In re Natalie S. ( 2016 )

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IN RE NATALIE S.*
(AC 38655)
DiPentima, C. J., and Sheldon and Bear, Js.
Argued April 4—officially released May 5, 2016**
(Appeal from Superior Court, judicial district of
Waterbury, Juvenile Matters, Turner, J.)
Michael S. Taylor, with whom was Marina L. Green,
for the appellant (respondent mother).
Benjamin Zivyon, assistant attorney general, with
whom were Rachael M. Lavine, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
Gregory T. D’Auria, solicitor general, for the appel-
lee (petitioner).
Joseph A. Geremia, Jr., for the minor child.
Opinion
BEAR, J. The respondent mother, Heather S.,1 has
appealed from the trial court’s judgment that Natalie
S., the minor child of the respondent and Matthew B.
(father), was neglected, and granting custody and
guardianship of her to the father.2 The respondent sets
forth two claims in her appeal. The first is that Connecti-
cut law requires that the Department of Children and
Families (department) continue efforts to reunify Nata-
lie with her, and that the court erred in failing to order
final specific steps or that the department make such
additional reunification efforts. The second is that the
court erred in failing to require the department to con-
duct further investigation into the father’s fitness before
granting custody and guardianship of Natalie to him
and in permitting him to remove her to North Carolina.
The petitioner, the Commissioner of Children and Fami-
lies, disputes the respondent’s claims. We affirm the
judgment.3
In the neglect petition, the petitioner alleged, pursu-
ant to General Statutes § 46b-120 (6), that Natalie was
being denied proper care and attention, physically, edu-
cationally, emotionally, or morally, and was being per-
mitted to live under conditions, circumstances or
associations injurious to her well-being. Six days after
the neglect hearing was concluded, the court issued
its October 29, 2015 memorandum of decision. In that
memorandum, the court set forth the following sum-
mary of the history of the case and extensive, detailed
findings of fact that it found by a fair preponderance
of the evidence.4 ‘‘On April 16, 2015, the [petitioner]
moved the court for an order of temporary custody
of [Natalie] born [in December 2013]. [The petitioner]
contemporaneously filed a neglect petition alleging that
Natalie was being denied proper care and attention and
was living under conditions or circumstances injurious
to her well-being. [The respondent] was duly served at
her usual place of abode by a state marshal on April
17, 2015, with the motion for an [order of temporary
custody], the neglect petition, summons, notice, and an
order to appear for hearing. Respondent father was
identified as John Doe whose whereabouts were
unknown.
‘‘[The respondent] appeared on April 17, 2015, for the
preliminary [order of temporary custody] hearing. She
was appointed counsel and advised. Thereafter, she
waived the ten day hearing, agreed to have the [order
of temporary custody] sustained and entered a pro
forma plea [denying the allegations of neglect]. The
case was continued to May 27, 2015, for proof of service
and plea by John Doe.
‘‘On May 27, 2015, John Doe appeared. He identified
himself as Matthew B. [father]. [He] was appointed
counsel, advised, and a pro forma plea was entered.
Based on the results of paternity tests ordered by the
court, Matthew B. was adjudicated the biological father
of Natalie on July 14, 2015, and a judgment of paternity
entered. On August 17, 2015, he moved the court to
vacate the [order of temporary custody] and transfer
guardianship and custody of Natalie to him. The motion
was continued and consolidated with the neglect trial.
‘‘The trial commenced on October 9, 2015. It contin-
ued on October 22 and thence to October 23, 2015,
whereupon it concluded. [The respondent], the father,
and their respective counsel were in attendance
throughout the proceedings. [The petitioner] intro-
duced numerous exhibits and testimony of two wit-
nesses . . . investigative social worker Luti Vinca and
. . . ongoing treatment social worker Rodney Moore.
[The respondent] testified, introduced two exhibits into
evidence, and called two witnesses . . . a ‘stay at home
mom’ and foster mother, and . . . an expert in sub-
stance abuse counseling. The father introduced one
exhibit and testified. He called no other witness[es].
The child’s attorney submitted three exhibits and called
no witness[es].
‘‘The court has heard and carefully considered the
testimony of all the witnesses; reviewed and carefully
considered all of the exhibits; and has judicially noticed
and thoroughly reviewed the verified petition. The cred-
ible and relevant evidence offered at trial, and a review
of the judicially noticed court records, support the find-
ing of the facts set forth below by a preponderance of
the evidence presented.’’
The court proceeded to make the following factual
findings: ‘‘Notice of this proceeding was provided in
accordance with the Practice Book. Neither parent
claims Native American tribal affiliation. The court is
unaware of any proceeding pending in any other court
regarding custody of the minor child. This court has
jurisdiction.
‘‘Due to reports of physical neglect, emotional
neglect, substance abuse, mental health issues and
criminal issues, [the department] has been involved
with [the respondent] and Natalie since February 26,
2015. Three reports were received by [the department]
expressing concern about [the respondent’s] alleged
substance abuse. On February 26, 2015, it was reported
that Natalie was bitten by a dog, had two puncture
wounds, was not dressed appropriately for the weather,
[the respondent] kept alcohol in her purse, in her car,
alcohol was smelled on her breath, and that [the respon-
dent] had been seen driving with Natalie in her car. The
allegations could not be substantiated.
‘‘On March 7, 2015, [the respondent] was found unre-
sponsive in her vehicle by her roommate in a Dunkin
Donuts lot. [The respondent] admitted she’d taken more
Ambien than prescribed. On April 16, 2015, [the respon-
dent] was arrested at 2:51 a.m. with Natalie in the car.
She was charged with driving under the influence of
alcohol and with risk of injury to a minor.
‘‘[The respondent’s] criminal history includes arrests
for possession of a controlled substance on September
4, 2009, felony possession of a controlled substance on
May 20, 2010, disorderly conduct on August 30, 2014,
and possession of a controlled substance in August,
2014. She has been diagnosed with mental health issues,
alcohol abuse, and has been prescribed multiple differ-
ent medications.
‘‘She has struggled with alcohol abuse for many years.
By her own admission she has had ‘substance issues
since May 2008’ and ‘a significant substance abuse issue
since 2012.’ [The respondent] relocated with Natalie
from North Carolina to Connecticut in the fall of 2014.
She, admittedly, came to [Connecticut] in 2014 because
she had alcohol and other substance problems and
needed help. While in North Carolina she [had] received
mental health treatment for anxiety, depression and
[attention deficit hyperactivity disorder]. She and Nata-
lie moved in with [the respondent’s] father whom she
described as bipolar and a drug addict.
‘‘[The respondent] and the father met and began dat-
ing in Greensboro, [North Carolina] between 2011 and
2012. She refused having him listed on Natalie’s birth
certificate. She alleged he was very violent with her
and kicked her down the stairs while she was pregnant
with Natalie. She did not file a report or seek medical
treatment concerning any purported abuse. Subse-
quently, she denied knowing the identity of Natalie’s
father. She reported she’d had sexual relations with
multiple men while under the influence of alcohol when
Natalie was conceived. [The respondent] has endeav-
ored to have the father not be involved in Natalie’s life
and have no contact with her. The abuse allegations
were vehemently denied by the father. [The respondent]
offered no other evidence to substantiate the abuse
allegations and thus they were unproven.
‘‘[The department] made reasonable efforts prior to
April 16, 2015, to prevent the removal of Natalie from
her home. Natalie was placed and remains in a nonrela-
tive foster home. She is well cared for, doing well and
is medically up to date. No concerns have been noted.
[The department] made reasonable efforts to reunify
Natalie with both [the respondent] and the father. Nata-
lie is completely dependent upon a consistent, stable,
sober caregiver to meet her daily and emergency needs.
[The department] has established that [the respondent]
has failed in that regard.
‘‘Specific steps to effectuate reunification of Natalie
with [the respondent] were issued on April 23, 2015.
[The department] made reasonable efforts to effectuate
the reunification of Natalie with [the respondent]. [The
department] offered [the respondent] casework ser-
vices, visitation services, assessment services, sub-
stance abuse evaluations, screens, breathalyzers, and
mental health assessment.
‘‘[The respondent] was admitted into an intensive
inpatient treatment program at Rushford on May 5,
2015, for alcohol dependence. She completed the pro-
gram on May 26, 2015. Her addiction counselor recom-
mended she continue treatment in a relapse prevention
or recovery program to keep fighting the disease. She
failed to follow-up and relapsed during the weekend of
July 25, 2015. She was then admitted on July 29, 2015,
into a detox program followed by a twenty-eight day
inpatient program. She completed the program and was
admitted into an intensive inpatient treatment program.
She completed the program at the McDonough House
and was discharged on [August 29, 2015].
‘‘Upon being discharged she was recommended for
an intensive outpatient group . . . . Due to transporta-
tion issues presented by [the respondent], [she was
afforded] the opportunity to attend a lower level relapse
prevention group instead. She was to start the relapse
prevention group . . . [in] September 2015. She failed
to show up for the [relapse prevention group] on Sep-
tember 8, 2015. She failed to show up again on Septem-
ber 23, 2015. On September 24, 2015, she was a no show
for her individual appointment with her counselor. On
October 14, 2015, she again failed to show up for the
[relapse prevention group].
‘‘[The respondent] did not have stable housing prior
to Natalie’s birth. Nor has she had stable housing since
Natalie’s birth. She lived with a series of friends and
boyfriends while in [North Carolina]. Upon moving to
[Connecticut] she and Natalie lived with her father for
a few months, until he put her out. While living with her
father she exercised poor judgment by leaving Natalie at
various times in the sole and unsupervised care of her
father whom she alleges sexually assaulted her as a
child.
‘‘After vacating her father’s house in March 2015, she
and Natalie moved in with a woman (Jessica) whom
she’d met at [Alcoholics Anonymous] meetings. There-
after, she moved in with Teague, a recovering alcoholic
whom she’d also met at [Alcoholics Anonymous] meet-
ings. Teague became her boyfriend. She lived with him
temporarily until she entered the [intensive outpatient]
program at Rushford followed by the [intensive outpa-
tient] program at the McDonough House. Upon being
discharged from the McDonough House she found resi-
dence at the House of Hope and Change in Danbury.
It is a sober house for recovering women alcoholics.
[The respondent] has been a resident there since August
29, 2015. There are no children at the sober house.
All parties agree it is not an appropriate residence for
Natalie. [The respondent] is required to reside there for
three months. She may be discharged from the sober
house on November 29, 2015. However, [the respon-
dent] has no future housing prospects and she has no
idea where she will reside after leaving the sober house.
‘‘[The respondent] conceded during the trial that on
April 16, 2015, Natalie was neglected in that she was
subjected to conditions injurious to her well-being. [The
respondent] admitted during the trial that she is an
alcoholic and relapsed with alcohol and Ambien. [The
respondent] further conceded during the trial that sub-
stance abuse has impacted her ability to care for Natalie.
‘‘Notwithstanding the sporadic and inconsistent prog-
ress [the respondent] has made, she has not yet pro-
gressed enough with her substance abuse, mental
health and housing stability to have Natalie returned
to her care at this time. She has not yet achieved the
degree of rehabilitation necessary. Her substance abuse
and mental health continue to be major concerns after
her relapse the weekend of July 25, 2015. She is cur-
rently in a dating relationship with a man whom she
met at an [Alcoholics Anonymous] meeting and whom
she relies upon as a source of support. She has failed to
demonstrate that she is now or [could] in the reasonably
foreseeable future be a consistent, stable, sober care-
giver to Natalie, able to meet her daily and emer-
gency needs.
‘‘The father was noncustodial at the time of Natalie’s
removal by [the department]. [The respondent] pur-
posefully concealed and kept her and Natalie’s where-
abouts from being made known to him. At a considered
removal meeting with [the department] [on] or about
April 28, 2015, [the respondent] identified the father for
the first time as the putative father of Natalie. After
being noticed, the father appeared in [Connecticut] on
or prior to May 27, 2015. Prior to May 2015, he had
not seen Natalie since she was a few months old. His
absence in her life is due solely to [the respondent’s]
efforts to keep Natalie’s whereabouts unknown to him.
She knew he was Natalie’s father. He was prevented
from coming forward earlier and providing support for
Natalie and presenting himself as a resource for her.
He approached [the department] contending he was
Natalie’s biological father. He provided [the depart-
ment] with a copy of the results of a paternity test done
on July 1, 2013 in [North Carolina]. He has been fully
cooperative with [the department] in every respect
since then. No specific steps were issued for the father.
[The department] did not recommend any services for
him. [The department] could not identify any areas for
services which he [needs]. He has been very responsive
and fully cooperative with all requests made of him by
[the department].
‘‘The father recognizes the need and desires to keep
[the respondent] involved in Natalie’s life. He [is] willing
to allow her to enjoy liberal and flexible visitation and
other contact with Natalie. He has never been married
and is not in a dating relationship. He continues to
reside in Greensboro, [North Carolina] with his mother
and father in their home. [S]ocial worker Rodney Moore
flew to Greensboro, [North Carolina] on October 15,
2015, to interview [the father’s] parents and inspect
their home. His parents are his support system. They
are committed to helping him care for Natalie. A records
check by [the department] into the background of the
paternal grandparents revealed no concerns. Their
home is a big single-family house situated on a large
property. It is ‘child proofed,’ there is a bedroom fully
furnished with a bed already set up for Natalie’s sole
use, lots of toys, clothing, and pictures. It is a safe,
nurturing, and appropriate residence for Natalie.
‘‘The father served in the U.S. Army as a parachute
rigger in the 82nd Airborne Division and was honorably
discharged. A background check by [the department]
disclosed no criminal or domestic violence history for
the father. Substance abuse test results for the father
were all negative. [The respondent’s] unsubstantiated
allegation that he abused illegal and prescription drugs
is given no weight by this court. He previously worked
as a commercial scuba diver and with the Boy Scouts
of America. He currently works with youth groups
within his church. He is employed full-time as a horse
farm manager. He earns about $20,000 a year. He has
Blue Cross/Blue Shield health insurance. It is available
for Natalie should she be in his care. Since May 2015,
he has travelled regularly on weekends from [North
Carolina] to [Connecticut] to visit Natalie. He has driven
to [Connecticut] at his expense. He has travelled to
[Connecticut] two times by airplane. He [has] also vis-
ited with her each time he has had to appear in [Con-
necticut] for court.’’
Accordingly, the court adjudicated Natalie neglected,
vacated the order of temporary custody, and granted
custody and guardianship to the father. This appeal
followed.
I
The parties agree that as to the first issue, namely,
whether the department had a continuing duty to pro-
vide reunification services to the respondent, the ques-
tion is one of statutory construction and the standard
of review is therefore plenary. See Marchesi v. Board
of Selectmen, 309 Conn. 608, 614, 72 A.3d 394 (2013).
The respondent argues that the department has a
continuing statutory obligation to make reasonable
efforts to reunify the child with her, even after the
adjudication of neglect and the awarding of custody
and guardianship to the father, who was a biological
parent like the mother.5 In support of her claim, she
relies on General Statutes § 46b-129 (j) (3), which pro-
vides that if custody is awarded to an individual other
than a parent or former guardian, the court shall order
specific steps that the parent must take to facilitate the
return of the child.6 In this case, however, her reliance
is misplaced because the court vested custody and
guardianship in the father, whose underlying parental
rights are equal to those of the respondent,7 and not in
the petitioner or any other related or unrelated third
party.
The respondent further argues that her right to con-
tinuing services from the department not only is predi-
cated on the specific steps language in § 46b-129 (j) (3),
but that it also derives from General Statutes § 17a-
111b (a). What is before this court, however, is an appeal
from a neglect adjudication and disposition pursuant
to General Statutes § 46b-120 et seq., including § 46b-
129.8 It is not an appeal from a termination of parental
rights adjudication and disposition pursuant to General
Statutes § 17a-111a9 et seq., including § 17a-111b (a).10
The result of the trial court’s disposition is that although
the father currently has custody and guardianship of
Natalie, and family integrity is preserved to the maxi-
mum extent possible in the specific circumstances of
this case, the respondent has not lost her right to
attempt to modify the court’s order to obtain a transfer
of custody and guardianship to her by persuading a
court that doing so is in the best interest of Natalie.
See Fish v. Fish, 285 Conn. 24, 84, 939 A.2d 1040 (2008);
Knock v. Knock, 224 Conn. 776, 785, 621 A.2d 267 (1993);
Hibbard v. Hibbard, 139 Conn. App. 10, 20–22, 55 A.3d
301 (2012); Malave v. Ortiz, 114 Conn. App. 414, 416,
970 A.2d 743 (2009); see also General Statutes § 46b-56.
If, after a neglect adjudication, a child is committed
to the care, custody, and guardianship of the commis-
sioner pursuant to § 46b-129 (j) (2) (A),11 the department
does have a continuing statutory duty to provide reunifi-
cation services. See General Statutes § 17a-111b (a).
This duty, however, does not exist when the disposi-
tional award of custody and guardianship is to a par-
ent.12 In In re Pedro J. C., 154 Conn. App. 517, 538–39,
105 A.3d 943 (2014), this court stated: ‘‘In this case, the
commissioner did not recommend or advocate for any
particular custodial option. The court in this case chose
the second option [a relative pursuant to § 46b-129 (j)
(2) (B)] as being in the . . . best interest [of the peti-
tioner, Pedro J. C., a seventeen year old child] and
transferred custody and guardianship [of him] to [a
cousin]. Such a disposition deprived the court of contin-
uing jurisdiction to promote the reunification with the
respondent [mother] it subsequently found viable. A
transfer of guardianship to someone other than a parent
results in the cessation of any requirement that reunifi-
cation efforts be made, and we fail to see how reunifica-
tion, when contemplated in state child protection
proceedings, remains viable when no state agency is
authorized to make reasonable efforts toward reunifica-
tion . . . . A decision to remove a child from parental
custody in a neglect proceeding is not always subject
to periodic judicial review to assess the well-being of
the child and to approve a permanency plan for the
child’s care and custody, whether that be reunification
with the parent, adoption, a transfer of guardianship,
or long-term foster care within a year of removal. The
periodic judicial review described in § 46b-129 applies
only if the child is committed to the custody of the
department. The legislature . . . did not contemplate
mandatory, periodic judicial review of cases in which
custody, rather than ordered as a commitment of the
child to [the department, has] been vested by the court
in an appropriate third party . . . . Fish v. Fish,
[supra, 285 Conn. 83]. Once the court decided to transfer
custody and guardianship to [the cousin], the only way
reunification [with the respondent] would be restored
to viability would be if the respondent opposed that
dispositional status and either appealed or subsequently
filed a petition to reinstate her guardianship of the
child.13 General Statutes § 46b-129 (n) . . . .
‘‘Accordingly, we conclude that the court’s failure to
find that reunification with the respondent was not
viable due to neglect under state law was erroneous as
a matter of law because it was internally inconsistent
with the court’s dispositional order on the neglect peti-
tion, which transferred the custody and guardianship
of the petitioner to [the cousin].’’ (Footnotes altered;
internal quotation marks omitted.) In re Pedro J. C.,
supra, 154 Conn. App. 538–39.
The principles set forth in In re Pedro J. C. are appli-
cable both in the context of a transfer of custody and
guardianship from one parent to the other, and in the
context of a transfer of custody and guardianship from
the petitioner to a biological parent as a dispositional
result of a neglect proceeding. The court’s disposition
in the present case awarding custody and guardianship
to the father deprived it of continuing jurisdiction over
the respondent’s possible future reunification with Nat-
alie and thus required the cessation of such reunifica-
tion efforts.
II
The respondent’s second claim is that the court erred
in failing to require further investigation of the father’s
fitness to parent before granting custody and guardian-
ship to him and permitting him to remove Natalie to
North Carolina, and that such further investigation was
required by the department’s duty to make reasonable
efforts toward reunification of the respondent with Nat-
alie.14 The respondent argues that there was both statu-
tory authorization and a factual basis for such further
investigation of the father.
We review the court’s findings of fact under the clear
error standard. ‘‘A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . Because it is the trial court’s function
to weigh the evidence and determine credibility, we
give great deference to its findings. . . . In reviewing
factual findings, [w]e do not examine the record to
determine whether the [court] could have reached a
conclusion other than the one reached. . . . Instead,
we make every reasonable presumption . . . in favor
of the trial court’s ruling.’’ (Internal quotation marks
omitted.) Bender v. Bender, 292 Conn. 696, 728–29, 975
A.2d 636 (2009). We give plenary review to the respon-
dent’s claims of statutory construction and application
in support of her second claim. See Marchesi v. Board
of Selectmen, supra, 309 Conn. 614.
The respondent argues that the petitioner’s alleged
‘‘failure to conduct an adequate investigation implicates
the trial court’s conclusions concerning [the depart-
ment’s] obligation to make reasonable efforts before
removing a child from the home.’’ The respondent also
asserts that ‘‘[t]here is no dispute that, before removing
a child from her custodial parent, [the department] must
make reasonable efforts to avoid the removal,’’15 and
‘‘[t]his obligation applies in the context of a neglect
petition as well as a petition for termination, and
includes the obligation, in the context of this case in
particular, to perform a thorough investigation before
removing a child and placing her out of state.’’ It is
not disputed, however, that the department provided
substantial services to the respondent and Natalie for
several months after the filing of the neglect petition
in April, 2015, through late October, 2015. To the extent,
however, that the ‘‘reasonable efforts’’ that the respon-
dent asserts are required include the department’s per-
formance of such a ‘‘thorough investigation,’’ she has
not cited any relevant authority for this proposition.16
She does cite in support of her claim General Statutes
§ 17a-112, which describes standards and requirements
for the termination of parental rights, and In re Jason
M., 140 Conn. App. 708, 720–21, 59 A.3d 902, cert.
denied, 308 Conn. 931, 64 A.3d 330, cert. denied sub
nom. Charlene P. v. Connecticut Dep. of Children &
Families, U.S. , 134 S. Ct. 701, 187 L. Ed. 2d 564
(2013), an appeal from a termination of parental rights.
The respondent, however, acknowledges that we held
in In re Pedro J. C., a neglect proceeding, that the
department has no continuing obligation to make fur-
ther reasonable efforts17 toward a respondent’s reunifi-
cation with a child if custody and guardianship of such
child is not committed by the court to the petitioner.
To the extent the respondent claims that a ‘‘thorough
investigation’’ of the father was required to be made in
this case by the department as part of its ‘‘reasonable
efforts’’ to reunify the respondent with Natalie, we
reject that claim.
The respondent also argues that there was substantial
factual evidence calling the father’s fitness into ques-
tion. She, however, in her brief ‘‘does not contend that
this evidence required that the trial court find the father
unfit, or find even that the alleged events had occurred.
The significance of this evidence was only in that it
should have triggered in the petitioner an obligation
(and from the trial court, an order) to do a thorough
investigation into the father’s fitness before allowing
Natalie to be removed from [the respondent] and moved
to North Carolina with him.’’ The respondent then set
forth her unsubstantiated and unproven allegations
about the father that were not found as fact by the
court, and she made unsupported allegations about the
department’s activities or lack thereof relating to its
investigation of the father’s fitness to be a custodial
parent and guardian of Natalie. The respondent does
not assert that any specific fact found by the court is
clearly erroneous. She did not offer any specific evi-
dence in the neglect hearing to support her claims about
the department’s failure to perform any required addi-
tional investigation of the father.
The respondent additionally argues that the court
could have entered orders, pursuant to its authority
recognized in In re Emoni W., 305 Conn. 723, 741, 48
A.3d 1 (2012), placing conditions on the father’s exer-
cise of custody. The court’s findings of fact set forth
previously in this opinion do not provide any support
for her allegations about the father’s lack of fitness,
and the court did not credit them. The court instead
found that the father did not have custody of Natalie
at the time of her removal by the department. He had
not come forward earlier to provide support for Natalie
or to present himself as a resource for her because the
respondent had purposefully kept Natalie’s where-
abouts from being known to him. Since receiving notice,
the father appeared in Connecticut and provided evi-
dence of his paternity. He has been fully cooperative
with the department in every respect since then. No
specific steps were ordered for him by the court and
the department could not identify any areas for which
he had need for services.
The court further found: ‘‘The father recognizes the
need and desires to keep [the respondent] involved in
Natalie’s life. He [is] willing to allow her to enjoy liberal
and flexible visitation and other contact with Natalie.
He has never been married and is not in a dating rela-
tionship. He continues to reside in Greensboro, [North
Carolina] with his mother and father in their home.
[S]ocial worker Rodney Moore flew to Greensboro,
[North Carolina] on October 15, 2015, to interview [the
father’s] parents and inspect their home. His parents
are his support system. They are committed to helping
him care for Natalie. A records check by [the depart-
ment] into the background of the paternal grandparents
revealed no concerns. Their home is a big single-family
house situated on a large property. It is ‘child proofed,’
there is a bedroom fully furnished with a bed already
set up for Natalie’s sole use, lots of toys, clothing, and
pictures. It is a safe, nurturing, and appropriate resi-
dence for Natalie.’’
On the basis of these findings, which the respondent
does not claim were clearly erroneous, we cannot con-
clude that the trial court erred in declining to enter
orders placing conditions on Natalie’s placement with
the father pursuant to its authority recognized in In re
Emoni W, supra, 305 Conn. 736–37, 741. Moreover, the
respondent has failed to establish on appeal that, after
the court’s adjudication of neglect and dispositional
award of custody and guardianship to the father, instead
of commitment of the child to the care, custody and
guardianship of the petitioner, the department has any
statutory duty or authority to continue its activities with
or for the respondent, the father or Natalie. See In re
Pedro J. C., supra, 154 Conn. App. 538–39.
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.
** May 5, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The mother is referred to herein as the respondent. The father, Matthew
B., although also a respondent in the neglect proceeding, did not appeal
and for convenience is referred to herein as the father.
2
The court ‘‘granted temporary/nonpermanent custody and guardianship
of Natalie’’ to the father. Such award is referred to herein as custody and
guardianship.
3
Pursuant to Practice Book § 67-13, the attorney for the minor child filed
a statement on March 4, 2016, adopting the petitioner’s brief in opposition
to the respondent’s appeal.
4
The standard of proof applicable to nonpermanent custody proceedings,
such as neglect proceedings, is a fair preponderance of the evidence. In re
Joseph W., 305 Conn. 633, 645, 46 A.3d 59 (2012); In re Kamari C-L., 122
Conn. App. 815, 825, 2 A.3d 13, cert. denied, 298 Conn. 927, 5 A.3d 487 (2010).
5
The petitioner responds that the primary issue in this case is whether
the department is obligated to continue its involvement in the lives of Natalie
and her parents after the adjudication of neglect and the placing of her
primary care, custody and guardianship with a parent who was found by
the court to be worthy, suitable and appropriate to assume those responsibili-
ties. The petitioner argues that ‘‘[i]n such a case, when the child is placed
with a suitable and worthy parent and the trial court has not found any
other concerns warranting further oversight, we should expect state inter-
vention to end.’’
6
General Statutes § 46b-129 (j) (3) provides: ‘‘If the court determines
that the commitment should be revoked and the child’s or youth’s legal
guardianship or permanent legal guardianship should vest in someone other
than the respondent parent, parents or former guardian, or if parental
rights are terminated at any time, there shall be a rebuttable presumption
that an award of legal guardianship or permanent legal guardianship upon
revocation to, or adoption upon termination of parental rights by, any relative
who is licensed as a foster parent for such child or youth, or who is, pursuant
to an order of the court, the temporary custodian of the child or youth at
the time of the revocation or termination, shall be in the best interests of
the child or youth and that such relative is a suitable and worthy person
to assume legal guardianship or permanent legal guardianship upon revoca-
tion or to adopt such child or youth upon termination of parental rights.
The presumption may be rebutted by a preponderance of the evidence that
an award of legal guardianship or permanent legal guardianship to, or an
adoption by, such relative would not be in the child’s or youth’s best interests
and such relative is not a suitable and worthy person. The court shall order
specific steps that the parent must take to facilitate the return of the child
or youth to the custody of such parent.’’ (Emphasis added.)
7
Our Supreme Court in Fish v. Fish, 285 Conn. 24, 40–41, 939 A.2d 1040
(2008), discussed the rights of parents with respect to their children: ‘‘In
discussing the constitutional basis for the protection of parental rights, the
United States Supreme Court observed in Troxel [v. Granville, 530 U.S. 57,
120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000)], that [t]he liberty interest . . . of
parents in the care, custody, and control of their children . . . is perhaps
the oldest of the fundamental liberty interests recognized by this [c]ourt.
More than [seventy-five] years ago, in Meyer v. Nebraska, 262 U.S. 390, 399,
401 [43 S. Ct. 625, 67 L. Ed. 1042] (1923), we held that the liberty protected
by the [d]ue [p]rocess [c]lause includes the right of parents to establish a
home and bring up children and to control the education of their own. Two
years later, in Pierce v. Society of Sisters, 268 U.S. 510, [534–35, 45 S. Ct.
571, 69 L. Ed. 1070] (1925), we again held that the liberty of parents and
guardians includes the right to direct the upbringing and education of chil-
dren under their control. . . . We returned to the subject in Prince v. Massa-
chusetts, 321 U.S. 158 [64 S. Ct. 438, 88 L. Ed. 645] (1944), and again confirmed
that there is a constitutional dimension to the right of parents to direct the
upbringing of their children. It is cardinal . . . that the custody, care and
nurture of the child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can neither supply
nor hinder. Id., [166]. . . . Troxel v. Granville, supra, 530 U.S. 65–66. In
light of this extensive precedent, it cannot now be doubted that the [d]ue
[p]rocess [c]lause of the [f]ourteenth [a]mendment protects the fundamental
right of parents to make decisions concerning the care, custody, and control
of their children. Id., 66.’’ (Internal quotation marks omitted.) Fish v. Fish,
supra, 40–41.
‘‘Connecticut courts likewise have recognized the constitutionally pro-
tected right of parents to raise and care for their children.’’ Id., 41. To the
extent that the respondent argues that such constitutional rights are only
for her benefit or otherwise ignores the father’s equal rights as a parent,
she is incorrect.
8
An adjudication of neglect is a determination of the status of the child:
‘‘The focal point of a neglect petition is not condemnation of the parents,
but, rather, the status of the child.’’ In re Allison G., 276 Conn. 146, 164,
883 A.2d 1226 (2005).
9
General Statutes § 17a-111a provides: ‘‘(a) The Commissioner 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;
(2) the child has been abandoned as defined in subsection (j) of section
17a-112; or (3) a court of competent jurisdiction has found that (A) the
parent has killed, through deliberate, nonaccidental act, a sibling of the
child or has requested, commanded, importuned, attempted, conspired or
solicited to commit the killing of the child or a sibling of the child; or (B)
the parent has assaulted the child or a sibling of a child, through deliberate,
nonaccidental act, and such assault resulted in serious bodily injury to
such child.
‘‘(b) Notwithstanding the provisions of subsection (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; (2) there is a compelling
reason to believe that filing such petition is not in the best interests of the
child; or (3) the parent has not been offered the services contained in the
permanency plan to reunify the parent with the child or such services were
not available, unless a court has determined that efforts to reunify the parent
with the child are not required.’’
10
General Statutes § 17a-111b (a) provides: ‘‘The Commissioner of Chil-
dren 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.’’
11
General Statutes § 46b-129 (j) (2) provides in relevant part: ‘‘Upon finding
and adjudging that any child or youth is uncared for, neglected or abused
the court may (A) commit such child or youth to the Commissioner of
Children and Families, and such commitment shall remain in effect until
further order of the court, except that such commitment may be revoked
or parental rights terminated at any time by the court . . . .’’
12
It is undisputed that the court issued temporary specific steps to the
respondent pursuant to § 46b-129 (c) at the initial hearing in the present
case, and that the department provided reunification services to her through
the hearing on the neglect petition, during which it became clear to the
court that it was in the best interest of the child for custody and guardianship
to be awarded to the father.
13
Although in this case the respondent has appealed the court’s judgment,
she did not seek to have either custody or guardianship of Natalie granted
to her, presumably because of her reasonable recognition that, in view of
her unfortunate circumstances and need to concentrate on dealing with her
own issues and problems, thus attending to her own possible rehabilitation,
she was not then a suitable candidate to have the custody and guardianship
of Natalie, and it was unclear if or when she might be a suitable candidate
in the future. She thus was not in a position to be restored to viability, and
she did not appeal the decision of the court not to award custody and
guardianship to her.
14
The respondent again relies on our state law relating to the termination
of parental rights: ‘‘In order to terminate parental rights under § 17a-112 (j),
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 unwilling to benefit
from reunification. . . . General Statutes § 17a-112 (j) (1). The standard for
reviewing reasonable efforts has been well established by the Appellate
Court. Turning to the statutory scheme encompassing the termination of
the parental rights of a child committed to the department, [§ 17a-112]
imposes on the department the duty, inter alia, to make reasonable efforts
to reunite the child or children with the parents. The word 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 reasonable nor the word efforts is, however,
defined by our legislature or by the federal act from which the requirement
was drawn. . . . [R]easonable efforts means doing everything reasonable,
not everything possible. . . . The trial court’s determination of this issue
will not be overturned on appeal unless, in light of all of the evidence in
the record, it is clearly erroneous.’’ (Internal quotation marks omitted.) In
re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004).
There is no similar requirement of proof of reasonable efforts prior to an
adjudication of neglect and subsequent disposition either of commitment
to the petitioner or of custody to a biological parent. See, e.g., General
Statutes § 46b-129.
15
In the present case, however, Natalie was removed pursuant to an ex
parte order of temporary custody. At the subsequent hearing, the respondent
did not contest the ex parte order, and it was sustained by the court.
16
The petitioner, however, ‘‘has the authority and the responsibility to
investigate whether the placement of a particular child with an out-of-state
parent would be consistent with the public policy goals underlying the [the
Interstate Compact on the Placement of Children] when the child is under
the petitioner’s care and supervision and there is evidence rebutting the
presumption of fitness.’’ In re Emoni W., 305 Conn. 723, 737, 48 A.3d 1
(2012). Our Supreme Court also stated that ‘‘it is essential to note that both
the respondent and the petitioner agree that, if a child is in the custody of
the petitioner, an out-of-state parent must appear at the preliminary hearing
concerning the placement of the child, answer questions and agree to reason-
able conditions on the placement of the child with the parent. Moreover,
when there is evidence before the court that an out-of-state, noncustodial
parent is unfit, the parties agree that the court should not place a child with
the parent without ordering an investigation into the parent’s fitness. They
disagree only about whether the petitioner can conduct that investigation
or, instead, the analogous agency in the receiving state must conduct it
pursuant to [General Statutes] § 17a-175. At oral argument before this court,
the petitioner conceded that she has the authority and the ability to conduct
an investigation of an out-of-state parent, although she might encounter
difficulties that would not be present in cases in which she investigates a
parent who is living in state. Indeed, our statutes provide a panoply of
procedures to ensure that a child under the care and supervision of the
petitioner is not placed in the custody of an unfit parent and that, if a
parent is granted custody, there can be continued protective supervision.
Accordingly, our conclusion in the present case that § 17a-175 does not
apply to out-of-state parents does not leave the trial court or the petitioner
without a remedy when faced with evidence that an out-of-state parent is
unfit.’’ (Footnotes omitted.) Id., 741–42. In the present case, however, the
court determined that there was no evidence that the father was unfit.
17
See footnote 14 of this opinion.