In re James O., Jr.

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IN RE JAMES O., JR.—CONCURRENCE
McDONALD, J., with whom ZARELLA and ROB-
INSON, Js., join, concurring. A complete, contextual
review of the trial court’s memorandum of decision
compels the conclusion that the court improperly com-
pared the superior parental attributes of the foster
mother, Paula M., with the wanting parental attributes
of the respondent, Marjorie H., the mother of the minor
children, James O., Jr., and Jolene O. Although I fully
acknowledge that there is nothing in the record that
would suggest that the trial court intended to draw that
comparison, the plain words contained in the memoran-
dum of decision reveal that, at the very least, it uncon-
sciously did so. Regardless of that error, the trial court’s
findings as to the respondent, in and of themselves,
require affirmance of the judgment.
As the majority properly recognizes, it is ‘‘essential,
in considering a petition to terminate parental rights,
to sever completely the issues of whether termination
is statutorily warranted and whether a proposed adop-
tion is desirable.’’ (Internal quotation marks omitted.)
In re Baby Girl B., 224 Conn. 263, 275, 618 A.2d 1
(1992). This is so because petitions ‘‘for termination of
parental rights are particularly vulnerable to the risk
that judges or social workers will be tempted, con-
sciously or unconsciously, to compare unfavorably the
material advantages of the child’s natural parents with
those of prospective adoptive parents and therefore to
reach a result based on such comparisons rather than
on the statutory criteria.’’ In re Juvenile Appeal (Anon-
ymous), 177 Conn. 648, 672–73, 420 A.2d 875 (1979).
The requirement that the trial court conduct a hearing
on a petition for termination of parental rights in two
distinct phases—the adjudicatory phase, at which the
trial court determines whether a statutory ground for
termination of parental rights exists, and the disposi-
tional phase, at which the trial court determines
whether termination is in the best interest of the child;
In re Shane M., 318 Conn. 569, 582–83 n.12, 122 A.3d
1247 (2015);—is intended to safeguard against such
improper considerations tainting the threshold inquiry.
Accordingly, during the adjudicatory phase, it is per se
improper for a trial court to compare the attributes of
a natural parent with those of a prospective parent.1 In
re Baby Girl B., supra, 224 Conn. 280.
In the present case, the trial court’s memorandum of
decision was divided into four substantive parts: gen-
eral findings of fact, a determination of whether the
Department of Children and Families made reasonable
efforts to reunify the respondent’s family, a determina-
tion on the adjudicatory matter, and a determination
on the dispositional matter. The court made specific
findings of fact in support of each part. In the part
resolving the adjudicatory matter, it clearly was proper
for the trial court to analyze the respondent’s rehabilita-
tive status in relationship to the needs of her children.
See In re Shane M., supra, 318 Conn. 585; see, e.g., In
re Shyliesh H., 56 Conn. App. 167, 173, 743 A.2d 165
(1999). The court, however, also found certain facts
that had no bearing on that essential issue. The court
found that Paula M. and a social worker were ‘‘individu-
als whom the children deeply trust’’ and observed that
they ‘‘care greatly for these children and have therefore
earned the trust of these very emotionally fragile and
otherwise guarded children . . . .’’ The court also
found that the ‘‘children want to remain in Paula M.’s
home and be adopted by [her] . . . .’’ The court further
concluded that ‘‘the children have made extraordinary
progress while living with Paula M., in an environment
that is calm and understanding of the children’s needs.
. . . As the children’s progress, relationship and work
with Paula M. makes clear, the process of healing and
recovery must also occur in a home environment which
the children have come to learn is safe and caring.’’
The court then stated: ‘‘Given Paula M.’s training and
participation in therapy sessions, it is clear that [the
therapeutic] process cannot be limited to the one hour
per week session that a child has, even with a trusting
therapist. In contrast, [the respondent] is volatile and
prone to violence, unable to set appropriate limits,
unwilling to talk with the children’s therapists and
therefore, unable to help them use coping skills to man-
age their anxiety and ultimately, unwilling to believe the
children’s statements regarding the trauma.’’ (Emphasis
added.) I must take the trial court’s unambiguous com-
parison at face value. Whether this was a conscious
comparison by the court or an inartful choice of words
to compare the respondent to Paula M., the plain lan-
guage of its decision evidences that such a comparison
was made.
The trial court’s findings in its introductory part of
the decision, although not limited to the issue in the
adjudicatory phase, lend further support to this conclu-
sion. See Olson v. Mohammadu, 310 Conn. 665, 682, 81
A.3d 215 (2013) (determinative factor when interpreting
trial court’s memorandum of decision ‘‘is the intention
of the court as gathered from all parts of the judgment’’
[internal quotation marks omitted]). The court repeat-
edly recited evidence discussing the positive attributes
of Paula M.: ‘‘Paula M. attended therapy consistently
every week and embraced as much education as possi-
ble in order to understand and help Jolene and [James]
through their symptoms,’’ and Mimi Akhand, James’
therapist, observed ‘‘that the foster mother must be
both firm with [James] but also very calm, warm and
supportive of him. . . . Akhand noted that [Paula M.]
is very skilled in this way and is also very good at
processing with [James] his conduct when he misbe-
haves. . . . Akhand described [Paula M.] as being very
understanding and very patient with [James].’’ While
these findings can be construed as implicitly
addressing the children’s needs, they expressly empha-
size Paula M.’s positive attributes. The absence of any
reference to these facts in the dispositional part of the
decision, along with the presence of similar references
in the adjudicatory part of the decision, further demon-
strates that Paula M.’s attributes influenced the court’s
decision in the adjudicatory phase.
I recognize that certain statements read in isolation
might be subject to an alternative interpretation, but
the totality of the statements and the clear expression
of comparison—‘‘In contrast’’—compel the conclusion
that the trial court improperly compared Paula M. with
the respondent. I would therefore conclude that the
trial court improperly injected the dispositional issue
of the children’s best interests analysis into the adjudi-
catory phase of its decision.
This concern, unfortunately, is not limited to the pres-
ent case. The Appellate Court has repeatedly addressed
similar claims, but ultimately construed language that
is susceptible to suggesting a comparison in the manner
that the majority does in the present case. See, e.g., In
re Gabriella A., 154 Conn. App. 177, 191–94, 104 A.3d
805 (2014) (court allegedly considered best interest of
child in adjudicatory phase), aff’d on other grounds,
319 Conn. 775, 777, 127 A.3d 948 (2015); In re Brian
T., 134 Conn. App. 1, 18–21, 38 A.3d 114 (2012) (same);
In re Zion R., 116 Conn. App. 723, 736–39, 977 A.2d 247
(2009) (same); In re Janazia S., 112 Conn. App. 69,
93–96, 961 A.2d 1036 (2009) (same). Given the funda-
mental right at stake, it is incumbent upon our courts
to make abundantly clear that they are not engaging in
such improper comparisons. See In re Juvenile Appeal
(Anonymous), supra, 177 Conn. 673 (quoting passage
from United States Supreme Court decision that ‘‘force-
fully recognized th[e] danger’’ of comparing advantages
of child’s natural parents with prospective adoptive
parents).
Having concluded that the trial court’s comparison
was improper, I must consider whether this impropriety
was harmless.2 E.g., In re Elvin G., 310 Conn. 485,
512–13, 78 A.3d 797 (2013) (applying harmless error
analysis in termination of parental rights case), over-
ruled in part on other grounds by In re Shane M., 318
Conn. 569, 587–88, 122 A.3d 1247 (2015). Even assuming,
without deciding, that the petitioner, the Commissioner
of Children and Families, would bear the burden of
demonstrating harmlessness beyond a reasonable
doubt; State v. Artis, 314 Conn. 131, 159, 101 A.3d 915
(2014) (state bore burden of demonstrating harm-
lessness beyond reasonable doubt when impropriety
was of constitutional magnitude); see also In re Yasiel
R., 317 Conn. 773, 782, 120 A.3d 1188 (2015) (termina-
tion of parental rights proceedings implicate constitu-
tional rights); that standard clearly is satisfied in this
case.
The trial court’s decision is replete with facts estab-
lishing that the respondent failed to rehabilitate,
untainted by any comparison to Paula M. The court
found, among other things, that the respondent: (1) ‘‘is
a volatile and sometimes violent individual’’; (2) never
adequately addressed ‘‘her communication skills so that
she could engage in cooperative relationships with pro-
fessionals who provide services to her and her chil-
dren’’; (3) ‘‘failed to acknowledge responsibility for the
conditions leading to the children’s removal’’ such that
the services offered to her ‘‘have essentially been inef-
fective’’; (4) refused to communicate with her children’s
therapists; and (5) failed to acknowledge or appreciate
the extent to which either domestic violence and sub-
stance abuse have been a significant source of trauma
to her children or the significance of her children’s
behaviors, in and of themselves. Most significantly, the
court found that the respondent ‘‘has none of the quali-
ties the children have required to stabilize and to con-
tinue to heal from the traumas they experienced while
in their parents’ care.’’ (Emphasis added.)
Thus, it is clear that, even without considering the
favorable attributes of Paula M., the court necessarily
would have concluded that the respondent ‘‘failed to
achieve such degree of personal rehabilitation as would
encourage the belief that within a reasonable time, con-
sidering the age and needs of [her children, she] could
assume a responsible position in’’ their lives. General
Statutes (Rev. to 2013) § 17a-112 (j) (3) (B); see also
In re Etta H., 146 Conn. App. 751, 759, 78 A.3d 295
(2013) (although ‘‘the standard is not full rehabilitation,
the parent must show more than any rehabilitation’’
[internal quotation marks omitted]). I therefore respect-
fully concur in the judgment.
1
I do not intend to suggest that it is always proper to make such a
comparison at the dispositional phase.
2
I am not persuaded by the respondent’s various contentions that the
trial court’s impropriety is not subject to harmless error analysis. First, even
assuming that the impropriety was clear and obvious, it did not result in a
manifest injustice in light of the trial court’s other, proper findings that I
subsequently discuss, and thus does not warrant automatic reversal under
the plain error doctrine as the respondent contends. State v. Jamison, 320
Conn. 589, 596–97, 134 A.3d 560 (2016) (‘‘party cannot prevail under plain
error unless it has demonstrated that the failure to grant relief will result
in manifest injustice’’). Second, contrary to the respondent’s contention, the
impropriety in this case did not constitute structural error because it did
not render the hearing fundamentally unfair in light of those same findings.
State v. Lopez, 280 Conn. 779, 791, 911 A.2d 1099 (2007) (structural errors
‘‘render a trial fundamentally unfair’’ [internal quotation marks omitted]).
Finally, even assuming the trial court’s improper comparison constituted a
due process violation, harmless error analysis would still apply notwithstand-
ing the respondent’s argument to the contrary. In re Steven M., 264 Conn.
747, 762, 826 A.2d 156 (2003) (Fundamental ‘‘fairness required that the trial
court hold a competency hearing. The failure to hold such a hearing in the
present case, however, was harmless.’’).