In re Unique R. , 170 Conn. App. 833 ( 2017 )

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IN RE UNIQUE R.*
(AC 39020)
DiPentima, C. J., and Sheldon and Schaller, Js.
Argued September 8, 2016—officially released February 17, 2017**
(Appeal from Superior Court, judicial district of
Fairfield, Juvenile Matters at Bridgeport, Maronich, J.)
Marina L. Green, assigned counsel, with whom, was
James P. Sexton, assigned counsel, for the appellant
(respondent father).
Evan O’Rourke, assistant attorney general, with
whom were Stephen Vitelli, assistant attorney general,
and, on the brief, George Jepsen, attorney general, Greg-
ory T. D’Auria, solicitor general, and Benjamin
Zivyon, assistant attorney general, for the appellee
(petitioner).
Kate M. Zarro, for the minor child.
Opinion
SHELDON, J. In this appeal from the judgment of the
trial court terminating his parental rights to his minor
daughter, Unique R., the respondent father, Samuel M.,1
claims that the court erred in concluding, as required
to support a judgment of termination under General
Statutes § 17a-112 (j) (1),2 that the Department of Chil-
dren and Families (department) made reasonable
efforts to reunify him with his daughter, in accordance
with General Statutes § 17a-111b (a),3 before the Com-
missioner of Children and Families (petitioner) initiated
termination proceedings against him. The respondent
contends, more specifically, that the department’s
efforts to reunify him with his daughter were not reason-
able because it failed to conduct an adequate investiga-
tion into the availability and suitability of two of his
relatives, his mother and his sister, Jennifer D., to serve
as possible placement resources for Unique after she
was taken into the petitioner’s custody pursuant to an
ex parte order of temporary custody at an earlier stage
of the investigation that led ultimately to the filing of a
termination petition against him. The respondent claims
that the department’s failure to conduct an adequate
investigation into the availability and suitability of his
mother and his sister to serve as possible placement
resources for Unique, after he had provided their names
and contact information to the department for that pur-
pose, precluded the trial court from finding that the
department had made reasonable efforts to reunify him
with his daughter, and thus requires this court to reverse
the trial court’s judgment terminating his parental
rights.
We disagree with the respondent for two primary
reasons. First, the department’s investigation of relative
resources is not aimed at the reunification of the child
with his or her parent and is therefore not a necessary
consideration when determining whether to terminate
a parent’s parental rights. Second, even if the depart-
ment’s alleged failure to exercise due diligence in
investigating relative resources was a proper consider-
ation in assessing the reasonableness of its efforts to
reunify the respondent with his daughter, said assess-
ment is based upon a totality of the circumstances,
taking multiple factors into consideration. We thus
affirm the judgment of the trial court.
This case arises against the background of the follow-
ing factual and procedural history, as described by the
trial court in its memorandum of decision terminating
the respondent’s parental rights to Unique. Unique was
born in January, 2011, to her mother, Kaycee R. The
respondent, Unique’s biological father, was not present
for her birth and, in fact, had no contact with her
throughout the first two years of her life. Thereafter, in
February, 2013, the department received an anonymous
phone call concerning the health and safety of Unique
and Jeramiah P., her half brother by another father,
who were then living in their mother’s home. During
its ensuing investigation as to the children’s welfare,
the department initially allowed the children to remain
in the custody of Kaycee R. while providing her with
assistance in caring for them. When that arrangement
proved to be unsuccessful, however, the petitioner filed
separate neglect petitions as to each child on November
14, 2013, on the common ground that they were being
denied proper care in their mother’s home, where the
living conditions were injurious to their well-being.
On January 21, 2014, the petitioner invoked a ninety-
six hour hold as to Unique and Jeramiah, pursuant to
General Statutes § 17a-101g (e),4 and removed them
from their mother’s home, citing concerns that the
home environment posed an immediate physical danger
to them. Three days later, on January 24, 2014, the
petitioner requested the issuance of an ex parte order
of temporary custody. The ex parte order was issued
by the trial court, Kaplan, J., on January 27, 2014. After
Unique was taken into custody by the petitioner, she
was diagnosed as suffering from asthma and anemia,
was found to have high levels of lead in her blood, and
was determined to be experiencing developmental
delays.
Upon issuing the ex parte order of temporary cus-
tody, the court provided the respondent, pursuant to
General Statutes § 46b-129 (b),5 with several ‘‘prelimi-
nary specific steps,’’ which it deemed necessary for him
to take in order to address the problems that had led
to the issuance of the order of temporary custody, and
thus to gain custody of Unique. Those specific steps
included, inter alia, requirements that the respondent:
(1) keep all appointments set by the department; (2)
participate in parenting and individual counseling ses-
sions to address how substance abuse affected his life
and parenting; (3) submit to treatment programs; (4)
submit to random drug testing and refrain from using
drugs or abusing alcohol; (5) obtain and maintain ade-
quate housing and legal income; (6) visit Unique as
often as permitted by the department; and (7) ‘‘[w]ithin
thirty (30) days of this order, and at any time after
that, tell [the department] in writing the name, address,
family relationship and birth date of any person(s) who
[he] would like the department to investigate and con-
sider as a placement resource for the child(ren).’’6 At
the same time and pursuant to the same statute, the
trial court provided specific steps to the department,
ordering it, inter alia: (1) to provide the respondent with
case management services and referrals to treatment
programs for his mental health and substance abuse
issues; and (2) to ‘‘complete the investigation and con-
sideration of any person(s) whom the respondent has
properly identified as a placement resource for the chil-
d(ren) [within thirty days of the receipt of written notice
by the respondent.]’’
After Unique and Jeramiah were removed from their
mother’s home, they were initially placed in emergency
foster care. The following month, they were transiti-
oned into a nonrelative, medically complex foster home
under the care of Mr. and Mrs. J. In that same time
frame, the department began to investigate the chil-
dren’s relatives in an effort to place the children with
family members while they were separated from their
parents. To that end, after their maternal grandparents
filed a motion to intervene on February 11, 2014, the
department began to investigate the possibility of plac-
ing Unique and Jeramiah in their home. Ultimately, how-
ever, the department declined to pursue such a
placement because the grandparents already were car-
ing for Unique’s four older siblings.
On May 7, 2014, the trial court adjudicated the neglect
petitions as to Unique and Jeramiah. The respondent
had been duly served with the neglect petition for
Unique, but he had defaulted. The court adjudged both
children to be neglected and committed them to the
petitioner’s custody. At that time, the trial court pro-
vided the respondent with ‘‘final specific steps,’’ which
it deemed necessary for him to take to address the
problems that had led to the neglect adjudication, and
thus to gain custody of Unique.7
The following day, May 8, 2014, the department made
a referral to the state of Alabama, pursuant the Inter-
state Compact on the Placement of Children, General
Statutes § 17a-175, in an effort to place Jeramiah with
his paternal aunt, Cory P., a resident of Alabama whom
Jeramiah’s father had presented as a potential place-
ment resource for him. Cory agreed to start adoptive
parenting classes in August, 2014, but stated that she
might have difficulty in obtaining the necessary medical
examination due to its cost. This referral ultimately
was denied by Alabama because Cory missed a filing
deadline in the application process and also was unable,
as she had foreseen, to obtain the necessary physical
examination due to her lack of health insurance.
On February 25, 2015, the petitioner filed separate
termination petitions with respect to the two children.
The petition for termination with respect to Unique
alleged that the respondent’s parental rights as to
Unique should be terminated on two grounds: first, that
he had failed to rehabilitate since she was adjudged to
be neglected; and second, that he had no ongoing par-
ent-child relationship with her. The termination trial
was scheduled for January, 2016.
After the petitioner filed the termination petitions,
but before the termination trial began, the department
continued to investigate possible relative resources for
the placement of Unique and Jeramiah. Among the per-
sons it attempted to investigate for that purpose were
the respondent’s mother and his sister, Jennifer D. The
respondent had proposed both women as possible
placement resources for Unique and informed the
department that the best way to reach them was by
calling his mother’s telephone number, which he pro-
vided. Although the department attempted to contact
the two women by calling them at that number, it never
made contact with them because its call was not
returned. The department also sought to investigate
the availability and suitability of the respondent’s other
sister, Samantha R., to serve as a possible placement
resource for Unique and Jeramiah because, at one point,
she had expressed a possible interest in adopting them.
The department determined, however, that Samantha
was not in a suitable economic position to care for both
children, and so it ceased all efforts to recruit her for
that purpose. In June, 2015, several months after the
petitioner had filed termination petitions as to Jeramiah
and Unique, the department resumed its efforts to place
them with Jeramiah’s paternal aunt, Cory, in Alabama.8
Through the coordinated efforts of the department and
Cory’s healthcare provider, she obtained the necessary
medical examination for that purpose in late 2015.
Thereafter, upon completing a second Interstate Com-
pact referral, the department began the process of
licensing Cory as a relative foster parent. To that end,
by the end of November, 2015, Cory had completed all
of the necessary foster care classes, and her home had
been approved as a suitable living space for the chil-
dren. These promising efforts ultimately came to
naught, however, when the department received a
phone call from Cory on January 12, 2016, the day before
the scheduled start of the termination trial, informing
it that she was no longer able to care for the children.
The trial commenced the following day.
The trial continued on three separate days until Janu-
ary 27, 2016. The respondent did not attend the trial,
but his counsel was present and participated fully on
his behalf. Thereafter, on February 9, 2016, the trial
court rendered its decision, terminating the respon-
dent’s parental rights to Unique.
In its memorandum of decision, the trial court made
several findings that are relevant to this appeal. First,
it provided a comprehensive review of the children’s
lives, describing their educational and healthcare needs
and explaining how those needs were then being met
by Mr. and Mrs. J., their foster parents. The court next
found, inter alia, that the department had made continu-
ous efforts to place the children with family members,
although it noted specifically, with regard to the two
relatives whom the respondent had proposed as possi-
ble placement resources for Unique, that ‘‘[the depart-
ment] ha[d] never been able to contact either [of them]
at the phone number which he provided.’’
As for the respondent, the court found that he had had
‘‘a long history of substance abuse and mental health
issues’’ and that he was ‘‘currently diagnosed with psy-
chotic disorder, bipolar disorder and post-traumatic
stress syndrome.’’ The court further noted that the
respondent had had no interaction with his daughter
until she was more than two years old, and that his
later contact with her in the two years prior to trial had
been sporadic.
In the adjudicatory portion of its memorandum of
decision, the court first noted that the petitioner had
alleged two statutory grounds for termination of the
respondent’s parental rights to Unique, pursuant to
§ 17a-112 (j) (3): (1) that Unique had ‘‘been found in a
prior proceeding to have been neglected . . . and the
[respondent had] failed to achieve such degree of per-
sonal rehabilitation as would encourage the belief that
. . . [the respondent] could assume a responsible posi-
tion within the life of the child;’’ and (2) that ‘‘there
was no ongoing parent-child relationship’’9 between the
respondent and Unique.
As for the first alleged ground for the termination of
the respondent’s parental rights, the court found, for
the following reasons, that that ground had been estab-
lished by clear and convincing evidence. The depart-
ment had provided extensive services to aid the
respondent in his rehabilitation. Those services had
included ‘‘parenting classes and education, both inpa-
tient and outpatient substance abuse treatment, mental
health treatment, supervised visitation and case man-
agement . . . .’’10 Despite the provision of such ser-
vices, the respondent continued to suffer from
‘‘debilitating mental health and substance abuse prob-
lems’’ as he had ‘‘never successfully completed any
treatment program to which he [had] been referred and
there [was] no reasonable prospect that he [would.]’’
As for the second alleged ground for the termination
of the respondent’s parental rights, the court also found,
for the following additional reasons, that that ground
had been established by clear and convincing evidence.
The respondent had been incarcerated for more than
half of Unique’s life, and ‘‘he [had] never cared for
Unique or had to meet her needs on a day-to-day basis.’’
The respondent had attended only eight of the thirty-
nine visits with Unique that the department had
arranged for him before he was reincarcerated in
November, 2014, for violating his probation. As a result
of such behavior and its consequences, a bond only
recently had begun to form between the respondent
and Unique, but in spite of that developing bond, Unique
had come to view the respondent as ‘‘nothing more
than a visiting resource.’’
On the basis of the foregoing findings, the court fur-
ther found, by clear and convincing evidence, that the
department had made reasonable efforts to reunify the
respondent with Unique, but that the respondent had
failed either to rehabilitate or to establish an ongoing
parent-child relationship with his daughter. The court
thereupon determined that it was in Unique’s best inter-
ests for the respondent’s parental rights to be termi-
nated in order to facilitate her speedy adoption.
Thereafter, the respondent filed the present appeal.
Additional facts will be set forth as necessary.
On appeal, the respondent claims that the trial court
erred in finding that the department had made reason-
able efforts to reunify him with Unique before the peti-
tioner initiated termination proceedings against him.
More specifically, the respondent claims that the
department’s duty to make reasonable efforts to reunify
a parent and his child, pursuant to § 17a-112 (j) (1),
requires it to use due diligence to identify and investi-
gate possible relative resources for the placement of
the child. Because, he claims, the petitioner failed to
prove that the department took adequate steps to inves-
tigate his mother and sister as possible placement
resources for Unique before it filed the petition to termi-
nate his parental rights, the trial court was precluded
from finding that the department made reasonable
efforts to reunify him and his daughter, and thus from
granting the termination petition.11 We are not per-
suaded.
We begin with our standard of review. The gravamen
of the respondent’s claim on appeal is that the trial
court misapplied the statutory requirements of § 17a-
112 (j) (1) by failing to recognize an implicit mandatory
requirement that, as part of its efforts to reunify a parent
with a child, the department must conduct an adequate
investigation into the availability and suitability of the
parent’s relatives as possible placement resources for
the child. Our review of the court’s interpretation of
this statute is plenary. See In re Elvin G., 310 Conn.
485, 499, 78 A.3d 797 (2013).
‘‘When construing a statute, [o]ur fundamental objec-
tive is to ascertain and give effect to the apparent intent
of the legislature. . . . In other words, we seek to
determine, in a reasoned manner, the meaning of the
statutory language as applied to the facts of [the] case,
including the question of whether the language actually
does apply.’’ (Internal quotation marks omitted.) Earl
B. v. Commissioner of Children & Families, 288 Conn.
163, 173–74, 952 A.2d 32 (2008). ‘‘The intent of the legis-
lature, as [our Supreme Court] has repeatedly observed,
is to be found not in what the legislature meant to say,
but in the meaning of what it did say.’’ (Citation omitted,
internal quotation marks omitted.) In re Daniel N., 163
Conn. App. 322, 332, 135 A.3d 1260, rev’d on other
grounds, 323 Conn. 640, A.3d (2016). ‘‘In seeking
to determine that meaning, General Statutes § 1-2z
directs us first to consider the text of the statute itself
and its relationship to other statutes. If, after examining
such text and considering such relationship, the mean-
ing of such text is plain and unambiguous and does
not yield absurd or unworkable results, extratextual
evidence of the meaning of the statute shall not be
considered. . . . When a statute is not plain and unam-
biguous, we also look for interpretive guidance to the
legislative history and circumstances surrounding its
enactment, to the legislative policy it was designed to
implement, and to its relationship to existing legislation
and common law principles governing the same general
subject matter . . . .’’ (Internal quotation marks omit-
ted.) Earl B. v. Commissioner of Children & Families,
supra, 174.
We first note that, ‘‘[i]n order to terminate a parent’s
parental rights under § 17a-112, the petitioner is
required to prove, by clear and convincing evidence,
that: (1) the department has made reasonable efforts
to reunify the family . . . (2) termination is in the best
interest of the child . . . and (3) there exists any one
of the seven grounds for termination delineated in § 17a-
112 (j) (3).’’12 (Citations omitted; footnote omitted.) In
re Samantha C., 268 Conn. 614, 628, 847 A.2d 883
(2004).
Pursuant to § 17a-112 (j) (1), ‘‘[t]he Superior Court,
upon notice and hearing . . . may grant a petition filed
pursuant to this section if it finds by clear and convinc-
ing evidence that (1) the Department of Children and
Families has made reasonable efforts to locate the par-
ent and to reunify the child with the parent in accor-
dance 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 . . . or determines at trial on
the petition, that such efforts are not required.’’ (Cita-
tions omitted; emphasis added.) The plain language of
subsection (j) (1) does not expressly state that the
department, in demonstrating that it made reasonable
efforts to reunify the parent and the child, must prove
that it adequately investigated proposed relative place-
ment resources for the child. Therefore, the only means
by which this court can conclude that § 17a-112 (j) (1)
includes such an obligation, as the respondent pro-
poses, is for this court to interpret the phrase ‘‘reason-
able efforts . . . to reunify the child with the parent’’
as implicitly imposing such a requirement. Id. Such an
interpretation, however, is not supported by the plain
language of either § 17a-112 or § 17a-111b, to which
§ 17a-112 (j) (1) expressly refers.
Although the focus of our analysis is on the language
of § 17a-112 (j) (1), we are mindful that the petitioner’s
ability to pursue the termination of parental rights is
predicated on the existence of at least one of the statu-
tory grounds for the termination of parental rights delin-
eated in § 17a-112 (j) (3). See In re Samantha C., supra,
268 Conn. 628. Therefore, we begin our analysis by
examining the plain language of § 17a-112 (j) (3) and
its effect on the department’s efforts to reunify pursuant
to § 17a-112 (j) (1). Section 17a-112 (j) (3) contains
seven statutory grounds for terminating a parent’s
parental rights. These seven grounds cover a range of
possible deficiencies in a parent-child relationship that
led to the petitioner’s intervention, on behalf of the
state, in order to protect the child’s welfare. These
grounds include, inter alia: abandonment of the child;
physical or sexual abuse of the child by either the parent
or a spouse or cohabitor; the lack of an ongoing parent-
child relationship; the parent’s failure to provide for
the child’s moral or educational well-being; or instances
where the child has been previously adjudicated
neglected by the court and the parent, after being ‘‘pro-
vided specific steps to take to facilitate the return of
the child . . . pursuant to section 46b-129 . . . 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 . . . .’’ General Statutes § 17a-112 (j) (3).
The statutory grounds for termination advanced by
the petitioner, pursuant to subsection (j) (3), depend
on the facts and circumstances presented in each case.
Because § 17a-112 (j) requires the petitioner to allege
at least one of these statutory grounds in support of its
petition to terminate the respondent’s parental rights,
these deficiencies in the parent-child relationship logi-
cally must exist prior to the petitioner’s decision to file
a petition to terminate such relationship. Consequently,
it is against the backdrop of the particular deficiencies
in the parent-child relationship, as alleged by the peti-
tioner pursuant to subsection (j) (3), that the depart-
ment assumes the obligation to make reasonable efforts
to reunify the child with the parent pursuant to subsec-
tion (j) (1). See General Statutes § 17a-112 (j) (1)
through (3).
A logical reading of these provisions is that the
department’s efforts to reunify a particular parent and
a particular child, pursuant to § 17a-112 (j) (1), are dic-
tated by the particular deficiencies in the parent-child
relationship, pursuant to subsection (j) (3), which
resulted in the petitioner’s decision to file the petition.
As such, it follows that the department’s efforts to
reunify a parent with a child must be intended to assist
the parent to overcome the particular deficiencies
alleged, pursuant to subsection (j) (3), and the reason-
ableness of such efforts is to be judged by determining
whether such efforts would effectively assist a willing
parent to overcome those deficiencies so that he or
she could reassume a responsible parental role in the
child’s life.
Our reading of § 17a-112 (j) as creating a connection
between the statutory grounds alleged in support of the
petition to terminate parental rights and the depart-
ment’s duty to make reasonable efforts to reunify is
further reinforced by the plain language of § 17a-111b,
which is expressly referenced within the language of
§ 17a-112 (j) (1). Notably, § 17a-111b (a) does not define
‘‘reasonable efforts to reunify’’ pursuant to § 17a-112
(j) (1). Rather, § 17a-111b (a) provides that ‘‘[t]he Com-
missioner of Children and Families shall make reason-
able efforts to reunify a parent with a child unless the
court (1) determines that such efforts are not required
pursuant to subsection (b) of this section or subsection
(j) of section 17a-112, or (2) has approved a permanency
plan other than reunification pursuant to subsection
(k) of section 46b-129.’’
Although the language of § 17a-111b (a) provides little
guidance on the question of what constitutes ‘‘reason-
able efforts to reunify,’’ the plain language of §17a-111b
(b) supports the notion that whether the department
made reasonable efforts to reunify the parent with the
child is based on whether the department’s efforts and
services could effectively assist the parent in overcom-
ing the statutory grounds advanced by the petitioner,
pursuant to § 17a-112 (j) (3). Section 17a-111b (b) pro-
vides in relevant part: ‘‘The Commissioner of Children
and Families . . . may, at any time, file a motion with
the court for a determination that reasonable efforts to
reunify the parent with the child are not required. . . .
The court may determine that such efforts are not
required if the court finds upon clear and convincing
evidence that [at least one of five aggravating factors
exists].’’ The aggravating factors listed in subsection
(b) include, inter alia, instances where: the child has
been abandoned; the parent has knowingly inflicted or
knowingly allowed another to inflict sexual molestation
or severe physical abuse upon the child; the parent has
deliberately killed a sibling of the child; the parent has
had his or her parental rights to another child termi-
nated within the last three years and, during the prior
termination proceeding, the department made reason-
able efforts to reunify the parent with the child; or
where the parent has surrendered his or her infant child
to the care of the state. See id. These aggravating factors
apply to cases where the conduct of the parent is either
so severe or so detrimental to the child’s health and
well-being that the department is relieved of its obliga-
tion to make reasonable efforts to reunify the parent
and the child before seeking the termination of parental
rights, because such efforts would be either futile or
inconsistent with the child’s best interests. See In re
S.D., 115 Conn. App. 111, 119, 972 A.2d 258 (2009).
This interpretation is further supported by the plain
language of § 17a-112 (k), which governs the disposi-
tional phase of the termination proceedings.13 Subsec-
tion (k) provides, in relevant part, that ‘‘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 ser-
vices offered, provided and made available to the parent
and the child by an agency to facilitate the reunion of
the child with the parent . . . (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 obliga-
tions under such order . . . [and] (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 . . . .’’ (Emphasis added.) General Statutes
§ 17a-112 (k). The flexible nature of this language allows
the court to consider the conduct of both the parent
and the department in addressing any of the seven
statutory grounds contained within subsection (j) (3).
This is entirely consistent with the notion that the
department’s efforts to reunify a parent with a child is
case specific, and that the purpose of these efforts is to
assist the parent in adjusting his or her ‘‘circumstances,
conduct, or conditions’’ in order to reassume a responsi-
ble parental role in the child’s life. See id.
On the basis of the plain language of the relevant
provisions of § 17a-112 and their relationships to each
other, we are able to form three conclusions. First, the
interconnection among § 17a-112 (j) (1) and (3), and
(k) reveals a legislative intent that, in attempting to
reunify the parent with the child pursuant to subsection
(j) (1), the department must make reasonable efforts
to assist the parent in addressing and overcoming the
specific impediments preventing reunification, i.e., the
statutory grounds advanced by the petitioner pursuant
to subsection (j) (3). Second, by operation of the plain
language of § 17a-111b (b), the department’s duty to
make reasonable efforts to reunify the parent with the
child arises only when the parent has a reasonable
prospect of overcoming the particular statutory ground
for termination and, thereafter, reassuming a responsi-
ble parental role in the child’s life. Third, in assessing
the department’s efforts to reunify a parent with a child,
understood as aforesaid, an important factor to be con-
sidered is the degree to which the department complied
with all ‘‘applicable’’ court orders issued for that pur-
pose. In sum, the plain language of these provisions
makes clear that the court’s inquiry, pursuant to § 17a-
112 (j) (1) and (3), is narrowly focused on the parent’s
willingness and ability to adjust his conduct in light
of the services offered by the department and, when
determining whether the department made reasonable
efforts to reunify a parent with a child, the court is
obligated to consider only those efforts that are
designed and intended to assist the parent in overcom-
ing the applicable statutory grounds for termination.
Thus, unless there is a logical connection between the
investigation of proposed placement resources and the
parent’s ability to overcome the deficiencies advanced
in subsection (j) (3), the department would not be obli-
gated to prove that it adequately investigated such
resources as part of its burden of proving, by clear and
convincing evidence, that it made reasonable efforts to
reunify the parent and the child pursuant to subsection
(j) (1).14
There is nothing in the plain language of these provi-
sions to support the respondent’s assertion that the
department’s investigation into proposed temporary or
permanent placement resources for the child logically
assists the parent in overcoming the statutory grounds
for termination delineated in § 17a-112 (j) (3). Similarly,
there is nothing within the plain language of either
§§ 17a-112, 17a-111a, or 17a-111b to support the respon-
dent’s argument that, during the termination of parental
rights proceeding, the petitioner bears the burden of
proving, by clear and convincing evidence, that it con-
ducted an adequate investigation into the respondent’s
proposed placement resources for his daughter. Fur-
ther, the court’s interpretation of these statutes, pursu-
ant to § 1-2z, does not produce an absurd or unworkable
result, or one that runs counter to the purpose of these
statutory provisions. Because these statutes are devoid
of any language demonstrating a legislative intent that
the petitioner bears the burden to prove, during the
termination proceedings, that the department ade-
quately investigated every proposed placement
resource for the child, we conclude that the respon-
dent’s argument fails as a matter of statutory interpre-
tation.
The foregoing statutory analysis is further supported
by our case law. Our courts have had countless opportu-
nities to interpret the department’s obligation to make
‘‘reasonable efforts to reunify,’’ pursuant to § 17a-112
(j) (1), as it relates to the specific steps provided by
the court during the early stages of child protection
cases. In interpreting the meaning of the phrase ‘‘rea-
sonable efforts to reunify,’’ our courts have consistently
held that ‘‘[t]he word reasonable is the linchpin on
which the department’s efforts in a particular set of
circumstances are to be adjudged, using the clear and
convincing standard of proof. Neither the word reason-
able nor the word efforts is, however, defined by our
legislature or by the federal act from which the require-
ment was drawn.’’ (Internal quotation marks omitted.)
In re Daniel C., 63 Conn. App. 339, 361, 776 A.2d 487
(2001). ‘‘[R]easonableness is an objective standard . . .
and whether reasonable efforts have been proven
depends on the careful consideration of the circum-
stances of each individual case.’’ (Internal quotation
marks omitted.) In re Ebony H., 68 Conn. App. 342,
349, 789 A.2d 1158 (2002). ‘‘[R]easonable efforts means
doing everything reasonable, not everything possible.’’
(Internal quotation marks omitted.) In re Daniel C.,
supra, 361.
Because the test for determining whether the depart-
ment made reasonable efforts to reunify a parent with
a child is fact specific, factors relevant to one case may
not necessarily be relevant to another case. Compare
In re Ebony H., supra, 68 Conn. App. 350 with In re
James G., 178 Md. App. 543, 600, 943 A.2d 53 (2008)
(‘‘[D]espite the department’s ‘shameful and unaccept-
able’ single referral for housing [in In re Ebony H., the
court found that reasonable efforts had been made]
because the impediment to reunification was not the
parent’s lack of housing. Rather, it was her substance
abuse, which the department had made copious efforts
to address.’’). Consequently, neither this court nor our
legislature has crafted a finite list of factors that the
trial court must consider on this issue or indicated
which factors, if any, should be given greater weight
than others when performing that analysis. Rather, our
courts are instructed to look to the totality of the facts
and circumstances presented in each individual case.
See In re Daniel C., supra, 63 Conn. App. 361–63. As
a result, we are unable to conclude that any single factor
must be considered, much less that it is determinative
of the outcome, in every termination of parental
rights proceeding.
This is not to say, however, that the trial court retains
unbridled discretion in determining what factors to con-
sider at the termination proceeding. Our Supreme Court
has held that, after a hearing on the order of temporary
custody pursuant to § 46b-129 (b), the trial court ‘‘shall
order specific steps the commissioner and the parent
or guardian shall take for the parent or guardian to
regain or to retain custody of the child or youth . . . .
In other words, the [department], through the specific
steps issued by the court, is statutorily obligated to help
the parent, if possible, regain custody of [the] child.’’15
(Citations omitted, emphasis omitted; internal quota-
tion marks omitted.) In re Devon B., 264 Conn. 572,
581–82, 825 A.2d 127 (2003). On the basis of this lan-
guage, we agree with the respondent, as a general mat-
ter, that the trial court’s inquiry in a termination
proceeding is guided by reference to any specific steps
the trial court provided upon the issuance of an order
of temporary custody. See General Statutes § 46b-129
(b) (2). Our case law, however, places a greater empha-
sis on what steps the parent was ordered to take and
to what degree the parent complied with these steps.
See In re Shane M., 318 Conn. 569, 586–87, 122 A.3d 1247
(2015) (‘‘When a child is taken into the commissioner’s
custody, a trial court must issue specific steps to a
parent as to what should be done to facilitate reunifica-
tion and prevent termination of parental rights. . . .
[S]uccessful completion of expressly articulated expec-
tations is not sufficient to defeat a department claim
that the parent has not achieved sufficient rehabilita-
tion.’’ [Citations omitted; emphasis added; internal quo-
tation marks omitted.]); see also In re Elvin G., supra,
310 Conn. 507–508 (‘‘Specific steps provide notice and
guidance to a parent as to what should be done to
facilitate reunification and prevent termination of
rights. Their completion or noncompletion, however,
does not guarantee any outcome. A parent may com-
plete all of the specific steps and still be found to have
failed to rehabilitate.’’ [Emphasis added.]); cf. In re
Devon B., supra, 584 (‘‘[W]e note that specific steps
are considered to be ‘fair warning’ to a parent of the
potential termination of parental rights in subsequent
proceedings. . . . Indeed, the failure to comply with
specific steps ordered by the court typically weighs
heavily in a termination proceeding.’’ [Citation omitted;
emphasis added.]). The language of these cases sup-
ports our interpretation that the court’s emphasis dur-
ing the termination proceeding, pursuant to § 17a-112
(j), is on the parent’s willingness and ability to overcome
the specific impediment preventing reunification and
the department’s efforts to help the parent achieve this
goal; the court’s emphasis is not on whether the depart-
ment strictly complied with specific steps that logically
do not materially advance the reunification of the parent
and child. It is thus clear that not every specific step
that the department is ordered to take upon the issuance
of an order of temporary custody is ordered for the
purpose of reunifying the parent and child. See In re
Christopher C., 134 Conn. App. 473, 479, 39 A.3d 1127
(2012) (noting that altough respondent’s participation in
‘‘Intensive Family Preservation [and the Reconnecting
Families program] was . . . designed to facilitate suc-
cessful reunification,’’ respondent’s court-ordered par-
ticipation in Intensive Safety Planning Services ‘‘did not
support reunification with Christopher’’).
After distilling our case law concerning the relation-
ship between the department’s efforts to reunify the
parent with the child and the specific steps provided
by the trial court at an earlier phase of the proceedings,
we conclude that the specific steps that logically tend
to promote and to materially advance the reunification
of the parent and the child—and as a result, the services
rendered by the department that logically facilitate
reunification—are those steps and those corresponding
efforts that are intended either to physically reunite the
parent with the child or to assist the parent to overcome
some hurdle that led to the initiation of the child protec-
tion proceedings. Thus, in determining whether the
department made reasonable efforts to reunify the
respondent with his daughter, the court was required
to consider only those specific steps and efforts aimed
at either of those two goals.
Because the investigation of proposed placement
resources for the child does not logically promote either
of those two goals, we conclude that the department
was not obligated to prove that it satisfied this specific
step by clear and convincing evidence, and conse-
quently that the court was not obligated to consider
the degree to which the department complied with this
specific step when it determined that the department
made reasonable efforts to reunify the respondent with
his daughter.16
Even if we were to assume that the investigation of
relative resources has some bearing on the issue of
whether the department made reasonable efforts to
reunify a parent and a child, the respondent’s argument
would still fail because the applicable test for whether
reasonable efforts were made is on the basis of the
totality of the circumstances. See, e.g., In re Ebony
H., supra, 68 Conn. App. 349–50. ‘‘[The] completion
or noncompletion [of the specific steps] . . . does not
guarantee any outcome;’’ In re Shane M., supra, 318
Conn. 587; and therefore, the department’s failure to
comply with this specific step is not dispositive as to
the court’s determination of whether, in light of all the
facts and circumstances of the case, the department
made reasonable efforts to reunify the parent and child.
Our case law further demonstrates that, even when
the trial court finds notable deficiencies in the depart-
ment’s rendering of services that do relate directly to
reunification, such a finding does not, by itself, ‘‘make
the overall efforts of the department fall below the level
of what is reasonable.’’ In re Alexander T., 81 Conn.
App. 668, 673, 841 A.2d 274, cert. denied, 268 Conn. 924,
848 A.2d 472 (2004); see also In re Ebony H., supra, 68
Conn. App. 350 (affirming judgment of trial court and
holding that, ‘‘[n]otwithstanding the court’s finding that
the department’s response to the respondent’s request
for assistance in obtaining housing was shameful and
unacceptable, our review of the evidence . . . does not
leave us with a definite and firm conviction that the
court mistakenly found that the department had made
reasonable efforts to reunify the respondent and the
child’’); In re Charles A., 55 Conn. App. 293, 297, 738
A.2d 222 (1999) (‘‘The court is aware that [the depart-
ment] has made mistakes in this case . . . . These mis-
takes, however, do not defeat the proposition that
reasonable efforts at reunification were made.’’ [Inter-
nal quotation marks omitted.]). Accordingly, even if we
were persuaded by the respondent’s argument that the
investigation of relative resources directly advances the
reunification process, we would be compelled to con-
clude that the degree to which the department complied
with that duty would be—at most—one factor among
many that the trial court could consider. Cf. In re Nev-
aeh W., 317 Conn. 723, 739–40, 120 A.3d 1177 (2015).
Even then, the court would not have been, as the respon-
dent proposes, required to attribute greater weight to
this particular factor than to other relevant factors
under its consideration.17
We conclude, therefore, that even if the investigation
of relative resources were a factor to be considered
by the court in assessing the reasonableness of the
department’s efforts to reunify a parent with his child,
a proven failure by the department to make such an
investigation, either reasonably or at all, would not pre-
clude the court from finding that the department had
made a reasonable effort to reunify the parent with the
child if the evidence otherwise supported that conclu-
sion.18 The respondent has not challenged the eviden-
tiary basis upon which the trial court relied in
determining that the department made reasonable
efforts to reunify him with his daughter.
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.
** February 17, 2017, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In the same proceeding, the court also terminated the parental rights of
Unique’s mother, but she is not involved in this appeal. We therefore refer
in this opinion to Samuel M. as the respondent.
2
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 . . . .’’
3
General Statutes § 17a-111b (a) provides: ‘‘The Commissioner of Children
and Families shall make reasonable efforts to reunify a parent with a child
unless the court (1) determines that such efforts are not required pursuant
to subsection (b) of this section or subsection (j) of section 17a-112, or
(2) has approved a permanency plan other than reunification pursuant to
subsection (k) of section 46b-129.’’
4
General Statutes § 17a-101g (e) provides: ‘‘If the Commissioner of Chil-
dren and Families, or the commissioner’s designee, has probable cause to
believe that the child or any other child in the household is in imminent
risk of physical harm from the child’s surroundings and that immediate
removal from such surroundings is necessary to ensure the child’s safety,
the commissioner, or the commissioner’s designee, shall authorize any
employee of the department or any law enforcement officer to remove the
child and any other child similarly situated from such surroundings without
the consent of the child’s parent or guardian. The commissioner shall record
in writing the reasons for such removal and include such record with the
report of the investigation conducted under subsection (b) of this section.’’
5
General Statutes § 46b-129 (b) provides in relevant part: ‘‘Upon issuance
of an ex parte order, the court shall provide to the commissioner and the
parent or guardian specific steps necessary for each to take to address the
ex parte order for the parent or guardian to retain or regain custody of the
child or youth . . . . ’’
6
The respondent further was ordered to apprise the department of his
whereabouts, to permit Unique’s attorney or guardian ad litem to review
her medical records, and to inform the department of any changes to the
makeup of his household.
7
The final specific steps provided to the respondent by the trial court on
May 7, 2014, were identical to the preliminary steps provided to him upon
the issuance of the ex parte order of temporary custody on January 27, 2014.
8
Initially, Cory was pursued only as a placement resource for Jeramiah.
By 2015, however, Cory had agreed to be ‘‘a placement and adoptive resource
for Jeramiah and his sister Unique if they [became] free for adoption.’’ As
a result, the department’s efforts in 2015 were focused on placing both
children in Cory’s custody.
9
As noted in the trial court’s memorandum of decision, an ongoing parent-
child relationship is defined as ‘‘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 . . . .’’ General Statutes § 17a-
112 (j) (3) (D).
10
Notably, the trial court did not discuss the department’s efforts to place
the children with their relatives in either the adjudicatory or dispositional
portion of its memorandum of decision. Indeed, the only reference regarding
the department’s attempt to investigate the respondent’s mother and sister
is located in the factual background portion of the opinion.
11
The respondent also argues that we should adopt his proposed interpre-
tation of § 17a-112 (j) (1) because that interpretation would protect § 17a-
112 (j) (1) from being challenged as a violation of a parent’s substantive
due process rights. The respondent does not allege, however, that the trial
court violated his rights to substantive due process in this matter. Rather,
the respondent argues that, unless his interpretation of ‘‘reasonable efforts
to reunify’’ is adopted by this court, § 17a-112 (j) (1) may be challenged in
the future on substantive due process grounds. Because he has not alleged
a violation of his constitutional rights, we decline to address this claim. See
In re Brayden E.-H., 309 Conn. 642, 656, 72 A.3d 1083 (2013) (‘‘With respect
to the merits of this claim, we recognize the significance of the question
presented. Nonetheless, as a jurisprudential matter, this court generally
avoids an unnecessary determination of constitutional questions.’’).
12
Pursuant to § 17a-112 (j) (3), the department must allege and substantiate
the existence of one of the following statutory grounds for termination of
parental rights: ‘‘(A) the child has been abandoned by the parent in the
sense that the parent has failed to maintain a reasonable degree of interest,
concern or responsibility as to the welfare of the child; (B) the child (i) has
been found by the Superior Court or the Probate Court to have been
neglected, abused or uncared for in a prior proceeding, or (ii) is found to
be neglected, abused or uncared for and has been in the custody of the
commissioner for at least fifteen months and the parent of such child has
been provided specific steps to take to facilitate the return of the child to
the parent pursuant to section 46b-129 and has failed to achieve such degree
of personal rehabilitation as would encourage the belief that within a reason-
able time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child; (C) the child has been
denied . . . guidance or control necessary for the child’s physical, educa-
tional, moral or emotional well-being . . . (D) there is no ongoing parent-
child relationship, [see footnote 8] . . . (E) the parent of a child under the
age of seven years who is neglected, abused or uncared for, has failed, is
unable or is unwilling to achieve such degree of personal rehabilitation as
would encourage the belief that within a reasonable period of time, consider-
ing the age and needs of the child, such parent could assume a responsible
position in the life of the child and such parent’s parental rights of another
child were previously terminated pursuant to a petition filed by the Commis-
sioner of Children and Families; (F) the parent has killed through deliberate,
nonaccidental act another child of the parent . . . or (G) the parent commit-
ted an act that constitutes sexual assault . . . .’’ (Citations omitted.)
13
‘‘A hearing on a petition to terminate parental rights consists of two
phases, adjudication and disposition. . . . In the adjudicatory phase, the
trial court determines whether one of the statutory grounds for termination
of parental rights . . . exists by clear and convincing evidence. If the trial
court determines that a statutory ground for termination exists, it proceeds to
the dispositional phase. In the dispositional phase, the trial court determines
whether termination is in the best interests of the child.’’ (Internal quotation
marks omitted.) In re Paul O., 141 Conn. App. 477, 483, 62 A.3d 637, cert.
denied, 308 Conn. 933, 64 A.3d 332 (2013); see also In re Victoria B., 79
Conn. App. 245, 261, 829 A.2d 855 (2003) (noting that, at the dispositional
phase of a termination of parental rights hearing, ‘‘the emphasis appropri-
ately shifts from the conduct of the parent to the best interest of the child’’
[internal quotation marks omitted]).
14
In his reply brief to this court, the respondent suggests that the language
of § 17a-111a (b) (1) demonstrates a legislative intent for the department
to bear the burden of proving, pursuant to § 17a-112 (j) (1), that it conducted
an adequate investigation into proposed placement resources for the child
in its efforts to reunify the parent and the child. We are unpersuaded.
General Statutes § 17a-111a provides in relevant part: ‘‘(a) The Commis-
sioner of Children and Families shall file a petition to terminate parental
rights pursuant to section 17a-112 if (1) the child has been in the custody
of the commissioner for at least fifteen consecutive months, or at least
fifteen months during the twenty-two months, immediately preceding the
filing of such petition . . . . (b) Notwithstanding the provisions of subsec-
tion (a) of this section, the commissioner is not required to file a petition
to terminate parental rights in such cases if the commissioner determines
that: (1) The child has been placed under the care of a relative of such child
. . . .’’ (Emphasis added.)
Although subsection (a) requires that the petitioner file a petition to
terminate parental rights in cases where the child has been in the depart-
ment’s custody for a substantial period of time, subsection (b) provides that
the petitioner is not required to file a petition when the child has been
placed with relatives. The phrase ‘‘not required’’ is discretionary language,
however, and thus, even when the child has been placed with relatives,
subsection (b) does not prevent the petitioner from filing a petition for
termination of parental rights. Cf. Waterbury v. Washington, 260 Conn. 506,
531, 800 A.2d 1102 (2002) (‘‘The word may, unless the context in which it
is employed requires otherwise, ordinarily does not connote a command.
Rather, the word generally imports permissive conduct and the conferral
of discretion. . . . The use of the word shall in conjunction with the word
may confirms that the legislature acted with complete awareness of their
different meanings . . . and that it intended the terms to have different
meanings.’’ [Citations omitted; internal quotation marks omitted.]). There-
fore, the respondent’s reliance on the plain language of § 17a-111a (b) is mis-
placed.
15
The specific steps issued by the trial court are listed within Judicial
Branch Form JD-JM-106. This form contains fourteen steps that the depart-
ment must take in response to the order of temporary custody. Standard
among those specific steps is an order for the department to conduct an
‘‘investigation and consideration of any person(s) whom the respondent has
properly identified as a placement resource for the child(ren).’’ Specific
Steps Form, Judicial Branch Form JD-JM-106, available at http://jud.ct.gov/
webforms/forms/JM106.pdf.
16
The respondent also cursorily argues that the investigation of relative
resources logically facilitates the reunification process because, by placing
a child with a suitable relative, the petitioner could have delayed pursuing
the termination of his parental rights. The respondent argues, thus, that
placing a child with relatives may have provided him with additional time
to address his issues with mental health and substance abuse, and thereby
reduced the probability that the petitioner would have pursued the termina-
tion of his parental rights. We disagree. Not only is the question of whether
the respondent made sufficient efforts to address his substance abuse and
mental health issues between 2013 and 2015 entirely unrelated to the ques-
tion of whether the department adequately explored all of the available
placement options for Unique, but our case law demonstrates that the depart-
ment’s ability to place a child with his or her relatives does not control the
trial court’s decision of whether it is appropriate to terminate a parent’s
parental rights. See In re Denzel A., 53 Conn. App. 827, 834–35, 733 A.2d
298 (1999). In other words, the petitioner’s ability to pursue the termination
of parental rights is not contingent on whether the child has been placed
with relatives. See In re Tremaine C., 117 Conn. App. 590, 604, 980 A.2d
330, cert. denied, 294 Conn. 920, 984 A.2d 69 (2009). Moreover, it is axiomatic
that ‘‘[b]ecause of the psychological effects of prolonged termination pro-
ceedings on young children, time is of the essence in custody cases.’’ (Inter-
nal quotation marks omitted.) In re Anthony H., 104 Conn. App. 744, 767,
936 A.2d 638 (2007), cert. denied, 285 Conn. 920, 943 A.2d 1100 (2008). To
further delay the termination of the respondent’s parental rights would
have run counter to Unique’s best interests, which have been paramount
throughout these child protection proceedings.
17
To grant the relief requested by the respondent, this court would be
required either to attribute controlling weight to a specific factor under the
trial court’s consideration or to read § 17a-112(j) (1) as containing an implicit
substantive element that the department must prove before a trial court
could find that reasonable efforts to reunify had been made and that the
court’s failure to consider that factor in considering the department’s efforts
to reunify the respondent with his daughter is fatal to its decision.
We decline to attribute any specific weight to any factor relevant to the
trial court’s determination. The legislature created this multifactorial test,
and thus for this court to attribute greater weight to any individual factor
would overstep our role as the judiciary. It is well established that ‘‘the court
may not, by construction, supply omissions in a statute or add exceptions or
qualifications, merely because it opines that good reason exists for so doing.
. . . In such a situation, the remedy lies not with the court but with the
General Assembly.’’ (Internal quotation marks omitted.) In re Daniel N.,
supra, 163 Conn. App. 332.
We also decline to read § 17a-112 (j) (1) as containing an implicit substan-
tive requirement that the petitioner must prove during the termination pro-
ceedings. We are reminded that ‘‘[t]his court cannot, by judicial construction,
read into legislation provisions that clearly are not contained therein. . . .’’
(Internal quotation marks omitted.) Stone-Krete Construction, Inc. v. Eder,
280 Conn. 672, 682, 911 A.2d 300 (2006). We decline, therefore, to read the
plain language of § 17a-112(j) (1) as including an implicit substantive ele-
ment, of which the department bears the burden of proving by clear and
convincing evidence.
18
Although the respondent did not raise a claim of insufficient evidence,
we note that, on the basis of the record before the trial court, that court
had sufficient evidence to find that the department made reasonable efforts
to reunify the respondent with his daughter. With respect to the department’s
efforts to physically reunify the respondent with Unique, the record reveals
that the respondent had no contact with Unique until he was released from
prison, but by that time, she was already more than two years old. For the
ten months following his release, the respondent had little interaction with
Unique, after which time he contacted the department to arrange visitation
with her. These visits were sporadic and were ultimately discontinued by
the respondent.
Several months later, the respondent reapproached the department to
arrange visits with Unique. Between February and November, 2014, the
department scheduled thirty-nine weekly visits. The department also pro-
vided the respondent with bus fare to facilitate his visits with his daughter.
The respondent, however, attended only eight of the thirty-nine scheduled
visits. On November 16, 2014, the respondent was reincarcerated for failing
to keep his probation officer informed as to his whereabouts. In March,
2015, the department resumed its attempts to arrange visits between Unique
and the respondent. By this point, the respondent had been in prison for
more than one half of Unique’s life. Department worker Maria Nieves stated
that, although Unique gradually became more comfortable and engaging
with the respondent, there was little evidence to suggest that Unique recog-
nized the respondent as anything more than a visitation resource.
With regard to the department’s efforts to assist the respondent in over-
coming his struggles with mental health and substance abuse issues, there
was overwhelming evidence that the department made continuous efforts
and referrals for treatment programs including, inter alia: a referral to the
Southwest Mental Health System in Bridgeport, Connecticut; a referral to
Connecticut Renaissance; a referral for inpatient therapy at Recovery Net-
work Program; a referral to Crossroads Recovery; and a referral to Percep-
tion House for a nine month inpatient program.
On the basis of the foregoing evidence, the trial court had sufficient
evidence to find that the department had made reasonable efforts to reunify
the respondent and Unique prior to the filing of the petition to terminate
his parental rights.