In re Jacob W.

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IN RE JACOB W. ET AL.*
(AC 40202)
DiPentima, C. J., and Prescott and Mihalakos, Js.
Syllabus
The maternal grandmother of the three minor children, who had petitioned
the Probate Court for and had been granted custody of the children
following the arrest of the respondent father and the children’s mother
on charges involving the sexual assault of other minors, filed petitions
in the Probate Court for the termination of the parental rights of both
parents. The grandmother alleged the statutory grounds of abandonment
and the nonexistence of an ongoing parent-child relationship, as the
father has had no contact with the children since his conviction of
the charges and incarceration in 2016, and the mother subsequently
consented to the termination of her parental rights. Thereafter, the
matter was transferred from the Probate Court to the Superior Court,
where the trial court rendered judgments denying the petitions to termi-
nate the father’s parental rights, from which the grandmother appealed
to this court. The trial court concluded that the grandmother had failed
to prove either abandonment or the lack of an ongoing parent-child
relationship by clear and convincing evidence, and based its conclusion
on its findings that the father provided for the children financially and
was actively involved in their lives prior to his incarceration, that he
was prohibited from making contact with the home of the grandmother,
the legal guardian of the children, due to a protective order related to
the sexual assault charges, that he had contacted the Department of
Children and Families to request assistance with having contact with
the children during his incarceration, and that he signed up to have
Christmas gifts sent to the children through a program offered to incar-
cerated parents and had requested updates regarding the children
through the Probate Court. Held:
1. The trial court applied an incorrect legal test for determining whether
there was an ongoing parent-child relationship pursuant to the applicable
statute (§ 45a-717 [g] [2] [C]), which requires the court to first determine
that no parent-child relationship exists and, second, to determine
whether it would be detrimental to the child’s best interests to allow
time for such a relationship to develop: in determining whether an
ongoing parent-child relationship existed, that court’s inquiry should
have focused foremost on whether the children presently had positive
feelings toward the respondent father, but, instead, the court focused
on the actions that the father undertook to maintain a relationship with
the children and did so pursuant to the exception that applies where
a custodian has unreasonably interfered with a noncustodial parent’s
visitation or other efforts to maintain an ongoing parent-child relation-
ship such that the custodian’s unreasonable interference leads inevitably
to the lack of an ongoing parent-child relationship, which would preclude
the termination of the noncustodial parent’s parental rights on the
ground of no ongoing parent-child relationship; moreover, because a
child’s present positive feelings would be enough to establish the exis-
tence of an ongoing parent-child relationship, and it is only if the child
possesses no present positive feelings for the parent, or if an infant
child’s present feelings cannot be ascertained, that a court may consider
the question of whether a custodian has unreasonably interfered with
the parent’s effort’s to maintain or establish a parent-child relationship,
the trial court here could not logically have concluded both that an
ongoing parent-child relationship existed and that unreasonable interfer-
ence inevitably prevented the father from maintaining an ongoing parent-
child relationship; accordingly, the court’s adjudicatory analysis was
erroneous, and a new trial was warranted.
2. Even if the trial court’s application of the test for determining whether
there was an ongoing parent-child relationship was legally and logically
correct, its decision could not stand because the court’s findings were
fatally inconsistent; although that court found in the adjudicatory phase
that the custodial grandparents had interfered with the parent-child
relationship by failing to facilitate contact between the respondent father
and the children, and by influencing and manipulating the feelings of
the children with false and misleading information about the father, it
subsequently found in the dispositional phase that there was no evidence
presented demonstrating that the father was prevented from maintaining
a meaningful relationship by the unreasonable acts of another person
or by the economic circumstances of the parent, and, therefore, this
court could not reconcile the trial court’s findings by clear and convinc-
ing evidence both that there was interference and that there was no
evidence of interference.
Argued September 7—officially released November 16, 2017**
Procedural History
Petitions to terminate the respondent father’s paren-
tal rights with respect to his minor children, brought
to the Probate Court for the district of Ellington and
transferred to the Superior Court in the judicial district
of Tolland, Juvenile Matters at Rockville; thereafter, the
court granted the petitioner’s request for leave to amend
the petitions; subsequently, the matter was tried to the
court, Westbrook, J.; judgments denying the petitions,
from which the petitioner appealed to this court.
Reversed; new trial.
James P. Sexton, assigned counsel, with whom was
Marina L. Green, assigned counsel, for the appellant
(petitioner).
Benjamin M. Wattenmaker, assigned counsel, with
whom was Amir Shaikh, assigned counsel, for the
appellee (respondent father).
Cara S. Richert, for the minor children.
Opinion
DiPENTIMA, C. J.The petitioner, the maternal grand-
mother of the minor children,1 appeals from the judg-
ments of the trial court denying her petitions to
terminate the parental rights of the respondent father
as to his children, J, N and C.2 On appeal, the petitioner
challenges the trial court’s conclusion that she had
failed to prove the nonexistence of an ongoing parent-
child relationship by clear and convincing evidence as
required by General Statutes § 45a-717 (g) (2) (C).3 The
petitioner argues, inter alia, that the trial court applied
the incorrect legal test to determine whether such a
relationship exists by focusing on the respondent’s
actions rather than the children’s feelings.4 We agree
that the trial court applied the incorrect test because
the court legally and logically cannot have found both
that a parent-child relationship exists and that the custo-
dians prevented such a relationship from existing.
Moreover, even under the test as applied, the trial
court’s conclusions are inconsistent. Accordingly, we
reverse the judgments of the trial court and remand the
case for a new trial.
The following facts and procedural history are rele-
vant to our consideration of this appeal. The respondent
and the mother married in 2008. They had three children
together: J was born in the fall of 2006, N in the summer
of 2008 and C in the summer of 2012. The respondent,
the mother and the children lived together first in an
apartment and then in the maternal grandparents’
(grandparents) home.
In April, 2014, the respondent was arrested on several
counts of sexual assault of minors. In July, 2014, the
mother was arrested for conspiring with the respondent
to commit the same. Although the children were not
among the victims of these crimes, the mother’s minor
sister (aunt),5 who also resided with the grandparents
at the time, was.
Following the parents’ arrests, the grandparents suc-
cessfully petitioned the Ellington Probate Court for cus-
tody. Because the aunt still resided with the
grandparents, a protective order was entered prohib-
iting the respondent from contacting the aunt’s immedi-
ate family, including her parents and siblings.
After a criminal trial, the respondent was convicted
on all counts and was sentenced in January, 2016, to
twenty-nine years incarceration. The mother pleaded
guilty and was sentenced in March, 2015, to five years
incarceration.6 At first, the children did not know that
the respondent had been incarcerated. The grandpar-
ents later told the children that the respondent was in
prison for hitting their mother. The respondent has had
no contact with the children since his incarceration.
The petitioner first filed her petitions for termination
of both parents’ parental rights in the Ellington Probate
Court in November, 2015. After initially alleging the
statutory ground of denial of care by parental acts of
commission or omission,7 the petitioner, with leave of
the court, amended her petitions in November, 2016,
to allege the statutory grounds of abandonment and the
nonexistence of an ongoing parent-child relationship.
The attorney for the minor children moved to transfer
the matter from the Probate Court to the Superior
Court, which motion was granted in May, 2016. Shortly
before the trial, the court appointed a guardian ad litem
to represent the best interests of the children. As part
of the proceedings, the Department of Children and
Families (department) was ordered to complete a social
study in April, 2016, pursuant to § 45a-717 (e).8 The
study ultimately recommended termination of the
parental rights of the respondent, but not the mother.
The mother nevertheless consented to the termination
of her parental rights four months later.
After a two-day trial in January, 2017, the court denied
the petition to terminate the respondent’s parental
rights, concluding that the petitioner had failed to prove
either abandonment or the lack of an ongoing parent-
child relationship by clear and convincing evidence.
In its memorandum of decision, the court made the
following adjudicatory findings and legal conclusions
with respect to the existence or lack of an ongoing
parent-child relationship.
‘‘Here, the court finds that the petitioner has not
demonstrated that there is a lack of a parent-child rela-
tionship nor that it would be detrimental to allow fur-
ther time for the establishment of the relationship.
Again, prior to his incarceration, [the] respondent father
worked and provided for the children financially. [The]
respondent father threw birthday parties and actively
participated in the children’s daily activities. [The]
respondent father facilitated a relationship between the
minor children and their maternal relatives. [The]
respondent father is prohibited from making contact
with the home of the maternal grandparents/legal guard-
ian due to a protective order. During the pendency of
his incarceration, [the] respondent father contacted the
[department] to request assistance in having contact
with his children. [The] respondent father also signed
up to have Christmas gifts sent to the children through
a program that purchases gifts for the children of incar-
cerated parents. On December 9, 2014, [the] respondent
father, through the Probate Court, requested updates
regarding his children. The legal guardians agreed but
did not provide updates. The Connecticut Appellate
Court in In re Carla C., [167 Conn. App. 248, 143 A.3d
677 (2016)] found that ‘when a custodial parent has
interfered with an incarcerated parent’s visitation and
other efforts to maintain an ongoing parent-child rela-
tionship with the parties’ child, the custodial parent
cannot terminate the noncustodial parent’s parental
rights on the ground of no ongoing parent-child relation-
ship.’ [Id., 251]. Further, our Supreme Court, with the
legislature’s acquiescence, effectively has relaxed the
requirement that a noncustodial parent’s provision for
a child’s needs be on a ‘continuing, day-to-day basis’
where visitation rights are limited: ‘Our 1979 decision
in In re Juvenile Appeal (Anonymous), 177 Conn. [648,
675, 420 A.2d 875 (1979)], expressly rejected the trial
court’s determination that no ongoing parent-child rela-
tionship meant no meaningful relationship.’ [Emphasis
in original.] In re Carla C., [supra, 267 n.19].
‘‘[The] respondent father is prohibited from having
contact with the minor children because of the protec-
tive order disallowing contact with the home of the
[petitioner]. Despite the order, [the] father has reached
out to [the department], and the Probate Court to facili-
tate contact. No party has facilitated contact with the
children and father. The [petitioner] agreed to facilitate
contact in 2014 but has not done so. The [petitioner]
is custodial and has now filed a petition to terminate
[the] respondent father’s parental rights alleging lack
of parental contact. The children have developed a sub-
stantial bond with the legal guardians who wish to adopt
the children. The court in In re Jessica M., 217 Conn.
[459, 475, 586 A.2d 597 (1991)], noted that although the
ability and willingness of the guardians to adopt the
child might be relevant to a best interest determination,
it is irrelevant in determining whether an ongoing par-
ent-child relationship existed.
‘‘There was no evidence presented by the petitioner
at trial that would support a claim that additional time
to reestablish a relationship with the children would
be detrimental. The statements of dislike by very young
children with false information about their father does
not establish by clear and convincing evidence that
reestablishing a relationship would be detrimental.’’
In regard to the § 45a-717 (i) criteria, the court did
not find ‘‘by clear and convincing evidence that the
necessary statutory ground alleged by the petitioner for
the termination of the parent’s parental rights have been
proven. However, before making a decision on whether
or not to terminate the respondents’ parental rights,
the court must consider and make findings on each of
the six criteria set out in . . . § 45a-717 ([i]).’’ The court
found the criteria to have been established by clear and
convincing evidence.
Specifically, with regard to the sixth criteria concern-
ing ‘‘ ‘[t]he extent to which a parent has been prevented
from maintaining a meaningful relationship by the
unreasonable act of any other person or by the eco-
nomic circumstances of the parent,’ ’’ the court found
that ‘‘[t]here was no evidence presented demonstrating
that [the] father was prevented from maintaining a
meaningful relationship by the unreasonable acts of
another person or by the economic circumstances of
the parent.’’ This appeal followed. Additional facts will
be set forth as necessary.
We begin with the applicable legal principles. Termi-
nation of parental rights upon a petition by a private
party is defined as ‘‘the complete severance by court
order of the legal relationship, with all its rights and
responsibilities, between the child and the child’s par-
ent . . . .’’ General Statutes § 45a-707 (8). ‘‘It is, accord-
ingly, a most serious and sensitive judicial action.’’
(Internal quotation marks omitted.) In re Jessica M.,
supra, 217 Conn. 464. See also In re Juvenile Appeal
(Anonymous), supra, 177 Conn. 671.
General Statutes § 45a-715 (a) (2) permits a child’s
guardian, among others, to petition the Probate Court
to terminate the parental rights of that child’s parent(s).9
‘‘In order to terminate a parent’s parental rights under
§ 45a-717, the petitioner is required to prove, by clear
and convincing evidence, that any one of the seven
grounds for termination delineated in § 45a-717 (g) (2)
exists and that termination is in the best interest of the
child. General Statutes § 45a-717 (g) (1).’’ In re Brian
T., 134 Conn. App. 1, 10, 38 A.3d 114 (2012). Those
seven grounds are: abandonment, acts of parental com-
mission or omission, no ongoing parent-child relation-
ship, neglect/abuse, failure to rehabilitate, causing the
death of another child or committing a sexual assault
that results in the conception of the child. General Stat-
utes § 45a-717 (g) (2).
‘‘A hearing on a petition to terminate parental rights
consists of two phases: the adjudicatory phase and the
dispositional phase. During the adjudicatory phase, the
trial court must determine whether one or more
grounds for termination of parental rights set forth in
. . . [§] 45a-717 (g) (2) has been proven by clear and
convincing evidence. . . .
‘‘In the dispositional phase . . . the emphasis appro-
priately shifts from the conduct of the parent to the
best interest of the child. . . . The best interests of the
child include the child’s interests in sustained growth,
development, well-being, and continuity and stability
of [her] environment. . . . [T]he trial court must deter-
mine whether it is established by clear and convincing
evidence that the continuation of the respondent’s
parental rights is not in the best interest of the child.
. . .
‘‘Clear and convincing proof is a demanding standard
denot[ing] a degree of belief that lies between the belief
that is required to find the truth or existence of the
[fact in issue] in an ordinary civil action and the belief
that is required to find guilt in a criminal prosecution.
. . . [The burden] is sustained if evidence induces in
the mind of the trier a reasonable belief that the facts
asserted are highly probably true, that the probability
that they are true or exist is substantially greater than
the probability that they are false or do not exist. . . .
‘‘Our standard of review on appeal from a termination
of parental rights is whether the challenged findings
are clearly erroneous.10 . . . The determinations
reached by the trial court that the evidence is clear and
convincing will be disturbed only if [the challenged]
finding is not supported by the evidence and [is], in
light of the evidence in the whole record, clearly errone-
ous. . . .
‘‘On appeal, our function is to determine whether the
trial court’s conclusion was legally correct and factually
supported. . . . We do not examine the record to deter-
mine whether the trier of fact could have reached a
conclusion other than the one reached . . . nor do we
retry the case or pass upon the credibility of the wit-
nesses. . . . Rather, on review by this court every rea-
sonable presumption is made in favor of the trial court’s
ruling.’’ (Citations omitted; footnotes altered; internal
quotation marks omitted.) In re Carla C., supra, 167
Conn. App. 257–59; see also In re Payton V., 158 Conn.
App. 154, 160–61, 118 A.3d 166, cert. denied, 317 Conn.
924, 118 A.3d 549 (2015); In re Justice V., 111 Conn.
App. 500, 512–13, 959 A.2d 1063 (2008), cert. denied,
290 Conn. 911, 964 A.2d 545 (2009).
The primary issue on appeal is whether the trial court
erred when it found that the petitioner had not proved
the lack of an ongoing parent-child relationship by clear
and convincing evidence. The arguments in support of
this single claim, however, are manifold. The petitioner
contends that the trial court applied an incorrect legal
test for determining whether there is an ongoing parent-
child relationship, made findings of fact that are clearly
erroneous under these circumstances and upon this
record, erroneously concluded that allowing a parent-
child relationship to form would not be detrimental to
the children’s best interests and erroneously concluded
that termination of parental rights was not in the chil-
dren’s best interest.11 Because we agree that the court
erred in its construction and application of the legal
test, we do not consider the other arguments.
I
The trial court applied an incorrect legal test. To find
that an ongoing parent-child relationship does not exist
pursuant to § 45a-717 (g) (2) (C), the trial court must
conduct a two part analysis. ‘‘First, there must be a
determination that no parent-child relationship exists,
and, second, the court must look into the future and
determine whether it would be detrimental to the child’s
best interests to allow time for such a relationship to
develop. . . . The best interest standard . . . does
not become relevant until after it has been determined
that no parent-child relationship exists. . . .
‘‘The definition of no ongoing parent-child relation-
ship has evolved in light of a sparse legislative history
. . . . [T]he language of [this ground for termination]
contemplate[s] a situation in which, regardless of fault,
a child either has never known his or her parents, so
that no relationship has ever developed between them,
or has definitively lost that relationship, so that despite
its former existence it has now been completely dis-
placed. . . .
‘‘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.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) In re Carla C., supra,
167 Conn. App. 265–66.
We iterate that, with respect to the first part of its
adjudicatory analysis, that is, whether an ongoing par-
ent-child relationship exists, a trial court’s inquiry must
focus foremost on whether a child presently has posi-
tive feelings toward his or her parent. See In re Jessica
M., supra, 217 Conn. 469 (‘‘the statute requires that a
child have some ‘present memories or feelings for the
natural parent’ that are positive in nature . . . the stan-
dard contemplates a relationship that has positive attri-
butes’’ [citation omitted]); In re Juvenile Appeal
(Anonymous), supra, 177 Conn. 670 (‘‘the ultimate
question is whether the child has no present memories
or feelings for the natural parent’’ [emphasis added]).
Our courts have recognized only two narrow exceptions
to the rule. First, ‘‘where the child involved is virtually
a newborn infant whose present feelings can hardly be
discerned with any reasonable degree of confidence
. . . the inquiry must focus, not on the feelings of the
infant, but on the positive feelings of the natural parent.’’
In re Valerie D., 223 Conn. 492, 532, 613 A.2d 748 (1992).
Second, ‘‘when a custodial parent has interfered with
an incarcerated parent’s visitation and other efforts to
maintain an ongoing parent-child relationship . . . the
custodial parent cannot terminate the noncustodial par-
ent’s parental rights on the ground of no ongoing parent-
child relationship.’’ In re Carla C., supra, 167 Conn.
App. 251.
The court made the following factual findings as to
the children’s feelings: ‘‘[J] initially said that he misses
his father and that he also sometimes feels angry about
the loss of [his] mother and father. More recently [J]
is reported to have told the school that his dad is a bad
parent. [N] says that he hates his dad. [C] was very
young at the time of [the] respondent father’s incarcera-
tion and has little to no memory of him.’’ In its applica-
tion of the law to the facts, however, the court did not
refer to these findings. Rather, the memorandum of
decision clearly indicates that the court focused its
adjudicatory analysis not on the nature and extent of
the children’s present feelings for the respondent but
rather on the actions that the respondent undertook to
maintain a relationship with the children. The court’s
stated justification for this inverse analysis was the
interference exception we delineated in In re Carla C.,
supra, 167 Conn. App. 251.12
In In re Carla C., we traced a line of precedent that
led us inexorably to the conclusion that a custodian,
such as the grandparents here, cannot unreasonably
deprive a noncustodial parent of an ongoing parent-
child relationship so as to terminate the noncustodial
parent’s parental rights on that ground: ‘‘From these
cases, we glean two relevant variables on which the
inquiry into whether an ongoing parent-child relation-
ship 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 interfer-
ence with the development of the relationship, in light
of which the parent’s efforts to maintain a relationship,
even if unsuccessful, may demonstrate positive feelings
toward the child. We recognize that the child’s positive
feelings for the noncustodial parent generally are deter-
minative; In re Jessica M., supra, 217 Conn. 467–68,
470; except where the child is too young to have any
discernible feelings, in which case the positive feelings
of the parent for the child play a role in the determina-
tion. In re Valerie D., supra, 223 Conn. 532; In re Alexan-
der C., [67 Conn. App. 417, 425, 787 A.2d 608 (2001),
aff’d, 262 Conn. 308, 813 A.2d 87 (2003)]. Even where the
parent professes such [positive feelings for the child],
however, the parent’s perpetuation of the lack of a
relationship by failing to use available resources to seek
visitation or otherwise maintain contact with the child
may establish the lack of an ongoing parent-child rela-
tionship. In re Alexander C., supra, 426–27. Finally,
evidence of the existence of a parent-child relationship
is to be viewed in the light of circumstances that limited
visitation; id., 425; including the conduct of the child’s
custodian at the time of the petition. In re Jessica M.,
supra, 473; see also In re Valerie D., supra, 533.’’ (Foot-
note omitted.) In re Carla C., supra, 167 Conn. App.
272–73.
In reaching our conclusion, we phrased the interfer-
ence exception several different ways.13 The underlying
principles are nonetheless consistent, and we reassert
them now all together: Where a custodial parent unrea-
sonably has interfered with a noncustodial parent’s visi-
tation or other efforts to maintain or establish an
ongoing parent-child relationship such that the custo-
dial parent’s unreasonable interference leads inevitably
to the lack of an ongoing parent-child relationship, the
noncustodial parent’s parental rights cannot be termi-
nated on the ground of no ongoing parent-child rela-
tionship.
The court, however, did not apply that test correctly.
A court logically cannot, as here, conclude both that
an ongoing parent-child relationship exists and that
unreasonable interference inevitably prevented the
respondent from maintaining an ongoing parent-child
relationship. Indeed, the notion that interference leads
inevitably to the lack of a relationship means that before
a court can consider the applicability of the interference
exception at all, it must first determine that no ongoing
parent-child relationship exists. This stands to reason,
because if the child has positive feelings for the respon-
dent parent, the inquiry is exhausted. Under our
caselaw, a child’s present positive feelings are enough
to establish the existence of an ongoing parent-child
relationship. It is only if the child possesses no present
positive feelings for the parent—or if an infant child’s
present feelings are inscrutable—that a court may turn
to other questions, such as interference.
Only this approach adheres to the policy considera-
tions fundamental to § 45a-717 (g) (2) (C). That is, this
approach both ensures that the court’s analysis of the
parent-child relationship minimizes issues of fault and
protects against the possibility that questions of custody
and parental rights are conflated. These concerns are
prevalent throughout the sparse history of § 45a-717 (g)
(2) (C). ‘‘This ‘no-fault’ statutory ground for termination
was added . . . in 1974 . . . . Prior versions of [the
statute] had provided for termination of parental rights,
absent consent of the parents, only upon such so-called
‘fault’ grounds as abandonment, neglect, unfitness, or
continuing physical or mental disability. . . .
‘‘It is reasonable to read the language of ‘no ongoing
parent-child relationship’ to contemplate a situation in
which, regardless of fault, a child either has never
known his or her parents, so that no relationship has
ever developed between them, or has definitively lost
that relationship, so that despite its former existence
it has now been completely displaced. In either case
the ultimate question is whether the child has no present
memories or feelings for the natural parent.’’ (Footnote
omitted.) In re Juvenile Appeal (Anonymous), supra,
177 Conn. 669–70; see also In re Carla C., supra, 167
Conn. App. 265 n.18. Considering the feelings of the
children first either avoids or postpones any question
of the parent’s actions. To do otherwise—to consider
the positive feelings of the parent toward the child
first—is to render the no-fault ground vestigial, and
instead to conduct something akin to an abandon-
ment analysis.14
This is true because our test of a noncustodial par-
ent’s positive feelings for his or her child is not blind
to fault. ‘‘Even where the parent professes [positive]
feelings . . . the parent’s perpetuation of the lack of
a relationship by failing to use available resources to
seek visitation or otherwise maintain contact with the
child may establish the lack of an ongoing parent-child
relationship.’’ In re Carla C., supra, 167 Conn. App.
272–73; see also In re Alexander C., supra, 67 Conn.
App. 425. Even if, as in this case, a parent is imprisoned,
our courts repeatedly have held that he or she must at
least attempt to take advantage of the resources at his
or her disposal. See In re Carla C., supra, 272–73; In
re Alexander C., supra, 425. See also In re Juvenile
Appeal (Docket No. 10155), 187 Conn. 431, 443, 446
A.2d 808 (1982) (‘‘the inevitable restraints imposed by
incarceration do not in themselves excuse a failure
to make use of available though limited resources for
contact with a distant child’’).
On the other hand, our courts have been wary of
conflating questions of custody with questions of paren-
tal rights. ‘‘Although the severance of the parent-child
relationship may be required under some circum-
stances, the United States Supreme Court has repeat-
edly held that the interest of parents in their children
is a fundamental constitutional right that undeniably
warrants deference and, absent a powerful countervail-
ing interest, protection. Stanley v. Illinois, 405 U.S. 645,
651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); see also In
re Juvenile Appeal (83-CD), 189 Conn. 276, 295, 455
A.2d 1313 (1983) (noting that it is both a fundamental
right and the policy of this state to maintain the integrity
of the family). Termination of parental rights does not
follow automatically from parental conduct justifying
the removal of custody. The fundamental liberty interest
of natural parents in the care, custody, and management
of their child does not evaporate simply because they
have not been model parents or have lost temporary
custody of their child to the State. Even when blood
relationships are strained, parents retain a vital interest
in preventing the irretrievable destruction of their fam-
ily life. Santosky v. Kramer, 455 U.S. 745, 753, 102 S.
Ct. 1388, 71 L. Ed. 2d 599 (1982).
‘‘Accordingly, [our legislature has] carefully limited
situations in which countervailing interests are suffi-
ciently powerful to justify the irretrievable destruction
of family ties that the nonconsensual termination of
parental rights accomplishes. . . .
‘‘As a matter of statutory fiat, consideration of the
best interests of the child cannot vitiate the necessity
of compliance with the specified statutory standards
for termination. . . . [I]nsistence upon strict compli-
ance with the statutory criteria before termination of
parental rights and subsequent adoption proceedings
can occur is not [however] inconsistent with concern
for the best interests of the child. . . . A child, no less
than a parent, has a powerful interest in the preserva-
tion of the parent-child relationship. . . .
‘‘Similarly, questions concerning the ultimate custo-
dial placement of the child may not be intermingled
with the issues of termination. . . . [A] parent cannot
be displaced because someone else could do a better
job of raising the child . . . .’’ (Citations omitted;
emphasis added; footnote omitted; internal quotation
marks omitted.) In re Jessica M., supra, 217 Conn.
464–67.
All of these concerns are balanced when the carefully
crafted, narrow exception is properly applied. On the
one hand, the interference exception is only a narrow
limitation on the no-fault ground for termination. On
the other hand, the exception guards against the uncon-
stitutional situation in which a custodian creates the
lack of an ongoing parent-child relationship through
‘‘unreasonable’’ conduct that ‘‘inevitably’’ renders the
parent’s efforts to maintain or establish such relation-
ship ineffective—including, in some cases, custody
itself. It is therefore manifestly important that a court
invoking interference properly apply the legal test.
In summation, interference exists only if a custodi-
an’s unreasonable interference with a noncustodial par-
ent’s efforts to maintain an ongoing parent-child
relationship leads inevitably to the lack of such relation-
ship. Therefore, a court legally and logically cannot find
both that an ongoing parent-child relationship exists
and that a custodial parent prevented one from existing.
The trial court in this case did exactly that. Accordingly,
the court’s adjudicatory analysis was erroneous. The
initial test for determining whether an ongoing parent-
child relationship exists is whether the child has any
present positive feelings for the parent. A trial court
may consider the question of interference only if the
child does not have such feelings. To do otherwise
effectively vitiates § 45a-717 (g) (2) (C).
II
Even if the trial court’s approach were legally and
logically correct, its decision could not stand because
its findings were fatally inconsistent. Specifically, the
trial court found both that the grandparents’ unreason-
able conduct constituted interference and that there
was no evidence of unreasonable interference by any
person. The court first found in the adjudicatory phase
that the grandparents had interfered with the parent-
child relationships by (1) failing to facilitate contact
between the respondent and the children as required
and (2) influencing/manipulating the feelings of the chil-
dren with false and misleading information about the
respondent. In a subsequent finding15 related to the dis-
positional phase, however, the court found by clear and
convincing evidence16 that ‘‘[t]here was no evidence
presented demonstrating that [the respondent] father
was prevented from maintaining a meaningful relation-
ship by the unreasonable acts of another person or by
the economic circumstance of the parent.’’
Where a court’s opinion contains fundamental logical
inconsistencies, it may warrant reversal. See In re Pedro
J. C., 154 Conn. App. 517, 539, 105 A.3d 943 (2014); see
also In re Joseph W., 301 Conn. 245, 264–65, 21 A.3d
723 (2011) (trial court erred in denying motion to open
judgment adjudicating neglect and subsequently per-
mitting respondent to contest that adjudication);
Kaplan & Jellinghaus, P.C. v. Newfield Yacht Sales,
Inc., 179 Conn. 290, 292, 426 A.2d 278 (1979) (‘‘[a] trial
court’s conclusions are not erroneous unless they vio-
late law, logic, or reason or are inconsistent with the
subordinate facts in the finding’’).
In the wake of Santosky v. Kramer, supra, 455 U.S.
745, and In re Juvenile Appeal (Anonymous), supra,
177 Conn. 648, our legislature enacted what is now
§ 45a-717 (i), which requires a trial court to make spe-
cific written findings when considering a contested peti-
tion to terminate parental rights.17 These written
findings are required in contested cases where a ground
for termination has been proven regardless of whether
the trial court actually terminates a respondent’s paren-
tal rights. Although our caselaw is clear that the best
interests of the children come into play only if a ground
for termination of parental rights has been proven; see
footnote 14 of this opinion; the court here proceeded
to the dispositional phase.
Among the required written findings is a consider-
ation of ‘‘the extent to which a parent has been pre-
vented from maintaining a meaningful relationship with
the child by the unreasonable act or conduct of the
other parent of the child, or the unreasonable act of
any other person or by the economic circumstances
of the parent.’’ General Statutes § 45a-717 (i) (6). This
statutory factor clearly implicates the same underlying
facts as the interference exception. First, both concern
unreasonable conduct on the part of another parent or
other person, which here would include the custodial
grandparents.18 Second, both concern interference with
a respondent parent’s efforts to maintain a parent-child
relationship.19 Third, both make it clear that such inter-
ference must cause the lack of the parent-child relation-
ship. Accordingly, we cannot reconcile the trial court’s
findings by clear and convincing evidence both that
there was interference and that there was no evidence
of interference.
In conclusion, the trial court applied the incorrect
legal test for determining whether an ongoing parent-
child relationship exists. A court must first determine
that a child has no present positive feelings for his
or her parent before it considers whether a custodian
unreasonably interfered with the parent’s efforts to
maintain or establish such a relationship. Further, even
under the incorrect legal test, the trial court’s findings
were fundamentally inconsistent because the court
found both that there was interference and that there
was no evidence of interference.
The judgments are reversed and the case is remanded
for a new trial.
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.
** November 16, 2017, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The maternal grandmother is the petitioner pro forma. Both maternal
grandparents are currently custodians, and the maternal grandfather signed
the applications for termination of parental rights as a proposed statutory
parent. See General Statutes § 45a-707 (7) (‘‘‘Statutory parent’ means the
Commissioner of Children and Families or the child-placing agency
appointed by the court for the purpose of the adoption of a minor child or
minor children’’) and § 45a-717 (g) (permitting court to appoint statutory
parent upon termination of parental rights).
2
Initially, the petitioner also sought to terminate the parental rights of
the mother. The mother later consented to such termination and, as a result,
is neither a respondent to the petition nor a participant in this appeal.
3
Section 45a-717 (g) provides, in relevant part: ‘‘At the adjourned hearing
or at the initial hearing where no investigation and report has been requested,
the court may approve a petition terminating the parental rights and may
appoint a guardian of the person of the child, or, if the petitioner requests,
the court may appoint a statutory parent, if it finds, upon clear and convincing
evidence, that (1) the termination is in the best interest of the child, and
(2) . . . (C) there is no ongoing parent-child relationship which is defined
as the relationship that ordinarily develops as a result of a parent having
met on a continuing, day-to-day basis the physical, emotional, moral and
educational needs of the child and to allow further time for the establishment
or reestablishment of the parent-child relationship would be detrimental to
the best interests of the child . . . .’’
4
The children’s attorney, pursuant to Practice Book § 67-13, adopted the
petitioner’s brief on appeal and was present at oral argument.
5
In accordance with our policy of protecting the privacy interests of
victims of sexual abuse, we decline to identify the victim or others through
whom the victim’s identity may be ascertained. See General Statutes § 54-86e.
6
The mother, however, was not subject to any protective order.
7
See § 45a-717 (g) (2) (B).
8
Section 45a-717 (e) provides, in relevant part: ‘‘(1) The court may, and
in any contested case shall, request the Commissioner of Children and
Families or any child-placing agency licensed by the commissioner to make
an investigation and written report to it, within ninety days from the receipt
of such request. The report shall indicate the physical, mental and emotional
status of the child and shall contain such facts as may be relevant to the
court’s determination of whether the proposed termination of parental rights
will be in the best interests of the child, including the physical, mental,
social and financial condition of the biological parents, and any other factors
which the commissioner or such child-placing agency finds relevant to the
court’s determination of whether the proposed termination will be in the
best interests of the child.’’
9
Compare General Statutes § 17a-111a et seq., according to which the
state petitions to terminate parental rights. Although there are significant
distinctions between the two schemes, ‘‘[t]his court previously has applied
the same analytical framework and meaning of abandonment and lack of
ongoing parent-child relationship to petitions to terminate parental rights
pursuant to either [General Statutes] § 17a-112 (j) (3) (A) and (D) or § 45a-
717 (g) (2) (A) and (C).’’ In re Brian T., 134 Conn. App. 1, 11 n.3, 38 A.3d
114 (2012).
10
We note that in 2015, our Supreme Court announced a new standard
of review for certain cases involving a petition to terminate parental rights
filed by the Commissioner of the department pursuant to General Statutes
§ 17a-11a et seq. In In re Shane M., 318 Conn. 569, 587–88, 122 A.3d 1247
(2015), the court stated the following. ‘‘Finally, we take this opportunity to
clarify our standard of review of a trial court’s finding that a parent has
failed to achieve sufficient rehabilitation. We have historically reviewed
for clear error both the trial court’s subordinate factual findings and its
determination that a parent has failed to rehabilitate. . . . While we remain
convinced that clear error review is appropriate for the trial court’s subordi-
nate factual findings, we now recognize that the trial court’s ultimate conclu-
sion of whether a parent has failed to rehabilitate involves a different
exercise by the trial court. A conclusion of failure to rehabilitate is drawn
from both the trial court’s factual findings and from its weighing of the facts
in assessing whether those findings satisfy the failure to rehabilitate ground
set forth in § 17a-112 (j) (3) (B). Accordingly, we now believe that the
appropriate standard of review is one of evidentiary sufficiency, that is,
whether the trial court could have reasonably concluded, upon the facts
established and the reasonable inferences drawn therefrom, that the cumula-
tive effect of the evidence was sufficient to justify its [ultimate conclusion]
. . . . When applying this standard, we construe the evidence in a manner
most favorable to sustaining the judgment of the trial court.’’ (Citation
omitted; emphasis in original; footnotes omitted; internal quotation marks
omitted.) Id., 587–88.
Since then, our appellate courts have embraced the new standard in other
contexts. See In re Oreoluwa O., 321 Conn. 523, 533, 139 A.3d 674 (2016)
(‘‘it is appropriate to apply the same standard of review . . . to whether
the department made reasonable efforts at reunification’’ pursuant to § 17a-
112 [j] [1]); In re Gabriella A., 319 Conn. 775, 789–90, 127 A.3d 948 (2015)
(‘‘[w]e apply the identical standard of review to a trial court’s determination
that a parent is unable to benefit from reunification services’’ pursuant to
§ 17a-112 [j] [1]); accord In re Jayce O., 323 Conn. 690, 150 A.3d 640 (2016)
(failure to rehabilitate pursuant to § 17a-112 [j] [3] [E]); In re Savannah Y.,
172 Conn. App. 266, 158 A.3d 864 (failure to rehabilitate pursuant to § 17a-
112 [j] [3] [B] [i]), cert. denied, 325 Conn. 925, 160 A.3d 1067 (2017); In re
Lilyana P., 169 Conn. App. 708, 152 A.3d 99 (2016) (failure to rehabilitate
pursuant to § 17a-112 [j] [3] [B] [i]), cert. denied, 324 Conn. 916, 153 A.3d
1290 (2017); In re Leilah W., 166 Conn. App. 48, 141 A.3d 1000 (2016) (failure
to rehabilitate pursuant to § 17a-112 [j] [3] [B] [i]); In re Quamaine K., 164
Conn. App. 775, 137 A.3d 951 (whether department made reasonable efforts
toward reunification pursuant to § 17a-112 [j] [3] [B]), cert. denied, 321
Conn. 919, 136 A.3d 1276 (2016); In re Victor D., 161 Conn. App. 604,
128 A.3d 608 (2015) (whether department made reasonable efforts toward
reunification pursuant to § 17a-112 [j] [1] and failure to rehabilitate pursuant
to § 17a-112 [j] [3] [B]); In re James O., 160 Conn. App. 506, 127 A.3d 375
(2015) (whether department made reasonable efforts toward reunification
pursuant to § 17a-112 [j] [1]), aff’d, 322 Conn. 636, 142 A.3d 1147 (2016).
Conversely, we have twice declined to extend the standard of review to
the court’s consideration of the best interests of a child where the evidence
supported our decision under either standard. See In re Elijah G.-R., 167
Conn. App. 1, 29–30 n.11, 142 A.3d 482 (2016); In re Nioshka A. N., 161
Conn. App. 627, 637 n.9, 128 A.3d 619, cert. denied, 320 Conn. 912, 128 A.3d
955 (2015).
We need not decide whether the In Re Shane M. standard applies to
petitions brought pursuant to § 45a-715 et seq. because our holding rests
not on the trial court’s factual findings but on the legal and logical inconsis-
tencies in its judgment, which are subject to plenary review under either
standard. See In re James O., 322 Conn. 636, 649, 142 A.3d 1147 (2016)
(‘‘[t]he interpretation of a trial court’s judgment presents a question of law
over which our review is plenary’’ [internal quotation marks omitted]).
11
The petitioner further argues that because there was error at every stage
of the proceeding, we should reverse the judgments of the trial court and
remand with direction that the court grant the petitions. For the reasons
stated herein, we decline to do so.
12
The parties concede that the youngest of the children, C, falls within
the virtual infancy exception. We do not accept that concession. See State
v. Harris, 60 Conn. App. 436, 443, 759 A.2d 1040, cert. denied, 255 Conn.
907, 762 A.2d 911 (2000) (‘‘this court is not bound to accept concessions
made by a party on appeal’’). The trial court did not explicitly determine
whether one or all of the children were infants, and the trial court conducted
the same analysis for all three children. Though the children’s ages patently
factored into the court’s consideration, the court’s analysis was premised
on interference. We therefore will not make a determination on this question
for the first time on appeal.
13
We stated and restated the rule thusly: ‘‘We . . . agree with the respon-
dent that when a custodial parent has interfered with an incarcerated par-
ent’s visitation and other efforts to maintain an ongoing parent-child
relationship with the parties’ child, the custodial parent cannot terminate
the noncustodial parent’s parental rights on the ground of no ongoing parent-
child relationship.’’ In re Carla C., supra, 167 Conn. App. 251. ‘‘We agree
with the respondent that a parent whose conduct inevitably has led to the
lack of an ongoing parent-child relationship may not terminate parental
rights on this ground.’’ Id., 262. ‘‘[W]e conclude that the petitioner may not
establish the lack of an ongoing parent-child relationship on the basis of
her own interference with the respondent’s efforts to maintain contact with
[the child] . . . .’’ Id., 280–81.
14
‘‘A parent abandons a child if the parent has failed to maintain a reason-
able degree of interest, concern or responsibility as to the welfare of the
child . . . . Abandonment focuses on the parent’s conduct. . . .’’ (Citation
omitted; emphasis added; internal quotation marks omitted.) In re Ilyssa
G., 105 Conn. App. 41, 46–47, 936 A.2d 674 (2007), cert. denied, 285 Conn.
918, 943 A.2d 475 (2008).
15
The finding at issue necessarily is the equivalent of an obiter dictum
because ‘‘[t]he best interest standard . . . does not become relevant until
after it has been determined that no parent-child relationship exists.’’ (Inter-
nal quotation marks omitted.) In re Carla C., supra, 167 Conn. App. 265.
With respect to the dispositional phase, ‘‘[o]ur statutes and [case law] make
it crystal clear that the determination of the child’s best interests comes
into play only after statutory grounds for termination of parental rights have
been established by clear and convincing evidence.’’ (Emphasis in original.)
In re Valerie D., supra, 223 Conn. 511. ‘‘General Statutes [§ 45a-717 (f)]
expressly requires the court to find, in addition to the existence of an
enumerated statutory ground for termination, that such termination is in
the best interests of the child. This statutory element was added to § [45a-
717 (f)] by Public Acts 1983, No. 83-478, § 2. Both its plain language and
its available legislative history indicate that the legislature intended this
provision to serve as an additional, not an alternative, requirement for the
termination of parental rights.’’ In re Jessica M., supra, 217 Conn. 466 n.5.
Nevertheless, it is axiomatic that ‘‘[w]e review [the] case on the theory
upon which it was tried and upon which the trial court decided it.’’ Fuessen-
ich v. DiNardo, 195 Conn. 144, 151, 487 A.2d 514 (1985); see also Machiz
v. Homer Harmon, Inc., 146 Conn. 523, 525, 152 A.2d 629 (1959); Cole v.
Steinlauf, 144 Conn. 629, 631–32, 136 A.2d 744 (1957). In a hearing on a
petition to terminate parental rights, the trial court may, at its discretion,
elect not to bifurcate the proceedings and to hear evidence on the best
interests of the children so long as it finds that the petitioner proves the
existence of a ground for termination by clear and convincing evidence
first. See State v. Anonymous, 179 Conn. 155, 172–74, 425 A.2d 939 (1979);
In re Deana E., 61 Conn. App. 197, 205, 763 A.2d 45 (2000) (‘‘[t]he decision
whether to bifurcate a termination of parental rights proceeding lies solely
within the discretion of the trial court’’), cert. denied, 255 Conn. 941, 768
A.2d 949 (2001). Here, the trial court heard evidence on the best interests
of the children and made findings thereon. On appeal, the parties argued
the merits of those findings.
16
Nowhere does § 45a-717 (i) require that the court’s specific, written
findings be made by clear and convincing evidence, though the court is
entitled to do so. See In re Davonta V., 98 Conn. App. 42, 46–47, 907 A.2d
126 (2006) (no requirement that each factor of analogous statute, § 17a-112
[k], be proven by clear and convincing evidence), aff’d, 285 Conn. 483, 940
A.2d 733 (2008); In re Victoria B., 79 Conn. App. 245, 258–59, 829 A.2d 855
(2003) (factors in analogous statute, § 17a-112 [k], are merely guidelines
and are not prerequisites that must be proved at all, let alone by clear and
convincing evidence). Ultimate findings, those on (1) the existence of a
ground for termination and (2) the best interests of the children, must
nevertheless be predicated on clear and convincing evidence.
17
General Statutes § 45a-717 (i) provides: ‘‘Except in the case where termi-
nation is based on consent, in determining whether to terminate parental
rights under this section, the court shall consider and shall make written
findings regarding: (1) The timeliness, nature, and extent of services offered,
provided and made available to the parent and the child by a child-placing
agency to facilitate the reunion of the child with the parent; (2) the terms
of any applicable court order entered into and agreed upon by any individual
or child-placing agency and the parent, and the extent to which all parties
have fulfilled their obligations under such order; (3) the feelings and emo-
tional ties of the child with respect to the child’s parents, any guardian of
the child’s person and any person who has exercised physical care, custody
or control of the child for at least one year and with whom the child has
developed significant emotional ties; (4) the age of the child; (5) the efforts
the parent has made to adjust such parent’s circumstances, conduct or
conditions to make it in the best interest of the child to return the child to
the parent’s home in the foreseeable future, including, but not limited to,
(A) the extent to which the parent has maintained contact with the child
as part of an effort to reunite the child with the parent, provided the court
may give weight to incidental visitations, communications or contributions
and (B) the maintenance of regular contact or communication with the
guardian or other custodian of the child; and (6) the extent to which a
parent has been prevented from maintaining a meaningful relationship with
the child by the unreasonable act or conduct of the other parent of the
child, or the unreasonable act of any other person or by the economic
circumstances of the parent.’’ Section 45a-717 (i) was formerly codified as
§ 45a-717 (h) until the legislature passed Public Act 16-70, effective July
1, 2016.
18
Our limited caselaw on this subject supports a reasonableness standard.
In In re Valerie D., supra, 223 Conn. 532 n.35, 532–34, our Supreme Court
ruled that ‘‘the state may not . . . obtain and maintain custody of the child
so as to create a lack of an ongoing parent-child relationship’’ because it
would have required ‘‘extraordinary and heroic efforts’’ for the respondent
mother to defeat the state’s petition to terminate her parental rights. In In
re Carla C., supra, 167 Conn. App. 273–74, we then applied this rule to
private petitioners and held that a custodial mother could not prevail in her
termination of parental rights petition for lack of an ongoing parent-child
relationship where she violated a court-ordered custody agreement to which
she stipulated, destroyed the respondent father’s letters and cards to the
child and told the child nothing about who or where her father was. In that
case, we agreed with the respondent’s argument that the lack of an ongoing
parent-child relationship ‘‘may not be established where a custodial parent
unreasonably has interfered with the development of the other parent’s
relationship with the parties’ child . . . .’’ (Emphasis added.) Id., 262. We
also found instructive In re Caleb P., 53 Conn. Supp. 329, 113 A.3d 507
(2014), in which the Superior Court, Hon. Francis J. Foley, judge trial
referee, found that petitioner mother had interfered with the respondent’s
efforts to maintain an ongoing parent-child relationship where she failed to
appear at several court-ordered counseling and visitation appointments and
did not respond to various communications. Id., 344–46.
19
Our caselaw discusses the distinction between ‘‘no relationship’’ and
‘‘no meaningful relationship.’’ See In re Jessica M., supra, 217 Conn. 467–72.
That notwithstanding, it follows logically that a parent who is not prevented
from having a meaningful relationship is not prevented from having a rela-
tionship.