In re Adelina A.

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IN RE ADELINA A.*
(AC 38947)
DiPentima, C. J., and Alvord and Pellegrino, Js.
Argued September 7—officially released October 11, 2016**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown,
Olear, J.)
David J. Reich, for the appellant (respondent
mother).
Tammy Nguyen-O’Dowd, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, Gregory T. D’Auria, solicitor general, and Ben-
jamin Zivyon and Michael Besso, assistant attorneys
general, for the appellee (petitioner).
Opinion
ALVORD, J. The respondent mother, Kristina D.,
appeals from the judgment of the trial court terminating
her parental rights with respect to her daughter, Adelina
A., pursuant to General Statutes § 17a-112 (j).1 On
appeal, the respondent claims that the trial court vio-
lated her substantive due process rights, as guaranteed
by the fourteenth amendment to the United States con-
stitution, by failing to (1) consider whether there was
a less restrictive permanency plan available to ‘‘safe-
guard’’ her daughter than termination of her parental
rights2 and (2) require the petitioner, the Commissioner
of Children and Families, to ‘‘prove, by clear and con-
vincing evidence, that there was no less restrictive’’
permanency plan than termination of parental rights.
We determine that the record to support the respon-
dent’s constitutional claim is inadequate for review.
Accordingly, we affirm the judgment of the trial court.
I
The following facts are undisputed or were found by
the court by clear and convincing evidence. On July 27,
2013, at the age of six months, Adelina was placed by
the agreement of the family and the Department of
Children and Families (department) with her paternal
grandfather and his fiance´e, Monica,3 after Adelina’s
parents were arrested for using heroin in her presence.
On September 19, 2013, the petitioner filed a neglect
petition after the respondent and Adelina’s father
refused to cooperate with substance abuse evaluations.
On December 5, 2013, the petitioner sought, and was
granted, an order of temporary custody after the pater-
nal grandfather was determined to be using heroin and
abusing prescription drugs. On December 10, 2013, the
paternal grandfather and Monica filed motions to inter-
vene, but the motions were denied without prejudice.
On March 24, 2014, Adelina was adjudicated
neglected. That same day, the paternal grandfather and
Monica renewed their motions to intervene, but, on
March 31, 2014, the court denied the paternal grandfa-
ther’s motion with prejudice because of his drug abuse
and denied Monica’s motion without prejudice because
she resided with him. On April 1, 2014, Adelina was
committed to the custody of the petitioner. Monica and
one of the respondent’s cousins continued to make
efforts to intervene and become placement resources
for Adelina, but by the fall of 2014, both relatives had
indicated that they no longer wanted to be placement
resources. At that time, the respondent and Adelina’s
father did not identify any additional relatives for place-
ment, and Adelina continued to live with her legal risk
foster family.4 On January 28, 2015, the petitioner filed
a petition to terminate the respondent’s parental rights.
In the summer of 2015, the respondent’s half brother,
Victor, and his wife, Samantha, expressed their interest
in becoming licensed foster parents for Adelina to the
department. The respondent also indicated in her pre-
trial memorandum, dated July 6, 2015, that she would
consider consenting to the termination of her parental
rights if ‘‘a meaningful agreement for an open adoption
can be reached or in the event that her brother, [Victor],
is granted custody of Adelina and is ultimately able
to adopt her.’’ The department elected not to disrupt
Adelina’s current foster placement and not to pursue
licensing Victor and Samantha. The department rea-
soned that because Victor and Samantha had not main-
tained any relationship with Adelina since her removal
from her parents when she was six months old5 and
Adelina had bonded with her current foster family, with
whom she had resided since November, 2014, it was
not in her best interests to have her placement altered
again. The department encouraged Victor and Saman-
tha to be a family support resource for Adelina, and they
have visited with Adelina on a monthly basis. However,
Victor and Samantha never filed a motion to intervene
in this matter, and the respondent never filed a motion
to transfer guardianship to them.
On January 5 and 6, 2016, a trial was held to determine
whether the court would grant the petition to terminate
the respondent’s parental rights.6 The respondent did
not present any evidence concerning the viability of
granting permanent guardianship to Victor and Saman-
tha as an alternative to terminating her parental rights.7
However, during the trial, there was testimony from
various individuals concerning Adelina’s relationship
with Victor and Samantha and the fact that Victor and
Samantha had previously expressed interest in being
placement resources for Adelina. Samantha also testi-
fied that she and Victor were still interested in being
resources for Adelina.
The respondent stated her preference for Adelina to
be placed with Victor and Samantha during the trial as
well. During her testimony, the respondent acknowl-
edged that ‘‘[Adelina] would be best off with a family
member, preferably my brother and his wife, Samantha
. . . .’’ During closing argument, the respondent’s coun-
sel also argued that, although the respondent was ‘‘not
independently prepared to parent,’’ termination was
‘‘not necessary because the evidence shows that she
has family supports of her own that allow the child to,
in fact, have stability and permanence within her own
biological family.’’
On January 22, 2016, the court granted the petition to
terminate the respondent’s parental rights after finding
that inter alia, a statutory ground for termination
existed pursuant to § 17a-112 (j) (3) (B) and that termi-
nation was in the best interests of Adelina. In a footnote
in its written memorandum of decision, the court
addressed the respondent’s stated preference that Ade-
lina be placed with Victor and Samantha. The court
first noted that ‘‘[t]he only matter before the court is
the [termination of parental rights] petition. No motion
to revoke or transfer guardianship was filed and
remained pending. As has been intimated throughout
this memorandum, the evidence was clear that [the
respondent] acknowledges she is not [in] a position to
have Adelina reunified with her at any time soon.’’
The court went on to acknowledge that the respon-
dent’s ‘‘desire is for Adelina to be placed with relatives.’’
The court reviewed the unsuccessful efforts to place
Adelina with the paternal grandfather, with Monica, and
with the respondent’s cousin. It also discussed how the
respondent ‘‘belatedly suggested placement of the child
with Victor and Samantha’’ and why the department
decided not to disrupt Adelina’s foster placement. The
court concluded: ‘‘It is unknown and irrelevant if Victor
and Samantha would have been approved for a foster
care license due to [Victor’s] past history.8 The issue
of placement of the child is not before the court. ‘Where
[a child] should reside and with whom, however, are
not questions that relate to whether it is in [the child’s]
best interests to terminate [her] relationship with [her]
parents.’ (Emphasis in original.) In re Denzel A., 53
Conn. App. 827, 834, 733 A.2d 298 (1999).’’ (Footnote
added.)
This appeal followed.
II
On appeal, the respondent claims that the trial court
violated her substantive due process rights, as guaran-
teed by the fourteenth amendment to the United States
constitution, by failing (1) to consider whether there is a
less restrictive permanency plan available to safeguard
Adelina’s well-being than termination of parental rights
and (2) to require the petitioner to ‘‘prove, by clear and
convincing evidence, that there was no less restrictive’’
permanency plan than termination of parental rights.
The petitioner responds that the record is inadequate
to review the underlying constitutional claim. We agree
that the record is inadequate for review.
Because the respondent did not preserve her due
process claim at trial,9 she seeks review pursuant to
State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989).
‘‘Under Golding, a [party] can prevail on a claim of
constitutional error not preserved at trial only if the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the [party] of a fair
trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions,
the [party’s] claim will fail. The appellate tribunal is
free, therefore, to respond to the [party’s] claim by
focusing on whichever condition is most relevant in the
particular circumstances.’’ (Internal quotation marks
omitted.) State v. Dixon, 318 Conn. 495, 511, 122 A.3d
542 (2015).
‘‘An appellant [that] has not preserved her claim
before the trial court must overcome hurdles that are
not imposed when the issue was properly presented to
that court.’’ In re Azareon Y., 309 Conn. 626, 635, 72
A.3d 1074 (2013). As our Supreme Court ‘‘repeatedly
has underscored . . . ‘Golding is a narrow exception
to the general rule that an appellate court will not enter-
tain a claim that has not been raised in the trial court.’ ’’
(Emphasis in original.) Id. The court will review an
unpreserved constitutional claim on appeal ‘‘only if the
trial court record is adequate for appellate review.’’
(Internal quotation marks omitted.) Id. ‘‘To determine
whether the record is adequate to ascertain whether a
constitutional violation occurred, we must consider the
respondent’s alleged claim of impropriety and whether
it requires any factual predicates.’’ Id., 636.
The starting point of the respondent’s argument is
the proposition that due process requires a trial court
to undertake a least restrictive means analysis during
the adjudicative phase of a termination hearing.10 In her
briefs and at oral argument before this court, however,
the respondent repeatedly used the phrases ‘‘least
restrictive placement,’’ ‘‘least restrictive permanency
plan,’’ and ‘‘least restrictive alternative’’ interchange-
ably. The respondent never defined these similar but
distinct phrases. The usage was confusing; thus, we are
first compelled to clarify, here.
In juvenile proceedings, there is a distinct difference
between a ‘‘placement’’ and a ‘‘permanency plan.’’
‘‘Placement’’ refers to the temporary status of a child
until such time that the court can approve a permanency
plan for implementation. A placement can take a variety
of forms. For example, a child can be voluntarily placed
in the temporary legal and physical custody of a relative
or nonrelative, or a child can be involuntarily placed
in the legal custody of the petitioner, followed by a
placement of the child in the physical custody of a
relative or nonrelative foster parent. General Statutes
§ 46b-129 (d) and (j) (4). A respondent parent, relatives,
and former guardians can contest a child’s placement
at various stages in the proceedings. For example, a
respondent parent or a former legal guardian can try
to change the child’s placement by filing a motion to
reinstate guardianship. General Statutes § 46b-129 (n)
(establishing procedure for filing motion to reinstate
guardianship in parent or former legal guardian). Simi-
larly, relatives can seek to become the child’s temporary
custodian11 or guardian12 by filing a motion to intervene
in the matter. See General Statutes § 46b-129 (d) (1) (A)
and (B) (establishing right to file motion to intervene
for purposes of seeking temporary custody); General
Statutes § 46b-129 (d) (4) (establishing right to file
motion to intervene for purposes of seeking guard-
ianship).
A ‘‘permanency plan’’ is the proposal for what the
long-term, permanent solution for the placement of the
child should be. General Statutes §§ 17a-111b (c) and
46b-129 (k). Our statutory scheme provides five perma-
nency options: (1) reunification with a parent; (2) long-
term foster care; (3) permanent guardianship;13 (4)
transfer of either guardianship or permanent guardian-
ship; or (5) termination followed by adoption.14 General
Statutes §§ 17a-111b (c) and 46b-129 (k) (2).
If during the course of the juvenile proceedings the
child is placed in the care and custody of the petitioner,
as occurred in this case, the petitioner must file a motion
for review of a permanency plan within nine months
of that placement. General Statutes § 46b-129 (k) (1)
(A). When the petitioner files a motion to review a
permanency plan, the respondent parents and qualify-
ing relatives may file a motion in opposition to the
proposed plan. General Statutes § 46b-129 (k) (1) (A).
If the permanency plan is opposed, the court must hold
an evidentiary hearing, at which ‘‘[t]he commissioner
shall have the burden of proving that the proposed
permanency plan is in the best interests of the child or
youth. . . .’’ General Statutes § 46b-129 (k) (1) (A).
After the hearing, ‘‘the court shall approve a perma-
nency plan that is in the best interests of the child . . .
and takes into consideration the child’s . . . need for
permanency. . . .’’ General Statutes § 46b-129 (k) (2).
If the trial court approves a permanency plan of termina-
tion followed by adoption, the petitioner ‘‘shall file a
petition for termination of parental rights not later than
sixty days after such approval if such petition has not
previously been filed . . . .’’ General Statutes § 46b-
129 (k) (6) (A).
With this statutory framework in mind, the most pre-
cise phrase for the policy advocated by the respondent
in her brief and at oral argument before this court is
‘‘least restrictive permanency plan.’’ This selection
reflects that the respondent’s argument appears to be
based on a synthesis of the following propositions. Due
to the recognized fundamental right of parents in the
care, custody, and control of their children, strict scru-
tiny must be applied to termination of parental rights
proceedings. Strict scrutiny requires the state to
advance a compelling state interest by employing the
least restrictive means available.15 Consistent with that
standard, the respondent argues that once a court deter-
mines that reunification with a respondent parent is
not a viable permanency plan, it must consider whether
any other permanency plan short of termination of
parental rights exists that will protect the state’s com-
pelling interest in the child’s best interests.16
It flows from the posited logic of the respondent’s
argument that ‘‘unless there is some valid alternative
to termination, it cannot violate substantive due process
to terminate parental rights. Therefore, the record must
reflect whether there is a valid alternative permanency
plan to termination and adoption’’ that adequately
would safeguard the child’s best interests.17 (Footnote
omitted.) In re Azareon Y., supra, 309 Conn. 637, 639.
In this case, the respondent argues that granting tem-
porary or permanent guardianship to Victor and Saman-
tha was a less restrictive permanency plan than
termination followed by adoption. Therefore, she
argues that due process required the court to consider
this alternative to termination followed by adoption and
the petitioner to prove by clear and convincing evidence
that this Victor-Samantha permanency plan was not in
the best interests of Adelina. She further argues that
the record is adequate to review this claim because,
unlike in In re Azareon Y., she did ‘‘identif[y] [this] least
restrictive placement and the court did not consider that
placement.’’
The respondent is correct that one of the deficiencies
in the record in In re Azareon Y. was the fact that the
respondent mother never represented that the relative
that actually had custody of the children, the children’s
aunt, was amenable to either long-term foster care or
permanent guardianship,18 nor did she propose such an
option to the trial court. In re Azareon Y., supra, 309
Conn. 637 n.7. However, the precise reason that our
Supreme Court held that the record was inadequate for
review in In re Azareon Y. was that ‘‘there [was] an
inadequate basis in the record for the trial court to
determine whether there [were] available alternatives
to termination that adequately would safeguard the chil-
dren’s best interests.’’ (Emphasis added.) Id., 638–39.
There are two problems associated with the record
in this case. First, there was no evidence presented at
trial concerning the viability of the Victor-Samantha
permanency plan. The respondent never proposed
guardianship with Victor and Samantha as an alterna-
tive permanency plan,19 nor did she, Victor, or Samantha
ever file an application for permanent guardianship.
While at trial Samantha testified that she and Victor
would be willing to be resources for Adelina,20 as the
trial court noted in its memorandum of decision, ‘‘[i]t
is unknown . . . if Victor and Samantha would have
been approved for a foster care license due to his past
history.’’ See footnote 8 of this opinion. ‘‘Thus, in order
to make the requisite finding [of whether there is a
valid alternative permanency plan to termination], the
evidence would have to be opened. In cases of unpre-
served constitutional claims, [our Supreme Court] con-
sistently has refused to order a new trial when it would
be necessary to elicit additional evidence to determine
whether the constitutional violation exists.’’ In re Azar-
eon Y., supra, 309 Conn. 639.
Second, it is unclear whether the trial court con-
cluded that the petitioner had proven by clear and con-
vincing evidence that termination was the only option
available to satisfy the best interests of Adelina. The
trial court concluded that ‘‘termination of the parental
rights of mother and father as to Adelina is in the best
interests of such child.’’ As the respondent conceded
at the trial and on appeal to this court, reunification was
not a viable permanency plan. The dearth of evidence as
to whether Victor and Samantha would have committed
to, and been approved for, long-term foster care or
permanent guardianship would not have precluded the
trial court from reasonably concluding that termination
followed by adoption was the only permanency plan
in the best interests of Adelina.21 ‘‘Under State v. Gold-
ing . . . ‘[i]f the facts revealed by the record are insuf-
ficient, unclear or ambiguous as to whether a
constitutional violation has occurred, we will not
attempt to supplement or reconstruct the record, or to
make factual determinations, in order to decide the
[respondent’s] claim.’ ’’ In re Azareon Y., supra, 309
Conn. 642.
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.
** October 11, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The trial court also rendered judgment terminating the parental rights
of the respondent father with the father’s consent. Because the respondent
father is not a party to this appeal, respondent in this opinion refers to
Kristina D.
2
In her brief to this court, the respondent alternatingly claimed that
substantive due process requires the trial court (a) ‘‘to consider and place
a child in the least restrictive placement that will safeguard the child’’ and
(b) to ‘‘consider the least restrictive placement.’’ (Emphasis added.) In her
reply brief and at oral argument before this court, the respondent clarified
that her position is that the trial court must consider, but is not required
to place the child in, the least restrictive permanency location.
3
Monica is also related to Adelina, as she is the cousin of Adelina’s
paternal grandmother.
4
The December 24, 2014 social study for the termination of parental
rights, which was entered into evidence, addressed the possibility of the
respondent’s half brother, Victor, being a placement resource. The report
stated that ‘‘Mother reported [Victor] is unable to take on responsibility of
caring for Adelina at this time. He has not contacted the Department to
inquire about [Adelina] since she has been in foster care.’’
5
Samantha testified at the termination hearing that she and Victor have
a very distant relationship with the respondent, and they are ‘‘100 percent
distanced . . . from the [respondent’s] family because [Victor] knows that
the more that you are around them, the more you, kind of, get sucked into
that lifestyle, and he’s just—has a zero tolerance policy for it, and we’ve,
kind of, tried to keep our distance.’’ Nevertheless, Victor and Samantha had
seen Adelina occasionally prior to her removal from the respondent’s care,
and Victor saw her very briefly when he picked her up after the respondent
was arrested in July 2013. Victor and Samantha did not have contact with
her for a prolonged period after that. Samantha testified that she and Victor
believed that Adelina remained in the care of Monica up until the summer
of 2015.
6
The trial concerned the termination of only the respondent’s parental
rights. On October 14, 2015, Adelina’s father had executed a written consent
to the termination of his parental rights, which the court accepted after
canvassing him.
7
The respondent did attempt to present evidence about the viability of
placing Adelina with Victor and Samantha, but the court repeatedly sustained
relevancy objections to this line of questioning because the only pending
matter was a petition to terminate parental rights. The respondent does not
challenge the court’s evidentiary rulings on appeal.
8
Victor was placed in residential treatment through juvenile parole in 1998
and was convicted of assault in the second degree in 2005. The addendum to
the social study in support of the petition for termination of parental rights,
which was admitted into evidence, also alluded to ‘‘substance abuse and
mental health histories’’ in Victor and Samantha’s household, but the trial
court did not make any findings concerning that history in its memorandum
of decision.
9
The respondent contends that she preserved this constitutional issue
for appeal by arguing at trial that termination was unnecessary because
members of her own family could provide Adelina with stability and perma-
nence and by stating her preference that Adelina be placed with Victor and
Samantha. However, ‘‘[t]he court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subsequent to the trial.’’
Practice Book § 60-5. The respondent never argued at trial that substantive
due process, as guaranteed by the fourteenth amendment to the United
States constitution, requires (1) the trial court to consider whether there is
a less restrictive permanency plan available to safeguard a child’s well-being
than termination of parental rights and (2) the petitioner to prove, by clear
and convincing evidence, that there is no less restrictive permanency plan
other than termination of parental rights. By failing to raise this constitutional
issue distinctly at trial, the respondent failed to preserve it for appeal.
10
See In re Joseph M., 158 Conn. App. 849, 859, 120 A.3d 1271 (2015)
(‘‘[A] hearing on a petition to terminate parental rights consists of two
phases, adjudication and disposition. . . . In the adjudicatory phase, the
trial court determines whether one of the statutory grounds for termination
of parental rights . . . exists by clear and convincing evidence. . . . In the
dispositional phase of a termination of parental rights hearing, the trial court
must determine whether it is established by clear and convincing evidence
that the continuation of the [parent’s] parental rights is not in the best
interests of the child.’’) (Internal quotation marks omitted.)
11
‘‘Any person or organization awarded the temporary custody of a minor
under section 45a-607, shall have the following rights and duties regarding
the minor: (1) The obligation of care and control; (2) the authority to make
decisions regarding routine medical treatment or school counseling and
emergency medical, psychological, psychiatric or surgical treatment; and
(3) other rights and duties which the court of probate having jurisdiction
may approve.’’ General Statutes § 45a-608.
12
A ‘‘guardian’’ is a person who has the authority and obligations of
‘‘guardianship,’’ such as ‘‘[t]he obligation of care and control’’ and ‘‘the
authority to make major decisions affecting the minor’s education and wel-
fare . . . .’’ (Internal quotation marks omitted.) General Statutes § 45a-604
(5) and (6).
13
‘‘ ‘Permanent guardianship’ means a guardianship . . . that is intended
to endure until the minor reaches the age of majority without termination
of the parental rights of the minor’s parents . . . .’’ General Statutes § 45a-
604 (8).
14
The Adoption and Safe Families Act (ASFA), Pub. L. No. 105-89, 111
Stat. 2115 (1997), and parallel state law, has established a clear preference
for termination followed by adoption when reunification with a parent is
not a viable permanency plan. For example, ASFA requires the petitioner
to engage concurrent permanency planning from the inception of the case.
42 U.S.C. § 671 (a) (15) (F) (2012). See also General Statutes § 17a-110a.
Concurrent permanency planning requires the petitioner ‘‘to identify perma-
nent placements and prospective adoptive parents’’; General Statutes § 17a-
110a (b); while the department continues to make reasonable efforts to
reunite the child with the parents. General Statutes § 17a-111b (outlining
department’s duties concerning reunification of child with his or her parent).
This enables the court to commence permanent placement or adoption
proceedings immediately after termination of parental rights is granted.
General Statutes § 17a-110a (b). ASFA also requires the petitioner to file a
petition for termination of parental rights if the child has been under the
responsibility of the state for fifteen of the last twenty-two months, subject
to limited exceptions. 42 U.S.C. § 675 (5) (E) (2012); see 45 C.F.R. § 1356.21
(i); see also General Statutes § 17a-111a (a). Finally, state law requires a
court to find by clear and convincing evidence that adoption is not possible
or appropriate prior to issuing an order for permanent legal guardianship.
General Statutes § 46b-129 (j) (6) (B).
These statutory mandates implicitly recognize that children develop
attachments to the caregivers while in foster care, and they reflect the
legislature’s desire to shift the focus of juvenile proceedings from parental
rights to the child’s right to safety, stability, and permanency. See, e.g.,
General Statutes § 17a-110a (a) (‘‘[i]n order to achieve early permanency
for children, decrease children’s length of stay in foster care, reduce the
number of moves children experience in foster care and reduce the amount
of time between termination of parental rights and adoption, the [petitioner]
shall establish a program for concurrent permanency planning’’).
15
The respondent’s argument of course assumes that the strength of her
fundamental rights with respect to her child is undiminished by the time
of a termination hearing. ‘‘The constitutionally protected interest of parents
to raise their children without interference undeniably warrants deference
. . . [but] [t]here are . . . limitations on . . . parental rights. Some of
these limitations arise out of an appreciation of the state’s long recognized
interests as parens patriae. . . . Furthermore, it is unquestionable that in
the face of allegations that parents are unfit, the state may intrude upon a
family’s integrity.’’ (Citations omitted; internal quotation marks omitted.) In
re Jeisean M., 270 Conn. 382, 395–96, 852 A.2d 643 (2004), quoting Roth v.
Weston, 259 Conn. 202, 224, 789 A.2d 431 (2002). That is why our Supreme
Court has held that ‘‘it is clear that a requirement of an allegation such as
abuse, neglect or abandonment would provide proper safeguards to prevent
families from defending against unwarranted intrusions and would be tai-
lored narrowly to protecting the interest at stake.’’ (Internal quotation marks
omitted.) Id., 396, quoting Roth v. Weston, supra, 224. Notably, the respondent
in this case was not only accused of being an unfit parent, but she was
twice adjudicated unfit. Prior to the termination hearing, the court found
that Adelina was neglected and, therefore, committed her to the care of the
petitioner. At the termination hearing, the court found by clear and convinc-
ing evidence that the respondent ‘‘is in no position to provide the care and
attention that Adelina requires.’’
16
Presumably, the least restrictive alternative will be either long-term
foster care or permanent guardianship with an individual that will permit
the parent to interact with the child when she desires to do so. The respon-
dent does not address procedurally or substantively how the court can
consider one of these less restrictive permanency plans if an alternative
permanency plan or a petition for guardianship is never filed, as occurred
in this case.
17
The respondent relied extensively on the respondent’s appellate brief
in In re Azareon Y., and therefore, the nature of their due process claims
is virtually identical.
18
Although, the record apparently did reflect that ‘‘[t]he aunt did indicate
that she was amenable to an open adoption, an arrangement that would
provide the respondent with visitation, but at the aunt’s discretion.’’ In re
Azareon Y., supra, 309 Conn. 637 n.15.
19
In her opposition to the petitioner’s permanency plan and in her pro-
posed orders, the respondent maintained that reunification was still a viable
permanency plan. It was only in closing argument that the respondent argued
that termination was unnecessary because she had family resources she
could rely on to help her appropriately care for Adelina until she could
successfully rehabilitate herself.
20
Victor did not testify at the termination hearing.
21
It is noteworthy that, at the time of the termination hearing, Adelina
had resided with nonrelative foster care providers for more than one year.
A court cannot issue an order for permanent legal guardianship unless the
court finds by clear and convincing evidence that a statutory ground for
termination of parental rights exists, adoption is not possible or appropriate,
and ‘‘[t]he child . . . has resided with the proposed permanent legal guard-
ian for at least a year . . . .’’ (Emphasis added.) General Statutes § 46b-
129 (j) (6) (A) and (D). Therefore, approving a permanency plan of permanent
guardianship with Victor and Samantha would have deprived Adelina of a
stable and permanent placement for at least another year. For a toddler,
this is a significant period of time.