In re Tresin J.

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IN RE TRESIN J.*
(AC 41829)
DiPentima, C. J., and Alvord and Beach, Js.
Syllabus
The respondent father appealed to this court from the judgment of the trial
court terminating his parental rights with respect to his minor child.
The trial court had determined, pursuant to statute (§ 17a-112 [j] [3]
[D]), that the father had no ongoing parent-child relationship with the
child. The father, who had last spoken to the child when the child was
less than two years old, was incarcerated for the next three years,
after which the child was placed into the custody of the petitioner, the
Commissioner of Children and Families. The trial court determined that
the child did not know who his father was and had no positive parental
memories of him. On appeal, the father claimed that the trial court
improperly determined that he had no ongoing parent-child relationship
with the child. He alleged that the petitioner had interfered with his
relationship with the child by, inter alia, failing to allow him any contact
with the child despite his requests for phone calls while he was incarcer-
ated. Held that the trial court properly applied the law, and its legal
conclusion that the petitioner established the elements of § 17a-112 (j)
(3) (D) was supported by clear and convincing evidence; the respondent
father presented no evidence that he sought visitation with or attempted
to call the child during the three years that he was incarcerated, the
petitioner presented undisputed evidence that when the child was placed
into the petitioner’s custody and before any alleged interference took
place, the child did not know who the father was, and, thus, the father
did not present evidence that the petitioner’s alleged interference led
to the lack of an ongoing parent-child relationship between him and the
child, and there was no legal support for the father’s contention that
the court should have considered his feelings toward the child when
he was incarcerated and the child was less than two years old, as it
was the age of the child when the alleged interference began that was
significant, and that alleged interference did not begin until the child
was five years old.
Argued January 2—officially released February 6, 2019**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Hartford, Juvenile Mat-
ters, and tried to the court, C. Taylor, J.; judgment
terminating the respondents’ parental rights, from
which the respondent father appealed to this court.
Affirmed.
David J. Reich, for the appellant (respondent father).
Hannah F. Kalichman, certified legal intern, with
whom were Benjamin Zivyon, assistant attorney gen-
eral, and, on the brief, Michael J. Besso, assistant attor-
ney general, and George Jepsen, former attorney
general, for the appellee (petitioner).
Opinion
ALVORD, J. The respondent father, Aceion B.,
appeals from the judgment of the trial court terminating
his parental rights with respect to his minor child, Tre-
sin J.1 On appeal, the respondent claims that the trial
court erred when it determined, pursuant to General
Statutes § 17a-112 (j) (3) (D), that no ongoing parent-
child relationship exists between the respondent and
Tresin. We affirm the judgment of the trial court.
The following facts, as found by the trial court, and
procedural history are relevant to our resolution of the
respondent’s claim. Tresin was born in June, 2011. The
respondent last spoke to Tresin in April, 2013, when
Tresin was less than two years old. In May, 2013, the
respondent was convicted of possession of marijuana,
his probation was revoked,2 and he was sentenced to
a term of incarceration. The respondent subsequently
was taken into custody by federal authorities and
detained for immigration violations. The respondent
remained in federal custody until the fall of 2017.
In July, 2016, the petitioner, the Commissioner of
Children and Families, filed a neglect petition with
respect to Tresin and his two half-siblings, who were
in the care of Tresin’s mother. In addition, the petitioner
obtained an order of temporary custody with respect
to all three children.
In August, 2017, the petitioner filed a petition to termi-
nate the parental rights of the respondent. The peti-
tioner alleged that, pursuant to § 17a-112 (j) (3) (D),
the respondent had no ongoing parent-child relation-
ship with Tresin. The termination of parental rights trial
was held on February 5 and March 9, 2018.
In a thoughtful memorandum of decision, issued on
May 22, 2018, the court found that the petitioner had
proved by clear and convincing evidence that there was
no ongoing parent-child relationship with respect to the
respondent and Tresin. In reaching its conclusion, the
court found that ‘‘Tresin does not know who his father is
and has no positive parental memories of his biological
father.’’3 Additional facts and procedural history will be
set forth as necessary.
We begin by setting forth the standard of review and
legal principles that guide our analysis of the respon-
dent’s claim. ‘‘Although the trial court’s subordinate
factual findings are reviewable only for clear error, the
court’s ultimate conclusion that a ground for termina-
tion of parental rights has been proven presents a ques-
tion of evidentiary sufficiency. . . . That conclusion is
drawn from both the court’s factual findings and its
weighing of the facts in considering whether the statu-
tory ground has been satisfied. . . . On review, we
must determine whether the trial court could have rea-
sonably concluded, upon the facts established and the
lative effect of the evidence was sufficient to justify its
[ultimate conclusion]. . . . When applying this stan-
dard, we construe the evidence in a manner most favor-
able to sustaining the judgment of the trial court. . . .
To the extent we are required to construe the terms of
§ 17a-112 (j) (3) [(D)] or its applicability to the facts of
this case, however, our review is plenary. . . .
‘‘Proceedings to terminate parental rights are gov-
erned by § 17a-112. . . . Under [that provision], a hear-
ing on a petition to terminate parental rights consists
of two phases: the adjudicatory phase and the disposi-
tional 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 evi-
dence. The [petitioner] . . . in petitioning to terminate
those rights, must allege and prove one or more of the
statutory grounds.’’ (Citation omitted; internal quota-
tion marks omitted.) In re Lilyana L., 186 Conn. App.
96, 104–105, A.3d (2018).
The statutory ground set forth in § 17a-112 (j) (3)
(D) provides that a trial court may grant a petition for
termination of parental rights if it finds by clear and
convincing evidence that ‘‘there is no ongoing parent-
child relationship, which means the relationship that
ordinarily develops as a result of a parent having met
on a day-to-day basis the physical, emotional, moral
and educational needs of the child and to allow further
time for the establishment or reestablishment of such
parent-child relationship would be detrimental to the
best interest of the child . . . .’’
‘‘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 . . . [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 has been
permitted. . . .
‘‘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 Jacob W., 178 Conn. App. 195, 208, 172 A.3d 1274
(2017), cert. granted on other grounds, 328 Conn. 902,
177 A.3d 563 (2018).
On appeal, the respondent claims that the trial court
erred when it determined, pursuant to § 17a-112 (j) (3)
(D), that no ongoing parent-child relationship exists
between the respondent and Tresin. Specifically, the
respondent argues that the court failed to apply the law
set forth in this court’s decision in In re Carla C., 167
Conn. App. 248, 143 A.3d 677 (2016).4 He argues that,
in accordance with In re Carla C., the trial court should
have considered (1) the petitioner’s interference with
the development of the parent-child relationship
between himself and Tresin, and (2) Tresin’s young age,
in light of which the respondent’s feelings toward Tresin
are significant. We disagree.
The trial court did consider this court’s decision in
In re Carla C. During closing arguments, the court, sua
sponte, raised the question of whether the guidance set
forth in In re Carla C. applied to the circumstances of
the present case. The petitioner argued that In re Carla
C. did not apply because neither a parent nor the peti-
tioner had interfered with the respondent’s relationship
with Tresin.5 The respondent, in his subsequent closing
argument, did not indicate any disagreement with the
petitioner’s argument with respect to the inapplicability
of In re Carla C.
The facts in the present case are not aligned with the
facts of In re Carla C. In In re Carla C., supra, 167
Conn. App. 251–52, the respondent was arrested and
incarcerated when his child was less than one month
old. On at least ten different occasions, the child’s
mother, the petitioner, took the child to visit the respon-
dent in prison. Beginning when the child was two years
old, however, the petitioner began limiting the respon-
dent’s access to the child by refusing to facilitate visits
or permit other contact.6 Id., 273. She then filed a peti-
tion to terminate the respondent’s parental rights on
the basis of no ongoing parent-child relationship. On
appeal, this court concluded that ‘‘the petitioner may
not establish the lack of an ongoing parent-child rela-
tionship on the basis of her own interference with the
respondent’s efforts to maintain contact with [the child]
. . . .’’ Id., 280–81.
In the present case, the respondent claims that, as
in In re Carla C., the petitioner interfered with his
relationship with Tresin. He argues that ‘‘[the petitioner]
failed to allow any contact between [the respondent]
and Tresin, despite the fact that [the respondent]
requested phone calls when he was incarcerated . . . .
The written record shows that [the respondent] reached
out to [the petitioner] and requested possible phone
calls with the child and expressed his hope that a pater-
nal relative could care for the child.’’7
First, we note that Tresin was not placed in the cus-
tody of the petitioner until July, 2016.8 As previously
stated, the respondent last had contact with Tresin in
April, 2013, before he was incarcerated. Accordingly,
the respondent was incarcerated for more than three
years, from April, 2013 to July, 2016, before Tresin was
placed into the petitioner’s custody. The respondent
presented no evidence that he sought visitation or
attempted to call Tresin during those three years. The
respondent does not allege any interference by the
child’s mother, who had custody of Tresin during
that time.
Moreover, the petitioner presented undisputed evi-
dence that, in July, 2016, when Tresin was placed into
the petitioner’s custody and before any alleged interfer-
ence took place, Tresin did not know who his father
was. Therefore, unlike in In re Carla C., the respondent
did not present evidence that the petitioner’s alleged
interference led to the lack of an ongoing parent-child
relationship between the respondent and Tresin.9
The respondent also argues that, in accordance with
In re Carla C., the trial court should have taken into
consideration his positive feelings toward Tresin
because Tresin was less than two years old when the
respondent was incarcerated. This court, however, in
In re Carla C., did not look to the child’s age at the
time that the respondent was incarcerated. Rather, the
age of the child when the petitioner began interfering
was significant. This court noted that ‘‘[the child] was
. . . only two years old when the petitioner began deny-
ing the respondent visitation and otherwise severed
contact,’’ and determined that, ‘‘[i]n light of the petition-
er’s denial of visitation beginning when [the child] was
still in the earliest stages of life, [this court] also must
be mindful of the positive feelings of the respondent
toward the child.’’ (Emphasis added; internal quotation
marks omitted.) In re Carla C., supra, 167 Conn.
App. 274.
In the present case, the petitioner’s alleged interfer-
ence did not begin until, at the earliest, July, 2016,10
when Tresin was five years old. Therefore, In re Carla
C. is markedly distinct from the present case, and there
is no legal support for the respondent’s contention that
the court should have considered the respondent’s posi-
tive feelings toward Tresin. See id., 266 (‘‘[w]e recognize
that the child’s positive feelings for the noncustodial
parent generally are determinative . . . except where
the child is too young to have any discernible feelings’’
[citation omitted; emphasis added]); see also In re Val-
erie D., 223 Conn. 492, 532, 613 A.2d 748 (1992) (‘‘where
the child involved is virtually a newborn infant whose
present feelings can hardly be discerned with any rea-
sonable degree of confidence . . . the inquiry must
focus, not on the feelings of the infant, but on the
positive feelings of the natural parent’’ [emphasis
added]).
On the basis of the foregoing, we conclude that the
trial court properly applied the law, and that its legal
conclusion that the petitioner established the elements
of § 17a-112 (j) (3) (D) is supported by clear and con-
vincing evidence.
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.
** February 6, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The parental rights of Tresin’s mother also were terminated, and she
has not appealed.
2
The respondent previously had been convicted of drug related offenses.
In 2008, the respondent was convicted of possession of marijuana, and in
2011, he was convicted of possession of marijuana with intent to sell.
3
The court also determined that it would be detrimental to Tresin’s best
interests to allow further time for a relationship with the respondent to
develop. The respondent does not challenge this determination.
4
In In re Carla C., supra, 167 Conn. App. 272, this court recognized that
there are ‘‘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 relation-
ship, even if unsuccessful, may demonstrate positive feelings toward the
child.’’
5
The trial court and the petitioner’s counsel engaged in the following
colloquy:
‘‘The Court: . . . I seem to recall In re Carla C. and Judge Mullins—now
Justice Mullins’—position concerning that similar type of argument. How
do you separate that case from this one?
‘‘[The Petitioner’s Counsel]: Well, Your Honor . . . while the child [is]
alive . . . [the respondent’s] already on probation. He goes out and contin-
ues the same activity. It’s not the mere fact that he’s incarcerated and kept
away from Tresin. That’s not what in of itself matters. And it’s not as if
someone from outside were—a parent, a grandparent, another parent, for
example—were attempting to keep him. It’s his own actions in this case.
So, it’s not as if he didn’t have this relationship because [the petitioner]
removed the child from him. It’s not as if it was an outside state agency
or a parent who created the conditions of interference.’’ (Emphasis added.)
6
The petitioner stopped taking the child to visit the respondent because
she ‘‘unilaterally decided that visits with the respondent were no longer in
[the child’s] best interest.’’ In re Carla C., supra, 167 Conn. App. 252. The
petitioner ‘‘obtained an order from the correctional facility that barred the
respondent from initiating any contact with her or [the child], on pain of
disciplinary action. Subsequently, she sought and obtained sole custody of
[the child], stipulating that the respondent would have bimonthly visits with
[the child] at the prison. She nevertheless neither facilitated those visits nor
moved to modify visitation. Additionally, the petitioner has not told [the
child] that the respondent is her father or shown her pictures of the respon-
dent; indeed, she has discarded the respondent’s cards and letters to [the
child]. Short of ‘extraordinary and heroic efforts’ by the respondent . . . the
petitioner was able completely to deny him access to [the child].’’ (Citation
omitted; footnote omitted.) Id., 273.
7
The respondent also argues that the petitioner interfered with his rela-
tionship with Tresin because ‘‘[o]nce he was released, he requested visits
through counsel, which [were] effectively opposed by [the petitioner].’’ The
respondent, however, did not file the requests for visitation until November,
2017. The petition for termination of parental rights was filed in August,
2017, three months earlier. Practice Book § 35a-7 (a) provides in relevant
part: ‘‘In the adjudicatory phase, the judicial authority is limited to evidence
of events preceding the filing of the petition . . . .’’ Accordingly, because
the court could not have considered the respondent’s belated requests for
visitation in its analysis of whether there was an ongoing parent-child rela-
tionship between the respondent and Tresin, any alleged interference with
respect to those requests similarly was irrelevant to the court’s analysis.
8
On July 11, 2016, the petitioner was granted temporary custody of Tresin.
Accordingly, any alleged interference by the petitioner, as Tresin’s custodian,
could only have occurred after that date.
9
See In re Carla C., supra, 167 Conn. App. 262 (‘‘a parent whose conduct
inevitably has led to the lack of an ongoing parent-child relationship may
not terminate parental rights on this ground’’); see also In re Jacob W., supra,
178 Conn. App. 215 (‘‘interference exists only if a custodian’s unreasonable
interference with a noncustodial parent’s efforts to maintain an ongoing
parent-child relationship leads inevitably to the lack of such relationship’’).
10
See footnote 8 of this opinion.