In re Malachi E. , 188 Conn. App. 426 ( 2019 )

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IN RE MALACHI E.*
(AC 41875)
Lavine, Bright and Moll, Js.
Syllabus
The respondent mother appealed to this court from the judgment of the
trial court terminating her parental rights with respect to her minor
child. She claimed that the trial court erred with respect to the disposi-
tional phase of the proceedings in that it improperly determined that
the termination of her parental rights was in the best interest of the
child. Held:
1. The respondent mother could not prevail on her claim that the trial court
erred when it relied entirely on its adjudicatory determination that she
had failed to achieve sufficient personal rehabilitation in determining
whether the termination of her parental rights was in the best interest
of the child; that court did not rely entirely on its adjudicatory determina-
tion in making its dispositional determination, as the court unambigu-
ously made its best interest determination by considering, in addition
to the mother’s failure to rehabilitate, the seven factors prescribed by
statute (§ 17a-112 [k]), including the past effect of the mother’s conduct
on the child, her then present ability to care for the child, the effect of
the mother’s prospective ability to rehabilitate in order to care for the
child, the need for permanency, continuity, and stability in the child’s
life, and the child’s need to end the period of uncertainty, and it expressly
stated that it was making its determination considering multiple other
factors pertaining to the child, and that it had balanced the child’s needs
against the benefits of maintaining a connection with the mother.
2. The trial court’s best interest determination was factually supported and
legally correct, and was not clearly erroneous; there was an abundance
of evidence presented to support that court’s determination that termina-
tion of the respondent mother’s parental rights was in the best interest
of the child, including the court’s unchallenged factual findings regarding
the mother’s parental defects, the likelihood that those defects would
continue into the future, and the need for the child to have stability in
his life, and although the mother relied on other findings that were more
favorable to her position, specifically, that the child was being cared
for by the child’s grandmother in the same residence as the mother and
that the mother was making progress in her rehabilitation, those facts
did not provide a basis to reverse the trial court’s determination, as this
court declined to place more emphasis on certain of the trial court’s
findings to reach a conclusion on appeal that differed from that of the
trial court.
Argued January 11—officially released March 6, 2019**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Hartford, Juvenile Mat-
ters, where the respondent father was defaulted for
failure to appear; thereafter, the matter was tried to the
court, C. Taylor, J.; judgment terminating the respon-
dents’ parental rights, from which the respondent
mother appealed to this court. Affirmed.
Joshua Michtom, assistant public defender, for the
appellant (respondent mother).
Benjamin A. Abrams, assistant attorney general,
with whom were Benjamin Zivyon, assistant attorney
general, and, on the brief, George Jepsen, attorney gen-
eral, for the appellee (petitioner).
Opinion
BRIGHT, J. The respondent mother appeals from the
judgment of the trial court terminating her parental
rights with respect to her minor child, Malachi E.1 On
appeal, the respondent claims that the court erred in
determining that the termination of her parental rights
was in the best interest of the child because (1) the
court relied entirely on its adjudicatory determination
that the respondent had failed to achieve sufficient per-
sonal rehabilitation, and (2) there was no evidence to
support its determination that the termination of her
parental rights was in the best interest of the child.2
We affirm the judgment of the trial court.
The following facts, which the court found by clear
and convincing evidence, none of which the respondent
challenges on appeal, and procedural history are rele-
vant to the resolution of this appeal. The child was born
in December, 2015, and is the respondent’s only child.
The child, the respondent, and the child’s maternal
grandmother (grandmother) have lived together in a
two family home owned by the grandmother since the
child’s birth. On May 5, 2016, the grandmother reported
to Monique Frey, a parent educator, who was employed
by the Catholic Charities Nurturing Families Program
and was working with the respondent, that she was
concerned about the safety of the child. In particular,
the grandmother reported that the respondent is an
alcoholic, is aggressive when she is drunk, is depressed
and has bipolar disorder, and that the child had fallen
off of a bed on two occasions. Frey then reported the
grandmother’s concerns to the Department of Children
and Families (department). On that same date, person-
nel from the department went to the respondent’s resi-
dence to discuss the report, but the respondent was
defensive and refused to cooperate.
On May 6, 2016, the grandmother reported to the
department that the respondent began drinking alcohol
after its personnel had departed from the residence.
The grandmother also elaborated on her prior report,
stating that the respondent has a prior history of drink-
ing alcohol and smoking marijuana, that she suffers
from blackouts when she drinks, and that she appropri-
ately cares for the child when she is sober. On that
same date, the department’s personnel returned to the
respondent’s residence. Upon their arrival, the respon-
dent became verbally and physically aggressive, and
expressed a suicidal intent. As a result, she was taken
to Hartford Hospital for a seventy-two hour hold and
a mental health assessment. On May 7, 2016, the respon-
dent was discharged from Hartford Hospital.
On May 9, 2016, personnel from the department met
with the respondent regarding the future supervision
of the child. At the meeting, the respondent admitted
that she had a long history of substance abuse and
mental health issues, that she had been in and out of
treatment for many years, that she had not been taking
her prescribed medications for over a year, and that
the child had fallen off a bed. The respondent agreed
to submit to a substance abuse and mental health
assessment at Wheeler Clinic, and to comply with any
recommendations stemming therefrom. She also agreed
to permit the grandmother to be the primary caretaker
of the child until the respondent had made progress in
her treatment, and that she would have only supervised
contact with the child.
On June 20, 2016, the petitioner, the Commissioner
of Children and Families, filed a neglect petition on
behalf of the child and an addendum in which she
claimed that the child had been denied proper care
and attention as a result of the respondent’s substance
abuse, mental health issues, and the incidents in which
the child had fallen from a bed. On June 21, 2016,
Wheeler Clinic reported that the respondent had
refused to comply with its recommendation that she
participate in individual counseling or trauma-focused
therapy to address her history of abuse and trauma.
The next day, the grandmother reported to the depart-
ment that the respondent continued to drink alcohol
on the weekends. On August 4, 2016, the respondent,
who was represented by counsel, appeared in court
and denied the allegations of the neglect petition. The
respondent then refused two subsequent recommenda-
tions for additional counseling services at Wheeler
Clinic. On September 6, 2016, the grandmother reported
to the department that the respondent had been intoxi-
cated over the weekend and, consequently, the respon-
dent was hospitalized first at Hartford Hospital, and
then at the Institute of Living.
On September 12, 2016, the petitioner filed a motion
for temporary custody of the child that was supported
by an affidavit attested to by a social worker. Therein,
the petitioner alleged, on the basis of the same facts
as the neglect petition, that the child was in physical
danger from his surroundings, that immediate removal
was necessary to ensure his safety, and that reasonable
efforts had been made to eliminate the need to remove
the child. On the same date, the court granted the
motion for temporary custody, pending a hearing that
was scheduled for September 16, 2016, and ordered
specific steps for the respondent’s rehabilitation. On
September 13, 2016, the petitioner filed an amended
neglect petition.
On September 16, 2016, the respondent appeared in
court with counsel, she agreed that the motion for tem-
porary custody could be sustained, and the court issued
specific steps for the respondent’s rehabilitation. On
approximately the same date, the child was removed
from the custody of the respondent and placed in the
care of the grandmother, who lived in the same resi-
dence. Since that time, the grandmother has continued
to care for the child ‘‘full-time,’’ and the respondent has
maintained frequent contact and visits with the child,
which have been supervised by the grandmother.
On November 8, 2016, the respondent entered a plea
of nolo contendre to the neglect petition. On that same
date, the court issued final specific steps for the respon-
dent’s rehabilitation. In accordance with the specific
steps, the respondent was referred to several service
providers, including Radiance Innovative Services, and
engaged in services to address her mental health and
alcohol use. Nevertheless, she achieved limited prog-
ress and continued to minimize her issues with alcohol
and her history of trauma.
On May 4, 2017, a meeting was held among the respon-
dent, a clinician from Radiance Innovative Services,
and the department’s personnel. At the meeting, the
clinician reported that the respondent never expressed
any accountability or responsibility for past incidents,
denied being intoxicated and claimed to have had just
one drink when she was out at dinner with a friend,
refused an offer of shelter or sober living housing
because she wanted to retain her freedom, continued
to minimize her issues with her alcohol use, and stated
that alcohol was not an issue for her. On May 18, 2017,
the department referred the respondent to the Thera-
peutic Family Time Program; however, on June 6, 2017,
it learned that the respondent had been discharged for
her failure to complete the intake process.
On June 13, 2017, the petitioner filed a motion to
review a permanency plan that recommended the termi-
nation of the respondent’s parental rights and subse-
quent adoption of the child. On June 28, 2017, the
department’s personnel conducted a home visit during
which the respondent adamantly refused to participate
in any additional programs, and said that the depart-
ment could keep the child. During that same visit, the
grandmother confirmed that the petitioner was drinking
alcohol the day prior to the May 4, 2017 meeting.
In August and September, 2017, the department
started facilitating weekly supervised visits at its office.
During that time, the respondent reported to the depart-
ment that she had been consistently attending therapy,
working on her issues, and was making progress in her
treatment. She expressed an interest in reunification
with the child and recognized that she had made some
mistakes. On September 13, 2017, the clinician reported
that the respondent was more stable and was doing
well and, as a result, the frequency of her sessions was
reduced from weekly to biweekly. On September 20,
2017, Frey reported that their recent sessions had been
‘‘okay’’ compared to prior sessions and that the respon-
dent expressed an interest in ending the process so that
she could parent the child.
On October 15, 2017, the court granted the petition-
er’s motion to review and approved the permanency
plan. On October 16, 2017, the petitioner filed a petition
to terminate the respondent’s parental rights with
respect to the child. The petitioner claimed, among
other things, that the child had been found to be
neglected and that the respondent had failed to achieve
the required degree of personal rehabilitation. On
November 16, 2017, the respondent appeared in court
and denied the allegations of the petition.
On June 5, 2018, after a one day trial, the court issued
a memorandum of decision in which it granted the
petition to terminate the respondent’s parental rights.
The court made extensive findings of fact and con-
cluded that the petitioner had met her burden to estab-
lish by clear and convincing evidence that statutory
grounds for termination existed and that termination
was in the best interest of the child.
With respect to the statutory grounds for termination,
the court determined that the child previously had been
adjudicated neglected and that the respondent had
failed to achieve a sufficient degree of personal rehabili-
tation because she failed to comply fully with the spe-
cific steps for her rehabilitation that were ordered by
the court on September 12 and 16, and November 8,
2016. In particular, the court determined that the
respondent had not, and would not, overcome her men-
tal health and substance abuse problems within a rea-
sonable time so that she would ‘‘be able to serve as a
safe, responsible, and nurturing parent for [the child]
. . . .’’ The court also determined that termination of
the respondent’s parental rights was in the best interest
of the child because, in light of the importance of long-
term stability and the need for expedient custodial
determinations, the respondent had not been, and
would not be able to be, a safe, responsible, and nurtur-
ing parent for the child. This appeal followed. Additional
facts will be set forth as necessary.
Before discussing the respondent’s claims, we briefly
set forth the legal principles that govern our review.
‘‘Proceedings to terminate parental rights are governed
by [General Statutes] § 17a-112. . . . Under [that provi-
sion], a hearing on a petition to terminate parental rights
consists of two phases: the adjudicatory phase and the
dispositional phase. During the adjudicatory phase, the
trial court must determine whether one or more of the
. . . grounds for termination of parental rights set forth
in § 17a-112 [(j) (3)] exists by clear and convincing
evidence. The commissioner . . . in petitioning to ter-
minate those rights, must allege and prove one or more
of the statutory grounds.’’ (Internal quotation marks
omitted.) In re Egypt E., 327 Conn. 506, 526, 175 A.3d
21, cert. denied sub nom. Morsy E. v. Commissioner,
Dept. of Children & Families, U.S. , 139 S. Ct. 88,
202 L. Ed. 2d 27 (2018). ‘‘Also, as part of the adjudicatory
phase, the department is required to prove, by clear
and convincing evidence, that it has made reasonable
efforts . . . to reunify the child with the parent, unless
the court finds . . . that the parent is unable or unwill-
ing to benefit from reunification . . . .’’ (Internal quota-
tion marks omitted.) In re Elijah C., 326 Conn. 480,
500, 165 A.3d 1149 (2017); see General Statutes § 17a-
112 (j) (1).
‘‘If the trial court determines that a statutory ground
for termination exists, then it proceeds to the disposi-
tional phase.’’ (Internal quotation marks omitted.) In
re Elijah C., supra, 326 Conn. 500. ‘‘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 inter-
est of the child. In arriving at this decision, the court
is mandated to consider and make written findings
regarding seven factors delineated in [§ 17a-112 (k)].3
. . . The seven factors serve simply as guidelines for
the court and are not statutory prerequisites that need
to be proven before termination can be ordered. . . .
There is no requirement that each factor be proven
by clear and convincing evidence.’’ (Footnote added;
internal quotation marks omitted.) In re Athena C., 181
Conn. App. 803, 811, 186 A.3d 1198, cert. denied, 329
Conn. 911, 186 A.3d 14 (2018); see In re Nevaeh W., 317
Conn. 723, 740, 120 A.3d 1177 (2015). ‘‘In the disposi-
tional phase . . . the emphasis appropriately shifts
from the conduct of the parent to the best interest of
the child. . . . The best interests of the child include
the child’s interests in sustained growth, development,
well-being, and continuity and stability of [his or her]
environment.’’ (Internal quotation marks omitted.) In
re Athena C., supra, 811. ‘‘Because a respondent’s funda-
mental right to parent his or her child is at stake, [t]he
statutory criteria must be strictly complied with before
termination can be accomplished and adoption pro-
ceedings begun.’’ (Internal quotation marks omitted.)
In re Elijah C., supra, 326 Conn. 500.
On appeal, the respondent does not contest the
court’s determination with respect to the adjudicatory
phase, namely, that she had failed to achieve rehabilita-
tion, or any of the court’s factual findings. Instead, the
respondent claims that the court erred with respect to
the dispositional phase because it improperly deter-
mined that the termination of her parental rights was
in the best interest of the child. We now turn to each
of the respondent’s claims that challenge the court’s
best interest determination.
I
The respondent first claims that the court erred
because it relied entirely on the respondent’s failure
to achieve rehabilitation in determining whether the
termination of her parental rights was in the best inter-
est of the child. In particular, the respondent argues
that the court conflated the adjudicatory phase with
the dispositional phase when it improperly failed to
‘‘perform a separate analysis of [the child’s] best inter-
ests,’’ as required by § 17a-112 (j) (2), because the court
‘‘entirely substituted the [respondent’s] failure to reha-
bilitate as the basis for its best interests determination.’’
We disagree.
We first set forth the applicable standard of review
and specific legal principles that govern our analysis
of this claim. ‘‘The interpretation of a trial court’s judg-
ment presents a question of law over which our review
is plenary. . . . As a general rule, judgments are to be
construed in the same fashion as other written instru-
ments. . . . The determinative factor is the intention
of the court as gathered from all parts of the judgment.
. . . Effect must be given to that which is clearly
implied as well as to that which is expressed. . . . The
judgment should admit of a consistent construction as
a whole.’’ (Internal quotation marks omitted.) In re
James O., 322 Conn. 636, 649, 142 A.3d 1147 (2016).
Our Supreme Court repeatedly has held that the adju-
dicatory phase is separate from the dispositional phase.
‘‘It is axiomatic that, once a child has been adjudicated
neglected, the dispositional decision must be based on
the best interest of the child and that the interest of
the child and the parent may diverge.’’ In re Natalie S.,
325 Conn. 833, 847, 160 A.3d 1056 (2017); see In re Baby
Girl B., 224 Conn. 263, 280, 618 A.2d 1 (1992) (‘‘[o]ur
statutes and caselaw make it crystal clear that the deter-
mination of the child’s best interests comes into play
only after statutory grounds for termination of parental
rights have been established by clear and convincing
evidence’’ [emphasis omitted; internal quotation marks
omitted]); In re Jessica M., 217 Conn. 459, 466 n.5, 586
A.2d 597 (1991) (statute permitting the termination of
parental rights ‘‘expressly requires the court to find, in
addition to the existence of an enumerated ground for
termination, that such termination is in the best inter-
ests of the child’’).
Although the emphasis shifts from the parent to the
child in the dispositional phase; In re Athena C., supra,
181 Conn. App. 811; a trial court is not required to
blind itself to any parental deficiencies that also were
considered during the adjudicatory phase. Our prece-
dents establish that the consideration of the parent’s
circumstances, including the parent’s degree of rehabili-
tation, is proper during the dispositional phase.4 Indeed,
the respondent explicitly recognizes in her brief on
appeal that the determinations made in the adjudicatory
and dispositional phases ‘‘may often be so intertwined
that the former leads almost inexorably to the latter
. . . .’’ Nevertheless, she argues that the court improp-
erly failed to make the required best interest determina-
tion because it relied entirely on her failure to
rehabilitate. We disagree with the respondent’s inter-
pretation of the court’s decision.
The court made the following relevant findings and
determinations with respect to the adjudicatory phase
and the dispositional phase. In reaching its determina-
tion that the respondent had failed to achieve a suffi-
cient degree of personal rehabilitation, which is
unchallenged on appeal, the court found that the
respondent had failed to comply fully with nine of the
seventeen specific steps that were ordered by the court
on September 12 and 16, and November 8, 2016.5 The
court found that the respondent had ‘‘been unable to
correct the factors that led to the initial commitment
of her child, insofar as she is concerned. The clear
and convincing evidence reveals that from the date of
commitment through . . . the time of trial, [the respon-
dent] ha[d] not been available to take part in her son’s
life in a safe, nurturing, and positive manner, and, based
on her issues of mental health, substance abuse, parent-
ing deficits, and a failure to complete and benefit from
counseling and services, she will never be consistently
available to [the child].’’
The court further found that, although the respondent
had attended ‘‘various referrals and programs for coun-
seling’’ and that she was making progress in her rehabili-
tation treatment, she had ‘‘failed to show any consistent
and adequate benefit from these referrals,’’ and she had
‘‘failed to improve her parenting ability to acceptable
standards as far as her child’s safety and emotional
needs are concerned.’’ The court also found that the
petitioner ‘‘ha[d] demonstrated, by clear and convincing
evidence, that [the respondent] cannot exercise the
appropriate judgment necessary to keep [the child] safe
and healthy and to maximize his abilities to achieve,’’
that ‘‘it is patently clear that [the respondent was] not
in a better position to parent her child than she was at
the time of [the child’s] commitment, and still remains
without the qualities necessary to successfully parent
him,’’ and that ‘‘[g]iven th[e] respondent’s history of
mental health and substance abuse issues, it is reason-
able to infer that she will remain besieged by these
issues for some extensive time, and that she will not
be physically available to serve as a custodial resource
for [the child] during the time frame for rehabilitation
contemplated in § 17a-112 (j) (3) (B) [(ii)].’’
In reaching its determination that the termination of
the respondent’s parental rights was in the best interest
of the child, the court first made the required findings
as to each of the statutory factors provided by § 17a-
112 (k). In sum, it determined that (1) the petitioner had
made available timely, appropriate, and comprehensive
reunification services to the respondent, (2) the peti-
tioner had made reasonable efforts to reunify the
respondent and the child, (3) the respondent had failed
to comply with nine of the seventeen court ordered
specific steps, (4) the respondent has a strong relation-
ship and bond with the child, (5) the child was twenty-
nine months old, (6) the respondent had been unable
or unwilling to make a realistic and sustained effort to
conform her conduct to acceptable parental standards,
and (7) there was no unreasonable conduct by any
party that prevented the respondent from maintaining
a relationship with the child. In doing so, the court
incorporated, in a summary fashion, the same factual
findings that led to its conclusion in the adjudicatory
phase that the respondent had failed to comply with
the specific steps and that she failed to benefit from
those services. For instance, the court, consistent with
its earlier findings, found that although the respondent
had ‘‘complete[d] some programs . . . these programs
failed to [affect] sufficient change . . . to correct [the
respondent’s] inability to appropriately parent [the
child].’’
The court then outlined that it had ‘‘examined multi-
ple relevant factors, including the child’s interests in
sustained growth, development, well-being, stability,
and continuity of his environment; his length of stay in
foster care; the nature of his relationships with his foster
parent and his biological parents; and the degree of
contact maintained with [the respondent],’’ and that it
had ‘‘balance[d] the child’s intrinsic needs for stability
and permanency against the benefits of maintaining a
connection with [the respondent].’’
The court then found that ‘‘[t]he clear and convincing
evidence shows that [the respondent] ha[d] demon-
strated mental health issues, substance abuse issues,
parenting deficits, and a failure to fully benefit from
counseling and services,’’ that she ‘‘was unable to appro-
priately address these issues by the time of the filing
of the [termination of parental rights] petition,’’ that
‘‘[h]er ability to care for her son remained as poor at
the time of the . . . trial as it was at the inception of
the case,’’ that she ‘‘remained incapable of being a safe,
nurturing, and responsible parent for [the child],’’ that
‘‘despite her referrals and services, [the respondent]
ha[d] failed to rehabilitate herself sufficiently to be a
safe, nurturing, and responsible parent for [the child],’’
and that ‘‘too much time ha[d] already elapsed to justify
giving [the respondent] further time to show her rehabil-
itation.’’
The court further found that ‘‘the time that the
[respondent] need[s] to attempt to rehabilitate . . . as
[a] safe, nurturing, and responsible [parent], if that were
possible, is time that the child cannot spare,’’ that the
respondent’s parental performance shows that she
‘‘lacks the attributes and characteristics necessary to
fulfill a valid parental role,’’ that the respondent’s failure
to address her issues in a timely manner ‘‘clearly and
convincingly show[s] that it is unlikely that [she] will
ever be able to conform [her] individual behaviors to
appropriate parental standards or be able to serve as a
safe, nurturing, and responsible [parent] for [the child],’’
that given her ‘‘individual behaviors and performances
so far, [the] court [could not] foresee either respondent
parent in this case ever having the ability or the patience
to follow the regimen necessary for their child to max-
imize his abilities and achievements,’’ that her ‘‘inability
to remain sober and to comply with treatment require-
ments speaks volumes of her lack of ability to parent
her son and to keep [the child] safe in the long run,’’
and that the child ‘‘can no longer wait for permanency,
continuity, and stability in his life.’’
The court then outlined the principles of long-term
stability and the exigency of termination of parental
rights proceedings and concluded that ‘‘the clear and
convincing evidence in this case establishes that [the
child] is entitled to the benefit of ending, without further
delay, the period of uncertainty he has lived with as to
the unavailability of [the respondent] as [caretaker].
. . . Having balanced [the child’s] individual and intrin-
sic needs for stability and permanency against the bene-
fits of maintaining a connection with the [respondent],
the clear and convincing evidence in this case estab-
lishes that the child’s best interests cannot be served
by continuing to maintain any legal relationship to
the [respondent].’’
The foregoing discussion makes clear that, contrary
to the respondent’s claim, the court did not rely entirely
on its adjudicatory determination in making its disposi-
tional determination. Instead, the court unambiguously
made its best interest determination considering, not
only the respondent’s failure to rehabilitate, but also
the seven statutory factors prescribed by § 17a-112 (k),
the past effect of the respondent’s conduct on the child,
her then present ability to care for the child, the effect
of the respondent’s prospective ability to rehabilitate
in order to care for the child, the need for permanency,
continuity, and stability in the child’s life, and the child’s
need to end the period of uncertainty. Further, the court
expressly stated that it was making its determination
considering multiple other factors pertaining to the
child, and that it had balanced the child’s needs against
the benefits of maintaining a connection with the
respondent. Therefore, we conclude that the court did
not rely solely on the respondent’s past failures to
achieve rehabilitation in determining whether the termi-
nation of her parental rights was in the best interest of
the child.
II
The respondent also claims that there was no evi-
dence to support the court’s determination that termina-
tion of her parental rights was in the best interest of
the child. The respondent argues that, contrary to the
court’s determination, the evidence presented relating
to her unique circumstances demonstrates that this is
the rare case in which termination was not warranted.
In particular, the respondent argues that termination
was improper because the court found, among other
things, that the child is currently being cared for by
the grandmother in the same residence in which the
respondent resides, and the respondent was making
progress in her rehabilitation treatment. We disagree.
We first set forth the applicable standard of review
that governs our analysis of this claim. ‘‘[A]n appellate
tribunal will not disturb a trial court’s finding that termi-
nation of parental rights is in a child’s best interest
unless that finding is clearly erroneous. . . . On
appeal, our function is to determine whether the trial
court’s conclusion was factually supported and legally
correct. . . . In doing so, however, [g]reat weight is
given to the judgment of the trial court because of
[the court’s] opportunity to observe the parties and the
evidence. . . . We do not examine the record to deter-
mine whether the trier of fact could have reached a
conclusion other than the one reached. . . . [Rather]
every reasonable presumption is made in favor of the
trial court’s ruling.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Davonta V., 285 Conn. 483,
488, 940 A.2d 733 (2008); see also In re Brayden E.-H.,
309 Conn. 642, 657, 72 A.3d 1083 (2013).6
‘‘[T]he balancing of interests in a case involving termi-
nation of parental rights is a delicate task and, when
supporting evidence is not lacking, the trial court’s ulti-
mate determination as to a child’s best interest is enti-
tled to the utmost deference. . . . Although a judge
[charged with determining whether termination of
parental rights is in a child’s best interest] is guided by
legal principles, the ultimate decision [whether termina-
tion is justified] is intensely human. It is the judge in
the courtroom who looks the witnesses in the eye, inter-
prets their body language, listens to the inflections in
their voices and otherwise assesses the subtleties that
are not conveyed in the cold transcript.’’ (Internal quota-
tion marks omitted.) In re Nevaeh W., supra, 317
Conn. 740.
In the present case, there was an abundance of evi-
dence presented to support the court’s determination
that termination of the respondent’s parental rights was
in the best interest of the child. On the basis of the
evidence presented, the court found that the following
facts had been proven by clear and convincing evidence.
The respondent had not been, and would not be, a safe,
responsible, and nurturing parent for the child. The
respondent’s mental health issues, substance abuse
issues, parenting deficits, and a failure to fully benefit
from counseling and services are antagonistic to the
best interest of the child. The child required perma-
nency, continuity, and stability in his life, and an end
to the period of uncertainty. The court also made addi-
tional findings as to the seven factors mandated under
§ 17a-122 (k), including that the respondent had failed
to comply with a majority of the court ordered specific
steps and that she had been unable or was unwilling
to make a realistic and sustained effort to conform her
conduct to acceptable parental standards. The respon-
dent does not challenge any of the court’s factual find-
ings on appeal.
Affording the utmost deference to the court’s deci-
sion, we conclude that the court’s best interest determi-
nation was not clearly erroneous. The combination of
the court’s unchallenged factual findings regarding the
respondent’s parental defects, the likelihood that those
defects would continue into the future, and the need
for the child to have stability in his life, support the
court’s determination. Although the respondent directs
our attention to other findings that are more favorable
to her position, specifically, that the child is being cared
for by the grandmother in the same residence as the
respondent and that the respondent was making prog-
ress in her rehabilitation, these facts do not provide us
a basis to reverse the court’s determination. We decline
the respondent’s invitation to place more emphasis on
certain of the court’s findings so that we might reach
a conclusion on appeal that differs from that of the
trial court.
Therefore, we conclude that the court’s best interest
determination was factually supported and legally
correct.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** March 6, 2019, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The court also terminated the parental rights of John Doe, the unknown
father to the child, because he previously had been defaulted for failure to
appear. In light of the fact that John Doe has not appealed from the judgment
of the trial court, we refer in this opinion to the respondent mother as
the respondent.
2
The child’s attorney, pursuant to Practice Book § 67-13, adopted the
respondent’s brief on appeal.
3
General Statutes § 17a-112 (k) provides: ‘‘Except in the case where termi-
nation of parental rights is based on consent, in determining whether to
terminate parental rights under this section, the court shall consider and
shall make written findings regarding: (1) The timeliness, nature and extent
of services offered, provided and made available to the parent and the child
by an agency to facilitate the reunion of the child with the parent; (2)
whether the Department of Children and Families has made reasonable
efforts to reunite the family pursuant to the federal Adoption and Safe
Families Act of 1997, as amended from time to time; (3) the terms of any
applicable court order entered into and agreed upon by any individual or
agency and the parent, and the extent to which all parties have fulfilled
their obligations under such order; (4) the feelings and emotional ties of
the child with respect to the child’s parents, any guardian of such child’s
person and any person who has exercised physical care, custody or control
of the child for at least one year and with whom the child has developed
significant emotional ties; (5) the age of the child; (6) the efforts the parent
has made to adjust such parent’s circumstances, conduct, or conditions to
make it in the best interest of the child to return such child home in the
foreseeable future, including, but not limited to, (A) the extent to which
the parent has maintained contact with the child as part of an effort to
reunite the child with the parent, provided the court may give weight to
incidental visitations, communications or contributions, and (B) the mainte-
nance of regular contact or communication with the guardian or other
custodian of the child; and (7) the extent to which a parent has been
prevented from maintaining a meaningful relationship with the child by
the unreasonable act or conduct of the other parent of the child, or the
unreasonable act of any other person or by the economic circumstances of
the parent.’’
4
This court consistently has affirmed a trial court’s best interest determi-
nation that was based, at least in part, on the court’s previous findings
relating to a parent’s failure to rehabilitate. See, e.g., In re Savannah Y.,
172 Conn. App. 266, 281–82, 158 A.3d 864 (affirming trial court’s best interest
determination that was ‘‘largely based upon the respondent’s chronic mental
health and substance abuse issues’’), cert. denied, 325 Conn. 925, 160 A.3d
1067 (2017); In re Harmony Q., 171 Conn. App. 568, 574–75, 157 A.3d 137(rejecting claim that trial court erred in making best interest determination
on ground that court improperly determined that respondent failed to reha-
bilitate), cert. denied, 325 Conn. 915, 159 A.3d 232 (2017); In re Gianni C.,
129 Conn. App. 227, 237–38, 19 A.3d 233 (2011) (affirming trial court’s best
interest determination that was made, in part, on the basis of respondent’s
failure to rehabilitate within reasonable time period); In re Sole S., 119 Conn.
App. 187, 193–94, 986 A.2d 351 (2010) (affirming trial court’s best interest
determination that was made, in part, on the basis of psychologist testimony
that it ‘‘would be in the child’s best interest to give [the respondent] more
time to achieve personal rehabilitation’’); In re Janazia S., 112 Conn. App.
69, 99–100, 961 A.2d 1036 (2009) (affirming trial court’s best interest determi-
nation that was made, in part, on the basis of ‘‘abundant evidence of the
respondent parents’ ongoing struggles with criminal behavior and
addiction’’).
5
Specifically, the court found that the respondent had failed to comply
fully with the following nine steps: (1) to keep appointments with the depart-
ment and to cooperate with home visits by the department and the represen-
tative for the child; (2) to take part in parenting and individual counseling;
(3) to submit to substance abuse assessments and to follow the recommenda-
tions regarding treatment; (4) to submit to random drug testing; (5) not to
use illegal drugs or abuse alcohol or medicine; (6) to cooperate with service
providers recommended for counseling, services, and substance abuse
assessment or treatment; (7) to sign releases allowing the department to
communicate with her service providers to check attendance, cooperation,
and progress toward identified goals; (8) to secure and maintain adequate
housing and legal income; and (9) to take all psychotropic medication as pre-
scribed.
6
We note that our Supreme Court has clarified that a trial court’s ultimate
conclusion that a ground for termination of parental rights has been proven
presents a question of evidentiary sufficiency. See In re Shane M., 318 Conn.
569, 587–88, 122 A.3d 1247 (2015) (clarifying standard of review); see also In
re Egypt E., supra, 327 Conn. 525–26 (‘‘[a]lthough the trial court’s subordinate
factual findings are reviewable only for clear error, the court’s ultimate
conclusion that a ground for termination of parental rights has been proven
presents a question of evidentiary sufficiency’’ [internal quotation marks
omitted]).
Since In re Shane M., our Supreme Court has not had occasion to apply
the evidentiary sufficiency standard of review to a court’s best interest
determination. As a result, this court has either declined to decide whether
to apply the evidentiary sufficiency standard of review to a best interest
claim; see, e.g., In re Elijah G.-R., 167 Conn. App. 1, 29–30 n.11, 142 A.3d
482 (2016); In re Nioshka A. N., 161 Conn. App. 627, 637 n.9, 128 A.3d 619,
cert. denied, 320 Conn. 912, 128 A.3d 955 (2015); or has continued to apply
the clearly erroneous standard of review. See, e.g., In re Angelina M., 187
Conn. App. 801, 803–804, A.3d (2019) (clearly erroneous); In re Gabri-
ella C.-G., 186 Conn. App. 767, 770, A.3d (2018) (clearly erroneous),
cert. denied, 330 Conn. 969, A.3d (2019); contra In re Athena C., supra,181 Conn. App. 809, 815–17 (evidentiary sufficiency).
We see no reason why the standard of review applicable to the adjudica-
tory phase would also not apply to the dispositional phase, particularly in
cases, as in the present case, in which the court’s factual findings are
uncontested; however, we decline to apply the evidentiary sufficiency stan-
dard instead of the clearly erroneous standard of review for the following
reasons. First, we decline to adopt a standard of review for a best interest
determination that our Supreme Court has yet to adopt. Second, both parties
on appeal agree that the clearly erroneous standard of review applies to
the present claim. Third, the evidence in the present case supports the
court’s determination under either standard because, as articulated by this
court in In re Nioshka A. N., ‘‘if the evidence upon which we have relied
in finding that the trial court’s best interest determination was not clearly
erroneous were considered under the evidentiary sufficiency standard, and,
thus, was construed in the light most favorable to upholding the trial court’s
best interest determination . . . that evidence, so construed, would be suffi-
cient to prove by clear and convincing evidence that termination of the
respondent’s parental rights was in the best interest of the child.’’ (Citation
omitted.) In re Nioshka A. N., supra, 161 Conn. App. 637 n.9.