In re Kyara H.

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IN RE KYARA H. ET AL.*
(AC 35573)
Beach, Keller and Pellegrino, Js.
Argued October 21, 2013—officially released January 16, 2014**
(Appeal from Superior Court, judicial district of
Windham, Juvenile Matters at Willimantic, Hon. Francis
J. Foley III, judge trial referee.)
James P. Sexton, assigned counsel, for the appellant
(respondent mother).
Susan T. Pearlman, assistant attorney general, with
whom were Benjamin Zivyon, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
and Michael J. Besso, assistant attorney general, for
the appellee (petitioner).
Raymond F. Parlato, for the minor children.
Opinion
KELLER, J. The respondent mother, Andrea K., has
appealed to this court from the judgments of the trial
court, Hon. Francis J. Foley III, judge trial referee,
terminating her parental rights in her minor children,
Kyara H., born in 2004, Jahein H., born in 2004, Trevon
M., born in 2009, and Kahlil M., born in 2011. The respon-
dent claims that, in light of the fact that the children
have obvious and complex psychological issues, the
court committed reversible error by failing, sua sponte,
to order a psychological evaluation of the children for
purposes of determining whether termination of the
respondent’s parental rights was in their respective best
interests. We affirm the judgments of the trial court.
On July 25, 2012, the petitioner, the Commissioner
of Children and Families (commissioner) filed petitions
to terminate the parental rights of the respondent and
Tyrone H. in their children, Kyara and Jahein.1 On that
same date, the commissioner filed petitions to termi-
nate the parental rights of the respondent and Jose M.
in their children Trevon and Kahlil.2 In each petition,
the commissioner asserted that ‘‘[t]he child has been
found in a prior proceeding to have been neglected and
uncared for and [the respondent and the male biological
parent of the child] has . . . failed to achieve the
degree of personal rehabilitation that would encourage
the belief that within a reasonable time, considering
the age and needs of the child . . . they . . . could
assume a responsible position in the life of the child
. . . .’’ See General Statutes § 17a-112 (j) (3) (B) (i).
The court conducted a trial on the petitions, after
which it rendered a thorough memorandum of decision
that set forth its findings and conclusions. In the adjudi-
cative phase of the proceeding, the court found in rele-
vant part: ‘‘[The respondent] is presently twenty-eight
years old. She was raised in Hartford and moved to
Eastern Connecticut after she dropped out of school
in the ninth grade. Her father was an active alcoholic;
her mother was addicted to cocaine. She was sexually
abused by her brother when she was twelve. She reports
a strong relationship with her father who remains an
active alcoholic. [The respondent] frequently left her
children in the care of her father throughout the years.
‘‘At eighteen years old, [the respondent] was arrested
by the Putnam police for resisting arrest. She was con-
victed and received a nine month suspended sentence
and [one] year probation. . . .
‘‘[The respondent] met Tyrone when she was nine-
teen and soon got pregnant. Kyara was born on January
22, 2004. The child tested positive for the presence of
marijuana; [the respondent] admitted usage throughout
her pregnancy. A continuing theme. [The respondent]
transferred guardianship of Kyara to her father, Leander
[K.], where the child remained for the first three years
of her life.
‘‘[The respondent] gave birth to her second child,
Jahein, on November 13, of the same year, 2004. Jahein
also tested positive for marijuana. Two months later,
on January 26, 2005, Tyrone was arrested for assault
upon [the respondent] and was later convicted and sen-
tenced to one year in jail, suspended with three years
probation. He later violated the probation and was
incarcerated. [The respondent] said that Tyrone left her
shortly after this episode and since then he does not
acknowledge his children in any way . . . ‘he ignores
his children.’
‘‘From May 6, 2005, until the spring of 2006, neither
of the children were with [the respondent]. Kyara was
with [Leander K.] and Jahein was removed from [the
respondent’s] care by [the commissioner] after [the
respondent] was found several miles from her home
extremely intoxicated by alcohol while Jahein was with
her. She lost her balance and fell while holding him
and he hit his head. She was arrested and charged with
risk of injury to a minor and disorderly conduct. [The
Department of Children and Families (department)]
offered services and [the respondent] was also required
to [complete] court ordered treatment programs. Upon
successful completion, the charges were reduced to
disorderly conduct and she received an unconditional
discharge from the criminal court on October 6, 2005,
and Jahein was returned to her care.
‘‘In the summer of 2008, [the respondent] met an
undocumented man from Brazil, who was fifteen years
her senior, Jose. Jose was, and remains, a functionally
illiterate person in that he can neither read nor write
in any language. Thus began a four year domestically
violent, substance abusing relationship that produced
three more children.
‘‘On March 26, 2009, [the commissioner] sought and
obtained temporary custody of Kyara and Jahein due
again to [their] exposure to illegal substances, domestic
violence and inadequate supervision. This was the sec-
ond removal by [the commissioner]. Again, [the depart-
ment] offered services to [the respondent] and also
to Jose to address these issues. [The respondent] was
pregnant again. Both [the respondent] and Jose partici-
pated in services resulting in the return of the two
children, Kyara and Jahein, in October, 2009, under an
order of protective supervision effective until April,
2010.
‘‘In November, 2009, [the respondent] was again
arrested, her third arrest, for disorderly conduct. She
was fined $200. Apparently this arrest escaped the
notice of [the department]. The following month,
December 31, 2009, Trevon was born.
‘‘On April 11, 2011, Kahlil was born. The child tested
positive for marijuana. [The respondent] acknowledged
to [the department] that she used marijuana and alcohol
throughout her pregnancy. She admitted mutual domes-
tic violence with Jose. She said she uses marijuana daily
and that she drinks two or three times per week and
will drink two or three forty ounce bottles of beer and
a few shots.
‘‘[The respondent] reports that she and Jose also
smoked K-2, a synthetic drug chemically similar to mari-
juana. This drug can be four to a hundred times more
potent than marijuana and is popular with marijuana
users since it does not show up on drug screens unless
used within the preceding two hours of testing. It can
produce hallucinations, severe agitation, panic attacks,
dangerously elevated heart rate and blood pressure and,
seizures . . . .’’ (Citations omitted.)
In describing the circumstances surrounding the
removal of the children from the care of the respondent,
the court found in relevant part as follows: ‘‘Petitioner’s
Exhibit B, an affidavit of a [department] social worker,
describes an horrific and chaotic home life for [the
respondent], Jose, the children and [the respondent’s]
alcoholic father, Leander. The picture described is the
daily use of marijuana by both parents, [the respondent]
frequently drinking alcohol to the point of intoxication;
her father drinking daily with his friends to intoxication
and occasional domestic violence between Jose and
[the respondent]. The [affidavit] describes events
between August, 2010, and October 13, 2011, when [the
commissioner] finally obtained an order of temporary
custody.’’
The court referred to a police report that described
an incident that occurred on August 26, 2010, in which
Jose struck the respondent in the kitchen of their resi-
dence, in the presence of Kyara, Jahein, and Trevon. The
respondent told one of the police officers responding to
this domestic disturbance that she was having difficulty
coping with the recent suicide of her brother. She stated
that, upon her return from a package store, she got into
a disagreement with Jose and that he struck her using
his hand as well as a roll of masking tape, and then
dragged her down onto the floor. Subsequently, Jose
was arrested and charged with disorderly conduct,
assault in the third degree, and risk of injury to minor
children. The criminal charges were dismissed follow-
ing Jose’s completion of a family violence education
program.
The court found: ‘‘In April, 2011, upon the birth of
Kahlil, born positive for marijuana, [the commissioner]
filed a petition alleging neglect but did not seek removal
of the children. [The department] again offered services
to both parents through [the] Stonington Institute, Com-
munity Prevention and Addiction substance abuse eval-
uation and treatment, New Perceptions counseling,
individual counseling for [the respondent] with [coun-
selor] Cam Morin-Bounds and others. . . .
‘‘[O]n September 6, 2011, after Jose was arrested and
held in jail [on] motor vehicle charges, [a department]
social worker learned that [the respondent] had
reported that seven year old Kyara was [engaging in
inappropriate sexual conduct with her] then six year
old brother, Jahein. [The respondent] was receiving
services from a Community Resources, Inc. (CRI)
behaviorist and clinician. The clinician told [the depart-
ment] that [the respondent] says that Kyara roams the
house in the middle of the night, urinating in her room
and that [the respondent] fears leaving Kyara and Jahein
alone together.’’
The court went on to discuss a police report concern-
ing an incident on October 1, 2011. During the incident,
the respondent was taken into custody incident to a
traffic stop. The respondent acted in a physically and
verbally combative manner toward the police. Addition-
ally, she vomited in a police cruiser and shouted profan-
ity at the police. Upon her arrival at the police station,
the respondent continued to act in a combative manner
and disregarded police commands that she undergo
processing calmly. The respondent was charged with
violations of motor vehicle laws, interfering with an
officer, and breach of peace.
The court went on to find: ‘‘On October 12, 2011,
a [department] social worker observed [twenty-two]
month old Trevon with two black eyes. According to
[the respondent] and her father, Leander, Trevon fell
on a piece of furniture. The next day, Jose and a friend
went to [the respondent’s] home. They report that [the
respondent] had been drinking beer when they arrived.
They said that [the respondent] continued to drink
throughout the afternoon and evening, [having stolen
vodka and wine from another person]. The report [sub-
mitted as an exhibit] indicates that Jose and [the respon-
dent] then went to [a motel] with [twenty-two] month
old Trevon and [six] month old Kahlil. During the time
at the motel, Jose reports that [the respondent] was so
drunk that she dropped Kahlil twice, [and] left the hotel
to start walking on Route 6 wearing no shoes and having
unzipped pants. Jose called the police and [the respon-
dent] was subsequently arrested for breach of peace
and resisting arrest.
‘‘Both Jose and [the respondent] reported to the
social worker that Jose had been unfaithful to [the
respondent] with a neighbor and that this infidelity had
caused further strife in their relationship. Jose admitted
it was poor judgment to go to the hotel with [the respon-
dent] while she was intoxicated and angry over his
infidelity. Two days later, [the commissioner] sought
and obtained an order of temporary custody of the
children.’’3
The court observed that specific steps were entered
for all parties on October 14, 2011, at the time of the
initial order of temporary custody, and later, on Febru-
ary 1, 2012. With regard to the respondent, the court
found: ‘‘It must be recalled that [the department] began
offering services to [the respondent] in 2004. The chil-
dren had been previously removed on two occasions.
Within the past two years and prior to the most recent
third removal of the children, [the department] had
engaged CRI for intensive family preservation services
for [the respondent] and the children. This was a pro-
gram designed to keep the family together and provided
needed services for the family. In May, 2011, [the depart-
ment] engaged a Family Based Recovery program for
[the respondent] and the children. [The respondent]
met with these providers nine times while they were
attempting to help her. [The respondent] consistently
tested positive for marijuana during those services. She
quit the program [on] June 24, 2011, and began a day
treatment program for substance abuse. She did not
complete the program.
‘‘After her arrest on October 1, 2011, and after the
children were removed on October 14, 2011, she entered
Stonington Institute Partial [H]ospitalization and Inten-
sive Outpatient treatment on October 25. She completed
the program for the second or third time and was
released on December 6, 2011. Jose was there to pick
her up. Jose and [the respondent] said they were going
to resume living together at [the respondent’s] apart-
ment . . . . [The respondent] was supposed to attend
[Alcoholics Anonymous (AA)] meetings. She did not.
There is evidence that she and Jose were using illegal
drugs, marijuana and K-2, and/or drinking alcohol at
least through the end of April and into the beginning
of May, 2012, more than six months after the children
were removed.
‘‘In February, 2012, she resumed her individual coun-
seling with Cam Morin-Bounds, a licensed alcohol and
drug counselor. This counselor testified that she has
been treating [the respondent] off and on for more than
[seven] years. She knows that [the respondent] is an
alcoholic. She describes alcoholism as a disease with
strong genetic predisposition. She appears very forgiv-
ing of [the respondent], describing many episodes of
relapse over the years. She said that [the respondent]
began AA meetings in 2011, but that is inconsistent with
other evidence including self-reports. She testified that
[the respondent] has been making improvements. She
seemed pleased with [the respondent’s] progress in her
personal rehabilitation. She testified that she last saw
[the respondent] in March, 2012. [The respondent]
stopped attending counseling with her after one month
of visits; she began in February and ended in March.
‘‘[The respondent] entered a residential substance
abuse program known as New Life on March 20, 2012.
She told the intake worker that she had been using
drugs while in her last program, she reported drinking
alcohol every three days. Cam Morin-Bounds did not
report that [the respondent] was drinking in February.
[The respondent] stayed in this program until she was
discharged on April 30, 2012, after she was found to
have K-2 in her room.
‘‘[The department] found another program for her.
On May 1, 2012, [the respondent] was scheduled to
enter Mother’s Retreat in Groton, a program that works
with [a] substance abusing [woman] and if successful
allows [her] children to be reunited with her in treat-
ment. [The respondent] failed to attend the intake ses-
sion. On May 22, 2012, [the respondent] entered yet
another program known as Fresh Start in Hartford.
‘‘[The respondent] had failed to remain sober even
after a multitude of detoxification and impatient pro-
grams through eight years of various programs. Her
children have been removed three times from her care.4
(Footnotes altered.) On July 25, 2012, [the commis-
sioner] filed [petitions] to terminate her parental
rights.’’ The court went on to find that the children had
been found in a prior proceeding to have been neglected
and that the respondent had failed to achieve such
degree of personal rehabilitation that would encourage
the belief that within a reasonable time, considering
the ages and needs of the children, she could assume
a responsible position in the life of the children. In this
appeal, the respondent does not challenge the court’s
finding that she has failed to achieve personal rehabili-
tation.
In the dispositional phase of the proceeding, the court
addressed and considered the seven factors specified
in § 17a-112 (k). Additionally, the court considered the
best interests of the children, concluding: ‘‘Clear and
convincing evidence establishes that it is in the chil-
dren’s best interest to grant the petition and terminate
the parental rights of the biological parents. Thus, in
consideration of all the factors relevant here to the
children’s needs and best interest[s], it was proven by
clear and convincing evidence that terminating the
parental rights is in the children’s best interests.’’5 See
General Statutes § 17a-112 (j) (2). This appeal followed.
The respondent claims that the guarantee of proce-
dural due process under the United States constitution
required the court, sua sponte, to order a psychological
evaluation of the children for the purpose of determin-
ing whether termination of the respondent’s parental
rights was in their best interests. The respondent asserts
that ‘‘this case presents the type of complex psychologi-
cal issues that required the trial court to order psycho-
logical evaluations prior to making any determination
as to the children’s best interests.’’ The respondent
argues in relevant part: ‘‘[D]espite the obvious potential
for these issues to impact the dispositional outcomes
that might best advance their respective needs, the trial
court, [Hon. Francis J. Foley III, judge trial referee],
never ordered a psychological evaluation before con-
cluding that terminating the respondent’s parental
rights was uniformly in the best interest of all four
children. . . . [B]ecause the failure to order a psycho-
logical evaluation in this case created an unacceptably
high risk of the court unnecessarily terminating the
fundamental liberty interests of both the respondent
and her children when it may well not be necessary to do
so, the court ran afoul of the respondent’s due process
rights.’’ Underlying the respondent’s novel claim is her
supposition that trial courts lack formal training in med-
icine and psychology and, in cases such as the present,
are not competent to engage in a best interest analysis
without relying on expert opinion concerning multiple
child attachment theories and their application in
each case.6
Our review of the record reflects, and the respondent
acknowledges, that this issue of procedural due process
was not raised before the trial court. Although deeming
it necessary to a proper resolution of the case, the
respondent did not ask the court to order a psychologi-
cal evaluation of her children.7 In her principal appellate
brief, the respondent affirmatively requests extraordi-
nary review pursuant to State v. Golding, 213 Conn.
233, 239–40, 567 A.2d 823 (1989). Under Golding, ‘‘a
defendant can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions 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 violation clearly exists
and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has
failed to demonstrate harmlessness of the alleged con-
stitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the defendant’s
claim will fail. The appellate tribunal is free, therefore,
to respond to the defendant’s claim by focusing on
whichever condition is most relevant in the particular
circumstances.’’ (Emphasis in original; footnote omit-
ted.) Id. ‘‘The first two prongs of Golding address the
reviewability of the claim, and the last two involve the
merits of the claim.’’ State v. Brown, 56 Conn. App. 26,
31, 741 A.2d 321 (1999), cert. denied, 252 Conn. 927,
746 A.2d 790 (2000).
I
As a preliminary matter, the respondent’s resort to
Golding review is unavailing because the record belies
the factual premise of the claim. In Golding, our
Supreme Court stated that ‘‘[t]he defendant bears the
responsibility for providing a record that is adequate
for review of his claim of constitutional error. If the
facts revealed by the record are insufficient, unclear or
ambiguous as to whether a constitutional violation has
occurred, we will not attempt to supplement or recon-
struct the record, or to make factual determinations, in
order to decide the defendant’s claim.’’ State v. Golding,
supra, 213 Conn. 240.
The respondent has premised her invocation of Gold-
ing on the existence of ‘‘complex’’ and ‘‘obvious’’ psy-
chological issues related to Kyara, Jahein, Trevon, and
Kahlil. To prevail under Golding, therefore, the record
must reflect that such issues exist with respect to each
of the respondent’s children. In support of her claim
that the ‘‘psychological issues’’ of the children required
that the court, sua sponte, order a psychological evalua-
tion, the respondent refers to several matters in evi-
dence. First, she refers to ‘‘inappropriate sexual acts’’
between Kyara and Jahein. In its decision, the court
referred to a department social worker’s report, which
included the respondent’s observation that, while living
with the respondent, Kyara was engaging in inappropri-
ate sexual behavior with Jahein. The court observed, as
well, the respondent’s representation that Kyara ‘‘roams
the house in the middle of the night’’ and ‘‘urinates in
her room.’’ This behavior was not corroborated by any
other source. A July 24, 2012 social study prepared by
a department social worker,8 submitted in support of
the petitions, states that, since her placement in a foster
home, Kyara ‘‘has not displayed any sexualized behav-
iors’’ and has adjusted well in her foster home. At
school, she performs at grade level and does not have
any behavioral problems.
Second, the respondent refers to ‘‘Attention Deficit
Hyperactivity Disorder.’’ In the department social work-
er’s report, it states that an ‘‘art therapist’’ who has
been working with Kyara reported that she was ‘‘very
loud’’ and ‘‘clumsy.’’ The therapist reported that ‘‘she
could have Attention Deficient Hyperactive Disorder or
these could be symptoms of other things.’’ There is no
evidence that any diagnosis by a medical professional
was made in this regard. Additionally, in the department
social worker’s report, it refers to Jahein’s history of
‘‘Attention Deficient Hyperactive Disorder.’’ The report
goes on to state that, at this time, the group of evalua-
tors9 that had studied his case determined that this
issue need not be addressed. Although the respondent
reported difficulties with Jahein’s behavior in the home,
including his tendency to spend time alone, the report
states that Jahein ‘‘has made a lot of progress since
being placed in the foster home,’’ he ‘‘has been doing
excellent in school,’’ his teacher ‘‘is very happy with
him and his progress . . . and enjoys having him in
his class,’’ and that he has been ‘‘doing better with his
hygiene . . . showering . . . and brushing his teeth.’’
Third, with regard to the other two children, Trevon
and Kahlil, the respondent acknowledges in her brief
that ‘‘[they] do not appear to have the same psychologi-
cal issues at this time, but both are deemed ‘medically
complex’ by the [commissioner].’’ In this regard, the
respondent goes on to state that ‘‘[b]oth children have
asthma, requiring nebulizer treatments, and Kahlil has
Hepatitis C, which can be a life-threatening disease.’’
Additionally, the respondent relies on evidence that
Trevon experienced some regression in his potty train-
ing after being placed in foster care.
The department social worker’s report submitted in
evidence states that ‘‘Trevon presents as a happy and
easy going toddler. Once he warms up he is easily
engaged and smiles often.’’ Initially after being placed
with his foster family, Trevon had a ‘‘flat affect’’ and
had difficulty sleeping through the night. Those prob-
lems have disappeared and he is engaging in activities
that are developmentally appropriate for his age. Fur-
ther, ‘‘Birth to Three made an assessment of Trevon
and deemed that he did not qualify for their services.’’10
The department social worker’s report states that upon
joining his foster home Kahlil ‘‘is a happy baby who
smiles and babbles often. There are not any concerns
regarding Kahlil’s developmental milestones. He is
crawling and almost walking by himself. [He] was evalu-
ated by Birth to Three services and they reported that
he does not meet the qualifications for services.’’
In a purely subjective manner, the respondent has
labeled certain conduct, medical conditions and diagno-
ses as ‘‘complex’’ and ‘‘obvious psychological issues.’’
She has not demonstrated, by reference to findings of
fact or competent evidence, that any of these things
constitute obvious psychological issues that were of
such a complex nature that they should have triggered
the court, sua sponte, to order a psychological evalua-
tion. The respondent has not established a necessary
factual predicate in support of her claimed entitlement
to review under Golding because there is no finding or
evidence that at the time that the court rendered its
decision, any of the four children at issue suffered from
obvious and complex psychological issues.11 The
respondent effectively conceded that there are medical
issues involving Trevon and Kahlil; she has failed to
demonstrate by reference to competent evidence that
they are psychological issues that should affect a best
interest analysis. With respect to Kyara, the respondent
relies on her own observation of sexual conduct and
other activities, yet there is no evidence of any diagnosis
of any psychological disorder by a medical professional,
let alone findings by the court that such issues existed.
To the contrary, the evidence demonstrates that Kyara
was performing well apart from the respondent. Finally,
with respect to Jahein, the respondent points to his
historical diagnosis with a psychological issue, namely,
Attention Deficient Hyperactive Disorder. The evi-
dence, which was credited by the court, unambiguously
reflects that this disorder was not an area of concern
at this time for the department social workers who
studied Jahein. Rather, he, like all of his siblings, had
been making excellent progress in almost all areas after
being distanced from the respondent and entering foster
care. Absent a sufficient showing in the record that
obvious and complex psychological issues existed, the
factual predicate for the respondent’s claim is lacking.
See In re Amanda A., 58 Conn. App. 451, 458, 755 A.2d
243 (2000) (claim of constitutional error not reviewable
where record insufficient to substantiate factual basis
of claim).
II
In part I of this opinion, we concluded that the factual
predicate underlying the respondent’s claim, which is
of constitutional magnitude, was not apparent in the
record. Even were we to conclude that the record sup-
ported the factual premise of the claim—or the claim
was based on the facts apparent in the record—the
respondent’s Golding claim is unavailing because she
is unable to demonstrate that due process required the
court, sua sponte, to order a psychological evaluation
of the children for purposes of determining whether
termination of her parental rights was in their respective
best interests.
‘‘In reviewing a procedural due process claim, we
must first determine whether a protected liberty or
property interest is involved. If it is, then we must deter-
mine the nature and extent of the process due.’’ (Inter-
nal quotation marks omitted.) In re Tayler F., 296 Conn.
524, 553, 995 A.2d 611 (2010). The present appeal arises
from the termination of the respondent’s parental rights
and, as this court has recognized, ‘‘[t]he right of a parent
to raise his or her children has been recognized as a
basic constitutional right.’’ (Internal quotation marks
omitted.) In re Tremaine C., 117 Conn. App. 521, 529,
980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d
69 (2009).12
Whether the process due the respondent required the
court, sua sponte, to order a psychological evaluation
of her children, is governed by the balancing test set
forth by the United States Supreme Court in Mathews
v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed.
2d 18 (1976). See In re Alison M., 127 Conn. App. 197,
219–20, 15 A.3d 194 (2011) (Mathews balancing test
applies in context of proceeding to terminate parental
rights). ‘‘Under this test, [t]he three factors to be consid-
ered are (1) the private interest that will be affected
by the state action, (2) the risk of an erroneous depriva-
tion of such interest, given the existing procedures,
and the value of any additional or alternate procedural
safeguards, and (3) the government’s interest, including
the fiscal and administrative burdens attendant to
increased or substitute procedural requirements. . . .
Due process analysis requires balancing the govern-
ment’s interest in existing procedures against the risk
of erroneous deprivation of a private interest inherent in
those procedures.’’ (Internal quotation marks omitted.)
Barros v. Barros, 309 Conn. 499, 509, 72 A.3d 367 (2013).
The first factor of the Mathews balancing test, con-
cerning the private interest at stake, weighs in the
respondent’s favor. ‘‘A petition to terminate parental
rights threatens the respondent’s constitutionally pro-
tected interest [in retaining her parental rights in her
children].’’ In re Tremaine C., supra, 117 Conn. App.
530.
The second factor, consideration of the efficacy of
current procedural safeguards and the efficacy of any
additional or alternate procedural safeguards, does not
weigh in the respondent’s factor. As discussed pre-
viously in this opinion, the respondent argues, essen-
tially, that courts commonly do not rely on appropriate
psychological theories when undertaking best interest
analyses, that courts are ill-equipped to evaluate the
myriad of proper considerations that are relevant to
a best interest analysis, and that proper best interest
analyses should be influenced by child psychology that
favors continued contact between children and biologi-
cal parents. The respondent argues that, given the facts
of the present case, the court was obligated sua sponte
to order a psychological evaluation of the children
because ‘‘the trial court [had] no reliable assessment
of how well bonded the children were to their foster
parents or what type of damage would be occasioned
by terminating parental rights at this time. . . . Absent
that type of information, there is a significant risk that
the trial court rendered a decision that unnecessarily
destroyed this family or was affirmatively detrimental
to the children, and that is a risk that due process
forbids in light of the easy access to psychological evalu-
ations that are so commonly used in these types of
cases.’’
An evaluation of current procedural safeguards
reflects that the respondent’s parental rights were ter-
minated following numerous court proceedings and a
lengthy trial, during which the respondent was repre-
sented by counsel. Current procedural safeguards
include the court’s statutory authority, exercised
whether on motion by a party or on its own initiative,
to order a psychological evaluation of a child that is the
subject of a termination of parental rights proceeding.
General Statutes § 45a-717.13 The record reflects that the
respondent did not raise such a motion in the present
proceeding and the respondent has not suggested that
the court precluded her from doing so.14 The respon-
dent’s argument is premised on an assumption, the sup-
port for which is uncertain, that the outcome of a
psychological examination in the present case would
have weighed in her favor. That is, the respondent
merely speculates that an expert would have formulated
an opinion that did not weigh in favor of the termination
of her parental rights. In no manner does the respondent
address the issue of why she failed to attempt to present
such a favorable alternative theory before the trial
court. In argument, she alludes to evidence of an ongo-
ing bond with her two oldest children, Kyara and Jahein,
and suggests that the court was unaware of contempo-
rary research noting ‘‘the importance of continued con-
tact between children and their biological parents
. . . .’’15 Yet, ‘‘[o]ur courts consistently have held that
even when there is a finding of a bond between parent
and a child, it still may be in the child’s best interest
to terminate parental rights.’’ In re Rachel J., 97 Conn.
App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn.
941, 912 A.2d 476 (2006). Certainly, apart from any
issues related to the existence of a bond between the
respondent and any or all of her biological offspring,
the court was free to rely instead on the evidence that
it amply discussed in its thorough memorandum of deci-
sion regarding the many ways in which the respondent
has failed to behave as a responsible parent or to pro-
vide any semblance of a stable and safe home environ-
ment for the children at issue. See, e.g., In re Devon
W., 124 Conn. App. 631, 649, 6 A.3d 100 (2010).
Furthermore, our courts have consistently eschewed
the notion that judges lack the ability to weigh the
evidence and make correct best interests determina-
tions in termination of parental rights cases. As our
state’s highest court has observed: ‘‘Although we often
consider the testimony of mental health experts . . .
such expert testimony is not a precondition of the
court’s own factual judgment as to the child’s best inter-
est.’’ (Citations omitted; internal quotation marks omit-
ted.) In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643(2004); see also In re Teshea D., 9 Conn. App. 490, 493,
519 A.2d 1232 (1987) (same). Thus, the respondent’s
claim, itself, is based on an assessment of the capability
of the trial court that is without support in our case law.
Here, the respondent urges us to conclude that an
added procedural safeguard, namely, a psychological
evaluation of the children ordered, sua sponte, by the
court, was part of the process that was due in the
present case. The respondent had the right to move the
court to order such an evaluation but did not exercise
such right. Moreover, the respondent, in a purely specu-
lative manner, suggests that such an evaluation would
have yielded expert opinion, based on psychological
theories of which, she supposes, the court was unaware,
that would have stressed the importance of maintaining
a bond between the respondent and, perhaps, some
of her children. The court, however, in undertaking a
proper analysis that focused on the totality of the mate-
rial considerations relevant to a best interest analysis,
would not be bound by such expert opinion or by the
nature of the bond between the respondent and any of
her children.16 After considering the existing proce-
dures, we are not persuaded by any of the respondent’s
arguments that they are not adequate or that alternate
procedural safeguards would have eliminated the risk
of an erroneous deprivation of the respondent’s private
interest in parenting her children.
Finally, we consider the state’s interest in the proce-
dures used, including the fiscal and administrative bur-
dens attendant to any additional or substitute
procedures advocated by the respondent. There can
be no dispute that the type of expert psychological
evaluation advocated by the respondent entails a signifi-
cant financial cost, one that would be borne by the
petitioner. See General Statutes § 45a-717 (d), set forth
in footnote 15 of this opinion. As our Supreme Court
has observed, ‘‘the state has a fiscal and administrative
interest in lessening the cost involved in termination
proceedings.’’ (Emphasis added.) In re Alexander V.,
223 Conn. 557, 565, 613 A.2d 780 (1992). The respondent
posits that ‘‘such due process concerns would not be
implicated in every termination case’’ and that ‘‘it is
unlikely there would be many cases where due process
required an evaluation where the court did not use its
discretion to order such an evaluation.’’ Although the
respondent urges us to recognize that such a constitu-
tionally warranted procedural safeguard applies to
cases, similar to the present cases, in which the court
is presented with evidence that one or more children
have obvious and complex psychological issues, this
class of cases is ill-defined and, thus, potentially large.
Indeed, were we to accept as accurate the respondent’s
central premise, that a psychological evaluation is a
precondition to the court undertaking a best interest
analysis in the present cases, which do not present
obvious or complex psychological issues, it certainly
would not be hard to envision that such an evaluation
would be necessary in the vast majority of termina-
tion cases.
Apart from the financial burden attendant to the
added procedural safeguard at issue comes the delay
that would be occasioned by such a safeguard. The
respondent argues that ‘‘there is no indication that
requiring courts to use psychological evaluations would
delay permanency for children.’’ Our Supreme Court
has observed: ‘‘[A]s parens patriae, the state is . . .
interested in the accurate and speedy resolution of ter-
mination litigation in order to promote the welfare of
the affected child. . . . [B]ecause of the psychological
effects of prolonged termination proceedings on young
children, time is of the essence . . . . Any significant
delay would undermine the state’s important interest
in protecting the welfare of children. This cost, and the
state’s interest in avoiding it, would rise as the delay
increased.’’ (Citation omitted; internal quotation marks
omitted.) In re Alexander V., supra, 223 Conn. 565. The
state’s interest in expediting termination proceedings
would be adversely affected by any delay necessitated
by the ordering of psychological evaluations of children
in termination of parental rights cases, especially after
the trial has commenced.
Having considered the Mathews factors, we are not
persuaded that due process required the court, sua
sponte, to order a psychological evaluation in the pre-
sent cases. The respondent’s interest in parenting her
biological offspring is significant, yet she has not dem-
onstrated that the process afforded her in the present
case risked an erroneous deprivation of that interest.
Current procedural safeguards afford the respondent a
mechanism to seek a psychological evaluation and
afford the court, in its discretion, a means of obtaining
such an evaluation. Furthermore, the respondent has
not demonstrated that, even if she presented the results
of such an evaluation in the present cases, it likely
would have affected the outcome of the trial and, thus,
that it would have eliminated the risk of an erroneous
deprivation of the right at issue. Finally, both in terms
of cost and delay, the consequences of the added safe-
guard weigh against its recognition.
In light of the foregoing analysis, we conclude that
the respondent is unable to demonstrate that a constitu-
tional violation clearly exists and clearly deprived her
of a fair trial. See State v. Golding, supra, 213 Conn.
240. Accordingly, we cannot conclude that the court
erred in terminating the respondent’s parental rights
with respect to her minor children.
The judgments are 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.
** January 16, 2014, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The respondent father, Tyrone H., has brought a separate appeal from
the trial court’s judgment terminating his parental rights in Kyara and Jahein.
See In re Kyara H., 147 Conn. App. , A.3d (2013). We refer in
this opinion to the respondent mother as the respondent.
2
The court terminated Jose’s parental rights in Trevon and Kahlil. Jose
is not a party to this appeal. The court found that the respondent and Jose
also had another child in 2012, who, as of the time of trial, was in the care
of one of the respondent’s relatives. That child is not a subject of the
present appeal.
3
There was evidence that, in addition to being removed from the respon-
dent’s home on two separate occasions pursuant to the commissioner’s
motions for orders of temporary custody, Kyara and Jahein, with the acquies-
cence of the department, were voluntarily placed with a paternal uncle after
the department reopened their cases due to domestic violence occurring
between the respondent and Jose in February, 2009. This arrangement only
lasted about one month and the uncle returned the children to the respondent
without notifying the department. The department learned that the children
were back in the respondent’s care when Jahein told school staff that he
played with a gun and bullets at her home.
4
Despite these findings and the additional finding that eight year old
Kyara spent the first three years of her life in the care of her grandfather,
none of which are in dispute, the respondent incredibly asserts in argument
before this court that she has been ‘‘[the] only constant in [Kyara’s] life.’’
5
‘‘This court has noted consistently the importance of permanency in
children’s lives. . . . Virtually all experts, from many different professional
disciplines, agree that children need and benefit from continuous, stable
home environments. . . .
‘‘[S]table and continuous care givers are important to normal child devel-
opment. Children need secure and uninterrupted emotional relationships
with the adults who are responsible for their care.’’ (Citations omitted;
internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 494–95,
940 A.2d 733 (2008).
6
The respondent does not merely assert that the court was obligated to
order a psychological evaluation, but that in a case involving ‘‘complex
psychological issues,’’ such as the present case, it is necessary that the court
consider ‘‘multiple psychological theories’’ and not merely the ‘‘the very
psychological theories most commonly relied upon by trial courts’’ in under-
taking a best interest analysis. Presumably, this then would require multiple
evaluations from a variety of experts espousing competing theories. In the
case of indigent parents, as here, the state would bear this cost. See Practice
Book § 34a-21 (f). Absent from the respondent’s brief is any explanation as
to how the judicial authority, which the respondent believes to be untrained
and incompetent in evaluating such matters in the field of psychology, would
resolve the issue of which theory is correct.
7
The record reflects that, before the trial court, the respondent argued
that the evidence was insufficient to demonstrate that termination was
in the children’s best interest because the court did not have before it a
psychological evaluation of the children in support of such a conclusion.
The commissioner argues that because the respondent’s litigation strategy
before the trial court was to rely on the lack of a psychological evaluation
as a means of challenging the sufficiency of the evidence, she is precluded
on appeal from seeking review under State v. Golding, supra, 213 Conn.
239–40, on the ground that it was the responsibility of the trial court to
order such an evaluation. The commissioner’s argument is based on the
principle that to permit review would sanction an ambush of the trial court
and is based on the principle of appellate review that ‘‘a party cannot submit
a case to the trial court on one theory and then seek a reversal in the
reviewing court on another.’’ In re James L., 55 Conn. App. 336, 348, 738
A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999).
Although the respondent did not request that the court order a psychologi-
cal evaluation of the children, we are not persuaded that her arguments
before the court related to the lack of a psychological report necessarily
are inconsistent with her appellate claim that it was the obligation of the
court to ensure that such an evaluation was part of the evidence before it.
Contrary to the commissioner’s arguments, this is not a situation in which
the respondent took a position at trial that was contrary to the claim raised
on appeal, such as by indicating before the trial court that a psychological
evaluation was unnecessary in this case or that it would have been inappro-
priate for the court sua sponte to order one.
8
The report was prepared by department social worker Shannon Bienkow-
ski, who the court found ‘‘has had sufficient formal education and experience
in the behavioral sciences to express an expert opinion as a social worker
on such matters.’’ At trial, Bienkowski testified that she held a bachelor’s
degree in human development as well as a master’s degree in social work.
Bienkowski testified that, at the time of trial, she had eleven years of profes-
sional experience in social work, which encompassed five years as a depart-
ment employee, and six years as an employee of a psychiatric hospital,
where, among other things, she was a clinician for their pediatric intensive
outpatient and partial hospitalization programs.
9
The report states that the respondent was referred to CRI, which worked
with Jahein on a biweekly basis and continues to work with Jahein and his
foster family to assist with behavioral issues.
10
‘‘The Birth to Three program offers early childhood intervention services
for children under three years of age that show significant delays in develop-
ment.’’ In re Keyashia C., 120 Conn. App. 452, 456 n.10, 991 A.2d 1113, cert.
denied, 297 Conn. 909, 995 A.2d 637 (2010).
11
Thus, the present case is somewhat analogous to In re Azareon Y., 309
Conn. 626, 636–39, 72 A.3d 1074 (2013) (concluding that review under Gold-
ing inappropriate where factual predicate underlying substantive due pro-
cess claim not supported by record). We note that the respondent’s
procedural due process claim is not merely grounded in a certain process
applicable in all cases, in which case the proof of its application would
establish the alleged constitutional violation, but in the application of a
process that was defective given the circumstances of the present case
in which, she alleges, the respondent’s children were affected by obvious
psychological issues that were relevant to the trial court’s best interest
analysis.
12
The commissioner argues that the respondent’s claim does not satisfy
Golding’s second prong because, following the outcome of the adjudicatory
phase of the proceeding, the respondent did not have a fundamental interest
in the dispositional phase of the proceeding, the subject of which was the
best interest of her children. In support of this proposition, the commissioner
relies primarily on the analysis of the United States Supreme Court in
Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
The language relied on by the commissioner states: ‘‘At the factfinding, the
State cannot presume that a child and his parents are adversaries. After
the State has established parental unfitness at that initial [adjudicative]
proceeding, the court may assume at the dispositional stage that the inter-
ests of the child and the natural parents do diverge. See Fam. Ct. Act § 631
(judge shall make his order ‘solely on the basis of the best interests of the
child,’ and thus has no obligation to consider the natural parents’ rights
in selecting dispositional alternatives). But until the State proves parental
unfitness, the child and his parents share a vital interest in preventing
erroneous termination of their natural relationship.’’ (Emphasis in original.)
Id., 760.
We do not share the commissioner’s interpretation of Santosky, which
does not find support in our case law. In our view, the subject language
does not stand for the proposition that, following an adverse determination
in the adjudicative phase, a biological parent lacks a fundamental interest
in the outcome of the dispositional phase of the proceeding. Rather, the
language at issue appears to emphasize that the sole consideration in the
dispositional phase of the proceeding is the best interest of the child and
not the natural rights of the biological parent. As our Supreme Court has
observed: ‘‘Under § 17a-112, 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 of the . . . grounds for termination of parental rights set
forth in § 17a-112 [(j) (3)] exists by clear and convincing evidence. The
commissioner . . . in petitioning to terminate those rights, must allege and
prove one or more of the statutory grounds. In contrast to custody proceed-
ings, in which the best interests of the child are always the paramount
consideration and in fact usually dictate the outcome, in termination pro-
ceedings the statutory criteria must be met before termination can be accom-
plished and adoption proceedings begun. . . . Section [17a-112 (j) (3)]
carefully sets out . . . [the] situations that, in the judgment of the legisla-
ture, constitute countervailing interests sufficiently powerful to justify the
termination of parental rights in the absence of consent. . . . Because a
respondent’s fundamental right to parent his or her child is at stake, [t]he
statutory criteria must be strictly complied with before termination can be
accomplished and adoption proceedings begun.’’ (Citation omitted; footnote
omitted; internal quotation marks omitted.) In re Elvin G., 310 Conn. 485,
500–501, 78 A.3d 797 (2013).
13
General Statutes § 45a-717 (d) provides in relevant part: ‘‘Upon finding
at the hearing or any any time during the pendency of the petition that
reasonable cause exists to warrant an examination, the court, on its own
motion or on motion by any party, may order the child to be examined at
a suitable place by a physician, psychiatrist or licensed clinical psychologist
appointed by the court. The court may also order examination of a parent
or custodian whose competency or ability to care for a child before the
court is at issue. The expenses of any examination if ordered by the court
on its own motion shall be paid for by the petitioner or, if ordered on motion
by a party, shall be paid for by the party moving for such an examination
unless such party or petitioner is unable to pay such expenses in which
case, they shall be paid for by funds appropriated to the Judicial Department
. . . . The court may consider the results of the examination in ruling on
the merits of the petition.’’
14
The language of § 45a-717 (d), specifically the legislature’s use of the
word ‘‘may,’’ reflects that the statute calls on the court to exercise its sound
discretion in ordering examination on its own initiative or on motion by a
party. See In re Cynthia A., 8 Conn. App. 656, 663, 514 A.2d 360 (1986)
(interpreting legislature’s use of ‘‘may’’ in General Statutes § 17-38a). In
an analogous context, related to the denial of a request for independent
psychiatric evaluations of respondents, this court observed, ‘‘[t]he trial
court’s decision whether to order a psychological evaluation in a termination
of parental rights proceeding will not be disturbed unless that judicial discre-
tion was clearly abused.’’ In re Daniel C., 63 Conn. App. 339, 365, 776 A.2d
487 (2001); see also In re David E., 4 Conn. App. 653, 658, 496 A.2d 229(1985) (same).
15
As discussed previously in this opinion; see footnote 8 of this opinion;
the respondent emphasizes a reliance not merely on psychological evalua-
tion, but psychological evaluation of a type favored by her, namely, that
which focuses on and relies heavily on certain relevant psychological theo-
ries related to continued contact, bonding and attachment between parent
and child.
16
A careful review of the court’s thorough memorandum of decision belies
any argument that the court was unconcerned with the children’s connection
to the respondent or to the feelings of attachment experienced by the
children. In evaluating § 17a-112 (k) (4), the court noted the fact that the
guardian ad litem reported that Kyara and Jahein expressed ‘‘[an] under-
standable wish to be reunited with their mother.’’ The court went on to
observe that the respondent’s younger children were bonded with their
foster parents. Further, in discussing the best interests of the children, the
court stated: ‘‘The court has also balanced the children’s intrinsic need for
stability and permanency against the potential benefit of maintaining a
connection with the biological parents, especially the mother.’’ The court
found that none of the children had expressed an interest in living with Jose.