencies are required to develop a ‘‘case review system’’
for each child placed in foster care; 42 U.S.C. § 671 (A) (16) (2018); to assure,
inter alia, that ‘‘each child has a case plan designed to achieve placement
in a safe setting that is the least restrictive (most family like) and most
appropriate setting available and in close proximity to the parents’ home,
consistent with the best interest and special needs of the child . . . .’’
(Emphasis added.) 42 U.S.C. § 675 (5) (A) (2018).
15
Our Supreme Court also emphasized the trial court’s finding, made
pursuant to what is now § 46b-129 (j) (6) (B), that, because the proposed
guardians were in their sixties and had chronic health issues, they were not
an appropriate adoptive placement, notwithstanding their willingness to
adopt the child. Id., 652.