In re Kameron N.

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IN RE KAMERON N.*
(AC 44086)
Lavine, Moll and Cradle, Js.**
Syllabus
The respondent mother appealed to this court from the judgment of the
trial court terminating her parental rights with respect to her minor
child, K, who had previously been adjudicated neglected. K was eligible
for enrollment in the Rosebud Sioux Tribe on the basis of his father’s
tribal membership. The petitioner, the Commissioner of Children and
Families, and the Department of Children and Families, sent multiple
letters to the tribe pursuant to the Indian Child Welfare Act of 1978 (25
U.S.C. § 1901 et seq.) regarding K’s involvement with the department.
These letters included, inter alia, one sent by registered mail, return
receipt requested, informing the tribe that a trial on the termination of
parental rights was scheduled, with the dates, times and location of the
trial. A social worker representing the tribe signed for that letter. The
tribe sent multiple letters to the petitioner indicating, inter alia, that K
qualified for enrollment, and it exercised its statutory (25 U.S.C. § 1911(c)) right to intervene in the termination trial, but it did not appear. On
appeal, the mother claimed that the tribe did not receive proper notice
of the termination proceedings as required by federal law (25 U.S.C.
§ 1912 (a)) and that the court erred in denying her motion to open the
evidence and in finding that termination was in K’s best interest. Held:
1. The respondent mother’s claims that the tribe received inadequate notice
of the termination proceedings were unavailing: although the petitioner’s
letters to the tribe did not strictly follow guidelines for implementing
the Indian Child Welfare Act that the mother referenced in her challenge
to the notice, those guidelines were not mandatory and did not expand
the notice requirements set forth in the plain language of the act; more-
over, although the letter sent by registered mail informing the tribe of
the details of the termination trial did not advise the tribe of its right
to intervene, the tribe previously had been advised of and acknowledged
this right, thus, the notice complied with the requirements of 25 U.S.C.
§ 1912 (a).
2. The trial court did not abuse its discretion in denying the respondent
mother’s motion to open the evidence for the purpose of introducing
new evidence regarding the placement of K; contrary to the mother’s
assertion, the court did not rely on the willingness of K’s foster family
to adopt him in determining that termination of her parental rights was
in K’s best interest, thus, the mother’s purported new evidence was
irrelevant to the issues before the court.
3. The trial court’s determination that termination of the respondent mother’s
parental rights was in the child’s best interest was not clearly erroneous;
the court was entitled to determine, based on the evidence, that the
benefit of K’s bond with his mother and the potential loss he would
suffer from its removal were outweighed by his need for stability and
consistency, which she could not provide.
Argued November 10, 2020—officially released February 16, 2021***
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Middlesex, Juvenile Mat-
ters at Middletown, where the Rosebud Sioux Tribe
intervened; thereafter, the matter was tried to the court,
Woods, J.; subsequently, the court denied the respon-
dent mother’s motion to open the evidence; judgment
terminating the respondents’ parental rights, from
which the respondent mother appealed to this court.
Affirmed.
Karen Oliver Damboise, assigned counsel, for the
appellant (respondent mother).
Carolyn A. Signorelli, assistant attorney general,
with whom, on the brief, were William Tong, attorney
general, Clare Kindall, solicitor general, and Evan
O’Roark, assistant attorney general, for the appellee
(petitioner).
Opinion
CRADLE, J. The respondent mother, Brooke C.,
appeals from the judgment of the trial court terminating
her parental rights with respect to her minor child,
Kameron N.1 On appeal, she claims that (1) the Rosebud
Sioux Tribe (tribe) did not receive proper notice, pursu-
ant to the Indian Child Welfare Act of 1978 (ICWA), 25
U.S.C. § 1901 et seq., of the termination of parental
rights proceedings involving the child, who is enrollable
as a member of the tribe,2 (2) the trial court erred in
denying her motion to open the evidence ‘‘for the pur-
pose of introducing new evidence, which was discov-
ered after the close of evidence, regarding placement
of the child,’’ and (3) the trial court erred in finding
that termination was in the child’s best interest. We
affirm the judgment of the trial court.
The following procedural history, set forth by the
trial court, is relevant to the respondent’s claims. The
child was born to the respondent and David N. (collec-
tively, parents) on December 19, 2009. David N. and his
mother, the child’s paternal grandmother, are natives
of the tribe. The Department of Children and Families
(department) has been involved with this family since
2011, resulting in three substantiated allegations of
neglect arising from issues of ongoing substance abuse,
intimate partner violence, and inadequate supervision
of the child. ‘‘On August 5, 2016, [the petitioner, the
Commissioner of Children and Families] filed a neglect
petition on behalf of [the child]. On November 10, 2016,
[the child] was adjudicated neglected and placed under
protective supervision. While [the child] was under pro-
tective supervision and under [the respondent’s] care,
[the respondent] continued to struggle with maintaining
sobriety, which impacted her ability to properly parent
[the child]. On May 19, 2017, [the petitioner] filed an
[order for temporary custody] on behalf of [the child],
which was sustained on May 26, 2017. On May 19, 2017,
[the child] was placed in a nonrelative foster home
where he continues to reside at this time. On June 15,
2017, [the child] was committed to [the care and custody
of the petitioner]. On April 12, 2018, a permanency plan
for [termination of parental rights] and adoption was
approved by the court. A [termination] trial on this
matter commenced on April 22, 2019, with subsequent
trial dates of April 25, May 1, May 2, May 21, and June
17 of 2019.’’
On January 31, 2020, the trial court issued a memoran-
dum of decision terminating the parental rights of the
parents. The court found that the petitioner had made
the requisite efforts under ICWA to prevent the breakup
of the family by providing remedial services and rehabil-
itative programs to both parents, but those efforts were
unsuccessful. The court determined that the child had
previously been adjudicated neglected and that neither
parent had achieved a sufficient degree of personal
rehabilitation within the meaning of General Statutes
§ 17a-112 (j) (3) (B) (i). The court further concluded
that terminating their parental rights was in the child’s
best interest. This appeal followed.
We begin by noting that ‘‘Congress enacted ICWA in
1978 to address the [f]ederal, [s]tate, and private agency
policies and practices that resulted in the wholesale
separation of Indian children from their families. . . .
Congress found that an alarmingly high percentage of
Indian families are broken up by the removal, often
unwarranted, of their children from them by nontribal
public and private agencies and that an alarmingly high
percentage of such children are placed in non-Indian
foster and adoptive homes and institutions . . . .
Although the crisis flowed from multiple causes, Con-
gress found that non-Tribal public and private agencies
had played a significant role, and that [s]tate agencies
and courts had often failed to recognize the essential
Tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and
families. . . . To address this failure, ICWA establishes
minimum [f]ederal standards for the removal of Indian
children from their families and the placement of these
children in foster or adoptive homes, and confirms
Tribal jurisdiction over [child custody] proceedings
involving Indian children.’’ (Footnotes omitted; internal
quotation marks omitted.) United States Department of
the Interior, Office of the Assistant Secretary—Indian
Affairs, Bureau of Indian Affairs, ‘‘Guidelines for Imple-
menting the Indian Child Welfare Act,’’ (2016) (Guide-
lines), p. 5, available at bia.gov/sites/bia.gov/files/assets/
bia/ois/pdf/idc2-056831.pdf (last visited February 10,
2021). With the foregoing principles in mind, we turn
to the respondent’s claims on appeal.
I
The respondent first challenges the adequacy of the
notice of the termination proceedings afforded to the
tribe pursuant to ICWA.3 The following additional facts,
which are undisputed, are relevant to the respondent’s
claim. At trial, the petitioner introduced into evidence
the department’s correspondence with the tribe per-
taining to the child protection proceedings involving
the child. The record reflects that, by way of a letter
dated July 14, 2017, the department notified the tribe
that a neglect petition had been filed on behalf of the
child on August 9, 2016. On May 22, 2018, the depart-
ment sent a letter to the tribe informing it that a perma-
nency plan recommending the termination of parental
rights and adoption, which was attached to the letter,
had been filed on behalf of the child on February 22,
2018. On June 21, 2018, the department sent another
letter to the tribe, referencing the prior neglect petition
and a previous order for temporary custody and neglect
adjudication, and informing the tribe that the perma-
nency plan recommending termination had been
granted by the court on April 12, 2018. All three of these
letters were sent pursuant to ICWA, indicated that the
department had information to believe that the child
might be a member of the tribe, and advised the tribe of
its right to intervene in the proceedings. The respondent
does not claim that the tribe did not receive these
notices.
On June 28, 2018, the tribe responded to the depart-
ment, indicating that the child qualified for enrollment
in the tribe based on enrollment of the child’s father.
On July 6, 2018, the tribe sent another letter to the
department indicating that it had determined that the
child met the definition of ‘‘Indian Child’’ pursuant to
25 U.S.C. § 1903 (4). In that letter, the tribe stated:
‘‘If this is an involuntary child custody proceeding, we
intend to intervene in the above named matter as a
legal party. Send a copy of petition with names and
addresses of all parties.’’
On September 19, 2018, the department sent a letter
to the tribe notifying it of a ‘‘court date scheduled on
behalf of [the child] on [November 13, 2018] at 9:30
a.m.’’ The letter contained the address of the court, but
did not indicate the purpose of the ‘‘court date.’’
On January 17, 2019,4 the department sent a letter to
the tribe informing it of a hearing date of April 9, 2019,
to address pretrial motions, and notifying the tribe that
the termination of parental rights trial was scheduled
for April 22, April 25, and April 29, 2019. This letter
included the times of the trial on each date and the
address of the court. It was sent by registered mail with
return receipt requested and was signed for by Shirley
Bad Wound, a social worker representing the tribe.
On January 28, 2019, the tribe filed with the trial
court, inter alia, a ‘‘Notice of Intervention by the Rose-
bud Sioux Tribe’’ stating that it was ‘‘invok[ing] its rights
to intervene in this child custody proceeding pursuant
to 25 U.S.C. § 1911 (c) . . . .’’ Despite exercising its
right to intervene, the tribe took no further action, and
did not appear at the termination trial.
On March 27, 2019, David Mantell, a clinical and
forensic psychologist who was asked by the department
to review this matter, called Bad Wound. Bad Wound
acknowledged receipt of the documents sent by the
department but told Mantell that she knew very little
about the proceedings involving the child. After Mantell
summarized the proceedings for Bad Wound, she indi-
cated that the tribe’s plan at that time was to enroll
him as a tribal member. Despite exercising its right to
intervene, the tribe took no further action and did not
appear at the termination trial.
The trial court found that the child was a member
of the tribe, and, accordingly applied the substantive
law of ICWA in weighing the evidence presented at trial.
The trial court also found that ‘‘notice of the court
hearing dates were sent to the Rosebud Sioux tribe by
the [department] . . . [but] [n]o representative of the
tribe ever appeared in court.’’
The respondent now challenges the adequacy of the
notice afforded to the tribe of the termination proceed-
ings. The notice requirements of ICWA are set forth in
25 U.S.C. § 1912 (a), which provides in relevant part:
‘‘In any involuntary proceeding in a State court, where
the court knows or has reason to know that an Indian
child is involved, the party seeking the foster care place-
ment of, or termination of parental rights to, an Indian
child shall notify the parent or Indian custodian and
the Indian child’s tribe, by registered mail with return
receipt requested, of the pending proceedings and of
their right of intervention. . . .’’ 25 U.S.C. § 1912 (a)
(2018).
The respondent’s challenge to the adequacy of the
notice afforded to the tribe is twofold.5 First, the respon-
dent relies on the Guidelines in arguing: ‘‘The depart-
ment should have sent a letter, via certified or registered
mail, on or about July 5, 2018, informing the tribe that
a termination of parental rights petition had been filed,
include a copy of the [termination] petition, as well as
the date, time and location of the [termination] plea;
and contain[ing] the name, birthdate and birthplace of
the Indian child [and] his tribal affiliation; all known
parents; the parents’ birthdates, birthplace[s] and tribal
enrollment information; the name, birthdates, birth-
places and tribal information of maternal and paternal
grandparents; the name of each Indian tribe in which
the child is a member or eligible for membership; the
petitioner’s name; a statement of the right of the tribe
to intervene; the right to counsel; the right to request
up to a twenty day extension; [the] right to transfer the
proceeding to tribal court; [the] address and telephone
contact information of the court and potential legal
consequences of the proceedings; and confidentiality.
25 C.F.R. § 23.111 (d); [Guidelines], pp. 32–33.’’
As the respondent aptly notes, however, the Guide-
lines are not mandatory or binding. The Guidelines state
in relevant part: ‘‘While not imposing binding require-
ments, these guidelines provide a reference and
resource for all parties involved in child custody pro-
ceedings involving Indian children. These guidelines
explain the statute and regulations and also provide
examples of best practices for the implementation of
the statute, with the goal of encouraging greater unifor-
mity in the application of ICWA. These guidelines
replace the 1979 and 2015 versions of the [Department
of the Interior’s] guidelines.’’ Guidelines, supra, p. 4.
Therefore, although instructive, these guidelines are not
mandatory and do not expand the notice requirements
set forth in ICWA, but, rather, simply guide practitioners
on how best to comply with those requirements. Thus,
although the notices sent by the department in this case
did not contain all of the information recommended in
the guidelines, the omission of that information did not
render the notice to the tribe deficient under 25 U.S.C.
§ 1912 (a).
The respondent also argues that the notice of the
termination proceedings was deficient because it was
not sent to the tribe by registered mail with return
receipt requested as required by the plain language of
25 U.S.C. § 1912 (a). As noted herein, the department
sent notice to the tribe on January 17, 2019, of the dates
of the hearing on pretrial motions for the termination
trial and the dates of the termination trial itself by
registered mail, which was signed for by Bad Wound.
Although that particular correspondence did not advise
the tribe of its right to intervene, the tribe had already
acknowledged that it had received that advisement from
the department and had already stated its intention to
intervene. It was therefore unnecessary for the depart-
ment to again advise the tribe of its right to intervene.
In other words, because the tribe had already acknowl-
edged its right to intervene in the termination proceed-
ings, and stated its intention to do so, in its July 6, 2018
correspondence to the department, the January 17, 2019
notice to the tribe, which informed the tribe of the
termination trial dates, and was sent by registered mail,
adequately complied with the requirements of 25 U.S.C.
§ 1912 (a).6
On the basis of the foregoing, we conclude that the
respondent’s challenges to the adequacy of the notice
afforded to the tribe of the termination proceedings on
the grounds that it did not comply with the Guidelines
and that it was not sent by registered mail are
unavailing.
II
The respondent next claims that the trial court erred
in denying her motion to open the evidence ‘‘for the
purpose of introducing new evidence, which was dis-
covered after the close of evidence, regarding place-
ment of the child.’’ We disagree.
‘‘We review a trial court’s decision to reopen evidence
under the abuse of discretion standard. In any ordinary
situation if a trial court feels that, by inadvertence or
mistake, there has been a failure to introduce available
evidence upon a material issue in the case of such a
nature that in its absence there is a serious danger of
a miscarriage of justice, it may properly permit that
evidence to be introduced at any time before the case
has been decided. . . . Whether or not a trial court
will permit further evidence to be offered after the close
of testimony in a case is a matter resting in the sound
discretion of the court. . . . In determining whether
there has been an abuse of discretion, every reasonable
presumption should be given in favor of the correctness
of the court’s ruling. . . . Reversal is required only
[when] an abuse of discretion is manifest or [when]
injustice appears to have been done.’’ (Citation omitted;
internal quotation marks omitted.) Antonucci v. Anto-
nucci, 164 Conn. App. 95, 123, 138 A.3d 297 (2016).
The respondent moved to open the evidence on the
basis of ‘‘information obtained at an [administrative
case review] concerning the placement of the subject
child.’’7 Her motion does not reveal the substance or
source of this evidence. In her brief to this court, the
respondent hints that the purportedly new evidence
that she sought to introduce would show that the child’s
foster family was no longer ‘‘an adoptive resource’’ or
‘‘long-term resource’’ for the child. She argues: ‘‘Clearly,
the trial court was anticipating the foster parents to
adopt [the child] and relied upon that evidence in mak-
ing its decision to terminate.’’
First, we disagree with the respondent’s assertion
that the trial court relied on the foster family’s willing-
ness to adopt when it determined that termination of
her parental rights was in the child’s best interest. In
concluding that termination was in the best interest of
the child, the court reasoned: ‘‘The court has . . . bal-
anced the child’s need for stability and permanency
against the distant and uncertain benefit of maintaining
a connection with [the parents]. The court has noted
throughout this decision that the parents have not dem-
onstrated a willingness or ability to provide consistent,
competent, safe, and nurturing parenting to their child.
The parents have never successfully cared for or sup-
ported [the child], or met his needs on a consistent
basis. The parents have not successfully taken advan-
tage of available services in order to improve their cir-
cumstances so they can assume a responsible role in
[the child’s] life. They have been unavailable for ser-
vices due to lack of interest and concern for [the child].
Further, the father has been incarcerated. The parents
have not been able to put the child’s interests ahead of
their own interests.
‘‘The child needs a permanent and stable living envi-
ronment in order to grow and develop in a healthy
manner. There is no reasonable possibility that the . . .
parents will be able to serve a meaningful role as a
parent within a reasonable period of time. The child
seeks his foster parents out for daily comfort and sup-
port. The court finds that the child is bonded to his
foster family and enjoys a significant degree of mental
and emotional stability in their care.
‘‘The best interest of the child will be served by termi-
nating the parental rights of the [parents] so that the
child can be provided with the love, care, permanency,
and the stability that he requires.’’
Although the court referred to the child’s foster fam-
ily, it is clear that the court’s decision was based on
the parents’ demonstrated inability to meet the child’s
needs. Moreover, because the questions of where the
child should reside and with whom are not questions
that relate to whether it is in the child’s best interest
to terminate his relationship with his parents; see In
re Denzel A., 53 Conn. App. 827, 834, 733 A.2d 298(1999); the respondent’s purported new evidence was
irrelevant to the issues before the trial court. We there-
fore conclude that the trial court did not abuse its dis-
cretion in denying the respondent’s motion to open
the evidence.
III
Finally, the respondent claims that the court erred
in concluding that termination was in the child’s best
interest. Specifically, the respondent also argues that
the court’s finding that the benefit to the child of main-
taining a connection with her was ‘‘distant and uncer-
tain’’ was clearly erroneous and not supported by the
evidence.’’8 We are not persuaded.
‘‘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.’’
(Internal quotation marks omitted.) Budrawich v.
Budrawich, 200 Conn. App. 229, 246, 240 A.3d 688(2020).
The respondent contends that the court erred in char-
acterizing the benefit of the child maintaining a connec-
tion with her as ‘‘distant and uncertain.’’ She argues
that the court’s finding was inconsistent with Mantell’s
testimony that the child had a close bond with her and
that the child’s loss of that bond would be a significant
loss to him. The court’s characterization of the benefit
to the child of his bond with the respondent is not
inconsistent with Mantell’s testimony. The court so
characterized the respondent’s relationship with the
child relative to his need for stability and consistency,
which the respondent has been unwilling or unable to
provide. Thus, while the child’s loss of his relationship
with the respondent might, as Mantell testified, be a
significant loss, the court determined that the risk of
that loss was outweighed by the needs of the child. It
is within the court’s discretion to credit all, part, or
none of the testimony elicited at trial, to weigh the
evidence presented, and to determine the effect to be
given the evidence. See In re Gabriella A., 319 Conn.
775, 790, 127 A.3d 948 (2015). The court here deter-
mined, on the basis of the respondent’s history as a
mother, that the risk of the potential loss of the child’s
relationship with her was outweighed by his need for
consistency and stability. The court emphasized the
repeated efforts of the department to rehabilitate the
respondent and reunify her with the child and the
respondent’s consistent inability or unwillingness to
cooperate with the department’s efforts. There is ample
evidence of the respondent’s shortcomings against
which the court was entitled to weigh the benefit of
the child’s relationship with her. The court did not err
in engaging in that thoughtful analysis.
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.
** The listing of judges reflects their seniority status on this court as of
the date of oral argument.
*** February 16, 2021, the date this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The parental rights of the child’s father also were terminated. He has
challenged the trial court’s judgment in a separate appeal. See In re Kameron
N., 202 Conn. App. , A.3d (2021). Therefore, any reference to
the respondent is to the mother.
2
In the father’s appeal, he also challenged the adequacy of the notice
afforded to the tribe. In that appeal, the attorney for the child filed a letter
with this court, pursuant to Practice Book §§ 67-13 and 79a-6 (c), adopting
the brief of the petitioner.
3
It is well settled that such a claim challenging compliance under ICWA
in an involuntary proceeding such as the termination of parental rights may
properly be raised for the first time on appeal. See In re Marinna J., 90
Cal. App. 4th 731, 739, 109 Cal. Rptr. 2d 267 (2001). Additionally, ICWA
specifically confers standing on a parent to petition a court to invalidate a
termination proceeding upon showing that notice requirements have not
been satisfied. See 25 U.S.C. § 1914 (2018).
4
Although this letter is dated January 17, 2018, the parties stipulate that
it was actually sent on January 17, 2019.
5
We note that ‘‘[t]he requisite notice to the tribe serves a twofold purpose:
(1) it enables the tribe to investigate and determine whether the minor is
an Indian child; and (2) it advises the tribe of the pending proceedings and
its right to intervene or assume tribal jurisdiction.’’ (Internal quotation marks
omitted.) In re N.R., 242 W. Va. 581, 590, 836 S.E.2d 799 (2019), cert. denied
sub nom. Rios v. West Virginia Dept. of Health & Human Resources,
U.S. , 140 S. Ct. 1550, 206 L. Ed. 2d 385 (2020).
6
The petitioner argues, in the alternative, that the notice sent to the tribe
substantially complied with ICWA, and that any alleged deficiency with it
was harmless. Because we conclude that the notice complied with the
requirements set forth by the plain and unambiguous language of ICWA,
we need not address the petitioner’s alternative arguments. It is worth
noting, however, that it is undisputed that the tribe had actual notice of the
termination proceedings but took no action in them beyond intervening.
7
The respondent fails to indicate in her brief to this court when she filed
her motion to open evidence, whether the petitioner filed an objection to
her motion, or when the court denied it. She has not provided any record
citations facilitating our review of this claim. It is not clear from the respon-
dent’s brief whether the court heard oral argument on her motion or decided
it on the papers. She also failed to provide the citation to the motion to
open that she included in her appendix.
8
The respondent also argues that ‘‘there is a discrepancy between the
court finding that the foster parents were willing to adopt and the representa-
tion from the department that they wanted to continue to foster him.’’ For
the reasons set forth in part II of this opinion, we need not address this
argument further.