In re Oreoluwa O. ( 2016 )

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IN RE OREOLUWA O.*
(SC 19501)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.
Argued November 5, 2015—officially released May 31, 2016**
Michael S. Taylor, assigned counsel, with whom were
James P. Sexton, assigned counsel, and, on the brief,
Matthew C. Eagan, assigned counsel, for the appellant
(respondent father).
Michael Besso, assistant attorney general, with whom
were Jessica B. Gauvin, assistant attorney general, and,
on the brief, George Jepsen, attorney general, Gregory
T. D’Auria, solicitor general, and Benjamin Zivyon,
assistant attorney general, for the appellee (petitioner).
Owen Murphy, for the minor child.
Opinion
EVELEIGH, J. In this certified appeal,1 we must
decide whether the Appellate Court properly affirmed
the judgment of the trial court terminating the parental
rights of the respondent father, Olusegun O., as to his
minor son, Oreoluwa O.2 See In re Oreoluwa O., 157
Conn. App. 490, 116 A.3d 400 (2015). On appeal, the
respondent asserts, inter alia, that the Appellate Court
improperly affirmed the judgment of the trial court con-
cluding that the Department of Children and Families
(department) had made reasonable efforts to reunify
Oreoluwa with the respondent in accordance with Gen-
eral Statutes (Supp. 2016) § 17a-112 (j) (1).3 We agree
with the respondent and, accordingly, reverse the judg-
ment of the Appellate Court.
The opinion of the Appellate Court sets forth the
following relevant facts and procedural history. ‘‘The
respondent, together with his wife, Oreoluwa’s mother,4
live in Nigeria. Oreoluwa’s mother traveled to the
United States while pregnant [and gave birth to him in
the United States]. Prior to his birth, it was determined
that he suffered significant congenital heart defects,
and he was diagnosed with several complex heart condi-
tions after he was born. Initially, he was released from
the hospital to his mother’s care, and the two lived with
a family in Milford for a short time after his birth before
moving into a hotel. In mid-April, 2013, when he was
approximately three months old, Oreoluwa was read-
mitted to the hospital, where medical personnel
observed his mother behaving erratically and having
difficulty administering his medications.
‘‘On May 3, 2013, the petitioner, the Commissioner
of Children and Families (commissioner), sought from
the court an order of temporary custody and filed a
neglect petition as to Oreoluwa. The commissioner
alleged that Oreoluwa was neglected in that he was
being denied proper care and was being permitted to
live under conditions injurious to his [well-being], and
that he was uncared for in that his home could not
provide the specialized care that he required. Oreoluwa
was adjudicated neglected and committed to the cus-
tody of the commissioner. The court approved specific
steps for the respondent to take so he could be reunited
with Oreoluwa. On December 23, 2013, the commis-
sioner filed a petition for the termination of the respon-
dent’s parental rights regarding Oreoluwa on the
grounds that (1) Oreoluwa had been abandoned by the
respondent in the sense that he failed to maintain a
reasonable degree of interest, concern, or responsibility
as to [Oreoluwa’s welfare], and (2) there was no ongoing
parent-child relationship with the respondent ‘that ordi-
narily develops as a result of a parent having met on a
day-to-day basis the physical, emotional, moral, and
educational needs of [Oreoluwa] . . . and [that] to
allow further time for the establishment or reestablish-
ment of the parent-child . . . relationship would be
detrimental to [Oreoluwa’s] best interests . . . .’ On
February 27, 2014, the court entered a default as to the
respondent because of his failure to appear at the plea
hearing. . . .
‘‘The hearing on the termination of parental rights
petition was held on March 12, 2014. On March 20, 2014,
the court rendered an oral decision terminating the
parental rights of the respondent. The respondent sub-
sequently filed a motion for reargument and reconsider-
ation, which was denied. On June 14, 2014, the
respondent [appealed]. The respondent also filed a
motion for articulation of the decision to terminate
parental rights, which was denied. The respondent filed
a motion for review with [the Appellate Court], which
granted the motion. On October 10, 2014, the trial court
issued its articulation.
‘‘The court found by clear and convincing evidence
pursuant to . . . § 17a-112 (j) (1) that the department
made reasonable efforts to reunify Oreoluwa with the
respondent given the circumstances. The court noted
that ‘the [respondent’s] absence from the state, and
indeed from this country, has limited the type and num-
ber of services that the department has been able to
provide to him. When a parent is not available to partici-
pate in services, the reasonableness of the department’s
efforts must be judged in that context.’ The court
explained that although the department was not able
to provide [the respondent with] services, it had pro-
vided him with contact information for the Nigerian
consulate in New York, maintained communication
with him, investigated a possible placement resource
for Oreoluwa suggested by the respondent, and
attempted, although unsuccessfully, to set up visitation
via [an Internet based video conference system known
as] Skype. . . .
‘‘After finding that the allegations of the petition were
proven by clear and convincing evidence, the court then
determined whether termination was in the best interest
of Oreoluwa. The court considered the seven statutory
factors and [in its articulation] made written findings
as to each factor pursuant to § 17a-112 (k). The court
ultimately concluded that there was clear and convinc-
ing evidence that it was in Oreoluwa’s best interest to
terminate the respondent’s parental rights.’’ (Footnotes
altered.) In re Oreoluwa O., supra, 157 Conn. App.
493–96.
The respondent appealed from the judgment of the
trial court to the Appellate Court. On appeal, the respon-
dent claimed that the trial court improperly determined
that ‘‘(1) the [department] made reasonable efforts to
reunify him with Oreoluwa, (2) the respondent aban-
doned Oreoluwa, and (3) the respondent had no ongo-
ing parent-child relationship with Oreoluwa. He also
claim[ed], on behalf of Oreoluwa, that the guarantee of
due process under the fourteenth amendment to the
United States constitution required the trial court to
provide the respondent with notice of alternative means
of participation in the termination trial and required
the court to undertake reasonable efforts to use those
alternative means.’’ Id., 492–93.
The Appellate Court affirmed the judgment of the
trial court. In regard to the reunification efforts, the
Appellate Court recognized as follows: ‘‘The depart-
ment maintained communication with the respondent
via e-mail and telephone calls, and, when the respon-
dent indicated a possible placement resource for Oreo-
luwa with an attorney in Philadelphia, the department
contacted the potential resource. The department was
later informed by the [respondent], however, that he
no longer wished for the potential placement resource
to be involved. Although the respondent argues that
these efforts by the department did not actually relate
to reunification, we conclude that under the circum-
stances of the present case, the actions taken by the
department were reasonable and related to reunifica-
tion.’’ Id., 501.
The Appellate Court further concluded that the trial
court’s findings as to reasonable efforts had adequate
evidentiary support. Id. In regard to the trial court’s
finding ‘‘that the respondent’s absence from the country
prevented the department from being able to provide
him with any services,’’ the Appellate Court agreed that
‘‘the reasonableness of the department’s efforts must
be assessed in light of this key finding.’’ Id. In view of
the foregoing, the Appellate Court concluded that ‘‘the
trial court’s finding that the department made reason-
able efforts to reunify Oreoluwa with the respondent
was not clearly erroneous.’’ Id., 502. This appeal
followed.
Although the respondent has raised several issues on
appeal to this court,5 we need address only one, because
our resolution of that claim is dispositive of the appeal.
The respondent claims that the Appellate Court improp-
erly affirmed the judgment of the trial court because the
department failed to undertake the reasonable efforts
required by § 17a-112 (j) (1) to reunite him with Oreo-
luwa before it filed the petition to terminate his parental
rights. We conclude that the department failed to under-
take such efforts and, accordingly, we reverse the judg-
ment of the Appellate Court on that basis.
Pursuant to § 17a-112 (j),6 the trial court must make
certain required findings after a hearing before it may
terminate a party’s parental rights. It is well established
that, ‘‘[u]nder § 17a-112, a hearing on a petition to termi-
nate parental rights consists of two phases: the adjudi-
catory phase and the dispositional phase. During the
adjudicatory phase, the trial court must determine
whether one or more of the . . . grounds for termina-
tion of parental rights set forth in § 17a-112 [(j) (3)]
exists by clear and convincing evidence. . . . In con-
trast to custody proceedings, in which the best interests
of the child are always the paramount consideration
and in fact usually dictate the outcome, in termination
proceedings the statutory criteria must be met before
termination can be accomplished and adoption pro-
ceedings begun. . . . Section [17a-112 (j) (3)] carefully
sets out . . . [the] situations that, in the judgment of
the legislature, constitute countervailing interests suffi-
ciently powerful to justify the termination of parental
rights in the absence of consent.’’ (Citation omitted;
footnote omitted; internal quotation marks omitted.) In
re Eden F., 250 Conn. 674, 688–89, 741 A.2d 873 (1999).
‘‘If the trial court determines that a statutory ground for
termination exists, then it proceeds to the dispositional
phase. During the dispositional phase, the trial court
must determine whether termination is in the best inter-
ests of the child.’’ Id., 689.
Also as part of the adjudicatory phase, ‘‘the depart-
ment is required to prove, by clear and convincing evi-
dence, that it 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 . . . . Turning to the statutory
scheme encompassing the termination of the parental
rights of a child committed to the [custody of the com-
missioner], [§ 17a-112] imposes on the department the
duty, inter alia, to make reasonable efforts to reunite
the child or children with the parents. The word reason-
able is the linchpin on which the department’s efforts
in a particular set of circumstances are to be adjudged,
using the clear and convincing standard of proof. Nei-
ther the word reasonable nor the word efforts is, how-
ever, defined by our legislature or by the federal act
from which the requirement was drawn. . . . [R]eason-
able efforts means doing everything reasonable, not
everything possible.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Samantha C., 268 Conn. 614,
632, 847 A.2d 883 (2004).
Subsequent to the Appellate Court’s decision in the
present case, this court clarified the applicable standard
of review of an appeal from a judgment of the trial
court pursuant to § 17a-112 (j). See In re Shane M., 318
Conn. 568, 587, 122 A.3d 1247 (2015); see also In re
Gabriella A., 319 Conn. 775, 789–90, 127 A.3d 948 (2015).
In those cases, this court clarified that ‘‘[w]e review
the trial court’s subordinate factual findings for clear
error. . . . We review the trial court’s ultimate determi-
nation that a parent has failed to achieve sufficient
rehabilitation [or that a parent is unable to benefit from
reunification services] for evidentiary sufficiency
. . . .’’ In re Gabriella A., supra, 789–90. We conclude
that it is appropriate to apply the same standard of
review of a trial court’s decision with respect to whether
the department made reasonable efforts at reunifica-
tion. See id.; see also In re Jorden R., 293 Conn. 539,
558–59, 979 A.2d 469 (2009). Accordingly, we conclude
that we must review the trial court’s decision in the
present case with respect to whether the department
made reasonable efforts at reunification for eviden-
tiary sufficiency.
In the present case, the trial court determined that
‘‘the department has made reasonable efforts to locate
and reunify Oreoluwa with the [respondent] given the
circumstances.’’ In making this finding, the trial court
first recognized that the respondent’s presence in Nige-
ria limited the type and number of services that the
department could provide to him. The trial court further
relied on the fact that the department maintained com-
munication with the respondent, contacted the
resource named by him who resided in the United
States, attempted unsuccessfully to provide electronic
visitation and communication with Oreoluwa through
Skype, and provided the respondent with contact infor-
mation for the Nigerian consulate in New York. The
Appellate Court affirmed the decision of the trial court,
concluding that, under the circumstances of this case,
‘‘the trial court’s finding that the department made rea-
sonable efforts to reunify Oreoluwa with the respondent
was not clearly erroneous.’’ In re Oreoluwa O., supra,
157 Conn. App. 502.
In the present case, the department filed the petition
for termination of the respondent’s parental rights on
December 23, 2013. At that time, Oreoluwa was approxi-
mately eleven months old.
At the time that the commissioner filed the petition
for termination of the respondent’s parental rights, the
respondent had taken significant steps to remain
involved in Oreoluwa’s life. The respondent paid for
the hotel where Oreoluwa and his mother initially had
resided. The respondent also repeatedly attempted to
contact the cardiologists who were caring for Oreo-
luwa, but did not receive any communication from
them. The respondent also was in ‘‘constant contact’’
with the department, calling once a week and e-mailing
more frequently to receive updates regarding Oreoluwa.
The respondent also identified possible placement
resources for Oreoluwa in the United States, which
were ultimately unsuccessful.
Furthermore, the respondent repeatedly requested
that he be allowed to communicate with Oreoluwa
through Skype. Although the department’s employees
repeatedly requested that the department obtain the
necessary equipment to enable this video conference—
namely, a tablet—the department never approved the
request and the respondent was never allowed to video
conference with Oreoluwa.
Prior to the commissioner filing the petition for termi-
nation of the respondent’s parental rights, the respon-
dent filed two applications for visas to travel to the
United States. Both of the respondent’s applications for
visas were denied.
At the time that the commissioner filed the petition
for termination of the respondent’s parental rights,
Oreoluwa had undergone multiple cardiac procedures,
which had been successful. Nevertheless, a December,
2013 social study prepared by the department indicated
that Oreoluwa would ‘‘require several cardiac proce-
dures and surgeries throughout his life according to his
cardiologist . . . .’’ It further indicated 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.’’
The medical information presented at the trial in this
matter in March, 2014, contained no further information
about Oreoluwa’s medical condition either at the time
the commissioner filed the petition for termination of
parental rights or up to the time of trial. Indeed, the
medical information in the form of affidavits from Oreo-
luwa’s physicians dated back to April, 2013.7 Further-
more, the only evidence 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.
At the time of the trial, the department entered into
evidence a study in support of a permanency plan dated
January 14, 2014. In that study, the department reported
that Oreoluwa had undergone another cardiac catheter-
ization on December 3, 2013, which ‘‘went well.’’ The
report also indicated that Oreoluwa had an appointment
with his pediatric cardiologist on January 6, 2014, and
that he is ‘‘doing well and can start on whole milk and
more solid foods.’’ The study further stated that another
appointment with his pediatric cardiologist would be
scheduled in two months and that ‘‘[t]he cardiac and
surgical teams will meet prior to this appointment to
discuss how they are going to proceed.’’ This study
repeated the same lines from the December, 2013 social
study as follows: ‘‘[Oreoluwa] will require several car-
diac procedures and surgeries throughout his life
according to [his cardiologist]. 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.
There is also uncertainty regarding the medical care he
would be able to receive in Nigeria and if his ongoing
medical needs would be able to be met.’’
The trial court found that, ‘‘[a]s 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.’’ The trial court cited to the department’s study of
the permanency plan as the source for the foregoing
statement. The trial court further found that Oreoluwa
‘‘was still not cleared to travel as of the date of the
trial.’’ The trial court did not cite to any authority for the
foregoing statement about Oreoluwa’s medical status at
the time of trial. The trial court made no findings as to
when Oreoluwa would be cleared to travel or when his
medical team was meeting to discuss his future medical
plan, despite the fact that the department’s own exhibit
revealed that Oreoluwa’s cardiac and surgical team
would be meeting prior to his appointment in March,
2014, to develop a plan for his future medical care.
Indeed, there was no information presented at trial indi-
cating whether Oreoluwa had any surgeries or cardiac
procedures scheduled at that time.8
The trial court then concluded that ‘‘the clear and
convincing evidence establishes that the department
has made reasonable efforts to locate and reunify Oreo-
luwa with the [respondent] given the circumstances.
. . . [The respondent’s] absence from the state, and
indeed from this country, has limited the type and num-
ber of services that the department has been able to
provide to him.’’
In considering whether, in the present case, the
Appellate Court properly upheld the trial court’s finding
that the department had made reasonable efforts to
reunify the respondent with Oreoluwa, we are mindful
that ‘‘the requirement that the department make reason-
able efforts to reunite parent and child affects the sub-
stantive rights of the parties to a termination
proceeding. The requirement of reunification efforts
provides additional substantive protection for any par-
ent who contests a termination action, and places a
concomitant burden on the state to take appropriate
measures designed to secure reunification of parent
and child.’’ In re Eden F., supra, 250 Conn. 696. Further-
more, we are mindful that the burden is on the commis-
sioner to demonstrate that the department has made
reasonable efforts to locate the parent and to reunify
the child with the parent. See, e.g., In re Gabriella A.,
supra, 319 Conn. 777 n.4 (‘‘[t]he [commissioner] must
prove either that [the department] has made reasonable
efforts to reunify or, alternatively, that the parent is
unwilling or unable to benefit from reunification
efforts’’ [internal quotation marks omitted]). ‘‘[R]eason-
able efforts means doing everything reasonable . . . .’’
(Emphasis added.) In re Samantha C., supra, 268
Conn. 632.9
In examining the reasonableness of the department’s
efforts in the present case, we are guided by the Appel-
late Court’s decision in In re Shaiesha O., 93 Conn.
App. 42, 887 A.2d 415 (2006). In In re Shaiesha O., the
commissioner filed a petition to terminate the parental
rights of the child’s mother and father, prior to learning
the results of a pending paternity test. Id., 46. Once the
results of the paternity test were known, the department
notified the father and he objected to the petition to
terminate his parental rights. Id.
In reversing the termination of the parental rights of
the father, the Appellate Court relied on the following
facts: ‘‘Despite learning on December 10, 2002, that the
[father] might be [the child’s] father, the department
did not make any attempt to contact him until March
17, 2003, when [a department social worker] left him
a message regarding the taking of a paternity test. For
the approximately ten week period from the first con-
tact the department had with the [father] until the filing
of the petition, [the department social worker] had two
brief telephone conversations with the [father] regard-
ing his paternity test. [The department social worker]
testified that the first time that she had a discussion
with him regarding a possible placement plan for [the
child] was during June, 2003, after the filing of the
petition to terminate the [father’s] parental rights. She
stated that as of June, 2003, the department had not
facilitated any visitation between the [father] and [the
child]. Significantly, she stated that if the [father] had
requested visitation, she would have told him that he
[could not] see [the child] until his paternity was con-
firmed.’’ (Emphasis omitted.) Id., 49.
On the basis of the foregoing facts, the Appellate
Court in In re Shaiesha O., 93 Conn. App. 50–51, rea-
soned as follows: ‘‘[I]t is plain that prior to the filing
of the petition to terminate the [father’s] parental rights,
the department made no efforts to foster a relationship
between [the child] and the [father] because his pater-
nity had not been established. However understandable
that posture might be from a dispositional perspective,
the department’s disinclination to encourage a relation-
ship between the [father] and [the child] can hardly be
taken as evidence of an effort to reunify the two.’’ Id.,49–50. The Appellate Court continued: ‘‘Given that evi-
dentiary underlayment, we are not, as a reviewing court,
able to find any support in the record for a finding that
the department made any efforts, let alone reasonable
ones, to reunify [the child] with the [father] before the
commissioner sought to terminate his parental rights.
. . . Additionally, since the record reflects that the
department had not discussed with the [father] a place-
ment plan for [the child] until after the commissioner
had moved to terminate his parental rights, the record
is devoid of any support for its contention that he was
unable or unwilling to benefit from reunification efforts
as of the date the petition was filed. Accordingly, we
conclude that there is inadequate evidentiary support
in the record for a finding that the department made
the statutorily required efforts to reunify [the child]
with the [father] or that he was unwilling or unable to
benefit from such efforts.’’
In the present case, a review of the department’s
efforts to reunify the respondent with Oreoluwa demon-
strates that all of those efforts were based on the depart-
ment’s presumption that the respondent would have to
be present in this country to engage in reunification
efforts and that Oreoluwa could not travel to Nigeria.
Despite knowing that Oreoluwa had successfully under-
gone repeated cardiac procedures and that his medical
team was meeting to discuss future medical plans, the
department took no steps to inquire into this medical
information or to present it to the trial court.
Although the department’s two studies indicated that
‘‘it is unclear at this time when [Oreoluwa] would be
cleared to travel,’’ the commissioner presented no evi-
dence regarding any additional steps taken to obtain
more specific information about when Oreoluwa may
be cleared to travel or at least when the medical authori-
ties would have some clarity regarding his future ability
to travel. Because the respondent was having difficulty
traveling to this country to be with Oreoluwa, the
department’s utter failure to determine when Oreoluwa
would be able to travel to Nigeria can hardly be taken
as evidence of an effort to reunify the two.
‘‘In the adjudicatory phase, the judicial authority is
limited to evidence of events preceding the filing of the
petition or the latest amendment, except where the
judicial authority must consider subsequent events as
part of its determination as to the existence of a ground
for termination of parental rights.’’ Practice Book § 35a-
7 (a). Our rules of practice and the relevant statutory
provisions do not, however, address whether the trial
court should consider evidence of events following the
filing of the petition for termination of parental rights
when determining whether the department has made
reasonable efforts. In the present case, the trial court
did examine the efforts made by the department ‘‘as of
the adjudicatory date.’’ Neither party asserts that it was
improper for the trial court to consider events subse-
quent to the filing of the petition for termination of
parental rights in the present case. Under the facts of
the present case, however, we conclude that it was not
improper for the trial court to consider events subse-
quent to the filing of the petition for termination of
parental rights. At the time of filing the petition for
termination of parental rights in the present case, there
was uncertainty as to when Oreoluwa would be cleared
to travel and his medical status was in a state of flux.
Furthermore, the efforts that the department was able
to undertake depended on Oreoluwa’s changing medi-
cal status. Therefore, we conclude that it was necessary
for the trial court to consider events subsequent to the
filing of the petition for termination of parental rights
in this case. Indeed, we conclude that the commissioner
was unable to meet the burden of demonstrating that
the department had made reasonable efforts to reunify
Oreoluwa with the respondent without providing
updated medical information about Oreoluwa at the
time of the trial.
Furthermore, the trial court relied on summary state-
ments in the department’s studies that ‘‘[t]here is also
uncertainty regarding the medical care [Oreoluwa]
would be able to receive in Nigeria and if his ongoing
medical needs would be able to be met.’’ The commis-
sioner presented no evidence that the department had
attempted to investigate what type of medical care Ore-
oluwa would receive in Nigeria. The department’s fail-
ure to investigate the type of medical care available
to Oreoluwa in Nigeria and its willingness to rely on
‘‘uncertainty’’ about that care is also not evidence of an
effort to reunify the respondent with Oreoluwa. Indeed,
even if the department had legitimate concerns about
the medical care available to Oreoluwa in Nigeria, those
concerns do not relieve the department of its burden
of making reasonable efforts to achieve reunification by
engaging the respondent and making available services
aimed at instilling in him healthy parental skills. See
In re Vincent B., 73 Conn. App. 637, 646–47, 809 A.2d
1119 (2002) (concerns regarding father’s perceived
plans after reunification did not relieve department
from making reasonable efforts to achieve reunifica-
tion), cert. denied, 262 Conn. 934, 815 A.2d 136 (2003).10
In the present case the trial court’s finding that the
department made reasonable efforts was based on the
following facts: (1) the department maintained commu-
nication with the respondent; (2) the department con-
tacted the resource named by the respondent who
resided in the United States; and (3) the department
attempted unsuccessfully to provide electronic visita-
tion and communication with Oreoluwa through Skype.
Without updated medical information regarding Oreolu-
wa’s ability to travel and medical needs, however, we
conclude that the commissioner did not meet the bur-
den of demonstrating that the department did ‘‘every-
thing reasonable’’ under the circumstances to reunite
the respondent with Oreoluwa. See In re Samantha C.,
supra, 268 Conn. 632. Therefore, we conclude that the
Appellate Court improperly determined that there was
adequate evidentiary support for the trial court’s finding
that the department made reasonable efforts to reunify
the respondent with Oreoluwa.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgment of the trial court only with respect
to the termination of the respondent’s parental rights
and to remand the case to the trial court for further
proceedings consistent with this opinion.
In this opinion ROGERS, C. J., and PALMER, ZARE-
LLA, McDONALD and ROBINSON, Js., 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.
** May 31, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
We granted the petition of the respondent father, Olusegun O., for certifi-
cation to appeal, limited to the following issues: (1) ‘‘Did the Appellate
Court properly affirm the trial court’s determination that the [Department
of Children and Families] made reasonable efforts to reunify the [minor]
child [Oreoluwa O.] with the respondent [father]?’’; (2) ‘‘Did the Appellate
Court properly affirm the trial court’s determination that [Oreoluwa] had
been abandoned?’’; (3) ‘‘Did the Appellate Court properly determine that
the respondent [father] lacked standing to assert a claim that [Oreoluwa’s]
fundamental right to family integrity was violated by the use of a judicial
process to terminate [the respondent] father’s parental rights that deprived
[the] respondent [father] of meaningful notice and an opportunity to be
heard?’’; and (4) ‘‘If the answer to question number three is in the negative,
was [Oreoluwa’s] fundamental right . . . to family integrity violated
because [the respondent] father was denied a meaningful notice and opportu-
nity to be heard?’’ (Internal quotation marks omitted.) In re Oreoluwa O.,
317 Conn. 914, 116 A.3d 813 (2015). In view of our decision regarding the
first certified question, it is unnecessary for us to reach the remaining three
questions, although we have serious concerns regarding both the sufficiency
of the grounds for termination, and the procedure used during the termina-
tion proceeding.
2
We note that the trial court also terminated the parental rights of the
respondent mother, Adebola O., who is not a party to the present appeal.
See In re Oreoluwa O., 157 Conn. App. 490, 492 n.1, 116 A.3d 400 (2015).
In the interest of simplicity, we refer to Olusegun O. as the respondent in
this opinion. We also note that counsel for the minor child has adopted the
appellate briefs submitted by the petitioner, the Commissioner of Children
and Families, before both the Appellate Court and this court. See id.3
We note that § 17a-112 has been amended by our legislature since the
events underlying the present appeal. See, e.g., Public Acts 2015, No. 15-
159, § 1. These amendments are not, however, relevant to the present appeal.
For the sake of simplicity, all references to § 17a-112 within this opinion
are to the version appearing in the 2016 supplement to the General Statutes.
4
See footnote 2 of this opinion.
5
See footnote 1 of this opinion.
6
General Statutes (Supp. 2016) § 17a-112 (j) provides in relevant part that
a trial court may grant a petition for termination of parental rights ‘‘if it
finds by clear and convincing evidence that (1) the Department of Children
and Families has made reasonable efforts to locate the parent and to reunify
the child with the parent . . . unless the court finds in this proceeding that
the parent is unable or unwilling to benefit from reunification efforts, except
that such finding is not required if the court has determined at a hearing
pursuant to section 17a-111b, or determines at trial on the petition, that
such efforts are not required, (2) termination is in the best interest of the
child, and (3) (A) the child has been abandoned by the parent in the sense
that the parent has failed to maintain a reasonable degree of interest, concern
or responsibility as to the welfare of the child; (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, or (ii) is found to be neglected,
abused or uncared for and has been in the custody of the commissioner
for at least fifteen months and the parent of such child has been provided
specific steps to take to facilitate the return of the child to the parent
pursuant to section 46b-129 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 . . . (D) there is no ongoing
parent-child relationship, which means the relationship that ordinarily devel-
ops 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 relation-
ship would be detrimental to the best interest of the child; [or] (E) the
parent of a child under the age of seven years who is neglected, abused or
uncared for, has failed, is unable or is unwilling to achieve such degree of
personal rehabilitation as would encourage the belief that within a reason-
able period of time, considering the age and needs of the child, such parent
could assume a responsible position in the life of the child and such parent’s
parental rights of another child were previously terminated pursuant to a
petition filed by the Commissioner of Children and Families . . . .’’
7
The dissent asserts the following: ‘‘[T]he majority’s conclusion suggests
that the only evidence in the record relevant to whether it could be deter-
mined 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 evidence 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 statement 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 subordi-
nate factual findings. It is helpful to review the evidence in detail.’’ We
disagree. We conclude that the trial court’s finding that the department had
established by clear and convincing evidence that it had made reasonable
efforts to reunify Oreoluwa with the respondent was not supported by
sufficient evidence.
Specifically, at trial, the department had the burden of producing evidence
to establish that it had made reasonable efforts in reuniting Oreoluwa with
the respondent. We conclude that a critical aspect of determining whether
the department had made reasonable efforts at reunification was to deter-
mine when, if ever, Oreoluwa would be cleared to travel to Nigeria because
the evidence indicated that the respondent had been unsuccessful in coming
to the United States to date.
In support of its position that the department had made reasonable efforts
at reunification, the commissioner introduced the following: an affidavit
from Oreoluwa’s physicians, social studies prepared by the department, and
testimony from the department’s social worker. Contrary to the dissent’s
representations, this evidence did not provide sufficient evidence to support
the trial court’s finding that the department had made reasonable efforts at
reunification. Instead, the affidavits from the physicians were approximately
eleven months old at the time of trial and did not include information about
Oreoluwa’s ability to travel. The social studies prepared by the department
only contained the same conclusory information repeated from study to
study: ‘‘[Oreoluwa] will require several cardiac procedures and surgeries
throughout his life according to [his cardiologist]. 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. There is also uncertainty regarding the medical
care he would be able to receive in Nigeria and if his ongoing medical needs
would be able to be met.’’
Furthermore, the testimony from the department’s social worker, Cynthia
Pfeifer, was equally insufficient. Specifically, Pfeifer testified as follows
during cross-examination by counsel for the minor child:
‘‘Q. Okay. Now, speaking of [Oreoluwa] being medically cleared to travel
[to] Nigeria, was that ever considered by the department?
‘‘A. Meaning what?
‘‘Q. [Oreoluwa] traveling to Nigeria since his parents could not come to
the United States?
‘‘A. He medically is not able to travel to Nigeria.
‘‘Q. Okay. And what are the reasons?
‘‘A. He has a unique heart condition.
‘‘Q. Okay.
‘‘A. In layman’s terms, the medical team . . . has not sanctioned him to
travel. He requires a sequence of surgeries and catheterizations to build the
valves in his heart, as [I understand] it.
‘‘Q. Okay.
‘‘A. When [Oreoluwa’s mother] learned of the medical issues while she
was pregnant, the [medical] team . . . gave her a choice; you can either
deliver here in the United States and he will not be able to travel for minimally
[one] year, or you can go back to Nigeria and deliver and he would not
have been expected to live for, I believe it was, more than a few months. . . .
‘‘Q. Okay. So, now you mentioned [Oreoluwa] would be able to travel
minimally in [one] year. Has . . . [one] year gone by since [he was] born?
‘‘A. Yes.
‘‘Q. Okay. And he’s still not cleared to travel?
‘‘A. Correct.’’
The foregoing evidence was wholly insufficient for the trial court to make
a determination as to whether the department had made reasonable efforts
at reunifying Oreoluwa with the respondent because it did not indicate
when, if ever, Oreoluwa would be able to travel to Nigeria.
8
The dissent asserts as follows: ‘‘[A]t oral argument before this court, the
respondent conceded that Oreoluwa’s original prognosis was that he would
be medically unable to travel for at least one year. . . . Subsequently, how-
ever, Oreoluwa’s physicians provided an updated, less definite estimate of
when he would be able to travel. . . . This estimate, provided when Oreo-
luwa 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 reason-
able to infer that, if anything, it had become less certain when Oreoluwa
would be medically cleared to travel.’’ (Emphasis omitted.) Contrary to the
dissent’s representation, nothing in the December, 2013 study or the more
recent January, 2014 study indicated that ‘‘it had become less certain when
Oreoluwa would be medically cleared to travel.’’ (Emphasis omitted.)
Instead, these studies, which were prepared and written in the department’s
own language, reflect the department’s neglect in failing to provide the trial
court with any information about the medical prognosis of when Oreoluwa
would be cleared to travel. These studies were not accompanied by any
medical reports or documentation supporting the dissent’s theory that the
physicians declined to provide an estimate of the soonest date on which
Oreoluwa could travel or that it had become more unclear when he would
be cleared to travel. Indeed, these studies indicated that all procedures done
to date had gone well and that he was not suffering developmental delays
from his medical condition. Moreover, the trial court never made any factual
finding that Oreoluwa’s medical status had changed and that it had become
more unclear when he would be able to travel and the dissent’s reliance
on this ‘‘fact’’ constitutes improper fact-finding.
Furthermore, the dissent asserts that ‘‘[t]he 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.’’ We disagree. The relevance of the
January and March, 2014 medical appointments is that more updated medical
information was available to the department, but was not presented to the
trial court. Instead, we conclude that without the most up to date and
complete medical information available, the trial court was not able to
make an adequate determination as to whether the department had made
reasonable efforts to reunify Oreoluwa with the respondent.
9
The dissent asserts that ‘‘[t]he revised, more conservative estimate that
cardiologists provided as to when Oreoluwa would be medically able to
travel, taken together with [the testimony of Cynthia Pfeifer, the depart-
ment’s social worker], 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 termina-
tion, it remained unclear when Oreoluwa would be cleared to travel. The
majority construes the evidence in a different light—declining to infer that
the difference between the initial estimate given to the department by Oreo-
luwa’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 suffi-
cient given the standard of review, which requires us to construe the evidence
in the light most favorable to sustaining the judgment. The majority’s ratio-
nale 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.’’ (Emphasis omitted.) We disagree. As we have explained pre-
viously in this opinion, it is well established that the burden is on the
commissioner to demonstrate by clear and convincing evidence that the
department has made reasonable efforts to locate the parent and to reunify
the child with the parent. Contrary to the dissent, we cannot conclude that
the record in the present case provides sufficient evidence to support the trial
court’s conclusion that the department met its burden in the present case.
Furthermore, in support of the conclusion that the trial court’s determina-
tion that the department had made reasonable efforts at reunification was
supported by sufficient evidence, the dissent repeatedly relies on facts not
found by the trial court. As we have repeatedly recognized, ‘‘[i]t is elementary
that neither this court nor the Appellate Court can find facts in the first
instance. . . . [A]n appellate court cannot find facts or draw conclusions
from primary facts found, but may only review such findings to see whether
they might be legally, logically and reasonably found . . . .’’ (Emphasis in
original; internal quotation marks omitted.) Parisi v. Parisi, 315 Conn. 370,
385, 107 A.3d 920 (2015).
10
Indeed, if the medical information indicated that Oreoluwa would have
been able to travel to Nigeria 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. The dissent implies that, under Connecti-
cut law, it would not be reasonable to require such a study. The dissent’s
position is, however, controverted by the position of the department at oral
argument in this court. The department’s attorney conceded at oral argument
that, if, for example, the evidence in the record indicated that Oreoluwa
would have been able to travel six months after his cardiac procedure in
December, 2013, it would have been reasonable for the department to con-
duct a home study in Nigeria. Furthermore, contrary to the dissent’s position,
many courts in other jurisdictions have recognized that home studies from
foreign countries may be reasonable. See, e.g., In re E.N.C., 384 S.W.3d 796,
808 (Tex. 2012) (‘‘there is no indication from the record that the [d]epartment
considered the possibility of the children living with [the father] in Mexico;
[the father] was never offered a service plan . . . [and] because the [d]epart-
ment never assessed [the father’s] situation in Mexico, there is a lack of
evidence establishing the instability of [the father’s] home in Mexico’’); In
re Doe, 153 Idaho 258, 263, 281 P.3d 95 (2012) (reversing judgment of trial
court terminating father’s parental rights and requiring that child be reunified
with father in Mexico where home study from child protection service
‘‘stated that [the father] was financially, emotionally, physically, and mentally
able to provide for [his daughter], that his home would be a suitable place-
ment for [his daughter], and that [the Mexican child protection service]
would provide services to [the father] if [his daughter] were placed with
him’’). Furthermore, contrary to the dissent’s position, it is not unheard of
for child protective services in the United States to work with intercountry
case management services. Indeed, ‘‘[b]etween January 2011 and January,
2013, International Social Service-USA Branch . . . Intercountry Case Man-
agement Division provided 696 separate intercountry case-management ser-
vices to 915 children in the American foster-care system. These services
were provided in seventy-three different countries and involved forty differ-
ent . . . states. The services provided ranged from simple relative notifica-
tion of a child in care to complex home studies, background checks, and
in-depth assessments on family members for potential placement of a child.’’
(Footnote omitted.) F. Northcott & W. Jeffries, ‘‘Forgotten Families: Interna-
tional Family Connections for Children in the American Public Child-Welfare
System,’’ 47 Fam. L.Q. 273 (2013).
The dissent criticizes our reliance on these authorities, noting 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.’’ We disagree. The
dissent is improperly finding facts. The trial court did not find, and there
is no evidence in this record to support, the fact that ‘‘in this state, [a home
study in a foreign country] has never been done . . . .’’ Although the social
worker in the present case was not aware of other instances of a home
study being performed in another country and the respondent’s counsel
could not find such information, there is nothing to support the factual leap
that the dissent is making. Indeed, it is not surprising that research performed
by the respondent’s counsel did not reveal that such a study had been
performed because of the confidential nature of the department’s records.
Accordingly, we do not find the dissent’s criticism of these authorities per-
suasive.