In re Jacob W. , 330 Conn. 744 ( 2019 )

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IN RE JACOB W.—DISSENT
D’AURIA, J., with whom McDONALD and ECKER,
Js., join, dissenting. I would reverse the Appellate
Court’s judgment and remand the case to that court
with direction to affirm the trial court’s denial of the
petitions filed by the petitioner, the maternal grand-
mother of the three minor children at issue, to terminate
the parental rights of the respondent father, Daniel W.,
as to those children.
My disagreement with the Appellate Court centers
on what I view as its failure to adequately address the
fact that in addition to finding that the petitioner had
failed to prove that there was no ongoing parent-child
relationship at the time of trial—a ruling the Appellate
Court concluded was in error—the trial court also found
that the petitioner had failed to prove that ‘‘to allow
further time for the establishment or reestablishment
of the parent-child relationship would be detrimental
to the best interest of the child.’’ This latter finding inde-
pendently would have sufficed to deny the petitions.1
My disagreement with the majority is similar. I believe
that by focusing on the trial court’s isolated and subordi-
nate statement that ‘‘[t]here was no evidence presented
by the petitioner at trial that would support a claim
that additional time to reestablish a relationship with
the children would be detrimental,’’ and declaring that
statement clearly erroneous, the majority has mistak-
enly avoided the fact that the latter finding was equally
dispositive of the trial court’s denial of the petitions.
In my view, the majority (1) misreads the meaning of the
trial court’s memorandum of decision; (2) in essence,
substitutes its judgment for the trial court’s judgment on
an issue of fact entrusted to trial judges in our juvenile
session; and (3) ultimately awards the petitioner no real
practical relief. I, therefore, respectfully dissent.
I
The respondent is serving a total effective sentence
of twenty-nine years in prison. The conduct that landed
him in prison (sexually abusing his children’s young
aunt, who lives with them) is reprehensible. His children
are not aware of that conduct, but the conduct that
they believe landed him in prison (beating their mother,
which they witnessed) is also reprehensible. It is not
difficult to predict that this respondent might well be
on the road to having his parental rights terminated. If
I had been the trial judge, I might have ruled on the
record presented to terminate his parental rights. But
no one on this court was the trial judge in this case.
The trial court judge who did address the petitions
in the present case was confronted with an issue that
is not unusual in juvenile cases in which a parent faces
a long term of incarceration: whether and when to ter-
minate the parental rights of the parent-inmate. The
reality is that some parents serving lengthy prison sen-
tences may not play any significant role in the upbring-
ing of their children and will not do so because of their
own conduct. Without extraordinary effort of their own
or active cooperation from the children’s caregivers,
parent-inmates might have little or no contact with their
children at all.
But, as the majority observes, although a court may
consider the ‘‘inevitable effects of incarceration’’ on an
individual’s ability to parent, ‘‘the fact of incarceration,
in and of itself, cannot be the basis for a termination
of parental rights.’’ In re Elvin G., 310 Conn. 485, 514,
78 A.3d 797 (2013); see also In re Juvenile Appeal
(Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808
(1982). Termination of parental rights implicates a fun-
damental constitutional right; In re Yasiel R., 317 Conn.
773, 792, 120 A.3d 1188 (2015); and has implications
beyond a child’s childhood. When parental rights have
been terminated, it becomes unlikely that the child and
the parent will ever have any relationship, even as
adults.
Children, of course, also have rights, as well as a
need for a continuous, stable home environment. See
In re Davonta V., 285 Conn. 483, 494, 940 A.2d 733
(2008). In some cases, terminating a parent’s rights is
exactly the right thing for a child’s best interests. Per-
haps this is such a case. My point in dissenting from
the majority should not be read as suggesting that this
respondent is a good example of someone who should
necessarily play a parental role in the lives of his chil-
dren, given his conduct and the other circumstances
relevant to that determination. My point is that we are
not well positioned to make that determination. Rather,
this is a difficult decision assigned to our trial court
judges sitting in the juvenile session. Specifically, as it
relates to the ground asserted and solely pursued by
the petitioner in the present case—‘‘no ongoing parent-
child relationship’’—the trial court is entrusted not just
with determining whether to terminate a parent’s rights,
but when to do so. In adjudicating this particular
ground, as applied to a parent who will be incarcerated
throughout a child’s childhood, General Statutes § 45a-
717 (g) (2) (C) places discretion in the hands of the
trial court to determine whether the ‘‘effects of incarcer-
ation’’ are indeed ‘‘inevitable’’ under the particular facts
of the case, or whether allowing more time for the
relationship to establish or reestablish is detrimental
to the children’s best interest.
II
Section 45a-717 (g) provides in relevant part that ‘‘the
court may approve a petition terminating . . . parental
rights . . . if it finds, upon clear and convincing evi-
dence, that (1) the termination is in the best interest
of the child, and (2) . . . (C) there is no ongoing parent-
child relationship which is defined as the relationship
that ordinarily develops as a result of a parent having
met on a continuing, day-to-day basis the physical, emo-
tional, moral and educational needs of the child and to
allow further time for the establishment or reestablish-
ment of the parent-child relationship would be detri-
mental to the best interests of the child . . . .’’
(Emphasis added.) Thus, to satisfy subsection (g) (2)
(C) of the statute, the court must find both (1) that
the petitioner has established that there is no ongoing
parent-child relationship (the ‘‘no ongoing parent-child
relationship’’ prong) and (2) that permitting the parent
further time to establish or reestablish such a relation-
ship would be detrimental to the children’s best inter-
ests (the ‘‘further time’’ prong). See In re Jonathon
G., 63 Conn. App. 516, 525, 777 A.2d 695 (2001). The
petitioner must prove both prongs by clear and convinc-
ing evidence. See In re Baby Girl B., 224 Conn. 263,
300–301, 618 A.2d 1 (1992).
The trial court in the present case found that the
petitioner had failed to establish either prong by clear
and convincing evidence. Specifically, the court found
‘‘that the petitioner has not demonstrated that there is
a lack of parent-child relationship nor that it would be
detrimental to allow further time for the establishment
of the relationship.’’ (Emphasis added.) Regarding the
‘‘further time’’ prong, the trial court stated that ‘‘[t]here
was no evidence presented by the petitioner at trial
that would support a claim that additional time to rees-
tablish a relationship with the children would be detri-
mental.’’ The trial court also found that terminating the
respondent’s parental rights would not have been in
the best interest of the children.2
III
Rather than awaiting the ‘‘further time’’ contemplated
by § 45a-717 (g) (2) (C) and either amending her peti-
tions or bringing new petitions,3 the petitioner appealed
to the Appellate Court, claiming that all three of the
trial court’s critical findings were clearly erroneous.
Specifically, she argued to the Appellate Court that
upon the record presented, the trial court should have
found by clear and convincing evidence that (1) there
was no ongoing parent-child relationship between the
respondent and his children; (2) permitting the respon-
dent further time to establish or reestablish such a
relationship would be detrimental to the children’s best
interests; and (3) termination of the respondent’s paren-
tal rights would be in the children’s best interests. The
petitioner claimed that if she was correct that the trial
court erred in each of its findings, she would be entitled
to directed judgments terminating the respondent’s
rights, rather than merely the new trial the Appellate
Court ordered and the majority today affirms. See In
re James T., 9 Conn. App. 608, 644, 520 A.2d 608 (1987)
(‘‘[f]rom the facts presented in the court’s memoran-
dum, to the effect that [the Department of Children and
Families (department)] ‘clearly established’ that it is
not in the child’s best interest to allow further time to
establish a relationship, we conclude that [the depart-
ment] did meet its burden of clear and convincing proof,
and the petition should have been granted’’).
As the majority notes, the Appellate Court did not
address the petitioner’s claims on appeal that the trial
court’s findings were clearly erroneous. Nor did it
address at all the trial court’s finding that it had not
been proven to the court that allowing further time
would be detrimental to the children’s best interests.
Instead, the Appellate Court reversed the trial court’s
judgments denying the petitions, holding that the trial
court’s reasoning was legally and logically inconsistent,
and that its factual findings were fatally inconsistent.
In re Jacob W., 178 Conn. App. 195, 215, 172 A.3d 1274
(2017). Specifically, the Appellate Court held that the
trial court had applied the wrong legal test to determine
whether there was an ongoing parent-child relationship.
Id., 211. It determined that the trial court’s findings
were legally inconsistent in that the trial court found
both ‘‘that an ongoing parent-child relationship exists
and that unreasonable interference inevitably pre-
vented the respondent from maintaining an ongoing
parent-child relationship.’’ (Emphasis omitted.) Id. It
also determined that the trial court’s findings were fac-
tually inconsistent in that the trial court ‘‘found both
that the grandparents’ unreasonable conduct consti-
tuted interference and that there was no evidence of
unreasonable interference by any person.’’ Id., 215–16.
The Appellate Court therefore ordered a new trial on
the petitioner’s amended petitions. Id., 219.
Although the trial court’s memorandum of decision
is not entirely clear—and is in one place inconsistent—
neither the parties nor the Appellate Court saw fit to
ask the trial court to clarify or articulate its ruling.4 See
Practice Book § 66-5; see also In re Jason R., 306 Conn.
438, 460, 51 A.3d 334 (2012) (trial court states burden
of proof correctly in articulations to clarify ambiguity
in memorandum of decision regarding allocation of bur-
den of proof). Trial court judges operate under tremen-
dous time pressure and without the resources available
to this court and the Appellate Court. See K. Stith, ‘‘The
Risk of Legal Error in Criminal Cases: Some Conse-
quences of the Asymmetry in the Right to Appeal,’’ 57
U. Chi. L. Rev. 1, 61 n.99 (1990) (‘‘appellate judges have
more resources [time, staff, and so on than trial
judges]’’). Thus, a trial court ‘‘opinion must be read as
a whole, without particular portions read in isolation,
to discern the parameters of its holding.’’ (Internal quo-
tation marks omitted.) In re Jason R., supra, 453.
More significantly for this case, even if the trial court’s
decision was in some way unclear, the examples pro-
vided by the Appellate Court concerned only the ‘‘no
ongoing parent-child relationship’’ prong. The Appellate
Court identified no lack of clarity or inconsistency con-
cerning the ‘‘further time’’ prong, which provides an
independent basis for upholding the trial court’s deci-
sion. See footnote 6 of this dissenting opinion. There-
fore, whatever flaws the trial court’s opinion might have
contained, I had no trouble understanding from my
review that the court found that the time had not yet
come to terminate the respondent’s parental rights. I
therefore would not have reversed the trial court’s judg-
ments on the ground that the Appellate Court did.
IV
We granted certification in the present case limited to
the following issue: ‘‘Did the Appellate Court correctly
reverse the trial court’s judgment denying the custodi-
an’s petition to terminate the father’s parental rights
when it determined that the trial court’s judgment was
legally and logically inconsistent?’’ In re Jacob W., 328
Conn. 902, 177 A.3d 563 (2018). The majority does not
affirm the Appellate Court’s judgment on the ‘‘legally
and logically inconsistent’’ rationale of that court, how-
ever, but rather, it concludes that in addressing the ‘‘no
ongoing parent-child relationship’’ prong, the trial court
did not properly take account of the ‘‘children’s negative
feelings toward or lack of memory of the respondent,’’
improperly focusing instead on the respondent’s con-
duct. I do not believe we need to reach that issue,
however (and I do not), because even if the trial court
considered the ‘‘no ongoing parent-child relationship’’
prong under an incorrect standard, the trial court also
found that the petitioner had failed to establish that ‘‘to
allow further time for the establishment or reestablish-
ment of the parent-child relationship would be detri-
mental to the best interest of the child.’’5 In my view,
the trial court’s ruling on this second prong sufficed
independently to deny the petitions.6
The majority does not hold, as the petitioner has
asked us to hold, that the trial court’s ruling on the
‘‘further time’’ prong is clearly erroneous and that,
therefore, this prong has in fact been established by
clear and convincing evidence. This would be a difficult
chore. Determining that a trial court’s finding that the
failure to prove an element by clear and convincing
evidence is clearly erroneous is even more challenging
an undertaking than contesting any other pedestrian
finding.
The majority instead takes on a subordinate state-
ment of the trial court: ‘‘[t]here was no evidence pre-
sented by the petitioner at trial that would support a
claim that additional time to reestablish a relationship
with the children would be detrimental.’’ The majority
protests that there was in fact ‘‘evidence presented that
was relevant to this question’’ and that for the trial court
to say otherwise was so clearly erroneous that a new
trial is warranted. The examples the majority provides,
however, are not in my view directly relevant to the
finding that further time would not be detrimental, but
instead relate to whether additional time will be pro-
ductive.
For example, the majority states that there was evi-
dence that the children had intensely negative feelings
about the respondent (including feelings that he is a
bad parent) or no present feelings at all. The children
were not asking to see or speak with him and wanted
to have their last name changed. The majority also
claims that the trial court did not consider the recom-
mendations of the department, the guardian ad litem,
and the children’s attorney to terminate the respon-
dent’s parental rights, along with whether the little ‘‘like-
lihood’’ of reestablishing a relationship, and the time it
would have taken to do so, would have been detrimental
to the children’s best interest.
However, I do not agree with the majority that the
trial court did not give consideration to all of the evi-
dence the majority cites. In my view, a full and fair
reading of the memorandum of decision does not sup-
port a conclusion that the trial court ‘‘did not accord
any effect to,’’ ‘‘did not consider,’’ or ‘‘took no account
of’’ such evidence. Judges presumptively consider what-
ever evidence is in front of them. See Lewis v. Commis-
sioner of Correction, 117 Conn. App. 120, 128, 977 A.2d
772 (‘‘There is nothing in the record that suggests that
the court failed to review thoroughly the testimony and
evidence submitted to it. . . . [A] judge is presumed
to have performed his duty properly unless the contrary
appears [in the record].’’ [Internal quotation marks
omitted.]), cert. denied, 294 Conn. 904, 982 A.2d 647
(2009). And here, the trial court did expressly find and
take note in its memorandum of decision of the chil-
dren’s negative and nonexistent feelings, as well as the
department’s report and the guardian ad litem’s recom-
mendation.
Thus, unlike the majority, I would not so strictly
scrutinize the trial court’s statement that there was ‘‘no
evidence . . . that would support a claim that addi-
tional time to reestablish a relationship with the chil-
dren would be detrimental.’’ The majority finds fault
with this statement because, in its view, there was rele-
vant evidence. Just because evidence is relevant, how-
ever, does not mean it clearly and convincingly
establishes a fact. I read the trial court’s statement as
more likely meaning that the court found ‘‘no direct
evidence’’7 or ‘‘no persuasive evidence’’ that more time
would be detrimental. ‘‘[W]e read an ambiguous trial
court record so as to support, rather than contradict,
its judgment.’’ (Internal quotation marks omitted.) In
re Jason R., supra, 306 Conn. 453. The trial court might
not have been persuaded by the evidence the majority
believes it should have been persuaded by, but instead
determined that there was not clear and convincing
evidence that affording additional time would be detri-
mental to the children’s best interests. Although the
trial court’s analysis may be sparse, it is clear to me from
its factual findings that it considered all the evidence
in reaching its determination as to the ‘‘further time’’
prong. In my view, the majority has substituted its judg-
ment for the discretion of the trial court and called it
clearly erroneous review.
For example, the trial court could have found that,
although relevant, the children’s statements of dislike
of the respondent were not direct evidence of further
time being detrimental to their best interest.8 Although
a trial court could have found that further time would
be detrimental because the children were upset and
any further contact with the respondent would serve
only to upset them further, it also could have found that
those negative feelings were going to exist regardless
of whether the respondent’s parental rights are termi-
nated, that termination will not affect those feelings,
and that additional time might provide an opportunity
for the respondent to attempt to repair his relationship
with his children. In fact, in many of such ‘‘no ongoing
parent-child relationship’’ cases, the present feelings of
the children may be negative or nonexistent. That is
why the relationship has to be reestablished. And, that
is what the additional time is for: things can change.
Thus, when the trial court stated that ‘‘[t]he statements
of dislike by very young children with false information
about [the respondent] does not establish by clear and
convincing evidence that reestablishing a relationship
would be detrimental,’’ I think that means no more than
that: the quantum of evidence necessary was not met
by the cited evidence.
Further, although the trial court acknowledged that
the department had recommended termination of the
respondent’s parental rights, and that the guardian ad
litem found it unlikely that further time would be pro-
ductive on the basis of the respondent’s incarceration
and the ongoing protective order preventing contact
between him and the children, it did not find this to be
direct evidence of detriment if it allowed further time.
Lack of productivity does not necessarily equate to
detriment, but rather is a factor to consider in determin-
ing whether further time would be detrimental.
Although the trial court in this case could have found
that there was little likelihood of productivity because
of the protective order, it also could have found that
because the respondent could have sought to modify
the protective order or set up some arrangement to
have contact with his children, there was a possibility
that further time would give the respondent an opportu-
nity to reestablish his relationship with his children.
Thus, although relevant, this evidence does not neces-
sarily support a claim that additional time to reestablish
a relationship with the children would be detrimental.
It is for the trial court to determine whether there is
a lack of productivity and, if so, whether it would be
detrimental. The trial court in the present case deter-
mined that any predicted lack of productivity in provid-
ing additional time did not equate to detriment—in this
case, at that time—especially in light of the fact that
the children had been thriving with their grandparents.
In my view, this finding is not clearly erroneous. It is
important that in reviewing such a finding, we do not
substitute our own judgment for the trial court’s judg-
ment on an issue of fact entrusted to trial judges in our
juvenile session because, especially in cases involving
incarcerated parents, it will be a highly fact-bound ques-
tion whether additional time is not likely to establish
or reestablish the relationship. It is not necessarily true
that in each of those cases, granting the additional time
would be detrimental. Rather, this is, in my view, an
issue best left to the trial judge, who is in the best
position to weigh the evidence before her or him.
V
Hard cases make bad law. In my view, this case quali-
fies. The respondent’s appalling conduct and its conse-
quences would seem to make it highly unlikely that he
will play a significant parenting role in his children’s
lives. I am concerned, however, that the majority’s opin-
ion will be read to require trial court judges to consider
the ‘‘further time’’ prong to be more of a predictor of
the likelihood of reestablishing a relationship. Although
I agree that the likelihood that further time will be
productive may be a factor in determining whether fur-
ther time would be detrimental to the children’s best
interest, I am concerned that judges sitting in our juve-
nile session will interpret the majority’s opinion as
equating the probable lack of productivity with det-
riment.
Thus, in this case, I do not believe that any assumed
lack of productivity should not be considered by the
trial court, but rather I believe that the trial court did
indeed consider it and did not find it to be evidence of
detriment. There is no requirement that a trial court
make a finding of detriment even if there is little foresee-
ability of reestablishing a relationship. Rather, this is a
fact-based issue that will differ under the circumstances
of each case. Unless the court’s finding is clearly errone-
ous, we should defer to the trial court’s judgment on
such an issue. Otherwise, I am concerned that appellate
scrutiny will override and overshadow the trial court’s
prerogative to weigh the evidence and determine not
only whether parental rights should be terminated, but
when. I am simply unwilling to arrogate to myself the
authority to make this determination, and unwilling to
so strictly scrutinize the trial court’s memorandum of
decision in such a pursuit.
I am especially unwilling to do so when the reward
the majority confers upon the petitioner is so meager.
The majority’s decision today will not hasten the termi-
nation of the respondent’s parental rights. In fact, the
appellate process might very well have delayed it. This
is because all the petitioner has gained by prevailing
before both the Appellate Court and this court is a new
trial on a trio of two year old petitions. A Pyrrhic victory
to be sure. Practically, this is no relief at all because
any new trial that follows from a reversal of the trial
court’s denial of the petitions will necessarily have to
measure any ‘‘ongoing’’ relationship as of the time of
the new trial, not based on the date of the prior trial.
See In re Juvenile Appeal (83-DE), supra, 190 Conn.
318 (‘‘the issue of whether termination of parental rights
is appropriate must be decided upon the basis of condi-
tions as they appear at the time of trial’’). If a new trial
on these petitions would be any different from a trial
on new petitions alleging no ongoing parent-child rela-
tionship, that difference is lost on me. See footnote 3
of this dissenting opinion. It is little wonder that that
is not the relief the petitioner sought in the Appellate
Court, but rather that she sought directed judgments
based upon an appellate determination that all of the
trial court’s findings on the elements of the no ongoing
parent-child relationship prong were clearly erroneous.9
Thus, although my disagreement with the majority is
fundamental, it results in little difference to the parties
in this case. I therefore respectfully dissent.
1
The petitioner originally alleged that the children had been denied the
care, guidance, or control necessary for their physical, educational, moral,
or emotional well-being by reason of acts of parental commission or omis-
sion. See General Statutes § 45a-717 (g) (2) (B). In her amended petitions,
the petitioner withdrew that allegation and instead alleged abandonment
and the lack of an ongoing parent-child relationship as grounds for termina-
tion. See General Statutes § 45a-717 (g) (2) (A) and (C). The trial court ruled
against the petitioner on both grounds. The only ground relevant to this
appeal, however, is the ground of no ongoing parent-child relationship. See
General Statutes § 45a-717 (g) (2) (C).
2
In support of these findings, the trial court made the following subordi-
nate findings: The respondent is the father of three children, Jacob, N, and
C. Because of a protective order put into place to prevent the respondent
from having contact with the children’s maternal aunt, with whom they live,
the respondent has not been able to contact his children while in prison.
Nevertheless, while incarcerated, he has requested assistance to arrange
visits with and updates about his children, and participated in programs to
send Christmas gifts to them. Although Jacob initially stated that he missed
the respondent, he has since called him a ‘‘bad parent.’’ N has stated that
he hates the respondent, and C has little to no memory of him. Both Jacob
and N have stated that they want no contact with the respondent. The
children have bonded with the petitioner, their maternal grandmother, who
wants to change their last name. Additionally, the guardian ad litem has
opined that termination of the respondent’s parental rights is in the children’s
best interest because there would be no benefit in the children forming
a relationship with him, as he will be incarcerated for the remainder of
their childhood.
3
My research identifies nothing that prevents (or would have prevented)
the petitioner from pursuing termination on the ‘‘no ongoing parent-child
relationship’’ ground, or any other ground, at some point after the trial court
ruled against her on the present petitions. This court has held that a party
can file an amended or new petition alleging either new grounds or a material
change in circumstances so as to avoid both res judicata and collateral
estoppel issues. See In re Baby Girl B., supra, 224 Conn. 293–94 (‘‘it makes
no difference whether [the Department of Children and Families] chooses
to honor its obligation by filing an amended petition or by filing a second
independent petition alleging [a material change in circumstances or] new
grounds for termination’’); see id., 294 n.19; In re Juvenile Appeal (83-DE),
190 Conn. 310, 318–19, 460 A.2d 1277 (1983) (‘‘[T]he doctrines of res judicata
and collateral estoppel ordinarily afford very little protection to a parent
who has once successfully resisted an attempt to terminate his [or her
parental] rights to a child. . . . An adjudication that a ground for termina-
tion did not exist at one time does not mean such ground has not arisen
at a later time.’’ [Citations omitted.]). This is because § 45a-717 (g) (2) (C)
looks at whether there is a present ongoing relationship, which necessarily
must be assessed as of the time of trial. See In re Juvenile Appeal (83-
DE), supra, 318 (‘‘the issue of whether termination of parental rights is
appropriate must be decided upon the basis of conditions as they appear
at the time of trial’’).
4
In the absence of an articulation, we do not know if the trial court’s
memorandum of decision truly is inconsistent, or if the legal ‘‘inconsisten-
cies’’ are arguments in the alternative and the factual ‘‘inconsistencies’’ are
scrivener’s errors. Because we must read a memorandum of decision as a
whole; In re Jason R., 306 Conn. 438, 453, 51 A.3d 334 (2012); and because
there is a presumption that the trial court properly applied the law and
considered the facts; State v. Henderson, 312 Conn. 585, 598, 94 A.3d 614
(2014); Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992);
we should construe these ‘‘inconsistencies’’ to conform to the trial
court’s holding.
5
The majority states that the trial court’s holding under the dispositional
phase of the proceedings that termination was not in the children’s best
interest also ‘‘was affected by its application of an incorrect legal test during
the adjudicatory phase’’ and by these inconsistencies. These concerns do
not apply to the trial court’s finding under the ‘‘further time’’ prong. The
‘‘best interest’’ analysis under the second prong of § 45a-717 (g) (2) (C) is
separate and distinct from the ‘‘best interest’’ analysis under subsection
(g) (1).
6
Citing In re Juvenile Appeal (Anonymous), 177 Conn. 648, 675–76, 420
A.2d 875 (1979), the majority indicates that ‘‘[o]nly if’’ the trial court deter-
mines that the petitioner has proven the lack of an ongoing parent-child
relationship ‘‘may it turn to the second part of the inquiry . . . .’’ The
majority focuses on a single sentence from In re Juvenile Appeal (Anony-
mous): ‘‘The ‘best interests’ standard . . . comes into play only if it has
been determined that no ongoing parent-child relationship exists, in order
to decide whether allowance of further time for the establishment or reestab-
lishment of the relationship would be contrary to the child’s best interests.’’
(Emphasis omitted.) Id. The majority and the Appellate Court have interpre-
ted this sentence to mean that the trial court cannot and should not address
the ‘‘further time’’ prong unless the ‘‘no ongoing parent-child relationship’’
prong has been established. If there is an ongoing relationship, then there
is no reason or purpose for affording further time to establish such a relation-
ship. Thus, according to the majority, if this court determines that the trial
court’s finding as to the first prong was clearly erroneous, it cannot affirm
the trial court’s decision on the basis of the second prong, but rather must
remand the case for a new trial.
I do not agree with such an interpretation of In re Juvenile Appeal
(Anonymous), especially when reading the sentence at issue in context. In
In re Juvenile Appeal (Anonymous), the juvenile court found there to be
no meaningful ongoing parent-child relationship, and, on appeal, the Supe-
rior Court upheld that decision, ‘‘characteriz[ing] the decision of the Juvenile
Court as holding that ‘it was in the best interest of said child that the
petition for termination of parental rights be granted.’ ’’ In re Juvenile Appeal
(Anonymous), supra, 177 Conn. 675. In doing so, the Superior Court com-
bined the first and second prongs of § 45a-717 (g) (2) (C), upholding the
juvenile court’s finding of no meaningful ongoing parent-child relationship
under the first prong because it was in the children’s best interest. This
court in In re Juvenile Appeal (Anonymous) was holding that the Superior
Court improperly upheld the juvenile court’s finding as to the first prong
on the basis of the child’s best interest, which could be considered only as
a part of the second prong. Based on this context, I do not read the sentence
cited by the majority as prohibiting a trial court from considering the ‘‘further
time’’ prong unless the ‘‘no ongoing parent-child relationship’’ prong is first
established. Rather, this sentence establishes simply that ‘‘best interest’’ is
considered only as part of the second prong, not the first prong.
If the cited sentence in In re Juvenile Appeal (Anonymous) is read to
mean that the trial court cannot consider the second prong (‘‘further time’’)
before it has found the first prong to be established, in my view this court
should overrule that holding. Although it is obvious that the trial court may
not grant a termination petition if it does not find the lack of an ongoing
parent-child relationship, because both prongs must be established, the
petition can fail under either prong. Similarly, even if the trial court finds
there is not clear and convincing evidence of no ongoing parent-child rela-
tionship, there is no reason why the court cannot go on to determine whether
further time would be detrimental as an alternative reason for denying the
petitions. See Meribear Productions, Inc. v. Frank, 328 Conn. 709, 724, 183
A.3d 1164 (2018) (‘‘whenever feasible, the far better practice would be for
the trial court to fully address the merits of all theories litigated, even those
that are legally inconsistent’’).
7
In my view, an example of what would be direct evidence (or at least
more direct evidence) might be where termination will lead to a different
placement or some other contingency. But here, these children will be with
the grandparents, regardless.
8
The majority takes issue with the trial court’s statement that ‘‘[t]he
statements of dislike by very young children with false information about
[the respondent] does not establish by clear and convincing evidence that
reestablishing a relationship would be detrimental.’’ According to the major-
ity, the trial court improperly discounted ‘‘the negative feelings of the chil-
dren on the basis of the grandparents’ alleged ‘interference,’ ’’ and, if properly
considered, these negative feelings would have been at least some evidence
that further time would be detrimental, making the trial court’s finding of
‘‘no evidence’’ clearly erroneous. The problem with this argument, however,
is that it presupposes that the children’s negative feelings necessarily equate
to evidence that further time would be detrimental to their best interest.
As explained previously, the children’s negative feelings reasonably can be
considered not to be direct evidence of detriment, but rather are open to
interpretation by the trial court.
9
In her appeal to the Appellate Court, the petitioner specifically asked
the court to direct judgments terminating the respondent’s parental rights
on the ground that the trial court’s findings as to § 45a-717 (g) (2) (C) were
clearly erroneous because its subordinate findings establish that there was
no ongoing parent-child relationship and that allowing further time would
be detrimental to the children’s best interest. Although the petitioner has
repeated this argument before this court as an alternative ground for
affirming the judgment of the Appellate Court, she has not specifically
requested directed judgments from this court.