In re Carla C.

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IN RE CARLA C.*
(AC 38541)
Beach, Sheldon and Mullins, Js.
Argued April 7—officially released July 22, 2016**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown, C.
Taylor, J.)
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent father).
Joshua Michtom, assistant public defender, for the
appellee (petitioner).
Brya A. Darley, for the minor child.
Opinion
MULLINS, J. In this appeal from the termination of
the parental rights of the respondent father, Carlos C.,
the dispositive issues are (1) whether a parent’s involve-
ment in a crime before the birth of his child may be an
act of parental commission or omission forming the
basis for termination of his parental rights pursuant to
General Statutes § 45a-717 (g) (2) (B),1 and (2) whether
a court may find that no ongoing parent-child relation-
ship exists, pursuant to § 45a-717 (g) (2) (C),2 when a
custodial parent’s conduct has contributed significantly
to the establishment of that ground for termination. We
agree with the respondent that his commission of a
crime before the birth of the child in this case, Carla
C. (Carla), is not a parental act of commission or omis-
sion, as that basis for termination properly is under-
stood. We also agree with the respondent that when a
custodial parent has interfered with an incarcerated
parent’s visitation and other efforts to maintain an ongo-
ing parent-child relationship with the parties’ child, the
custodial parent cannot terminate the noncustodial par-
ent’s parental rights on the ground of no ongoing parent-
child relationship. Accordingly, we reverse the judg-
ment of the trial court granting the petition of the peti-
tioner mother, Glenda G., for termination of the
respondent’s parental rights as to Carla.
The following facts and procedural history, as found
by the trial court or as undisputed in the record, inform
our resolution of the respondent’s appeal. The parties
began a relationship in September, 2008, shortly after
which the petitioner became pregnant. On January 9,
2009, while the petitioner was pregnant, the respondent
was involved in a drive-by shooting in Torrington. Carla
was born six months later on July 13, 2009. On July 29,
2009, the respondent executed an acknowledgment of
paternity as to Carla.
On August 4, 2009, the respondent was arrested and
charged in connection with the drive-by shooting.3 On
June 3, 2011, the respondent pleaded guilty to one count
of conspiracy to commit assault in the first degree in
violation of General Statutes §§ 53a-59 (a) (1) and 53a-
48 (a), and one count of assault in the first degree
as an accessory in violation of § 53a-59 (a) (1). The
respondent subsequently was sentenced to a total effec-
tive term of twenty years incarceration, execution sus-
pended after nine years, with five years probation.4 The
respondent’s maximum release date is May 7, 2018.
On seven occasions between August 26, 2009, and
August 19, 2011, the petitioner took Carla to visit the
respondent in prison. She then decided that she no
longer wanted to be in a relationship or raise a child
with the respondent. Accordingly, she unilaterally
decided that visits with the respondent were no longer
in Carla’s best interest. The respondent has not seen
Carla since August 19, 2011.
In the meantime, the petitioner met and began a rela-
tionship with Steve M. (Steve), whom she described
as a ‘‘real man’’ and ‘‘[the] father figure that [Carla]
deserves.’’ The petitioner and Carla moved into Steve’s
home in the summer of 2011 and remained there until
May, 2014, when the relationship ended for a time and
the petitioner and Carla moved into their own apart-
ment.5 The petitioner and Steve resumed their relation-
ship in early 2015. Since then, Steve and the petitioner,
together with Carla, frequently stay at each other’s
home. Carla refers to Steve by name and as ‘‘Dad’’ or
‘‘Daddy Steve.’’ Steve, who shares with the petitioner
the cost of Carla’s dance lessons and day care, intends
to adopt Carla if the respondent’s parental rights are ter-
minated.
Since his last visit with Carla in 2011, the respondent
has sent her cards and letters. The petitioner threw
away all of the cards and letters without showing them
to Carla, including letters and drawings that the respon-
dent had asked Carla’s attorney to give to the petitioner
to give to Carla. The respondent last spoke to Carla by
telephone on her birthday in 2014, when she was at the
Florida home of the petitioner’s mother. He acknowl-
edged that during that call, Carla did not recognize him
as her father.
In early 2012, after she had decided she no longer
wanted the respondent in Carla’s life, the petitioner
obtained an order from the MacDougall-Walker Correc-
tional Institution (MacDougall-Walker), where the
respondent was incarcerated, directing the respondent
to cease all oral and written communication with the
petitioner and Carla, either directly or through a third
party. The order notified the respondent that his failure
to comply with it would result in disciplinary action.
The petitioner subsequently initiated a separate cus-
tody action in the judicial district of Litchfield, pursuant
to which, on June 26, 2012, the parties entered into a
stipulation awarding the petitioner sole legal and physi-
cal custody of Carla, and permitting the respondent
one visit with Carla every sixty days. The stipulation
provided that the respondent’s mother would transport
Carla to and from MacDougall-Walker. The stipulation
also provided that the respondent’s parenting access
was to be reevaluated upon his release from prison.
Although the petitioner believed that visits between the
respondent and Carla in prison were not in Carla’s best
interest, she did not seek to modify the visitation order.
Despite the parties’ stipulation, none of the bimonthly
visits provided for in the stipulation took place. As a
result, the respondent filed a number of motions for
contempt in which he sought to enforce the visitation
provided for in the stipulation.6 Pursuant to these
motions, the court issued orders on April 18, and Octo-
ber 8, 2013, that the respondent be given visits.7 The
court ordered that the visits were to occur on May 19
and November 24, 2013. Neither of the visits took place.8
While incarcerated, the respondent, whose employ-
ment history consists of two weeks of work at a Wendy’s
restaurant in Florida, has obtained a general equiva-
lency diploma and a diploma in business management.
He also has completed course work in real estate
appraisal. The respondent’s mother, who has supported
the respondent financially throughout his life, has paid
for his education in prison. At the time of the trial
on the petition for termination of parental rights, the
respondent expected to enroll in anger management
and parenting programs provided by the Department
of Correction.
On December 18, 2013, the petitioner filed a petition
for termination of the respondent’s parental rights in
Torrington Probate Court. In the petition, the petitioner
alleged two statutory grounds for termination: (1) that
Carla had been denied the care, guidance, or control
necessary for her physical, educational, moral, or emo-
tional well-being, by reason of the respondent’s act of
commission or omission; see footnote 1 of this opinion;
and (2) that there was no ongoing relationship between
the respondent and Carla, and to allow further time for
the establishment of the relationship would be detri-
mental to Carla’s best interest. See footnote 2 of this
opinion. The petitioner submitted an accompanying
affidavit in which she averred the following: that the
respondent was incarcerated following a conviction for
assault and risk of injury to a child; that the respondent
had participated in a drive-by shooting of a house in
which a child was present; that the respondent will be
incarcerated until 2018; that the respondent had seen
Carla only a handful of times; and that visiting the
respondent in prison was not in Carla’s best interest.9
By motion dated December 20, 2013, the petitioner
sought to suspend the respondent’s visitation with
Carla. In the motion to suspend visitation, the petitioner
represented that although the respondent’s mother had
attempted to facilitate visitation, the arrangement was
unworkable, and that, in any event, visiting the respon-
dent in prison was not in Carla’s best interest. By notice
dated February 21, 2014, the court granted the petition-
er’s motion to suspend visitation, pending the outcome
of the Probate Court proceedings on the petition to
terminate the respondent’s parental rights.
By motion dated February 21, 2014, the respondent
successfully sought transfer of the action to the Supe-
rior Court for Juvenile Matters. The Superior Court for
Juvenile Matters subsequently transferred the action to
the Child Protection Session at Middletown. On Septem-
ber 12, 2014, the respondent moved for an order of
visitation with Carla pending the resolution of the peti-
tion for termination of parental rights. The court, Ginoc-
chio, J., consolidated for trial the respondent’s motion
for visitation and the petition for termination of paren-
tal rights.
The court, C. Taylor, J., held a trial on the consoli-
dated petition for termination of parental rights and
motion for visitation on June 5 and 9, 2015, with closing
arguments on June 23, 2015. By memorandum of deci-
sion dated October 13, 2015, the court concluded that
the petitioner had proven both alleged grounds for ter-
mination and that termination was in Carla’s best inter-
est.10 The court made no ruling on the respondent’s
motion for visitation. Accordingly, the court granted the
petition for termination of parental rights. This appeal
followed. Additional facts will follow as necessary.
The respondent presents three principal claims on
appeal, one pertaining to the first ground for termina-
tion and two pertaining to the second. With regard to
the first ground, the respondent claims that the court
erred as a matter of law in determining that the respon-
dent deprived Carla of the care necessary to her well-
being. With regard to the second ground, the respondent
claims that (1) as a matter of law,11 a parent may not
prevent the other parent from maintaining a relation-
ship with their child and then successfully petition to
terminate parental rights on the ground that there is
no ongoing parent-child relationship, and (2) the
respondent’s incarceration, standing alone, is an insuffi-
cient basis on which to terminate his parental rights.
‘‘A hearing on a petition to terminate parental rights
consists of two phases: the adjudicatory phase and the
dispositional phase. During the adjudicatory phase, the
trial court must determine whether one or more
grounds for termination of parental rights set forth in
. . . General Statutes . . . [§] 45a-717 (g) (2)12 has
been proven by clear and convincing evidence.13 . . .
‘‘In the dispositional phase . . . the emphasis appro-
priately shifts from the conduct of the parent to the
best interest of the child. . . . The best interests of the
child include the child’s interests in sustained growth,
development, well-being, and continuity and stability
of [her] environment. . . . [T]he trial court must deter-
mine whether it is established by clear and convincing
evidence that the continuation of the respondent’s
parental rights is not in the best interest of the child.’’14
(Citations omitted; footnotes added; internal quotation
marks omitted.) In re Payton V., 158 Conn. App. 154,
160, 118 A.3d 166, cert. denied, 317 Conn. 924, 118 A.3d
549 (2015).
‘‘Clear and convincing proof is a demanding standard
denot[ing] a degree of belief that lies between the belief
that is required to find the truth or existence of the
[fact in issue] in an ordinary civil action and the belief
that is required to find guilt in a criminal prosecution.
. . . [The burden] is sustained if evidence induces in
the mind of the trier a reasonable belief that the facts
asserted are highly probably true, that the probability
that they are true or exist is substantially greater than
the probability that they are false or do not exist.’’
(Internal quotation marks omitted.) In re Justice V.,
111 Conn. App. 500, 513, 959 A.2d 1063 (2008), cert.
denied, 290 Conn. 911, 964 A.2d 545 (2009).
‘‘Our standard of review on appeal from a termination
of parental rights is whether the challenged findings are
clearly erroneous. . . . The determinations reached by
the trial court that the evidence is clear and convincing
will be disturbed only if [the challenged] finding is not
supported by the evidence and [is], in light of the evi-
dence in the whole record, clearly erroneous. . . .
‘‘On appeal, our function is to determine whether the
trial court’s conclusion was legally correct and factually
supported. . . . We do not examine the record to deter-
mine whether the trier of fact could have reached a
conclusion other than the one reached . . . nor do we
retry the case or pass upon the credibility of the wit-
nesses. . . . Rather, on review by this court every rea-
sonable presumption is made in favor of the trial court’s
ruling.’’ (Internal quotation marks omitted.) In re Pay-
ton V., supra, 158 Conn. App. 161.
I
ACT OF PARENTAL COMMISSION OR OMISSION
The respondent first claims that the trial court erred
as a matter of law in finding that the petitioner proved
that he had deprived Carla of the care necessary to
her well-being because there was no evidence that any
specific act of parental commission or omission caused
Carla to suffer serious physical or emotional injury.
Specifically, he argues that the trial court could not
properly conclude that this ground for termination had
been established because it did not find either (1) that
Carla had suffered a serious physical or emotional
injury or (2) that he had committed an act of parental
commission or omission. To the extent that the court
did find that he had committed an act of parental com-
mission or omission, he argues, the court improperly
based its finding on conduct that occurred before Carla
was born—namely, his participation in the drive-by
shooting for which he currently is incarcerated.
The petitioner counters that the denial of care, guid-
ance, and control that must be proven to establish this
ground for termination does not require a finding of
serious physical or emotional injury. She also argues
that the court properly found that the respondent had
engaged in an act of commission or omission. She char-
acterizes this act as ‘‘the respondent’s voluntary
absence from his daughter’s life . . . which continued
for at least six years after Carla’s birth.’’
Under our well established law, to provide a basis
for termination of parental rights on the ground set
forth in § 45a-717 (g) (2) (B); see footnote 1 of this
opinion; an act of parental commission or omission
must occur after the birth of the child. ‘‘[P]arental con-
duct justifying termination of parental rights pursuant
to § [45a-717 (g) (2) (B)] must occur after birth and
. . . the statute does not contemplate termination of
parental rights upon the basis of prenatal conduct.’’ In
re Valerie D., 223 Conn. 492, 513, 613 A.2d 748 (1993);
id., 525 (mother’s injection of cocaine hours before
child’s birth could not justify termination of mother’s
parental rights on ground of act of parental commission
or omission).
In the present case, on the basis of our review of the
court’s memorandum of decision, we conclude that the
court improperly based its conclusion that the respon-
dent had engaged in an act of parental commission or
omission on its finding that the respondent was involved
in the 2009 drive-by shooting while the petitioner was
pregnant with Carla. The trial court characterized the
petitioner’s alleged ground for termination as follows:
‘‘[The petitioner] . . . claims that [the respondent’s]
act or acts of parental commission or omission revolve
around his involvement in the criminal activities that
culminated in his participation in the Torrington drive-
by shooting in [January],15 2009, and his substantial jail
sentence resulting from his criminal activities.’’ The
court concluded that ‘‘the petitioner has proven, by
clear and convincing evidence, that [the respondent]
has denied Carla . . . the care, guidance or control
necessary for Carla’s physical, educational, moral or
emotional well-being as a result of his criminal activi-
ties, which resulted in his incarceration.’’
In reaching this conclusion, the court made the fol-
lowing findings. ‘‘The clear and convincing evidence
shows that [the respondent], no tyro to the criminal
justice system, knew . . . in [January], 2009, that [the
petitioner] was pregnant with his child. He further knew
that further involvement with the criminal justice sys-
tem would have dire consequences for his probation.
He also knew that involvement in a drive-by shooting
had the potential to result in a substantial period of
incarceration, as it actually did. [The respondent] had
to know the potential for the enforced separation from
his child throughout her childhood that would result if
he were incarcerated. This potentiality did, [in] fact,
come to fruition as a result of [the respondent’s] felony
convictions in 2011. The clear and convincing evidence
also shows that [the respondent] will be incarcerated
for an additional, substantial period of time and will be
on probation following his discharge from [the Depart-
ment of Correction].’’
The court identified the ‘‘act or acts of parental com-
mission or omission’’ forming the basis of the ground
for termination of parental rights identified in § 45a-
717 (g) (2) (B) as the respondent’s ‘‘criminal activities
which resulted in his incarceration’’—specifically, his
involvement in the drive-by shooting in January, 2009,
of which he was convicted and currently is incarcer-
ated. In January, 2009, however, Carla had not yet been
born. The court’s conclusion that the respondent’s con-
duct prior to Carla’s birth constituted an ‘‘act or acts
of parental commission or omission’’ contemplated by
§ 45a-717 (g) (2) (B) contravenes the clearly established
rule that a parent’s prenatal conduct may not be the
basis for termination of parental rights on this ground.
In re Valerie D., supra, 223 Conn. 513. Accordingly,
the court’s conclusion that the petitioner proved this
ground for termination cannot stand. Because the
respondent’s participation in a drive-by shooting prior
to Carla’s birth may not constitute the requisite act
of commission or omission, we need not determine
whether the court found that Carla suffered a serious
physical or emotional injury.
II
NO ONGOING PARENT-CHILD RELATIONSHIP
The respondent next claims that the court’s conclu-
sion that he had no ongoing parent-child relationship
with Carla was legally incorrect under the circum-
stances of this case. The respondent’s argument in sup-
port of this claim is twofold: first, as a matter of law, this
ground for termination may not be established where a
custodial parent unreasonably has interfered with the
development of the other parent’s relationship with the
parties’ child; second, in the alternative, the court
improperly terminated the respondent’s parental rights
on the basis of his incarceration alone. We agree with
the respondent that a parent whose conduct inevitably
has led to the lack of an ongoing parent-child relation-
ship may not terminate parental rights on this ground.16
The following additional procedural history is rele-
vant to this claim. In concluding that the petitioner had
established this ground for termination, the court in its
memorandum of decision determined that ‘‘no parental
relationship ever existed between this respondent and
Carla’’ because the respondent had never provided
Carla with the necessities to meet her daily needs, and
Carla had not formed any positive memories of the
respondent. Although the court found that ‘‘[c]learly,
the [petitioner] was not in favor of Carla visiting [the
respondent] [in prison] and did not go out of her way
to facilitate visitation,’’ it concluded that ‘‘the proximate
cause of the lack of an ongoing parent-child relationship
was the fault of [the respondent] himself. [The respon-
dent was] a gang member . . . who decided to involve
himself in a drive-by shooting despite . . . the possibil-
ity that he would be unable to appropriately parent his
child due to incarceration.’’
Despite finding that the petitioner had refused to
facilitate visits between the respondent and Carla, the
court found that there nevertheless was no evidence
that more visits would have led to the development of
an ongoing parent-child relationship: ‘‘This matter does
not hinge upon the visits in [prison]. There was evidence
in the trial that [the respondent] was going to receive
only one visit in [prison] with Carla every sixty days.
The lack of an ongoing relationship solely relates to
Carlos’ incarceration—a matter about which he had
total and absolute control.’’17
A
The following foundational principles governing the
judicial severance of the parent-child relationship
undergird our resolution of this claim. ‘‘[T]he termina-
tion of parental rights is defined . . . as the complete
severance by court order of the legal relationship, with
all its rights and responsibilities, between the child and
his parent . . . . It is, accordingly, a most serious and
sensitive judicial action. . . . Although the severance
of the parent-child relationship may be required under
some circumstances, the United States Supreme Court
has repeatedly held that the interest of parents in their
children is a fundamental constitutional right that unde-
niably warrants deference and, absent a powerful coun-
tervailing interest, protection. Stanley v. Illinois, 405
U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972);
see also In re Juvenile Appeal (83-CD), 189 Conn. 276,
295, 455 A.2d 1313 (1983) (noting that it is both a funda-
mental right and the policy of this state to maintain the
integrity of the family). Termination of parental rights
does not follow automatically from parental conduct
justifying the removal of custody. The fundamental
liberty interest of natural parents in the care, custody,
and management of their child does not evaporate sim-
ply because they have not been model parents or have
lost temporary custody of their child to the State. Even
when blood relationships are strained, parents retain a
vital interest in preventing the irretrievable destruction
of their family life. Santosky v. Kramer, 455 U.S. 745,
753, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
‘‘Accordingly, [our legislature has] carefully limited
situations in which countervailing interests are suffi-
ciently powerful to justify the irretrievable destruction
of family ties that the nonconsensual termination of
parental rights accomplishes. . . .
‘‘As a matter of statutory fiat, consideration of the
best interests of the child cannot vitiate the necessity
of compliance with the specified statutory standards
for termination. . . . [I]nsistence upon strict compli-
ance with the statutory criteria before termination of
parental rights and subsequent adoption proceedings
can occur is not [however] inconsistent with concern
for the best interests of the child. . . . A child, no less
than a parent, has a powerful interest in the preserva-
tion of the parent-child relationship. . . .
‘‘Similarly, questions concerning the ultimate custo-
dial placement of the child may not be intermingled
with the issues of termination. . . . [A] parent cannot
be displaced because someone else could do a better
job of raising the child . . . .’’ (Citations omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) In re Jessica M., 217 Conn. 459, 464–67,
586 A.2d 597 (1991).
B
Ascertaining whether no ongoing parent-child rela-
tionship exists pursuant to § 45a-717 (g) (2) (C); see
footnote 2 of this opinion; ‘‘requires the trial court to
make a two-pronged determination. First, there must
be a determination that no parent-child relationship
exists, and, second, the court must look into the future
and determine whether it would be detrimental to the
child’s best interests to allow time for such a relation-
ship to develop. . . . The best interest standard . . .
does not become relevant until after it has been deter-
mined that no parent-child relationship exists.’’ (Cita-
tion omitted; internal quotation marks omitted.) In re
Michael M., 29 Conn. App. 112, 128, 614 A.2d 832 (1992).
The definition of ‘‘no ongoing parent-child relation-
ship’’ has evolved in light of a ‘‘sparse’’ legislative his-
tory.18 In re Juvenile Appeal (Anonymous), 177 Conn.
648, 669, 420 A.2d 875 (1979) (examining history of
similar language in predecessor to § 17a-112 [j] [3] [D]).
‘‘[T]he language of [this ground for termination] con-
template[s] a situation in which, regardless of fault, a
child either has never known his or her parents, so that
no relationship has ever developed between them, or
has definitively lost that relationship, so that despite
its former existence it has now been completely dis-
placed.’’ (Internal quotation marks omitted.) In re Kezia
M., 33 Conn. App. 12, 21, 632 A.2d 1122, cert. denied,
228 Conn. 915, 636 A.2d 847 (1993).
Because ‘‘[t]he statute’s definition of an ongoing par-
ent-child relationship . . . is inherently ambiguous
when applied to noncustodial parents who must main-
tain their relationships with their children through visi-
tation’’; (internal quotation marks omitted) In re Jessica
M., supra, 217 Conn. 467–68; ‘‘[t]he evidence regarding
the nature of the respondent’s relationship with [the]
child at the time of the termination hearing must be
reviewed in the light of the circumstances under which
visitation had been permitted.’’ Id., 473; see also In re
Alexander C., 67 Conn. App. 417, 425, 787 A.2d 608
(2001) (‘‘the evidence regarding the quality of [a par-
ent’s] relationship with [a] child must be reviewed in
the light of the [parent’s] limited access to visitation
at the time of the petition’’ [internal quotation marks
omitted]), aff’d, 262 Conn. 308, 813 A.2d 87 (2003).
In determining whether such a relationship exists,
generally, ‘‘the ultimate question is whether the child
has no present [positive] memories or feelings for the
natural parent.’’ (Internal quotation marks omitted.) In
re Jessica M., supra, 217 Conn. 467–68; see id., 470 (‘‘the
standard contemplates a relationship that has some
positive attributes’’). ‘‘[I]n cases involving the develop-
ment of a parent-child relationship in the earliest stages
of the child’s life, [however] we also must be mindful
of the positive feelings of the parent toward the child.’’
In re Alexander C., supra, 67 Conn. App. 425; see In
re Valerie D., supra, 223 Conn. 532 (‘‘where the child
involved is virtually a newborn infant whose present
feelings can hardly be discerned with any reasonable
degree of confidence . . . the inquiry must focus, not
on the feelings of the infant, but on the positive feelings
of the natural parent’’).
In In re Jessica M., supra, 217 Conn. 472–73, 475, our
Supreme Court emphasized the importance of consider-
ing limitations placed on a noncustodial parent’s access
to her child, holding that where the petitioners, the
child’s legal guardians, had limited the respondent
mother’s visitation with the child, the petitioners failed
to prove the lack of an ongoing parent-child relationship
even though the respondent had not cared for the child
on a day-to-day basis.19 In that case, the respondent,
acknowledging that her drug addiction prevented her
from parenting, had voluntarily consented to the child’s
paternal aunt and uncle assuming guardianship. Id.,
462–63. The guardians, who wished to adopt the child,
then successfully petitioned for termination of parental
rights, and the respondent appealed. Id., 464. Our
Supreme Court reversed the trial court’s finding that
there was no ongoing parent-child relationship ‘‘essen-
tially because the respondent had not provided day-to-
day care for her daughter for more than a year’’; id.,
463; and therefore was not the child’s ‘‘ ‘psychological
parent’ . . . .’’ Id., 464.
Our Supreme Court rejected the standard applied
by the trial court as ‘‘plac[ing] noncustodial parents,
including parents who are granted only limited visita-
tion rights . . . at risk of losing their remaining paren-
tal rights simply through the passage of time regardless
of fault.’’ Id., 467. Because of the statute’s inherent
ambiguity as applied to the noncustodial respondent,
the court concluded that the ground for termination
could not be established so long as the child maintained
some positive feelings for the respondent. Id., 467–70.
Turning to the evidence regarding the nature of the
respondent’s relationship with her child at the time of
the termination hearing, the court stated that it ‘‘must
be reviewed in the light of the circumstances under
which visitation had been permitted.’’ Id., 473. Notably
in this regard, ever since assuming guardianship, the
petitioners had restricted the respondent’s access to
the child to a few hours of supervised visitation every
other week and weekly phone calls. Id., 472–73.
Although the respondent consented to this schedule
when she still was actively abusing drugs, she sought
increased and unsupervised visitation after achieving
some months of sobriety; the petitioners, however,
refused. Id., 473. In light of these limitations and the
trial court’s factual finding that the child maintained
some affection for the respondent, our Supreme Court
concluded that the petitioners had not proven the lack
of an ongoing parent-child relationship by clear and
convincing evidence. Id., 475.20
One year later, in In re Valerie D., our Supreme Court
considered the effect of limitations placed on a noncus-
todial parent’s access to the child where the child was
too young to have developed any discernible feelings
for the parent. The court in In re Valerie D., supra,
223 Conn. 532, concluded that the Commissioner of
Children and Families (commissioner)21 may not termi-
nate parental rights on the ground of no ongoing parent-
child relationship where, by virtue of the commission-
er’s coterminous petitions for custody and termination
of parental rights, which had been filed immediately
after the child’s birth, the child had been in foster care
virtually from birth until the adjudication of a lack of
an ongoing parent-child relationship three and one-half
months later. In that case, the child was placed in foster
care because the respondent mother had ingested
cocaine just prior to the child’s birth. Id., 500, 528. The
respondent subsequently attempted to visit the child at
her foster home, but various circumstances, including
the respondent’s difficulty finding transportation,
inability to procure a required certification that she was
free from communicable diseases, and enrollment in a
drug treatment program, permitted only sporadic visita-
tion. See id., 528 and n.28.
On appeal from the termination of the respondent’s
parental rights, our Supreme Court determined that ‘‘the
lack of an ongoing parent-child relationship between
the respondent and the child was the direct result of
the fact that the child was in foster care apart from the
respondent for almost the entire period of time between
the birth and the adjudication date.’’ Id., 531. ‘‘[O]nce
the child had been placed in foster care . . . a finding
of a lack of an ongoing parent-child relationship three
and one-half months later was inevitable . . . because
absent extraordinary and heroic efforts by the respon-
dent, the petitioner was destined to have established
the absence of such a relationship.’’ Id., 533. The court
concluded that the statutes governing commitment and
termination of parental rights could not be read ‘‘to
enable the petitioner to gain and maintain custody of
a newborn infant . . . under circumstances, as in this
case, that will lead almost inevitably to the ground for
termination [of no ongoing parent-child relation-
ship].’’ Id.
In arriving at this conclusion, the court in In re Valerie
D. noted that ‘‘[u]ntil now . . . we have not been
required to apply [the] definition [of no ongoing parent-
child relationship] to a case, like this, where the child
involved is virtually a newborn infant whose present
feelings can hardly be discerned with any reasonable
degree of confidence.’’ Id., 532. The court determined
that ‘‘in such a case, the inquiry must focus, not on the
feelings of the infant, but on the positive feelings of the
natural parent.’’ Id.
Subsequently, this court rejected an incarcerated par-
ent’s argument that the inquiry into whether he had
maintained an ongoing relationship with his child prop-
erly should have focused on his positive feelings for
the child, who did not recognize him as a parent. In re
Alexander C., supra, 67 Conn. App. 421. The respondent
in In re Alexander C. argued that In re Valerie D. should
control the inquiry because, as in that case, the child’s
young age made his feelings difficult to discern. Id.,
422–23.
In concluding that the commissioner had established
the lack of an ongoing parent-child relationship, this
court distinguished In re Valerie D. on the ground that
in that case, ‘‘the absence of a parent-child relationship
was not for lack of effort on the mother’s part.’’ Id.,
424. In In re Alexander C., by contrast, ‘‘the respondent,
rather than the commissioner, created the circum-
stances that caused and perpetuated the lack of an
ongoing relationship between the respondent and [the
child].’’ (Emphasis added.) Id. Specifically, ‘‘[d]uring
his incarceration, the respondent made no attempts
to develop a relationship with [the child]. We are not
persuaded that he could not develop such a relationship
simply because [a] protective order prohibited him from
doing so.22 . . . [T]he respondent made no attempt to
modify the court’s protective order to one of supervised
visitation, an action that occurs with a fair amount of
frequency in family cases in which criminal charges are
pending. In our view, to expect such an affirmative step
on the part of the respondent does not require him to
make extraordinary and heroic efforts. . . . Certainly,
the absence of the respondent from [the child’s] life
prevents him from taking even the most minimal steps
of parenting. His absence may have prevented him from
providing a home and other life necessities, but it did
not prevent him from expressing interest in the health,
care and well-being of the child during that absence.’’
(Citation omitted; footnote added; internal quotation
marks omitted.) Id., 425; see also In re Lukas K., 120
Conn. App. 465, 468, 992 A.2d 1142 (2010) (affirming
granting of mother’s petition for termination of incar-
cerated father’s parental rights where respondent
admitted that he had never seen or had contact with
child), aff’d, 300 Conn. 463, 14 A.3d 990 (2011). Accord-
ingly, although careful to review the evidence ‘‘in the
light of the [parent’s] limited access to visitation at the
time of the petition’’ (internal quotation marks omitted);
In re Alexander C., supra, 67 Conn. App. 425; this court
affirmed the trial court’s conclusion that no ongoing
parent-child relationship existed despite the respon-
dent’s professed positive feelings toward the child.
Id., 426–27.
From these cases, we glean two relevant variables
on which the inquiry into whether an ongoing parent-
child relationship exists may turn: (1) a child’s very
young age, in light of which the parent’s positive feelings
toward the child are significant; and (2) another party’s
interference with the development of the relationship,
in light of which the parent’s efforts to maintain a rela-
tionship, even if unsuccessful, may demonstrate posi-
tive feelings toward the child.23 We recognize that the
child’s positive feelings for the noncustodial parent gen-
erally are determinative; In re Jessica M., supra, 217
Conn. 467–68, 470; except where the child is too young
to have any discernible feelings, in which case the posi-
tive feelings of the parent for the child play a role in
the determination. In re Valerie D., supra, 223 Conn.
532; In re Alexander C., supra, 67 Conn. App. 425. Even
where the parent professes such feelings, however, the
parent’s perpetuation of the lack of a relationship by
failing to use available resources to seek visitation or
otherwise maintain contact with the child may establish
the lack of an ongoing parent-child relationship. In re
Alexander C., supra, 426–27. Finally, evidence of the
existence of a parent-child relationship is to be viewed
in the light of circumstances that limited visitation; id.,
425; including the conduct of the child’s custodian at
the time of the petition. In re Jessica M., supra, 473;
see also In re Valerie D., supra, 533.
In the present case, therefore, we begin with the
circumstances that limited the respondent’s access to
Carla, namely, their initial separation occasioned by his
incarceration and the petitioner’s subsequent refusal to
facilitate visits or permit other contact. With regard to
the latter, it was undisputed at trial that after fewer
than ten visits, the petitioner stopped bringing Carla to
visit the respondent as of August, 2011. She then
obtained an order from the correctional facility that
barred the respondent from initiating any contact with
her or Carla, on pain of disciplinary action. Subse-
quently, she sought and obtained sole custody of Carla,
stipulating that the respondent would have bimonthly
visits with Carla at the prison. She nevertheless neither
facilitated those visits nor moved to modify visitation.24
Additionally, the petitioner has not told Carla that the
respondent is her father or shown her pictures of the
respondent; indeed, she has discarded the defendant’s
cards and letters to Carla. Short of ‘‘extraordinary and
heroic efforts’’ by the respondent; In re Valerie D.,
supra, 223 Conn. 533; the petitioner was able completely
to deny him access to Carla.
As the court found, Carla, as a result, ‘‘has not formed
any positive parental memories of [the respondent].’’
She was, however, only two years old when the peti-
tioner began denying the respondent visitation and oth-
erwise severed contact. In light of the petitioner’s denial
of visitation beginning when Carla was still in the earli-
est stages of life, ‘‘we also must be mindful of the posi-
tive feelings of the [respondent] toward the child.’’ In
re Alexander C., supra, 67 Conn. App. 425; see also In
re Valerie D., supra, 223 Conn. 532.
In this regard, there is undisputed evidence that the
respondent expressed interest in Carla’s health and
well-being during his absence. Cf. In re Alexander C.,
supra, 67 Conn. App. 426–27. Since the petitioner ceased
visitation, the respondent has sent cards and letters to
Carla both through the mail and via Carla’s attorney.
With the consent of the petitioner’s mother, he con-
tacted Carla by phone when she visited her grand-
mother in Florida. Although his work history prior to
his present incarceration was nearly nonexistent, to
improve his job prospects upon release he has earned a
general equivalency diploma and a diploma in business
management and completed coursework in real estate
appraising. He awaited the opportunity to enroll in
fatherhood and anger management classes provided
by the Department of Correction. He filed numerous
contempt motions in an attempt to enforce the stipu-
lated bimonthly visits and obtained orders for visits on
specific dates.25
Although our appellate courts are not bound to follow
the decisions of the trial court, we find instructive the
well reasoned decision of the Superior Court in the
factually similar case of In re Caleb P., 53 Conn. Supp.
329, 346, 113 A.3d 507 (2014), in which the court deter-
mined that a custodial parent could not establish the
lack of an ongoing parent-child relationship between
the incarcerated respondent and the parties’ children
where the custodial parent had refused to allow the
respondent visits in prison with the children. In that
case, the respondent father had been incarcerated inter-
mittently throughout the children’s lives, missing the
birth of their younger child, with whom he concededly
had no relationship. Id., 340, 346. The petitioner mother
‘‘chose not to’’ facilitate the court-ordered visits that
the respondent had sought because she did not think
prison was a healthy environment for the children. Id.,
343. On at least one occasion, the respondent filed a self-
represented motion for contempt seeking to enforce the
visitation order. Id.
Before determining whether the petitioner proved
that there was no ongoing parent-child relationship, the
court stated that the allegations in the petition ‘‘must
be viewed within the context of the great animosity the
custodial parent, mother, harbors for the noncustodial
father. It is clear that it is not permissible to terminate
the parental rights of an individual when it is the [peti-
tioner who] is largely or solely responsible for the exis-
tence of the grounds upon which termination is based.’’
(Internal quotation marks omitted.) Id., 337.
Because, among other reasons, the petitioner had
interfered with the respondent’s efforts to maintain a
relationship with the children, the court concluded that
the petitioner had failed to prove that there was no
ongoing parent-child relationship: ‘‘In In re Valerie D.
. . . the court concluded [that] the state may not, under
the circumstances of this case, obtain and maintain
custody of the child so as to create a lack of an ongoing
parent-child relationship . . . . This court finds as a
matter of law that this principle should extend not only
to state actors, but to private individuals as well. Here,
while the [respondent’s] conduct is reprehensible as a
father figure, [the petitioner] resisted, especially over
the past three years, any meaningful, cooperative visita-
tion relationship between the [respondent] and his chil-
dren.’’ (Internal quotation marks omitted.) Id., 346.
As to the respondent’s conceded lack of a relationship
with his younger child, therefore, the court reasoned
that ‘‘[i]t is not hard to understand why [the child]
may have limited recollection of [the respondent]. The
petitioner cannot be permitted to prevent visitation and
thence to allege that the [respondent’s] parental rights
should be terminated for failing to maintain a relation-
ship. . . .
‘‘For those two reasons, the existence of positive
present memories or feelings of the children (or at
least one of them), and the conduct and attitude of the
petitioner to frustrate the visitation of the father, the
court concludes that the petitioner has not met her
burden of proving by clear and convincing evidence
that a statutory ground has been satisfied.’’ Id.
In the present case, although we accept the court’s
finding that Carla has no present positive feelings for
the respondent, such a finding was virtually inevitable
given the petitioner’s successful campaign, from the
time Carla was a toddler until the adjudication date, to
exclude the respondent from the child’s life. See id.; cf.
In re Valerie D., supra, 223 Conn. 531. Notwithstanding
the hurdles erected by the petitioner, the respondent
has demonstrated his positive feelings toward Carla
through his varied efforts to maintain contact with her.
Given Carla’s very young age at the time the petitioner
began denying the respondent visitation and the respon-
dent’s demonstrated attempts to maintain contact in
light of the limited means at his disposal, we conclude
that under the circumstances of this case, the petitioner
could not prove the lack of an ongoing parent-child
relationship by clear and convincing evidence. Accord-
ingly, the court’s termination of parental rights on this
ground cannot stand.26
The petitioner nevertheless argues that a custodial
parent’s interference with the development of a parent-
child should be viewed differently from the interference
that occurred in In re Valerie D., in which the respon-
dent was pitted against the power of the state. We
disagree. Whether the party seeking termination of an
individual’s parental rights is the commissioner or the
custodial parent, the state’s interest in preserving family
integrity remains the same. See In re Caleb P., supra,
53 Conn. Supp. 346. Accordingly, the Supreme Court’s
observation in In re Valerie D. is no less applicable
here: ‘‘To permit [the respondent’s] acquiescence [to
the petitioner’s assumption of sole custody] to ripen
into a ground for termination of parental rights . . .
simply by virtue of the practical impossibility of main-
taining the kind of contact with the child required to
establish an ongoing parent-child relationship, would
turn the statutory promise of appropriate care for the
child into a cruel statutory hoax of termination of paren-
tal rights.’’ In re Valerie D., supra, 223 Conn. 534.
Indeed, in In re Jessica M., our Supreme Court
observed that a stringent standard for establishing no
ongoing parent-child relationship is equally vital where
the party petitioning for termination is the child’s rela-
tive: ‘‘When a child is committed to the custody of the
state, the state has a duty to provide supportive services
to the parents to enhance the possibility of eventual
reunification of the family. . . . Although we recognize
that no such statutory duty exists when . . . legal
guardianship of the child is vested in a private party,
the public policy concern for protection of familial
integrity is nevertheless the same. If a court were
authorized to find that day-to-day absence alone proved
that no ongoing parent child relationship existed, a par-
ent whose child needed a temporary placement would
otherwise have to consider the risk that his or her
parental rights might be terminated if the guardian sub-
sequently wished to adopt. Such a standard for termina-
tion would create an incentive for a parent to yield
temporary custody to a stranger rather than to an inter-
ested relative who might develop a strong bond with
the child. Creating a disincentive for a parent to choose
the guardian most likely to love and protect the child
while the parent was unable to provide daily care
would contravene the state’s interests in protecting
both family integrity and the best interests of the child.’’
(Citation omitted; emphasis added; footnote omitted;
internal quotation marks omitted.) In re Jessica M.,
supra, 217 Conn. 470–71.
The petitioner also argues that where a custodial
parent petitions for termination on the ground of no
ongoing parent-child relationship, a court must ignore
the ‘‘root cause’’ of the lack of a relationship to safe-
guard the custodial parent’s constitutional rights ‘‘to
determine that a prison was a harmful environment for
a child, that a sick child should not travel and have
visits, or that a mother should be able to refuse calls
and contact from a man who had physically abused
her.’’ We are not persuaded. First, under certain circum-
stances, it has been recognized that ‘‘[t]he logistics of
prison visits with young children, particularly to out-
of-state facilities, [may] limit their feasibility.’’ In re
Elvin G., 310 Conn. 485, 515, 78 A.3d 797 (2013); see
also In re Luciano B., 129 Conn. App. 449, 461, 21 A.3d
858 (2011) (finding that Department of Children and
Families made reasonable efforts to reunify incarcer-
ated parent and child even though it could not offer
more frequent visitation because of distance, child’s
young age, and difficulty getting child into prison sys-
tem). In the present case, however, there was no evi-
dence that such visits were infeasible.
Second, a custodial parent’s resort to protective mea-
sures, where necessitated by the other parent’s violent
or threatening behavior, is distinguishable from efforts
to alienate a child from the noncustodial parent that
may ‘‘[raise] significant issues’’ as to the establishment
of a ground for termination. See In re Jaime S., 120
Conn. App. 712, 731 and n.10, 994 A.2d 233 (2010) (con-
cluding that fact that petitioner, who ‘‘had been forced
to seek refuge in a shelter as a consequence of the
father’s behavior,’’ and subsequently ‘‘took steps to pro-
tect herself and the parties’ child from the father,’’ did
not undermine finding of abandonment ground for ter-
mination of father’s parental rights), appeal dismissed,
300 Conn. 294, 12 A.3d 566 (2011). Indeed, where there
is a protective order in place, the burden is on the
respondent to seek modification of the protective order
or face a finding of no ongoing parent-child relationship.
See In re Alexander C., supra, 67 Conn. App. 425–27.
In any event, in the present case, there is no evidence
in the record of a protective order or other safety mea-
sures undertaken by the petitioner as a result of behav-
ior by the respondent.27
Third, although the asserted immateriality of the
‘‘root cause’’ of the lack of an ongoing parent-child
relationship may be facially consistent with our
Supreme Court’s reading of this ground ‘‘to contemplate
a situation in which, regardless of fault, a child . . .
has never known his or her [parent]’’; In re Juvenile
Appeal (Anonymous), supra, 177 Conn. 670; our prece-
dents make clear that a court is in no way required to
ignore whether conduct by another actor thwarted the
respondent parent’s efforts to maintain a parent-child
relationship. Rather, as we repeatedly have noted
throughout this opinion, evidence as to the existence
of a parent-child relationship must be viewed in light
of such conduct, regardless of whether the actor is the
state or the child’s parent.
C
Although we conclude that the petitioner may not
establish the lack of an ongoing parent-child relation-
ship on the basis of her own interference with the
respondent’s efforts to maintain contact with Carla, we
express no opinion as to whether it would be in Carla’s
best interest to allow further time for the development
of a parent-child relationship, or, relatedly, to permit
visitation with the respondent in prison.28 As we have
noted previously in this opinion, ‘‘consideration of the
best interests of the child cannot vitiate the necessity
of compliance with the specified statutory standards
for termination.’’ In re Jessica M., supra, 217 Conn. 465.
Similarly, in determining compliance with this particu-
lar standard for termination, whether it is in the child’s
best interest to allow time for future development of
the parent-child relationship ‘‘does not become relevant
until after it has been determined that no parent-child
relationship exists.’’ In re Michael M., supra, 29 Conn.
App. 128. Conversely, ‘‘[a]lthough a best interests of
the child analysis is irrelevant in determining whether
an ongoing parent-child relationship exists, it is rele-
vant, and perhaps dispositive, in matters of visitation
. . . .’’ (Citation omitted; internal quotation marks
omitted.) In re Jessica M., supra, 475.
For all of the foregoing reasons, the court improperly
determined that the alleged grounds for termination of
the respondent’s parental rights had been established.
The judgment is reversed and the case is remanded
with direction to render judgment denying the petition
and to make a determination on the respondent’s
motion for visitation.
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.
** July 22, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 45a-717 (g) (2) (B) provides that this ground for
termination of parental rights is established by clear and convincing evidence
that ‘‘the child has been denied, by reason of an act or acts of parental
commission or omission, including, but not limited to sexual molestation
and exploitation, severe physical abuse or a pattern of abuse, the care,
guidance or control necessary for the child’s physical, educational, moral
or emotional well-being. Nonaccidental or inadequately explained serious
physical injury to a child shall constitute prima facie evidence of acts of
parental commission or omission sufficient for the termination of parental
rights . . . .’’
2
General Statutes § 45a-717 (g) (2) (C) provides that this ground for
termination of parental rights is established by clear and convincing evidence
that ‘‘there is no ongoing parent-child relationship which is defined as the
relationship that ordinarily develops as a result of a parent having met on
a continuing, day-to-day basis the physical, emotional, moral and educational
needs of the child and to allow further time for the establishment or reestab-
lishment of the parent-child relationship would be detrimental to the best
interests of the child . . . .’’
3
After the drive-by shooting, the respondent, who was on probation for
a prior conviction, fled to New York, where he was arrested on a charge
of violation of probation and jailed at Rikers Island. He was arrested in
Connecticut in connection with the drive-by shooting after the New York
authorities returned him to Connecticut.
4
The respondent previously had been convicted of crimes in this state and
in Florida. On March 9, 2006, in Osceola County, Florida, he was convicted
of aggravated assault with a weapon and sentenced to nineteen months
incarceration. On January 18, 2008, in the judicial district of Litchfield, he
was convicted of conspiracy to sell a controlled substance in violation of
General Statutes §§ 21a-277 (a) and 53a-48 (a), and was sentenced to five
years incarceration, execution suspended after eighteen months, and three
years probation.
5
While the petitioner obtained and settled into new housing, she sent
Carla to Florida to stay with the petitioner’s mother. Carla returned to
Connecticut in early July, 2014. Dorothy Sekulski, a social worker for the
Department of Children and Families, who completed a social study for the
termination of parental rights and testified at the termination trial, reported
in the social study and testified that during Carla’s absence from Connecticut,
the petitioner was evasive in response to Sekulski’s questions about Carla’s
whereabouts and when she would return.
6
Although the trial exhibits in the record do not include any motions for
contempt, the court found that ‘‘[i]n the past, [the respondent] has com-
menced litigation in Superior Court . . . to petition for visitation with
Carla,’’ and the petitioner conceded that the respondent ‘‘tried to file motions
a couple times, and there was a court order.’’
7
There is no indication in the record that the court found the petitioner
in contempt.
8
As to the May 19, 2013 visit, the petitioner testified that although she
prepared Carla for pickup by the respondent’s mother, who was to transport
Carla to the prison, the respondent’s mother did not arrive at the appointed
time. As to the November 24, 2013 visit, the petitioner testified that although
Carla was ill and could not attend the visit anyway, the respondent’s mother,
who again was to transport Carla to the prison, notified the petitioner that
she could not facilitate the visit.
9
The respondent was not, in fact, convicted of risk of injury to a child,
and there is no evidence in the record that a child was present in the house
at the time of the drive-by shooting.
10
The respondent has not challenged on appeal the court’s determination
that termination was in Carla’s best interest.
11
The respondent also argues that this ground may not be established
under the circumstances of this case as a matter of statutory construction.
Because we agree with the respondent that this ground may not be estab-
lished as a matter of law, we need not address his statutory construction
argument.
12
The trial court treated the petition as having been brought pursuant to
General Statutes § 17a-112, which is the applicable termination statute when
the child has been committed to the custody of the Commissioner of Children
and Families. See General Statutes § 17a-112 (j) (3) (C) (act of parental
commission or omission) and (D) (no ongoing parent-child relationship).
This court has ‘‘applied the same analytical framework’’ to petitions to
terminate parental rights pursuant to §§ 17a-112 and 45a-717, the relevant
language of which is ‘‘nearly identical.’’ In re Lukas K., 120 Conn. App. 465,
483 n.10, 992 A.2d 1142 (2010), aff’d, 300 Conn. 463, 14 A.3d 990 (2011).
13
For the respondent to prevail on appeal, he ‘‘must successfully challenge
both of the bases of the judgment terminating [his] parental rights. . . . If
either of the grounds on which the trial court relied [is] upheld on appeal,
the termination of parental rights must stand.’’ (Citation omitted; internal
quotation marks omitted.) In re Lukas K., 120 Conn. App. 465, 484 n.11,
992 A.2d 1142 (2010), aff’d, 300 Conn. 463, 14 A.3d 990 (2011).
14
In the present case, the respondent does not challenge on appeal the
trial court’s conclusion that termination of his parental rights was in Carla’s
best interest.
15
Although the court stated that the drive-by shooting occurred in May,
2009, the respondent’s criminal conviction case detail that was introduced
into evidence at the trial on the petition shows that the date of the drive-
by shooting was in January, 2009. The discrepancy is immaterial because
both dates precede Carla’s birth.
16
The respondent contends that our resolution of this claim is a matter
simply of extending to the facts of the present case our Supreme Court’s
reasoning in In re Valerie D., supra, 223 Conn. 532, in which the court held
that the state may not create the lack of an ongoing parent-child relationship
and then terminate parental rights on that ground. We nevertheless resolve
the respondent’s claim by consideration of the definition of no ongoing
parent-child relationship as it has evolved through our appellate cases,
including In re Valerie D.
17
The court also concluded that to allow additional time for a parent-
child relationship to develop would be detrimental to Carla’s best interest
because of the respondent’s ‘‘criminal propensities and abject recidivism
. . . .’’ More specifically, the court found that the respondent’s ‘‘election to
put criminal activity ahead of fatherhood establishes that he has not yet
acquired minimal parental attributes, and that he cannot and will not, within
a reasonable time, develop the ability or willingness to provide Carla with
the structured home environment and therapeutic resources that she
requires. . . . To allow further time would be detrimental to Carla’s per-
sonal stability.’’ (Citation omitted.)
18
‘‘This ‘no-fault’ statutory ground for termination was added . . . in 1974
. . . . Prior versions of [the statute] had provided for termination of parental
rights, absent consent of the parents, only upon such so-called ‘fault’ grounds
as abandonment, neglect, unfitness, or continuing physical or mental disabil-
ity.’’ (Footnote omitted.) In re Juvenile Appeal (Anonymous), supra, 177
Conn. 669.
19
As noted previously in this opinion, an ‘‘ongoing parent-child relation-
ship’’ is defined as ‘‘the relationship that ordinarily develops as a result of
a parent having met on a continuing, day-to-day basis the physical, emotional,
moral and educational needs of the child . . . .’’ General Statutes § 45a-
717 (g) (2) (C). Our Supreme Court, with the legislature’s acquiescence,
effectively has relaxed the requirement that a noncustodial parent’s provi-
sion for a child’s needs be on a ‘‘continuing, day-to-day basis’’ where visitation
rights are limited: ‘‘Our 1979 decision in In re Juvenile Appeal (Anonymous),
supra, 177 Conn. 675, expressly rejected the trial court’s determination that
no ongoing parent-child relationship meant no meaningful relationship.
. . . In 1983, the Connecticut legislature considered an amendment, con-
tained in House Bill No. 7130, that would have effectively overruled our
holding in that case by substituting the phrase meaningful relationship
between parent and child for ongoing parent-child relationship, by minimiz-
ing the role of the child’s memories and feelings for the natural parent, and
by minimizing the significance of parental contact through visitation. After
public hearings in which at least one advocate referred to this court’s deci-
sion and urged the legislature to reconsider the proposed change in the law
because it would undermine the ability of parents to present evidence to
prevent the termination of their parental rights, the proposed bill was subse-
quently amended to reinstate the original language of the statute regarding
the ground permitting termination on the basis of no ongoing parent-child
relationship. See 26 S. Proc., Pt. 12, 1983 Sess., pp. 4145–47; 26 H.R. Proc.,
Pt. 24, 1983 Sess., pp. 8671–75. The relevant statutory language defining no
ongoing parent child relationship has not been amended since 1983. Because
the legislature was aware of our decision and chose not to amend the
language we had construed, we conclude that the legislature has effectively
signalled its agreement with our interpretation.’’ (Citation omitted; emphasis
in original; footnotes omitted; internal quotation marks omitted.) In re Jes-
sica M., supra, 217 Conn. 471–72. The legislature has not amended its defini-
tion of an ongoing parent-child relationship since the Supreme Court’s
decision in In re Jessica M.
20
Finally, the court in In re Jessica M., supra, 217 Conn. 475, noted that
although the ability and willingness of the guardians to adopt the child might
be relevant to a best interest determination, it was irrelevant to determining
whether an ongoing parent-child relationship existed.
21
At the time, the commissioner was known as the Commissioner of
Children and Youth Services.
22
The respondent had pleaded guilty to sexually abusing the child’s half
sister, after which he was incarcerated, and a protective order was entered
that prohibited any contact between him and the children. In re Alexander
C., supra, 67 Conn. App. 419.
23
We note that in both In re Jessica M. and In re Alexander C., the
outcome turned on whether the petitioner had met the stringent standard
of proof for establishing a ground for termination of parental rights whereas
the outcome in In re Valerie D. turned on the court’s construction of the
statutory scheme.
24
See Hibbard v. Hibbard, 139 Conn. App. 10, 19, 55 A.3d 301 (2012) (‘‘[A]
person may not pick and choose which court orders [s]he will obey. . . .
A party’s opinion concerning the necessity for a particular order does not
excuse [her] disobedience. . . . There is no privilege to disobey a court’s
order because the alleged contemnor believes that it is invalid . . . [or]
should not be obeyed.’’ [Internal quotation marks omitted.]).
25
Although it is undisputed that the visits ordered by the court pursuant
to the respondent’s motions for contempt, to take place on specific dates
in May and November, 2013, did not occur, it is unclear from the record
why those visits failed to take place, and the trial court made no factual
finding in that regard. Nevertheless, it is undisputed that the respondent
has not seen Carla since August, 2011, and, therefore, that none of the
bimonthly visits provided for in the June, 2012 stipulation have taken place.
As noted previously in this opinion, the petitioner acknowledged repeatedly
that she had decided to stop the visits because she decided that visits were
not in Carla’s best interest and no longer wanted the respondent as a father
figure in Carla’s life.
26
Because we conclude that the petitioner could not prove that no ongoing
parent-child relationship existed under these circumstances, we need not
consider the respondent’s alternative argument that the trial court improp-
erly terminated his parental rights solely on the basis of his incarceration.
Nevertheless, we note that ‘‘the fact of incarceration, in and of itself, cannot
be the basis for a termination of parental rights.’’ In re Elvin G., 310 Conn.
485, 514–15, 78 A.3d 797 (2013). ‘‘On the other hand, the inevitable restraints
imposed by incarceration do not in themselves excuse a failure to make
use of available though limited resources for contact with a distant child.’’
In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d
808 (1982). In accord with these principles, in each case upholding the
termination of an incarcerated parent’s parental rights on the ground of no
ongoing parent-child relationship, this court has emphasized that the parent
made little or no effort to work within the limitations he faced in order to
maintain a relationship with his child. See In re Lukas K., supra, 120 Conn.
App. 486; In re Alexander C., supra, 67 Conn. App. 425. A custodial parent’s
unilateral decision to end visitation, of course, cannot reasonably be consid-
ered an inevitable restraint of incarceration.
27
We do not take lightly the court’s finding that the respondent was the
aggressor in a relationship between the parties that was marked by domestic
violence, as a result of which the petitioner remains fearful of him. Neverthe-
less, nothing in the record indicates that this is a case in which, as the
petitioner argues, ‘‘denying the other parent visitation may be necessary to
insulate a custodial parent from being held responsible for failing to protect
the parties’ child.’’ For example, there is no evidence that the respondent
behaved inappropriately or threateningly toward Carla during any of their
visits or that the petitioner’s defiance of the visitation order and subsequent
motion to suspend visitation were motivated by safety concerns.
28
As noted previously in this opinion, the respondent moved for an order
of visitation with Carla pending the resolution of the petition for termination
of parental rights, which motion was consolidated with the petition for trial.
In light of its decision terminating the respondent’s parental rights, no ruling
on the motion for visitation was necessary.