In re Emily S. ( 2022 )

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APPENDIX
IN RE EMILY S.*
Superior Court, Judicial District of
New Britain, Juvenile Matters
File No. CP-18-012507-A
Memorandum filed April 22, 2021
Proceedings
Memorandum of decision on petition by Commis-
sioner of Children and Families to terminate respon-
dent’s parental rights with respect to his minor child and
on motion for review of permanency plan. Judgment
terminating respondent’s parental rights and approv-
ing permanency plan.
Jeanette Johnson, assistant attorney general, for the
petitioner.
Chris Oakley, for the respondent.
Patricia Lyga, for the minor child.
Opinion
HUDDLESTON, J.
MEMORANDUM OF DECISION
Emily S. is a young child, born on August 5, 2018. Now
pending before the court are an amended coterminous
petition for the termination of parental rights as to the
child’s father, Damon F., and a contested motion for
review of a permanency plan. The child was previously
adjudicated neglected, and the parental rights of the
child’s mother were terminated by consent, on July 23,
2019. The child’s mother died on November 4, 2019.
A consolidated trial as to all issues relating to Mr. F.
was held on February 8, 2021. Mr. F. appeared and was
represented by counsel. The child was also represented
by counsel.
The court finds that it has jurisdiction over the matter.
Proper notice of the proceeding was provided. No
action is pending in any other court concerning the
custody of this child. No Native American tribal affilia-
tion was claimed, and the Indian Child Welfare Act does
not apply.
For all the reasons that will be discussed in this
decision, the court finds that the department has
proved, by clear and convincing evidence, that a statu-
tory ground for termination exists and that termination
is in the child’s best interest. The petition is granted
and the Commissioner [of Children and Families] is
appointed the child’s statutory parent. Mr. F.’s objection
to the permanency plan is overruled, and the perma-
nency plan is approved as in the best interest of the
child.
I
RELEVANT PROCEDURAL HISTORY
Emily was born on August 5, 2018. At her birth, both
the child and her mother, Florence M., tested positive
for opiates and cocaine. Ms. M. left the hospital against
medical advice on the day of the child’s birth and did
not provide any information concerning the child’s
father. On August 15, 2018, the Commissioner of the
Department of Children and Families (department or
DCF) initiated a ninety-six hour hold. On August 16,
2018, the department filed an ex parte motion for order
of temporary custody and coterminous neglect and ter-
mination of parental rights petitions. The pleadings
named Ms. M. as the respondent mother and John Doe
as the respondent father. Ms. M. was served by abode
service. Publication was ordered as to John Doe.
The ex parte motion for order of temporary custody
was granted on August 16, 2018, and sustained by
default on August 24, 2018, at the preliminary hearing
on the order of temporary custody. At that hearing, the
department’s counsel orally moved to cite in John S.
as the child’s putative father, based on information
recently provided to the department by Ms. M. That
motion was granted. On the plea date of September 12,
2018, Mr. S. appeared, was advised of his rights, and
entered pro forma denials. Putative father John Doe
was defaulted for failure to appear. The department
sought and obtained an order for paternity testing as
to Mr. S. On November 13, 2018, the department filed
a DNA report which indicated that Mr. S. was excluded
as the child’s father. The department moved for a judg-
ment of nonpaternity as to Mr. S., which was granted,
and Mr. S. was removed from the case.
Also on November 13, 2018, the mother appeared,
was appointed counsel, and the previous default was
vacated. She was questioned under oath as to possible
fathers and was reminded that she had mentioned Mr.
F. as a possible father. She responded that he was not
the father and she did not know who the father might
be. She said it could have been a man in Bristol. The
court ordered service of notice by publication in Bristol
for John Doe, which was effected. Doe was defaulted
when he did not appear on the plea date of December
6, 2018.
While the case was pending, the department
requested and obtained a study under the Interstate
Compact on the Placement of Children (ICPC), General
Statutes § 17a-175, regarding the possible placement of
the child with a maternal uncle and his family in Mis-
souri. The ICPC study was completed and the maternal
uncle was initially approved for placement. When the
child was classified as a medically complex child, how-
ever, additional approval was needed from Missouri.
After coming to Connecticut on two occasions to meet
the child, her foster mother, the social worker, and the
child’s medical providers, the maternal uncle ultimately
withdrew from ICPC consideration because he did not
want to disrupt the child’s current placement. He has
maintained regular contact with the foster mother up
to the present time.
On July 23, 2019, Ms. M. appeared for a coterminous
trial on the neglect and termination petitions. She
entered a nolo contendere plea to the neglect petition
and tendered her consent to the termination petition.
John Doe had previously been defaulted for failure to
appear at the initial plea hearing and was not present
for the trial. After DCF presented its evidence, the court,
Lobo, J., adjudicated the child neglected on the ground
that she had been denied proper care and attention.
The court then terminated the parental rights of Ms. M.
and of John Doe. At the request of the assistant attorney
general representing the department, the court post-
poned the disposition on the termination petition to
allow the department additional time to speak with
an additional putative father, Mr. F. The department’s
counsel explained that an anonymous caller had con-
tacted the department’s Care Line on July 7, 2019, and
provided information about a possible father of the
child. The social worker had been able to locate the
putative father out of state but had not yet succeeded
in making contact with him. Although Ms. M. again
denied that Mr. F. could be the father, the court post-
poned the disposition on the termination petition. The
court entered a disposition on the neglect petition, com-
mitting the child to the custody of the department.
At an in court review on August 21, 2019, the depart-
ment’s social worker reported that she had communi-
cated with Mr. F. on July 26, 2019. At that time, Mr. F.
was incarcerated in Strafford County Corrections in
Dover, New Hampshire. Mr. F. told the social worker
that he did not believe he was the child’s father and he
did not wish to have a paternity test. The court, Lobo,
J., ordered the department to amend the petition to
include Mr. F. as a putative father and to effectuate
service. The social worker spoke with Mr. F. again in
August, 2019, approximately a month after her first
conversation with him, and in that conversation he told
her that he might be the child’s father and would be
willing to participate in a paternity test.
On September 12, 2019, the department filed
amended coterminous petitions for neglect and termi-
nation of parental rights, naming Mr. F. as the respon-
dent father. On the plea date, October 9, 2019, Mr. F.
appeared by telephone, was advised of his rights, and
confirmed that he had received the petitions. He
declined to apply for appointment of counsel at that
time. The department orally moved for paternity testing,
which the court ordered. The paternity test subse-
quently indicated a 99.99 percent probability that Mr.
F. is the child’s father. A finding of paternity was made
on October 28, 2019. Mr. F. applied for counsel, and
counsel was appointed.
Although the neglect petition was amended to name
Mr. F. as the sole respondent, neither the neglect adjudi-
cation nor the disposition of commitment was opened
or modified as a result of the amendment.1 The amended
petition for termination of parental rights, naming Mr.
F. as the sole respondent, alleged abandonment and
the absence of an ongoing parent-child relationship as
the statutory grounds for termination. At a hearing on
March 5, 2020, the court ordered specific steps for Mr.
F. and reviewed those steps with him. Trial on the
termination of parental rights petition was scheduled
for March 23, 2020, but was subsequently postponed as
a result of the Covid-19 pandemic. On April 6, 2020, the
department filed a motion for review of the permanency
plan, which proposed a plan of termination of parental
rights and adoption. Mr. F., through counsel, filed an
objection to the proposed plan, and the contested hear-
ing on the permanency plan was consolidated with the
trial on the termination petition.
The consolidated trial on the termination petition and
the permanency plan took place on February 8, 2021,
as a virtual trial on the Microsoft Teams platform. Mr.
F., who remains incarcerated in New Hampshire,
appeared by video and was represented by counsel.
The court advised Mr. F. of his rights and of the nature
of the termination proceeding as required by In re
Yasiel R., 317 Conn. 773, 794, 120 A.3d 1188 (2015).
The department had previously filed two motions for
judicial notice: one for judicial notice of the court
record, and a second for judicial notice of copies of ten
judicial records, nine of which related to a prosecution
pending against Mr. F. in the United States District
Court for the District of Maine, and one of which was
a copy of a Connecticut Supreme Court decision
affirming a prior Connecticut conviction of Mr. F. The
motions for judicial notice were granted without objec-
tion or limitation.
The department presented the testimony of Courtney
E., the foster mother in whose care the child has been
placed since her discharge from the hospital after birth,
and Margaret DeSena, the department social worker
who was assigned to the case.
The department proffered twelve exhibits, some of
which were redacted by agreement. The exhibits were
admitted in full without objection. The department’s
exhibits included the following:
• State’s Exhibit 1: Social Study in Support of Neglect
and Termination of Parental Rights Petition dated Sep-
tember 12, 2018, as redacted
• State’s Exhibit 2: Status Report dated May 1, 2019
• State’s Exhibit 3: Addendum to the Social Study
dated October 8, 2019
• State’s Exhibit 4: Status Report dated January 23,
2020, as redacted
• State’s Exhibit 5: Motion to Review Permanency
Plan and Study in Support Thereof dated March 9, 2020
• State’s Exhibit 6: Addendum to the Coterminous
Social Study dated February 1, 2021
• State’s Exhibit 7: Criminal Conviction Certification
record dated February 6, 2020
• State’s Exhibit 8: Department of Correction Records
dated February 3, 2020
• State’s Exhibit 9: Yale-New Haven Health L & M
Rehabilitation Services Physical Therapy Summary
dated January 3, 2020, as redacted
• State’s Exhibit 10: Letter by Amanda Vellali, M.S.,
CCC-SLP, Pediatric Speech Pathologist dated February
11, 2020, as redacted
• State’s Exhibit 11: ProHealth Physician’s Letter by
Allyson Salek, M.D., dated February 17, 2020, as
redacted
• State’s Exhibit 12: LEARN Birth-to-Three Letter by
Allison Frost, M.S., Special Ed/Early Intervention Spe-
cialist, as redacted
After the department rested, Mr. F.’s counsel moved
for judgment as a matter of law, arguing that the depart-
ment had failed to meet its burden of proof with respect
to the ground of abandonment. The court reserved deci-
sion on that motion.
Mr. F. then testified after being canvassed by his
counsel about his decision to testify. In addition, Mr.
F. introduced one exhibit, Respondent’s Exhibit B,
Father’s Specific Steps as ordered on March 5, 2020.
That exhibit was admitted in full without objection.
The court heard arguments of counsel at the close
of the evidence. Among other arguments, counsel for
the department and counsel for the minor child argued
that Mr. F. has no relationship with the child, no under-
standing of the degree and intensity of care the child
needs, and that it would be highly detrimental to the
child to disrupt her secure placement. Counsel for Mr.
F. argued against termination. He emphasized the fun-
damental constitutional interests at stake for the father
and Mr. F.’s desire to parent his child or to have her
placed with his family. He argued that the fact of incar-
ceration can never constitute abandonment, and further
argued in favor of allowing Mr. F. additional time to
establish a parent-child relationship.
The court has carefully considered all the testimonial
and documentary evidence in light of the applicable
statutes and principles of law. It has considered the
demeanor and credibility of the witnesses. It has taken
judicial notice of court records as permitted by law. It
has considered the arguments of counsel.
II
PRELIMINARY FACTS
A
The Child
Emily was born on August 5, 2018, at the Hospital of
Central Connecticut in New Britain. She was premature,
weighing approximately four pounds, but her true gesta-
tional age was unknown because her mother, Ms. M.,
received no prenatal care during her pregnancy. Ms.
M. had a significant history of substance abuse. Her
substance abuse had led to the termination of her paren-
tal rights as to her older child, Jadalynn, who was born
in 2008. Ms. M. provided no information about Emily’s
father to hospital staff. She left the hospital against
medical advice on the day of Emily’s birth and did not
return to visit her.
Emily tested positive for cocaine and opiates at birth
and was kept in the neonatal intensive care unit (NICU)
for ten days. She experienced withdrawal symptoms,
which required her to be given morphine. While Emily
was in the hospital, the department identified a legal
risk licensed preadoptive home. The identified foster
mother visited Emily daily while she was in the NICU
and learned about the care she would need upon dis-
charge. On August 15, 2018, the department initiated a
ninety-six hour hold, and, on the next day, sought and
obtained an ex parte order of temporary custody. Emily
was discharged from the hospital and placed in the
preadoptive home, where she has remained through the
date of the trial.
Emily has had substantial medical and developmental
issues. She has been diagnosed with neonatal absti-
nence syndrome. In the first months after her discharge
from the hospital, she had severe tremors, cried con-
stantly, and seldom slept. She had severe gastrointesti-
nal issues, including reflux throughout her first year of
life. She had difficulty having bowel movements. She
lost weight at first, and her weight had to be checked
twice weekly at the pediatrician’s office or by a visiting
nurse. She was on a prescription formula for her first
two years.
In her first months of life, Emily lacked the ability
to suck and had to be wakened every two hours for
feeding. She was referred to a feeding team for therapy
to help strengthen the muscles in her mouth and tongue.
Although she had made substantial progress with feed-
ing by the age of two and one-half, and, although she
is now able to speak, she will continue to need speech
therapy to address a lisp and a stutter.
Emily also developed significant respiratory issues
that led to multiple visits to the emergency room. When
she was four months old, she was referred to a pulmo-
nologist. She had to be given breathing treatments, each
taking about forty-five minutes, three or four times
daily. On November 25, 2018, she was diagnosed with
pneumonia in an emergency room visit and was given
a stronger breathing treatment. Her respiratory issues
have continued. She has been diagnosed with severe
persistent asthma, which is managed through adminis-
tration of an inhaled steroid once or twice a day. A dual
treatment plan is in place when she develops conges-
tion, because she gets sick very quickly. She is seen by
a pulmonologist every four months. Her physician has
stated that she is likely to have pulmonary issues
throughout her life. As a result of her respiratory issues,
she has been classified as a child with complex medical
needs, Level 3.2
At the age of eighteen months, Emily was tested for
Hepatitis C and was found to be positive. She will need
to have blood tests every eight months to monitor the
effects of the Hepatitis C infection on her liver. She is
monitored by the gastroenterology department at the
Connecticut Children’s Medical Center for this condi-
tion. Her medical providers hope to delay treatment for
the condition until she is at least five years old because
the treatments are harsh for children. Because of the
Hepatitis C infection, she cannot take certain medica-
tions that can harm the liver, and care must be taken
to ensure that all of her medical providers are aware
of the condition.
Emily was developmentally delayed in both gross and
fine motor skills. She has required physical therapy and
occupational therapy to address those delays. She had
tightness on her left side, and there was a question as
to whether she might have cerebral palsy. She has had
vestibular issues which are very frustrating for her. She
received Birth to Three services from October, 2018,
through November, 2020, when she was successfully
discharged.
Emily is currently in day care full time, although her
foster mother has sometimes kept her home during the
pandemic. Emily is in a therapeutic room in her day
care setting. Her teacher is a certified therapeutic
teacher. The therapeutic room in the day care provides
a smaller class with more direct one-on-one attention.
The staff is trained to administer Emily’s breathing
treatment during the day.
Emily has a hard time adapting to strangers and looks
to her foster mother as her source of security. Emily
received Birth to Three services at the day care because
her providers thought it was beneficial to see her inter-
act with other children. Emily’s foster mother communi-
cated with the Birth to Three providers regularly to get
reports on what they had done and to share what she
was noticing about Emily’s development.
Although Emily was successfully discharged from
Birth to Three services, she continues to need physical
and occupational therapy for various issues. She is
delayed in developing fine motor skills and still cannot
use a fork or spoon. The delay in fine motor skills
affects her eating and causes her frustration in playing
with toys such as Megablox.
Emily’s providers attribute much of Emily’s medical
and physical progress to the consistent care and atten-
tion of her foster mother, who has attended every medi-
cal appointment with her and has carefully attended to
the various breathing and other medical treatments and
physical therapy exercises that have been prescribed
for Emily at home. The foster mother’s six year old
son has also participated in Emily’s physical therapy,
motivating her to copy his actions.
Emily’s pediatrician has indicated that, as a result of
her prenatal exposure to drugs, Emily is expected to
have learning disabilities and will have an ‘‘uphill battle’’
when she starts school. She will likely require special
education services.
B
The Father
Mr. F. was born in February, 1975, in Hartford, Con-
necticut, in a household with his mother, his sister, and
his grandmother. He also has two paternal half-siblings.
He told the department that he continues to have a
relationship with his mother and all his siblings, who
provide financial and emotional support for him. He
denied any traumas during his childhood and reported
that he did well in school, although he admitted to
behavioral issues in school, where he was often in trou-
ble. When he was seventeen, in 1992, he was arrested,
and subsequently convicted, on charges of robbery in
the first degree, for which he received a five year sen-
tence. He obtained his GED while incarcerated.
Mr. F. has never been married, but he has one older
child, Daijah, who is now an adult. The department’s
records indicate that Mr. F. was substantiated for physi-
cal neglect with regard to Daijah in 2003. The social
worker testified that Mr. F. had a history of domestic
violence and harassment with Daijah’s mother and was
convicted of violating a protective order for which Dai-
jah’s mother was the protected person. That testimony
was corroborated by a copy of a 2006 decision by the
Connecticut Supreme Court, which affirmed Mr. F.’s
conviction arising from a 2003 incident relating to his
child’s mother.
Mr. F. has been incarcerated for most of his adult
life, with relatively brief periods of liberty followed
by new arrests, convictions, and further incarceration.
More specifically: Mr. F.’s Connecticut criminal convic-
tion history indicates that, between 1992 and 2012, he
was convicted on the following dates on the stated
Connecticut charges: (1) December 12, 1992, larceny
in the sixth degree; (2) April 23, 1993, robbery in the
first degree and conspiracy to commit robbery in the
first degree; (3) November 12, 1997, sale of narcotics;
(4) May 12, 1999, carrying a pistol without a permit and
possession of narcotics; (5) February 14, 2003, disor-
derly conduct; (6) August 5, 2004, running from police;
(7) August 5, 2004, violation of a protective order; and
(8) October 18, 2012, violation of a protective order.
During those years, he was also convicted of violations
of probation in 1999, 2004, and 2012. He spent approxi-
mately nineteen of the twenty-three years between 1992
and 2015 in correctional facilities. During some of his
periods in the community, he was on probation, parole,
or special parole. His criminal history in Connecticut,
so far as the record discloses, ended when he was
discharged from a period of special parole in April, 2016.
When he was not incarcerated, Mr. F. worked at vari-
ous jobs. He was most recently employed in 2017, at
Boost Mobile, where he worked for eighteen months.
Before that, he worked at Hartford Hospital in environ-
mental services for seven months. He has also worked
as a truck driver in the past.
Mr. F.’s Connecticut criminal history and incarcera-
tion records end in 2016, but his criminal activity did not
end then. Although the department did not introduce
a copy of Mr. F.’s criminal conviction history from other
states, both the social worker and Mr. F. testified that,
when the social worker first spoke with Mr. F. on July
26, 2019, he was incarcerated at Strafford County Cor-
rectional facility in Dover, New Hampshire, where he
was serving a sentence on state criminal charges from
the state of Maine and was also under an order of
detention for a pending federal criminal charge. The
social worker testified that she believed that Mr. F.’s
incarceration began on or about February 19, 2019, and
Mr. F. did not offer contradictory testimony.
Evidence as to Mr. F.’s incarceration status as of the
date of trial is found in the testimony of both the social
worker and Mr. F. and in nine documents related to
the criminal charge pending against Mr. F. in federal
District Court in Maine. These documents were
attached to a motion for judicial notice filed on Febru-
ary 7, 2021, which was granted without objection and
without limitation. The documents include an arrest
warrant issued on January 20, 2019; the criminal com-
plaint dated January 30, 2019; an indictment synopsis
dated June 20, 2019; an order of detention pending trial
issued on May 30, 2019; an excerpt from a transcript
of a hearing held on February 6 and February 11, 2020,
on Mr. F.’s motion to suppress certain evidence in the
District Court action; a speedy trial order dated April
30, 2020; a decision on [Mr. F.’s] renewed motion for
an expedited and combined plea and sentencing hearing
by telephone or videoconference, dated June 2, 2020;
a decision on [Mr. F.’s] second renewed motion for an
expedited and combined plea and sentencing hearing
by videoconference, dated August 24, 2020; and a
speedy trial order dated December 11, 2020.
The information that can be gleaned from the federal
District Court documents is as follows: The government
alleges that, on January 6, 2019, Mr. F. knowingly and
intentionally possessed heroin with intent to distribute
it in violation of 21 U.S.C. § 841 (a) (1) (2018). His arrest
resulted from a traffic stop in Maine on that date. On
the date of the traffic stop, he was out on bond on
various Maine state charges. His motion to suppress
certain evidence obtained as a result of the traffic stop
was denied. He subsequently moved for an expedited
and combined plea and sentencing hearing by telephone
or videoconference so that he could enter a conditional
guilty plea, be sentenced, and then appeal the denial
of his motion to suppress. The District Court denied
the motion on June 2, 2020, but on August 24, 2020, the
District Court granted Mr. F.’s second renewed motion
for such a remote hearing. As of the date of trial in this
case, the federal plea and sentencing hearing had not yet
been scheduled. On at least two occasions, the District
Court had issued, on its motion, ‘‘speedy trial orders,’’
in which the court excluded certain dates from the
calculations under the Speedy Trial Act, attributing the
exclusion to the public health crisis caused by the
Covid-19 pandemic. The more recent of those orders,
dated December 11, 2020, excluded the time between
February 1, 2021, and April 5, 2021, from calculations
under the Speedy Trial Act.
Mr. F. testified at trial that he hopes to have his
federal court sentencing hearing in April, 2021, and he
hopes to receive a sentence of time served. He testified
that his sentencing range under the Federal Sentencing
Guidelines is ‘‘thirty or thirty-one months’’ and he has
served ‘‘about twenty-one’’ months. His testimony is not
entirely consistent with the federal court documents.
In a ruling dated June 2, 2020, the federal district judge
observed that, according to a preplea presentence
report authorized by the court, Mr. F.’s Guideline range
is thirty to thirty-seven months, but the judge noted
that Mr. F.’s own motion stated that the Guideline range
might be increased to thirty-three to forty-one months
when additional information about his criminal history
was considered. The District Court further commented
that Mr. F. would not begin to be detained on the federal
charge until he completed his sentence on the state
charge, an event which was imminent at the time of
the District Court’s ruling on June 2, 2020. If the District
Court’s summary is accurate, Mr. F. had served approxi-
mately eight months in federal detention by February
8, 2021, the date of the trial in this court, and he may
face a Guideline sentence range of as much as forty-
one months. If Mr. F.’s testimony was accurate, he was
hoping for time served but was exposed to the possibil-
ity of eight more months of incarceration. At the time
of the trial in this court, it was unknown when his
plea and sentencing would be scheduled and what his
sentence would be.
There is no evidence in the record as to the exact
date when Mr. F. moved from Connecticut to Maine,
but it can be inferred to have been at some time between
2016, when he was discharged from special parole in
Connecticut, and 2018, when he had a relationship with
Florence M., the mother of the child at issue in this case.
The social worker initially spoke with Mr. F. on July
26, 2019. He told the social worker that Ms. M. was
with him for ‘‘a time’’ in Maine and that he loved her
but could not stay in a relationship with her because
she was using heroin and cocaine. (Ex. 3, p. 3.) He
made inconsistent statements about whether he knew
about Ms. M.’s pregnancy and his potential paternity.
In his first conversation with the social worker, he
stated that he was aware that Ms. M. had a baby but
he did not believe the child was his. At other times he
stated that he was unaware that Ms. M. was pregnant
or had his child. He admitted that he had not taken
phone calls from Ms. M. after their breakup because
he was upset with her, but he also said that he had
spoken with her in July, 2018, and she did not tell him
she was pregnant. He initially did not want to participate
in a paternity test. When the social worker contacted
him again a month after their first conversation, how-
ever, he said that he might be the father and agreed to
a paternity test. He did not want to provide any
resources for the child until the paternity test was com-
pleted. A DNA test was ordered, and the results received
in October, 2019, confirmed Mr. F.’s paternity.
In November, 2019, after his paternity was deter-
mined, Mr. F. offered Tabitha Hand as a placement
resource. Ms. Hand lived in Madawaska, Maine. On
December 12, 2019, Mr. F.’s counsel filed a motion for
an order for an expedited ICPC study of Ms. Hand as
fictive kin. In the motion, he represented that Ms. Hand
lived in the town where Mr. F. planned to live when
his prison sentence was concluded and that she was a
licensed foster parent in Maine. The social worker
spoke with Ms. Hand and began the process of collect-
ing information to assess her suitability. In speaking
with Ms. Hand, the social worker learned that Ms. Hand
was the mother of a friend of Mr. F. and had only met
Mr. F. on a few occasions. The department concluded
that Ms. Hand did not qualify as fictive kin because she
had never met the child. It also determined that an
expedited ICPC study could not be requested because
Ms. Hand did not have a biological relationship with
the child. Mr. F. did not agree with the department’s
decision not to consider Ms. Hand and stated that he
did not think it would be harmful to the child to change
her placement since she was so young. When the social
worker attempted to explain the impact of removals at
any age, Mr. F. became upset and ended the telephone
call. He nevertheless subsequently withdrew his motion
for an ICPC study for Ms. Hand.
Mr. F. also proposed his first cousin, Joshua [H.],
as a placement resource. Mr. [H.] is employed as a
firefighter in Hartford and also runs an electric busi-
ness. The department assessed Mr. [H.] as a possible
placement resource for Emily. The social worker spoke
with him and then met with him with the foster mother,
who described the child and provided a summary of her
medical conditions and needs. Mr. [H.] and his mother
subsequently met with the foster mother and the child
for a two hour visit at the foster mother’s home, where
the foster mother took photographs of the child with
Mr. [H.] and his mother. After meeting with the child
and the foster mother, Mr. [H.] did not wish to remove
the child from her foster home and no longer wished
to be considered a placement option. The foster mother,
with the department’s approval, offered to meet Mr.
[H.] in Hartford to take the child to meet Mr. F.’s mother,
but Mr. [H.] never responded to that offer.
Mr. F. has not proposed other family members as
possible resources for the child. His mother is elderly
and unable to care for the child.
Mr. F. was provided with specific steps which
required, among other things, that he engage in sub-
stance abuse treatment and a mental health assessment
and treatment at the correctional facility. He did not
do so even when such services were available; he told
the social worker he did not think he needed the ser-
vices. Since the onset of the pandemic, such services
by outside providers have been suspended and have
not been available to him. The social worker has called
Mr. F. on a monthly basis to discuss the child with him.
The social worker has not always been able to reach
him, in part because he has a job in the correctional
facility’s laundry and telephone calls have to be sched-
uled around his work hours. He has participated in
telephone calls when the social worker was able to
reach him, and more recently the corrections officer
who is his supervisor in the laundry provided an e-mail
address the social worker could use to send photo-
graphs of the child for him.
Mr. F. has expressed concern for the child and a
desire to be able to parent her or to have her placed
with his family. Although he has regularly asked about
her, he has never sent her a letter or card. The social
worker told him that the foster mother was making a
memory book for the child about her biological family,
including photos of the child’s maternal uncle and his
family and photos of Mr. [H.’s] visit with the child, but
Mr. F. never provided anything to the social worker to
be included. He told the social worker that it would be
difficult for him to write to the child because he would
not know what to say. Mr. F. has never met the child.
Although he inquired about visits with her, the depart-
ment did not provide visits.
Mr. F. acknowledged that the foster mother has taken
good care of the child. He admitted that the date of his
release from prison is unknown, although he hopes that
it will be soon. He further admitted that when he is
released from prison, he will need to find housing and
employment and will have to engage in services recom-
mended by the department. He nevertheless asks the
court to deny the petition to allow him time to be able
to care for the child himself or to have her placed with
his family.
III
THE PETITION FOR TERMINATION OF
PARENTAL RIGHTS
The court is mindful of what is at stake in a proceed-
ing to terminate parental rights. ‘‘[T]he termination of
parental rights is defined . . . as the complete sever-
ance by court order of the legal relationship, with all
its rights and responsibilities, between the child and
his parent . . . . It is, accordingly, a most serious and
sensitive judicial action. . . . Although the severance
of the parent-child relationship may be required under
some circumstances, the United States Supreme Court
has repeatedly held that the interest of parents in their
children is a fundamental constitutional right that unde-
niably warrants deference and, absent a powerful coun-
tervailing interest, protection.’’ (Internal quotation
marks omitted.) In re Tresin J., 334 Conn. 314, 324–25,
222 A.3d 83 (2019). With due consideration for the seri-
ous nature of this action, the court has carefully consid-
ered the petition, all of the evidence presented, the
information in the court files judicially noticed in accor-
dance with the standards required by law, and the argu-
ments of the parties.
‘‘A hearing on a petition to terminate parental rights
consists of two phases, adjudication and disposition.
. . . In the adjudicatory phase, the trial court deter-
mines whether one of the statutory grounds for termina-
tion of parental rights [under General Statutes § 17a-
112 (j)] exists by clear and convincing evidence. If the
trial court determines that a statutory ground for termi-
nation exists, it proceeds to the dispositional phase.
. . . In the dispositional phase, the emphasis appropri-
ately shifts from the conduct of the parent to the best
interest of the child.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Gianni C., 129 Conn. App.
227, 230, 19 A.3d 233 (2011). ‘‘The best interest determi-
nation also must be supported by clear and convincing
evidence.’’ Id., 230–31. Pursuant to Practice Book § 35a-
7 (a), ‘‘[i]n 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.’’
In this case, the petition alleges two adjudicatory
grounds for termination of Mr. F.’s parental rights: aban-
donment and the absence of an ongoing parent-child
relationship. The elements of these adjudicatory
grounds are set out in § 17a-112 (j), which provides in
relevant part as follows: ‘‘The Superior Court, upon
notice and hearing as provided in sections 45a-716 and
45a-717, may grant a petition filed pursuant to this sec-
tion 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 in accordance with subsection
(a) of section 17a-111b, unless the court finds in this
proceeding that the parent is unable or unwilling to
benefit from reunification efforts, except that such find-
ing 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 . . . [or] (D) there is
no ongoing parent-child relationship, which means the
relationship that ordinarily develops as a result of a
parent having met on a day-to-day basis the physical,
emotional, moral and educational needs of the child
and to allow further time for the establishment or rees-
tablishment of such parent-child relationship would be
detrimental to the best interest of the child . . . .’’ That
is, in this case, to prove an adjudicatory ground, the
department must prove by clear and convincing evi-
dence that it made reasonable efforts to locate Mr. F.;
that it made reasonable efforts to reunify Mr. F. with
the child or that Mr. F. was unable or unwilling to
benefit from reunification efforts; and either that Mr.
F. abandoned the child, or that there is no ongoing
parent-child relationship, as those grounds are defined
in the statute and further explained by judicial deci-
sions. If one or both of those adjudicatory grounds are
proved by clear and convincing evidence, the depart-
ment must also prove, by clear and convincing evidence,
that termination is in the best interest of the child.
A
ADJUDICATORY FINDINGS
i
Reasonable Efforts
As stated [previously], in a proceeding on a petition
for termination of parental rights under § 17a-112 (j),
the court must first determine whether there is clear
and convincing evidence that the department made rea-
sonable efforts to locate the parent and to reunify the
parent and child, unless the court finds that the parent
was unable or unwilling to benefit from reunification
efforts. ‘‘The word reasonable is the linchpin on which
the department’s efforts in a particular set of circum-
stances are to be adjudged, using the clear and convinc-
ing standard of proof. Neither the word reasonable nor
the word efforts is, however, defined by our legislature
or by the federal act from which the requirement was
drawn. . . . [R]easonable efforts means doing every-
thing reasonable, not everything possible.’’ (Internal
quotation marks omitted.) In re Jason R., 129 Conn.
App. 746, 767–68, 23 A.3d 18 (2011), aff’d, 306 Conn.
438, 51 A.3d 334 (2012). ‘‘[I]n determining whether the
department has made reasonable efforts to reunify a
parent and a child or whether there is sufficient evi-
dence that a parent is unable or unwilling to benefit
from reunification efforts, the court is required in the
adjudicatory phase to make its assessment on the basis
of events preceding the date on which the termination
petition was filed.’’ In re Shaiesha O., 93 Conn. App. 42,
48, 887 A.2d 415 (2006). Because the amended petition
naming Mr. F. as the respondent father was filed on
September 12, 2019, the court must assess the depart-
ment’s efforts on the basis of events before that date.
Clear and convincing evidence establishes that the
department made reasonable efforts to locate the
child’s father under the circumstances that existed
before the adjudicatory date. The mother left the hospi-
tal on the day of the child’s birth without providing any
information about the child’s paternity. The department
had difficulty locating the mother for a time. When the
mother did speak with department social workers, she
gave inconsistent information about the child’s possible
paternity, naming, at various times, Mr. S., Mr. F., and
a man whose name she did not know who lived in
Bristol. Mr. S. believed that he might be the father and
agreed to a paternity test, which subsequently excluded
him. The mother had not received prenatal care and
did not know the child’s true gestational age.
The social worker testified credibly that, when Ms.
M. first mentioned Mr. F. in October, 2018, Ms. M. men-
tioned his approximate age and said that he might be
in jail in Maine. The social worker conducted online
searches for him at that time, but without more informa-
tion, she was unable to locate him. On July 7, 2019, an
anonymous caller informed the department’s Care Line
that her boyfriend, Mr. F., might be the father of Ms.
M.’s child. The caller provided sufficient information
about Mr. F.’s date of birth and possible location to
allow the social worker, with some ‘‘digging,’’ to locate
him in New Hampshire after speaking with jails in Maine
and in New Hampshire. The social worker spoke to Mr.
F. for the first time on July 26, 2019.
In light of the mother’s inconsistent statements about
the child’s possible paternity, her inability to provide
accurate information about Mr. F.’s date of birth or his
location, the existence of at least one other man who
could have been the father, and the uncertainty as to
when the child was conceived, the department’s efforts
to locate Mr. F. were reasonable under the circum-
stances. The social worker conducted online searches
for Mr. F. in October, 2018, but was unable to locate him
then. When the mother then identified other putative
fathers, the department followed up on those leads.
When the department received information that allowed
it to conduct a more focused search for Mr. F., the
social worker did so promptly, and she soon located
him in New Hampshire. She spoke with Mr. F. within
three weeks of receiving the information that allowed
her to find him.
As to reunification efforts, the termination petition
alleges both that the department made reasonable
efforts to reunify the father and the child, and in the
alternative, that the father was unable or unwilling to
benefit from reunification efforts. Either or both of
these allegations must be proved by clear and convinc-
ing evidence based on events prior to the adjudicatory
date of September 12, 2019.
As of the adjudicatory date, the department had made
no efforts to reunify Mr. F. with the child. It had only
recently located him and his paternity had not yet been
determined. See In re Shaiesha O., supra, 93 Conn.
App. 49–50 (where coterminous petition was filed
before paternity was established, department failed to
make reasonable efforts to reunify parent and child by
adjudicatory date).
The court finds, however, that clear and convincing
evidence establishes that Mr. F. was unable or unwilling
to benefit from reunification efforts as of September
12, 2019. As of that date, Mr. F. was incarcerated in
New Hampshire on Maine state criminal charges, for
which he still had approximately nine months to serve.
He had been ordered detained on pending federal
charges when he completed his state sentence, and the
outcome of his federal charges was unknown as of the
adjudicatory date. The department could not refer him
for rehabilitative services in the community, such as
drug screening and treatment, mental health issues, and
parenting services. Although substance abuse and par-
enting services might have been available to him
through the correctional facility while he was incarcer-
ated, at least initially he did not feel he needed any
services. At trial, he acknowledged that he would need
to participate in such services when he is released
from jail.
‘‘[T]he fact of incarceration, in and of itself, cannot
be the basis for a termination of parental rights. . . .
At the same time, a court properly may take into consid-
eration the inevitable effects of incarceration on an
individual’s ability to assume his or her role as a parent.
. . . Extended incarceration severely hinders the
department’s ability to offer services and the parent’s
ability to make and demonstrate the changes that would
enable reunification of the family.’’ (Internal quotation
marks omitted.) In re Tresin J., supra, 334 Conn. 325.
While imprisonment alone can never constitute aban-
donment, ‘‘[o]n the other hand, the inevitable restraints
imposed by incarceration do not in themselves excuse
a failure to make use of available though limited
resources for contact with a distant child.’’ In re Juve-
nile Appeal (Docket No. 10155), 187 Conn. 431, 443,
446 A.2d 808 (1982).
Mr. F.’s incarceration in New Hampshire also hin-
dered the department’s ability to offer visitation, espe-
cially in light of the fact that, as of the date the petition
was filed, Emily was a medically complex thirteen
month old child with severe respiratory issues that
required multiple treatments a day. Nor was telephonic
visitation feasible because Emily was not yet verbal.
Our courts have recognized that ‘‘[t]he logistics of
prison visits with young children, particularly to out-
of-state facilities, limit their feasibility.’’ In re Elvin G.,
310 Conn. 485, 515, 78 A.3d 797 (2013); see also In re
Luciano B., 129 Conn. App. 449, 461, 21 A.3d 858 (2011).
In sum, the court finds, by clear and convincing evi-
dence, that the department made reasonable efforts to
locate the father in light of all the circumstances. The
court also finds, by clear and convincing evidence, that
the father was unable or unwilling to benefit from reuni-
fication efforts as of the adjudicatory date and for the
foreseeable future.
The court now turns to the adjudicatory grounds
alleged in the petition.
ii
Abandonment
The first alleged adjudicatory ground is abandon-
ment. As our courts have often stated, abandonment
‘‘occurs where a parent fails to visit a child, does not
display love or affection for the child, does not person-
ally interact with the child, and demonstrates no con-
cern for the child’s welfare. . . . Section 17a-112 [(j)
(3) (A)] does not contemplate a sporadic showing of
the indicia of interest, concern or responsibility for the
welfare of a child. A parent must maintain a reasonable
degree of interest in the welfare of his or her child.
Maintain implies a continuing, reasonable degree of
concern.’’ (Internal quotation marks omitted.) In re Jer-
maine S., 86 Conn. App. 819, 839–40, 863 A.2d 720, cert.
denied, 273 Conn. 938, 875 A.2d 43 (2005).
There is clear and convincing evidence that as of the
adjudicatory date, September 12, 2019, Mr. F. had never
seen the child, provided financial support, attempted
to communicate with the child, shown an interest in
the child’s welfare, or requested visitation. There is not,
however, clear and convincing evidence that Mr. F.
knew he was the child’s father before that date. Ms. M.
had moved from Maine to Connecticut before the child’s
birth. Ms. M. expressed considerable uncertainty about
the child’s paternity. She told the department on one
occasion that Mr. F. might be the father, but on subse-
quent occasions she denied that he could be the father.
At least one other man—Mr. S.—believed that he (Mr.
S.) might be the father. Mr. F. himself made contradic-
tory statements to the social worker as to whether he
knew that Ms. M. was pregnant or had given birth.
Sometimes he said that he had not spoken with her
since their relationship ended; sometimes he said he
had spoken with her in July, 2018, a few weeks before
the child’s birth, and she had not told him she was
pregnant; sometimes he said that he knew she had a
child but did not believe he was the child’s father. He
admitted she had tried to contact him after they broke
up but he had not returned her calls. The fact that a
girlfriend of his knew of the child’s birth and of his
prior relationship with Ms. M. suggests that he may
have known more than he admitted, but the evidence
is not clear and convincing. Because his paternity was
not established until after the adjudicatory date, the
court is not persuaded that his conduct before the adju-
dicatory date can fairly be held to constitute abandon-
ment.
iii
Absence of An Ongoing Parent-Child Relationship
The department also alleged, as an adjudicatory
ground, that there is no ongoing parent-child relation-
ship between Mr. F. and Emily. Pursuant to § 17a-112
(j) (3) (D), a court may terminate a parent’s parental
rights if ‘‘there is no ongoing parent-child relationship,
which means the relationship that ordinarily develops
as a result of a parent having met on a day-to-day basis
the physical, emotional, moral and educational needs
of the child and to allow further time for the establish-
ment or reestablishment of such parent-child relation-
ship would be detrimental to the best interest of the
child . . . .’’
In In re Tresin J., supra, 334 Conn. 323–33, our
Supreme Court provided a comprehensive summary of
its prior decisions concerning the adjudicatory ground
of no ongoing parent-child relationship and further
addressed the application of this ground to an incarcer-
ated parent. It emphasized that this ground must not
be used to place ‘‘ ‘insurmountable burden[s]’ ’’ on non-
custodial parents. Id., 326. It has explicitly rejected a
literal interpretation of the statute, holding that day-to-
day absence alone is insufficient to support a finding
of no ongoing parent-child relationship. Id.
‘‘The lack of an ongoing parent-child relationship is a
no fault statutory ground for the termination of parental
rights.’’ (Internal quotation marks omitted.) Id., 325. In
In re Tresin J., the Supreme Court reiterated that ‘‘the
ground of no ongoing parent-child relationship for the
termination of parental rights contemplates a situation
in which, regardless of fault, a child either has never
known his or her parents, so that no relationship has
ever developed between them, or has definitively lost
that relationship, so that despite its former existence it
has now been completely displaced. . . . The ultimate
question is whether the child has some present memo-
ries or feelings for the natural parent that are positive
in nature.’’ (Emphasis in original; internal quotation
marks omitted.) Id.
To determine whether there is ‘‘ ‘no ongoing parent-
child relationship,’ ’’ the court must engage in a two
step process. Id. ‘‘In the first step, a petitioner must
prove the lack of an ongoing parent-child relationship
by clear and convincing evidence. In other words, the
petitioner must prove by clear and convincing evidence
that the child has no present memories or feelings for
the natural parent that are positive in nature. If the
petitioner is unable to prove a lack of an ongoing parent-
child relationship by clear and convincing evidence, the
petition must be denied, and there is no need to proceed
to the second step of the inquiry. If, and only if, the
petitioner has proven a lack of an ongoing parent-child
relationship does the inquiry proceed to the second
step, whereby the petitioner must prove by clear and
convincing evidence that to allow further time for the
establishment or reestablishment of the relationship
would be contrary to the best interests of the child.
Only then may the court proceed to the disposition
phase.’’ (Internal quotation marks omitted.) Id., 326–27.
‘‘There are two exceptions to the general rule that
the existence of an ongoing parent-child relationship
is determined by looking to the present feelings and
memories of the child toward the respondent parent.
The first exception . . . applies when the child is an
infant, and that exception changes the focus of the first
step of the inquiry. . . . [W]hen a child is virtually a
newborn infant whose present feelings can hardly be
discerned with any reasonable degree of confidence, it
makes no sense to inquire as to the infant’s feelings,
and the proper inquiry focuses on whether the parent
has positive feelings toward the child. . . . Under
those circumstances, it is appropriate to consider the
conduct of a respondent parent.’’ (Internal quotation
marks omitted.) Id., 327.
‘‘The second exception . . . applies when the peti-
tioner has engaged in conduct that inevitably has led
to the lack of an ongoing parent-child relationship
between the respondent parent and the child. This
exception precludes the petitioner from relying on the
lack of an ongoing parent-child relationship as a basis
for termination. Under these circumstances, even if nei-
ther the respondent parent nor the child has present
positive feelings for the other, and, even if the child
lacks any present memories of the respondent parent,
the petitioner is precluded from relying on [the lack
of an ongoing parent-child relationship] as a basis for
termination. . . . The interference inquiry properly
focuses not on the petitioner’s intent in engaging in
the conduct at issue, but on the consequences of that
conduct. In other words, the question is whether the
petitioner engaged in conduct that inevitably led to a
noncustodial parent’s lack of an ongoing parent-child
relationship. If the answer to that question is yes, the
petitioner will be precluded from relying on the ground
of no ongoing parent-child relationship as a basis for
termination regardless of the petitioner’s intent—or
not—to interfere.’’ (Citation omitted; emphasis in origi-
nal; internal quotation marks omitted.) Id., 327–28.
Applying these principles to the case at hand, the
court finds that the department has proved, by clear
and convincing evidence, that the child has no positive
feelings for or memories of the respondent father.
Indeed, that fact is undisputed. She has never been in
his care. She has never met him or even seen him. She
would not recognize him if she were to see him now.
Although the father did not expressly raise the issue,
the court has considered whether the virtual infancy
exception applies in this case. The court concludes that
it does not. As stated [previously], the virtual infancy
exception applies when the child is ‘‘virtually a newborn
infant whose present feelings can hardly be discerned
with any reasonable degree of confidence . . . .’’
(Internal quotation marks omitted.) Id., 327. The child’s
age and ability to express her feelings is assessed as
of the time of the termination trial. See id., 329. ‘‘To
determine whether a petitioner has established the lack
of an ongoing parent-child relationship, the trial court
must be able to discern a child’s present feelings toward
or memories of a respondent parent. The virtual infancy
exception takes account of the particular problem that
is presented when a child is too young to be able to
articulate those present feelings and memories. . . .
The inability of the court to discern or to be presented
with evidence regarding a virtual infant’s present feel-
ings drives the exception. That finding must be made
at the time of the termination hearing.’’ (Emphasis in
original; internal quotation marks omitted.) Id.
In this case, at the time of the termination hearing,
there was clear and convincing evidence the child was
not ‘‘virtually a newborn infant.’’ She was two and one-
half years old. There was clear and convincing evidence
that she is capable of expressing her feelings for the
people she regards as family. She refers to her foster
mother as ‘‘mommy,’’ her foster mother’s son as her
brother, and her foster mother’s parents as her ‘‘nana’’
and ‘‘papa.’’ She demonstrates affection and positive
feelings for her foster family. Letters from her speech
therapist, her physical therapist, her pediatrician, and
her Birth to Three developmental therapist all described
her trusting relationship with and attachment to her
foster mother, as did the testimony of the social worker.
Because it is undisputed that the child has no present
positive feelings for or memories of Mr. F., whom she
has never seen, and because there is clear and convinc-
ing evidence that the child’s present feelings about
parental figures can be discerned, the ‘‘virtual infancy’’
exception does not apply.
The court has also considered whether the ‘‘interfer-
ence’’ exception applies either because the department
was unable to locate Mr. F. when he was first mentioned
as a possible father in October, 2018, or because the
child’s mother thereafter repeatedly said that Mr. F.
was not the father. The court has previously found that
the department’s efforts to locate Mr. F. were reason-
able under the circumstances, and it now concludes
that the department’s inability to locate Mr. F. sooner
does not constitute ‘‘interference.’’ Nor can the mother’s
statements directing the department away from the
search for Mr. F. be considered as ‘‘interference’’ under
In re Tresin J. and the cases discussed therein. ‘‘Our
case law makes clear that the interference exception
is akin to the equitable doctrine of ‘clean hands’ and is
triggered only by the conduct of the petitioner rather
than that of a third party or some other external factor
that occasioned the separation.’’ In re Tresin J., supra,334 Conn. 332. The clear and convincing evidence estab-
lishes that Mr. F.’s separation from the child is a result of
his own conduct, from refusing the mother’s telephone
calls after they broke up to engaging in criminal conduct
that resulted in his incarceration in New Hampshire.
The petitioner here—the department—did not cause
the separation that resulted in the lack of an ongoing
parent-child relationship, and the interference excep-
tion therefore does not apply.
The court is mindful that incarceration, in and of
itself, cannot be the basis for a termination of parental
rights, but the court may properly consider the effects
of incarceration on a parent’s ability to assume a paren-
tal role. See id., 325. As the Supreme Court recognized
in In re Tresin J. and earlier cases, ‘‘[e]xtended incar-
ceration severely hinders the department’s ability to
offer services and the parent’s ability to make and dem-
onstrate the changes that would enable reunification
of the family. . . . This is particularly the case when
a parent has been incarcerated for much or all of his
or her child’s life and, as a result, the normal parent-
child bond that develops from regular contact instead
is weak or absent.’’ (Internal quotation marks omitted.)
Id. The usual challenges to creating a parent-child rela-
tionship that result from incarceration were exacer-
bated in this case by the fact that Mr. F. was incarcer-
ated out of state when the department located him and
has continued to be incarcerated out of state throughout
the entire time he has been a party to this case.
It is noteworthy, moreover, that the social worker
encouraged Mr. F. to begin to establish a relationship
with Emily by writing to her. He told the social worker
it was hard because he would not know what to say.
He chose not to provide Emily, through the social
worker, with even a note or a letter that might tell her
something about himself and how he felt about her. He
did not ask for the social worker’s help in getting mail
to Emily or in thinking about what he might say to her.
In sum, the court finds, by clear and convincing evi-
dence, that no ongoing parent-child relationship exists
between Mr. F. and Emily, and no exception to this
statutory ground applies.
The court now must determine, by clear and convinc-
ing evidence, whether ‘‘to allow further time for the
establishment or reestablishment of such parent-child
relationship would be detrimental to the best interest
of the child.’’ General Statutes § 17a-112 (j) (3) (D). The
Supreme Court has construed this language to mean
the time needed ‘‘for the [respondent] to meet ‘on a
day to day basis the physical, emotional, moral and
educational needs’ ’’ of the child. In re Juvenile Appeal
(Anonymous), 181 Conn. 638, 646, 436 A.2d 290 (1980).
Among the factors to be considered in deciding whether
it would be detrimental to Emily’s best interest to allow
further time to develop a parent-child relationship with
her father are the length of stay in her foster home, the
nature of her relationship with her foster parent, the
degree of contact maintained with the natural parent,
and the nature of her relationship to her natural parent.
See In re Savanna M., 55 Conn. App. 807, 816, 740 A.2d
484 (1999).
Our Supreme Court and our Appellate Court have
‘‘noted consistently the importance of permanency in
children’s lives. In re Juvenile Appeal (Anonymous),
[supra, 181 Conn. 646] (removing child from foster
home or further delaying permanency would be incon-
sistent with his best interest); In re Victoria B., 79
Conn. App. 245, 263, 829 A.2d 855 (2003) (trial court’s
findings were not clearly erroneous where much of
child’s short life had been spent in custody [of commis-
sioner] and child needed stability and permanency in
her life); In re Teshea D., [9 Conn. App. 490, 493–94,
519 A.2d 1232 (1987)] (child’s need for permanency in
her life lends added support to the court’s finding that
her best interest warranted termination of the respon-
dent’s parental rights). Virtually all experts, from many
different professional disciplines, agree that children
need and benefit from continuous, stable home environ-
ments.’’ (Internal quotation marks omitted.) In re
Davonta V., 285 Conn. 483, 494, 940 A.2d 733 (2008).
There is clear and convincing evidence that to allow
further time for the establishment of a parent-child rela-
tionship with Mr. F. would be highly detrimental to the
best interest of the child. Emily is now two years and
eight months old, and she has been in the department’s
care since she was ten days old. She has been in the
same foster home for her entire life; it is the only home
she has ever known. Emily is medically complex and
developmentally delayed, and her pediatrician has
advised the department and her foster mother that she
is likely to experience significant challenges when she
is school aged. She is shy and sometimes fearful of
strangers, and Mr. F. is a stranger to her. Her physical
therapist and her speech therapist have stated that her
sense of safety and security with a trusted caregiver
has been instrumental in the progress she has made in
overcoming feeding difficulties, motor weakness, and
speech delays, and that continuity in her care is essen-
tial. The developmental therapist who worked with her
in the Birth to Three program stated that her mental
health would be ‘‘negatively compromised and poten-
tially irreparable’’ if she were to be removed from the
consistent and positive environment in which she is
placed.
Whether Mr. F. is released from incarceration in April,
2021, as he hopes, or at some unknown time between
April, 2021, and 2023, as is possible based on his Guide-
line range, he will not be ready to assume a parental
role in Emily’s life for a substantial period of time after
his release. As he admitted at trial, when he is released,
he will need to obtain housing and a legal income and
engage in services to which DCF can refer him. That
is only the beginning. Given his criminal history, con-
sisting of numerous convictions and lengthy periods of
incarceration since 1992, he would need to demonstrate
that he can avoid further criminal activity and incarcera-
tion. It is by no means assured that he will succeed.
He would also need considerable education concerning
child development generally and Emily’s many special
needs in particular. To allow such further time for the
establishment of a parent-child relationship would
indefinitely delay the permanency that is critical to Emi-
ly’s continued development and well-being. The depart-
ment has proved, by clear and convincing evidence,
that it would be detrimental to Emily’s best interest to
allow further time for the establishment of a parent-
child relationship with Mr. F.
B
DISPOSITIONAL FINDINGS
The court has found, by clear and convincing evi-
dence, that an adjudicatory ground for termination
exists because there was no ongoing parent-child rela-
tionship as defined by § 17a-112 (j) (3) (D) and to allow
further time for the development of such a relationship
would be detrimental to the child’s best interest. The
court must now determine whether clear and convinc-
ing evidence establishes that it is in the child’s best
interest to terminate Mr. F.’s parental rights.
‘‘The best interests of the child include the child’s
interests in sustained growth, development, well-being,
and continuity and stability of its environment. . . . In
the dispositional phase of a termination of parental
rights hearing, the trial court must determine whether
it is established by clear and convincing evidence that
the continuation of the respondent’s parental rights is
not in the best interest of the child.’’ (Internal quotation
marks omitted.) In re Anthony H., 104 Conn. App. 744,
764, 936 A.2d 638 (2007), cert. denied, 285 Conn. 920,
943 A.2d 1100 (2008).
In deciding whether continuation of the parental
rights of Mr. F. is in the child’s best interest, the court
has considered the importance and value of the child’s
genetic bond with her biological father. See In re
Savanna M., supra, 55 Conn. App. 816 (‘‘the genetic
bond shared by a biological parent and his or her child,
although not determinative of the issue of the best inter-
est of the child, is certainly a factor to consider’’ (inter-
nal quotation marks omitted)). The court has also con-
sidered the child’s need for sustained stability and
continuity in her environment. ‘‘Our appellate courts
have recognized that long-term stability is critical to a
child’s future health and development . . . . Because
of the psychological effects of prolonged termination
proceedings on young children, time is of the essence
in custody cases.’’ (Citation omitted; internal quotation
marks omitted.) In re Anthony H., supra, 104 Conn.
App. 767.
Pursuant to § 17a-112 (k), except where termination
is based upon consent, the court is required to make
findings as to seven factors. The seven factors set forth
in § 17a-112 (k) ‘‘serve simply as guidelines to the court
and are not statutory prerequisites that need to be
proven before termination can be ordered.’’ In re Quan-
itra M., 60 Conn. App. 96, 104, 758 A.2d 863, cert. denied,
255 Conn. 903, 762 A.2d 909 (2000). As to Mr. F., the
court makes the following findings as required by § 17a-
112 (k).
§ 17a-112 (k) (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
Mr. F. has been incarcerated in New Hampshire since
the department located him in July, 2019. The depart-
ment was therefore unable to refer him to services
in the community. The department discussed services
available to him in the correctional facility, including
substance abuse, mental health, and parenting pro-
grams, and recommended that he engage in those pro-
grams. Those programs, however, were suspended dur-
ing the pandemic.
§ 17a-112 (k) (2)
[W]hether the Department of Children and Families
has made reasonable efforts to reunite the family pur-
suant to the federal Adoption and Safe Families Act
of 1997, as amended from time to time
After Mr. F.’s paternity was established, the depart-
ment made reasonable efforts under the circumstances
presented to reunite the family pursuant to the federal
Adoption and Safe Families Act of 1997. The social
worker contacted him on a monthly basis to provide
information about the child, provided photographs of
the child to him, assessed his cousin as a placement
resource for the child, advised the father to participate
in programs to the extent they were available in the
correctional facility, and encouraged him to send letters
about himself to be shared with the child. His incarcera-
tion in New Hampshire made it impossible to refer him
for services in the community. His out-of-state incarcer-
ation, Emily’s young age and fragile health, and the
subsequent emergence of a pandemic precluded the
provision of visits.
§ 17a-112 (k) (3)
[T]he 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
The court ordered specific steps for the department
and Mr. F. to facilitate reunification. The department
complied with its obligations to the extent that it was
possible to do so. Mr. F.’s specific steps, and his compli-
ance or lack of compliance with them, were as follows:
• Keep all appointments set by or with DCF. Cooper-
ate with DCF home visits, announced or unan-
nounced, and visits by the child(ren)’s attorney and/
or guardian ad litem.
Mr. F. has been incarcerated in New Hampshire
throughout the entire time he has been known to the
department. He has cooperated with telephone calls
from the department.
• Let DCF, your attorney, and the attorney for the
child(ren) know where you and the child are at all
time.
Mr. F. has been incarcerated in New Hampshire since
the steps were ordered.
• Take part in counseling and make progress toward
the identified treatment goals: Parenting, Individual,
Family. The identified goals are: (1) Create and main-
tain safe, stable and nurturing home environment free
from domestic violence/substance abuse/criminal
activity. (2) Learn triggers for substance abuse and
alternate coping mechanisms. (3) Understand impact
of substance abuse on children. (4) Learn and demon-
strate age appropriate parenting skills in the areas of
supervision, discipline and developmental expecta-
tions. (5) Understand danger that criminal activity
presents to children. (6) Develop and implement
appropriate coping mechanisms to safely address
stressors of parenting. (7) Create and maintain nur-
turing relationship with Emily. (8) Address mental
health needs in individual counseling in order to
maintain emotion stability and be a stable resource
for Emily.
Mr. F. has not complied with this step. He remains
incarcerated and, before the onset of the pandemic,
had not engaged in any services that were available to
him at Strafford County Corrections in the areas of
substance abuse, mental health, or parenting. The avail-
ability of such programs was curtailed after the pan-
demic began.
• Submit to a substance abuse evaluation and follow
the recommendations about treatment, including
inpatient treatment if necessary, aftercare and relapse
prevention.
Mr. F. has not engaged in substance abuse program-
ming.
• Submit to random drug testing; the time and
method of the testing will be up to DCF to decide.
Mr. F. has not been referred for drug testing because
he is incarcerated.
• Not use illegal drugs or abuse alcohol or medicine.
Mr. F. denies use of illegal drugs, alcohol, or medicine
as he is currently incarcerated.
• Cooperate with service providers recommended
for parenting/individual/family counseling, in-home
support services and/or substance abuse assessment/
treatment: Substance abuse treatment at correctional
facility; Mental health assessment and treatment at
correctional facility.
Mr. F. has not engaged in substance abuse or mental
health services, which the correctional facility sus-
pended as a result of the pandemic.
• Cooperate with court-ordered evaluations or test-
ing.
No evaluations or testing have been ordered by the
court since the steps were ordered.
• Sign releases allowing DCF to communicate with
service providers to check on your attendance, coopera-
tion and progress toward identified goals, and for use
in future proceedings with this court. Sign the release
within 30 days.
Mr. F. has not been asked to sign any releases of
information.
• Sign releases allowing your child’s attorney and
guardian to review your child’s medical, psychologi-
cal, psychiatric and/or educational records.
No releases were needed because Emily is committed
to the department’s care.
• Get or maintain adequate housing and a legal
income.
Mr. F. is incarcerated and has a job in the correctional
facility. He does not have adequate housing or a legal
income outside the correctional facility.
• Immediately let DCF know about any changes in the
make-up of the household to make sure that the change
does not hurt the health and safety of the child(ren).
This step did not apply to Mr. F. because he was
incarcerated throughout the proceeding.
• Not get involved with the criminal justice system.
Cooperate with the Office of Adult Probation or parole
officer and follow your conditions of probation or
parole.
Mr. F. was incarcerated throughout this proceeding.
His federal criminal charges remain pending. There was
no evidence of new involvement in criminal activity
since the steps were ordered.
• Visit the child(ren) as often as DCF permits.
The department did not provide visits for Mr. F., who
was incarcerated in New Hampshire throughout his
involvement in this proceeding.
• Within thirty (30) days of this order, and at any
time after that, tell DCF in writing the name, address,
family relationship and birth date of any person(s)
who you would like the department to investigate and
consider as a placement resource for the child(ren).
Mr. F. complied with this step. He first proposed
an acquaintance in Maine, then proposed a cousin in
Hartford as a placement resource.
Having considered the parties’ compliance with the
specific steps, the court now addresses the remaining
factors under § 17a-112 (k).
§ 17a-112 (k) (4)
[T]he 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 phys-
ical care, custody or control of the child for at least
one year and with whom the child has developed signif-
icant emotional ties
Emily has never met Mr. F. and has no emotional
ties with him. He has never provided any physical care
for her. Despite encouragement from the social worker,
Mr. F. did not attempt to communicate with Emily by
writing letters or cards or having family members pro-
vide her with information about him.
Emily has been in the same foster home for two and
one-half years, since her discharge from the hospital
after her birth. She has been observed by social work-
ers, speech and physical therapists, developmental ther-
apists and her pediatrician to be deeply attached to her
foster mother. She calls her foster mother ‘‘mommy’’
and goes to her for comfort when she is upset. The
foster mother is willing to adopt Emily if she becomes
available for adoption.
§ 17a-112 (k) (5)
[T]he age of the child
Emily was born on August 5, 2018. She was two and
one-half years old as of the date of the termination trial.
She is now two years and eight months old.
§ 17a-112 (k) (6)
[T]he 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, communi-
cations or contributions, and (B) the maintenance of
regular contact or communication with the guardian
or other custodian of the child.
Since his paternity was adjudicated, Mr. F. has spo-
ken monthly with the social worker. He has proposed
placement resources and has asked about Emily’s well-
being. He has not written to Emily or tried to communi-
cate with her foster parent through the department.
Although he inquired about the possibility of visits, he
did not move to have visits ordered.
§ 17a-112 (k) (7)
[T]he 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.
Mr. F. has not been prevented from maintaining a
meaningful relationship with the child by the unreason-
able act or conduct of the other parent of the child, or
the unreasonable act of any other person or by his
economic circumstances of the parent. He refused tele-
phone contact with Ms. M. after their relationship
ended. It was his own criminal activity that led to his
incarceration and made him unavailable to develop and
maintain a relationship with Emily.
The court has carefully considered the seven factors
required by § 17a-112 (k) as well as all evidence con-
cerning Emily’s best interests in relation to the continu-
ation of Mr. F.’s parental rights. Mr. F. has testified as
to his love and concern for his daughter. Our courts
have recognized, however, that love and a biological
bond is not enough. See In re Ashley S., 61 Conn. App.
658, 667, 769 A.2d 718, cert. denied, 255 Conn. 950, 769
A.2d 61 (2001). A parent must also be able to provide
a safe, stable environment. As a result of his criminal
conduct, Mr. F. has never been available to provide a
home of any kind for Emily, and it is highly unlikely
that he will be able to provide a safe, stable environment
within any time that is reasonable in light of Emily’s
needs.
A parent must also be able to recognize and meet
his child’s developmental needs. It was clear from the
evidence that Mr. F. has a limited understanding of
the needs of young children generally and of Emily’s
specific physical, medical, and emotional needs. At the
outset of his involvement in the case, he did not think
it would cause any problems to move Emily to the home
of a stranger in Maine because she was so young. He
became upset with and hung up on the social worker
when she attempted to explain the trauma experienced
by children with changes in placement. Even at the time
of trial, he continued to believe that Emily should be
placed with his family rather than with the foster
mother, who he acknowledged had provided excellent
care. He persisted in this belief even though he had not
identified any family member who was willing and able
to care for her.
Emily needs a caregiver who is capable of nurturing
her, monitoring and attending to her many medical con-
ditions, assisting her in addressing the developmental
challenges she currently faces and those she will face
as she enters school, and ensuring that she receives
the services she will need to continue to develop and
grow. Mr. F. is not currently capable of providing such
nurture, and it is not foreseeable that he will be able
to do so within a reasonable time.
The court has also considered Emily’s need for per-
manence and stability. Mr. F. will have many challenges
upon his release from prison, including but not limited
to finding legal employment and avoiding further crimi-
nal activity. It is not in Emily’s best interest to wait for
an indefinite but undoubtedly protracted period of time
to see if Mr. F. can overcome those challenges.
Considering all the evidence presented, the court
finds, by clear and convincing evidence, that continua-
tion of Mr. F.’s parental rights is not in Emily’s best
interest, and that termination of Mr. F.’s parental rights
is in Emily’s best interest.
IV
CONCLUSION AND ORDERS AS TO THE
TERMINATION PETITION
In sum, for all the reasons stated [previously], the
court finds, by clear and convincing evidence, a statu-
tory ground exists for the termination of Mr. F.’s paren-
tal rights. More specifically, the court finds, by clear
and convincing evidence, that the department made
reasonable efforts to locate Mr. F., that Mr. F. was
unable or unwilling to benefit from reunification efforts,
that there is no ongoing parent-child relationship as
defined by § 17a-112 (j) (3) (D), and that to allow further
time for the establishment of such a relationship would
be detrimental to the best interest of the child. The
court also finds, by clear and convincing evidence, that
termination of Mr. F.’s parental rights is in Emily’s best
interest. Accordingly, the petition for termination of
parental rights is granted. Judgment is entered terminat-
ing the parental rights of Mr. F. as to Emily, and the
Commissioner of the Department of Children and Fami-
lies is appointed as Emily’s statutory parent. The depart-
ment shall file, within thirty days, a report as to the
status of the child and shall also timely file any addi-
tional reports that are required by law.
V
PERMANENCY PLAN
On April 6, 2020, after the petition for termination of
parental rights had been filed, the petitioner moved for
review of a permanency plan for Emily. By objection
dated April 15, 2020, Mr. F. opposed the proposed plan.3
The contested motion was consolidated for trial with
the termination of parental rights petition.
The proposed permanency plan is termination of the
father’s parental rights and adoption. The motion for
review is governed by General Statutes § 46b-129 (k)
and Practice Book § 35a-14. Under each provision, the
commissioner has the burden of proving by a fair pre-
ponderance of the evidence that the proposed perma-
nency plan is in the child’s best interests. Under the
statute, at a permanency plan hearing, ‘‘the court shall
approve a permanency plan that is in the best interests
of the child or youth and takes into consideration the
child’s or youth’s need for permanency. The child’s or
youth’s health and safety shall be of paramount concern
in formulating such plan.’’ General Statutes § 46b-129
(k) (2). Practice Book § 35a-14 (d) makes clear that
review of a permanency plan is a dispositional question,
based on the prior adjudication of neglect. The court
must also find that the department has made reasonable
efforts to achieve the existing permanency plan. See
General Statutes § 46b-129 (k) (4) (F); see also Practice
Book § 35a-14 (d). The prior plan, filed May 16, 2019,
and approved by the court, Lobo, J., on June 26, 2019,
was for termination of parental rights and adoption.
For the reasons discussed [previously] in consider-
ation of the petition for termination of the parental
rights of Mr. F., the court finds that the proposed perma-
nency plan of termination of the parental rights of Mr.
F. and adoption is in Emily’s best interest. The court
further finds that the department has made reasonable
efforts to achieve the most recent permanency plan.
Mr. F.’s objection to the proposed permanency plan is
overruled. The motion for review of the permanency
plan is granted, and the permanency plan is approved.
The clerk shall establish dates for the department to
file the next permanency plan and for hearing on the
plan and notify the parties thereof.
So ordered.
* Affirmed. In re Emily S., 210 Conn. App. , A.3d (2022).
In accordance with General Statutes § 46b-124 (b) and Practice Book
§ 32a-7, the names of the parties to this case are not to be disclosed. The
records and papers of this case shall be open for inspection only to persons
having a proper interest therein and only upon order of the Superior Court.
1
Where a child’s paternity is not known at the time of an adjudication of
neglect, the subsequent entry of the father into the proceeding does not
invalidate the previous adjudication of neglect. See In re Zoey H., 183 Conn.
App. 327, 352–53, 192 A.3d 522 (respondent’s later appearance in case did
not change historical fact that child was neglected at time of adjudication),
cert. denied, 330 Conn. 906, 192 A.3d 426 (2018). Mr. F.’s entry into the
ongoing neglect case allowed him to be provided with specific steps and
to participate in any dispositional issues that arose. ‘‘[A]n adjudication of
neglect relates to the status of the child and is not necessarily premised on
parental fault. A finding that the child is neglected is different from finding
who is responsible for the child’s condition of neglect. Although [General
Statutes] § 46b-129 requires both parents to be named in the petition, the
adjudication of neglect is not a judgment that runs against a person or
persons so named in the petition; [i]t is not directed at them as parents,
but rather is a finding that the children are neglected . . . .’’ (Emphasis in
original; internal quotation marks omitted.) In re T.K., 105 Conn. App. 502,
505–506, 939 A.2d 9, cert. denied, 286 Conn. 914, 945 A.2d 976 (2008). At
the trial in this matter, no party raised any issue with respect to the neglect
adjudication, and the court therefore does not need to address it in this deci-
sion.
2
A Level 3 classification of a child with complex medical needs is defined
by the department’s practice guide, in relevant part, to mean ‘‘a child with
a chronic condition that is not well-controlled or which requires daily or
regular intensive medical follow-up or treatment, including severe forms of
chronic disease such as . . . severe persistent asthma which requires inten-
sive and ongoing medical follow-up or has required an acute hospitalization
or [pediatric intensive care unit] admission in the past six months.’’ Depart-
ment of Children and Families, ‘‘Health Care Standards and Practice for
Children and Youth in Care,’’ Children with Complex Medical Needs, p. 86,
available on the department’s website at https://portal.ct.gov/-/media/DCF/
Policy/BPGuides/21-5PG-HEALTH-CARE-STANDARDS-AND-PRACTICE-
FOR-YOUTH-IN-CARE-PRACTICE-GUIDE.pdf (last visited on April 21,
2021).
3
Because of the temporary closure of the New Britain juvenile clerk’s
office at the outset of the pandemic, the objection was not stamped as
received until June 1, 2020. Under the circumstances, the objection was
timely.