In re Anthony L. ( 2019 )

***********************************************
The “officially released” date that appears near the be-
ginning of each opinion is the date the opinion will be pub-
lished in the Connecticut Law Journal or the date it was
released as a slip opinion. The operative date for the be-
ginning of all time periods for filing postopinion motions
and petitions for certification is the “officially released”
date appearing in the opinion.
All opinions are subject to modification and technical
correction prior to official publication in the Connecticut
Reports and Connecticut Appellate Reports. In the event of
discrepancies between the advance release version of an
opinion and the latest version appearing in the Connecticut
Law Journal and subsequently in the Connecticut Reports
or Connecticut Appellate Reports, the latest version is to
be considered authoritative.
The syllabus and procedural history accompanying the
opinion as it appears in the Connecticut Law Journal and
bound volumes of official reports are copyrighted by the
Secretary of the State, State of Connecticut, and may not
be reproduced and distributed without the express written
permission of the Commission on Official Legal Publica-
tions, Judicial Branch, State of Connecticut.
***********************************************
IN RE ANTHONY L. ET AL.*
(AC 42534)
Lavine, Prescott and Bear, Js.
Syllabus
The respondent mother appealed to this court from the judgments of the
trial court terminating her parental rights as to three of her minor
children. The trial court found that, pursuant to statute (§ 17a-112 [j]
[3] [B] [i]), the mother had failed to achieve such a degree of personal
rehabilitation as would encourage the belief that within a reasonable
time she could assume a responsible position in the children’s lives.
She claimed, for the first time on appeal, that the court violated her
and her children’s substantive due process rights when, in its analysis
of the children’s best interests, it failed to determine whether the perma-
nency plans for the children that were proposed by the respondent
Commissioner of Children and Families secured a more permanent and
stable life for them compared to that which she could provide if she
were given time to rehabilitate herself. Held that the respondent mother’s
unpreserved claim was not reviewable, as it was not raised during trial
and, thus, she failed to provide this court with an adequate record for
review of the claim; the trial court found that the petitioner had proved
that the children’s best interests were served by their living with their
maternal grandmother, the mother on appeal did not challenge that and
other relevant findings concerning the children’s best interests, and this
court was unable to discern any evidence in the record about when the
maternal grandmother eventually may not be able to continue to provide
a home for the children or as to why the children could not then be
transitioned to their fictive kin in accordance with the petitioner’s plan
for their residence with them and possible adoption.
Argued September 5—officially released October 21, 2019**
Procedural History
Petitions by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor children, brought to the Superior
Court in the judicial district of Middlesex, Child Protec-
tion Session at Middletown, where the respondent
father was defaulted for failure to appear; thereafter,
the matters were tried to the court, Hon. Barbara M.
Quinn, judge trial referee; judgments terminating the
respondents’ parental rights, from which the respon-
dent mother appealed to this court. Affirmed.
Matthew C. Eagan, assigned counsel, with whom was
James P. Sexton, assigned counsel, for the appellant
(respondent mother).
Evan O’Roark, assistant attorney general, with whom
were Benjamin Zivyon, assistant attorney general, and,
on the brief, William Tong, attorney general, for the
appellee (petitioner).
Christopher DeMatteo, for the minor children.
Opinion
PER CURIAM. The respondent mother appeals from
the judgments of the trial court rendered in favor of the
petitioner, the Commissioner of Children and Families,1
terminating her parental rights with respect to each of
the three oldest of her four minor children on the
grounds that the respondent failed to achieve a suffi-
cient degree of personal rehabilitation pursuant to Gen-
eral Statutes § 17a-112 (j) (3) (B) (i).2 On appeal, the
respondent claims that her and her children’s substan-
tive due process rights were violated as a result of
the trial court’s analysis of whether termination of her
parental rights was in the children’s best interests. Spe-
cifically, the respondent claims that the court’s failure
to conduct a factual inquiry into the petitioner’s three
permanency plans, which called for the termination of
her parental rights and adoption,3 in its best interest
analysis denied her substantive due process of law. She
claims that, because adoption was not going to occur
immediately, due process required the court to deter-
mine whether the permanency plans secured a more
permanent and stable life for each of the children com-
pared to that which she could provide if she were given
time to rehabilitate herself.
The record, however, contains insufficient evidence
in support of such a claim because it was not raised
and pursued by the respondent during trial. Neither the
petitioner nor the court were aware, during trial, that
it would be asserted as a claim on appeal. Accordingly,
for the reasons set forth herein, we decline to review
the respondent’s unpreserved claim and, therefore,
affirm the judgments of the trial court.4
The respondent failed to raise her substantive due
process claim in the trial court and, accordingly, she
seeks review by this court pursuant to State v. Golding,
213 Conn. 233, 567 A.2d 823 (1989), as modified by In
re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).5
’’[A] [respondent] can prevail on a claim of constitu-
tional error not preserved at trial only if all of the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the [respondent] of
a fair trial; and (4) if subject to harmless error analysis,
the [petitioner] has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reason-
able doubt. In the absence of any one of these conditions,
the [respondent’s] claim will fail. The appellate tribunal
is free, therefore, to respond to the [respondent’s] claim
by focusing on whichever condition is most relevant in
the particular circumstances.’’ (Emphasis in original;
footnote omitted.) Id., 239–40. In this case, we focus on
the first prong of Golding.
In assessing whether the first prong of Golding has
been satisfied, it is well recognized that ‘‘[t]he [respon-
dent] bears the responsibility for providing a record
that is adequate for review of [her] claim of constitu-
tional error. If the facts revealed by the record are
insufficient, unclear or ambiguous as to whether a con-
stitutional violation has occurred, we will not attempt
to supplement or reconstruct the record, or to make
factual determinations, in order to decide the [respon-
dent’s] claim.’’ (Internal quotation marks omitted.) In
re Julianna B., 141 Conn. App. 163, 168–69, 61 A.3d
606, cert. denied, 310 Conn. 908, 76 A.3d 625 (2013); In
re Johnson R., 121 Conn. App. 464, 469, 994 A.2d 739
(2010), aff’d, 300 Conn. 486, 15 A.3d 145 (2011). ‘‘The
reason for this requirement demands no great elabora-
tion: in the absence of a sufficient record, there is no
way to know whether a violation of constitutional mag-
nitude in fact has occurred.’’ (Internal quotation marks
omitted.) In re Azareon Y., 309 Conn. 626, 635, 72 A.3d
1074 (2013).
The record reveals that the respondent and the chil-
dren’s biological father were involved in an abusive
relationship for approximately six years. During this
relationship, they conceived four children together. On
November 1, 2016, the three older children were
removed from their parents’ care on orders of tempo-
rary custody due to ongoing and significant domestic
violence between the parents, transience, substance
abuse and mental health concerns. The children subse-
quently were placed with their maternal grandmother,
with whom they have resided during the pendency of
the proceedings. On March 26, 2018, after the court
approved the petitioner’s proposed permanency plan
for each child; see footnote 7 of this opinion; the peti-
tioner filed petitions for the termination of the respon-
dent’s and the father’s parental rights as to each of the
children, alleging that each of the children had been
adjudicated neglected, and that both parents had failed
to rehabilitate pursuant to § 17a-112 (j) (3) (B) (i)6 such
that neither could be relied on responsibly to parent
their children within the reasonably foreseeable future.
A trial was held and, on November 13, 2018, the court
granted each of the petitions for termination of paren-
tal rights.
The court’s memorandum of decision reveals that,
during the adjudicatory phase, the court considered the
evidence and determined that the respondent failed to
achieve sufficient personal rehabilitation pursuant to
§ 17a-112 (j) (3) (B) (i). In its best interest analysis in
the dispositional phase, the court examined relevant
factors including ‘‘[the children’s] interest in sustained
growth, development, well-being, stability and continu-
ity of their environment . . . [as well as] their length
of stay in foster care, the nature of the relationship
with their biological parents, the degree and quality of
contact maintained with the biological parents, and
their genetic bonds to the extended family,’’ ultimately
concluding that termination of parental rights was in
the best interests of each of the three children. The
court did not, however, address separately the findings
underlying the petitioner’s permanency plans for the
children.7 Pursuant to our review of the record, we
conclude that the respondent’s claim is not reviewable
under the first prong of Golding because the respondent
has failed to provide this court with an adequate record
for review.
Our Supreme Court has declined to review a respon-
dent mother’s Golding claim when the respondent
failed to satisfy Golding’s first prong. In In re Azareon
Y., the respondent mother argued that the ‘‘deficiency
in the evidentiary record [relevant to whether the per-
manency plan ordered was the least restrictive means
necessary to secure the state’s compelling interest in
safeguarding the best interests of her children] con-
firm[ed] that the trial court could not have undertaken
the constitutional analysis that substantive due process
required.’’ In re Azareon Y., supra, 309 Conn. 633. Simi-
lar to the argument put forth by the respondent in the
present matter, the respondent in In re Azareon Y.
relied on the fundamental liberty interest that parents
have in the ‘‘ ‘care, custody and control of their chil-
dren’ ’’ to claim that the best interest analysis under-
taken by the court was flawed. Id., 636.
The respondent in In re Azareon Y. proposed that a
judicial gloss be imposed on our termination of parental
rights statute, § 17a-112, that places the burden on the
petitioner to establish, by clear and convincing evi-
dence, that a statutorily recognized permanency plan
shown to be less restrictive than the termination of
parental rights would not be appropriate in that case.8
See id. Our Supreme Court noted that if it were to allow
the respondent’s attempt to transform her claim of
‘‘deficient analysis by the trial court’’ into a claim alleg-
ing a ‘‘constitutionally deficient standard’’; (emphasis
in original) id., 639; it would permit future ‘‘claim[s]
lacking a factual predicate in the record [to] be reframed
as a pure legal question as to whether a deficient stan-
dard had been applied.’’ Id., 640. Our Supreme Court
declined to reach the merits of the respondent’s claim.
In the present case, the respondent’s claim mirrors
that of the respondent in In re Azareon Y. First, she
asserts that the record contains no evidence relevant
to the details of the posttermination likelihood or reality
of permanency for each of the children. Like the respon-
dent in In re Azareon Y., she relies on that dearth of
evidence to support her argument that the court’s best
interest analysis was flawed, asserting that without
undertaking an inquiry into the details of the likelihood
or reality of permanency for the children, the court’s
analysis could not have been constitutionally proper.
Relying on the same fundamental liberty interest at
issue in In re Azareon Y., the respondent argues that ‘‘to
justify the permanent destruction of the fundamental
liberty interests shared by the respondent and her chil-
dren, the [petitioner] must demonstrate that termina-
tion will result in the children being provided a more
permanent home than would result from continued
reunification efforts.’’
The petitioner, however, satisfied the court on this
point. In the disposition phase of the hearing, the court
found that the petitioner did prove that the children’s
best interests were served by their living with their
maternal grandmother: ‘‘[T]he children have resided
with their maternal grandmother for two years. She has
provided these three young children with consistency of
care, safety and stability not available in their parental
home . . . . [The respondent] has not been able to
sufficiently adjust her circumstances, given the safety
concerns around domestic violence . . . to have her
children returned to her.’’ The respondent on appeal
does not challenge these and other relevant findings
concerning the best interests of the children.
Additionally, although the maternal grandmother
eventually may not be able to continue to provide a
home for her grandchildren, we were unable to discern
any evidence in the record about when this might occur,
and as to why the children could not then be transiti-
oned to the fictive kin9 in accordance with the petition-
er’s plan for their residence with them and possible
adoption.10
‘‘Our role is not to guess at possibilities, but to review
claims based on a complete factual record developed
by the trial court. . . . Without the necessary factual
and legal conclusions furnished by the trial court . . .
any decision made by us respecting [the respondent’s
claims] would be entirely speculative.’’ (Internal quota-
tion marks omitted.) State v. Duteau, 68 Conn. App.
248, 254, 791 A.2d 591, cert. denied, 260 Conn. 939, 835
A.2d 58 (2002). It is undisputed that the record contains
no evidence supporting alternatives to the general plan
of the petitioner to have the children reside with their
grandmother until that is no longer possible, and then
with the fictive kin. Just as our Supreme Court declined
to address the merits of the respondent’s claim in In
re Azareon Y., we, too, must decline to review the
respondent’s Golding claim in this matter because of
her failure to satisfy the first prong of the Golding
requirements.
The judgments are affirmed.
* 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.
** October 21, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
Counsel for the minor children has adopted the brief filed by the peti-
tioner.
2
The parental rights of the children’s father also were terminated pursuant
to § 17a-112 (j) (3) (B) (1). The father has not participated in this appeal.
In this opinion, we refer to the respondent mother as the respondent.
3
‘‘A ‘permanency plan’ is the proposal for what the long-term, permanent
solution for the placement of the child should be. General Statutes §§ 17a-
111b (c) and 46b-129 (k). Our statutory scheme provides five permanency
options: (1) reunification with a parent; (2) long-term foster care; (3) perma-
nent guardianship; (4) transfer of either guardianship or permanent guardian-
ship; or (5) termination followed by adoption. General Statutes §§ 17a-111b
(c) and 46b-129 (k) (2).’’ (Footnotes omitted.) In re Adelina A., 169 Conn.
App. 111, 121, 148 A.3d 621, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016).
In each of the three petitions for termination of parental rights, the petitioner
alleged that reasonable efforts to reunify were not required for the respon-
dent because the court had approved a permanency plan other than reunifica-
tion in accordance with § 17a-111b.
4
The respondent also argues on appeal that she has standing to bring
this substantive due process claim for both herself and her children. Because
we decline to reach the merits of her unpreserved claim, we need not address
the issue of the respondent’s standing to act on behalf of her children.
5
On March 1, 2019, subsequent to the judgments, the respondent filed a
motion for articulation of the decision to terminate her parental rights,
which the trial court denied. The respondent filed a motion for review with
this court on March 29, 2019. This court granted review but denied the relief
requested therein on April 17, 2019.
6
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing as provided in sections 45a-716 and 45a-
717, may grant a petition filed pursuant to this section 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 finding is not required
if the court has determined at a hearing pursuant to section 17a-111b, or
determines at trial on the petition, that such efforts are not required, (2)
termination is in the best interest of the child, and (3) . . . (B) the child
(i) has been found by the Superior Court or the Probate Court to have been
neglected, abused or uncared for in a prior proceeding . . . and the parent
of such child has been provided specific steps to take to facilitate the return
of the child to the parent pursuant to section 46b-129 and has failed to
achieve such degree of personal rehabilitation as would encourage the belief
that within a reasonable time, considering the age and needs of the child,
such parent could assume a responsible position in the life of the child
. . . .’’
7
The permanency plans proposed by the petitioner stated in relevant part:
‘‘The permanency plan for [each of the children] is [t]ermination of [p]arental
[r]ights and [a]doption. This is the best plan for the children as [the respon-
dent] and [the father] have not addressed the issues that led the children
to be placed in foster care. . . .’’ The court approved these plans.
8
The proposed judicial gloss was as follows: ‘‘[T]he [trial] court must find
by clear and convincing evidence that a viable permanency plan recognized
by statute that is less restrictive than termination of parental rights is not
capable of providing the children with a permanent, safe and nurturing
home in light of their age and needs. The petitioner has the burden of proof
as to this finding.’’ (Internal quotation marks omitted.) In re Azareon Y.,
supra, 309 Conn. 636.
9
General Statutes § 17a-114 (a) (3) provides in relevant part: ‘‘[F]ictive
kin caregiver means a person who is twenty-one years of age or older and
who is unrelated to a child by birth, adoption or marriage but who has an
emotionally significant relationship with such child or such child’s family
amounting to a familial relationship . . . .’’ (Internal quotation marks
omitted.)
10
The court’s order in the present case is the usual order issued in a
termination of parental rights: ‘‘The [petitioner] is hereby appointed the
statutory parent for [each of the children]. The [petitioner] will file, within
thirty days hereof, a report as to the status of these children as required
by statute and such further reports shall be timely presented to the court
as required by law.’’
The petitioner, thus, is the statutory parent of each of the children, ulti-
mately and continuously responsible for their guardianship, custody and
care in the event of any concerns regarding the maternal grandmother or
the fictive kin unless and up to the time an adoption occurs.
This order is predicated on § 17a-112 (o), which provides: ‘‘In the case
where termination of parental rights is granted, the guardian of the person
or statutory parent shall report to the court not later than thirty days after
the date judgment is entered on a case plan, as defined by the federal
Adoption and Safe Families Act of 1997, as amended from time to time, for
the child which shall include measurable objectives and time schedules. At
least every three months thereafter, such guardian or statutory parent shall
make a report to the court on the progress made on implementation of the
plan. The court may convene a hearing upon the filing of a report and shall
convene and conduct a permanency hearing pursuant to subsection (k) of
section 46b-129 for the purpose of reviewing the permanency plan for the
child not more than twelve months from the date judgment is entered or
from the date of the last permanency hearing held pursuant to subsection
(k) of section 46b-129, whichever is earlier, and at least once a year thereafter
while the child remains in the custody of the Commissioner of Children
and Families. For children where the commissioner has determined that
adoption is appropriate, the report on the implementation of the plan shall
include a description of the reasonable efforts the department is taking to
promote and expedite the adoptive placement and to finalize the adoption
of the child, including documentation of child specific recruitment efforts.
At such hearing, the court shall determine whether the department has made
reasonable efforts to achieve the permanency plan. If the court determines
that the department has not made reasonable efforts to place a child in
an adoptive placement or that reasonable efforts have not resulted in the
placement of the child, the court may order the Department of Children and
Families, within available appropriations, to contract with a child-placing
agency to arrange for the adoption of the child. The department, as statutory
parent, shall continue to provide care and services for the child while a
child-placing agency is arranging for the adoption of the child.’’