In re Riley B.

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IN RE RILEY B.*
(AC 43959)
Alvord, Moll and DiPentima, Js.
Syllabus
The respondent mother appealed to this court from the judgment of the
trial court terminating her parental rights as to her minor child. After
the petitioner, the Commissioner of Children and Families, filed the
petition to terminate the mother’s parental rights, the mother filed a
motion to transfer guardianship to a maternal relative in New Jersey.
The motion was consolidated for trial with the termination of parental
rights petition. The court terminated the mother’s parental rights and
denied her motion to transfer guardianship. On appeal, the mother
claimed that the court deprived her of her right to substantive due
process because there was no compelling reason to sever her liberty
interest in the integrity of her family while the parties waited to learn
whether guardianship of the child could be transferred, which was a
less restrictive alternative to the termination of her parental rights. Held
that this court declined to review the respondent mother’s unpreserved
constitutional claim because it failed to satisfy the first prong of State
v. Golding (213 Conn. 233), as the record was devoid of any evidence
that the maternal relative was amenable to guardianship, the primary
factual predicate to the respondent’s claim.
Argued November 10, 2020—officially released March 31, 2021**
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 New Haven, Juvenile
Matters, where the respondent mother filed a motion
to transfer guardianship; thereafter, the matter was
tried to the court, Marcus, J.; judgment denying the
motion to transfer guardianship and terminating the
respondents’ parental rights, from which the respon-
dent mother appealed to this court. Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent mother).
Elizabeth Bannon, assistant attorney general, with
whom, on the brief, were William Tong, attorney gen-
eral, and Stephen G. Vitelli, assistant attorney general,
for the appellee (petitioner).
Opinion
PER CURIAM. The respondent mother, Jacquanita
B., appeals from the judgment of the trial court rendered
in favor of the petitioner, the Commissioner of Children
and Families, terminating her parental rights with
respect to her minor daughter, Riley B. On appeal, the
respondent1 argues that the court deprived her of sub-
stantive due process as guaranteed by the fourteenth
amendment to the United States constitution because
there was no compelling reason, as required under the
strict scrutiny standard, to sever the respondent’s lib-
erty interest in the integrity of her family while the
parties waited to learn whether guardianship of the
child could be transferred to a maternal relative in New
Jersey. We conclude that the record is inadequate to
review the respondent’s unpreserved constitutional
claim. Accordingly, we affirm the judgment of the
trial court.
The following facts, as found by the trial court or as
undisputed in the record, and procedural history are
relevant to our resolution of this appeal. The respondent
is the mother of Riley, who was born in 2016, and two
older daughters, Nyasia and Corrynn. The Department
of Children and Families (department) has been
involved with the respondent and her family since 2009,
as a result of issues of physical neglect, physical abuse,
and emotional neglect. On March 29, 2018, the depart-
ment received a referral from Corrynn’s school after
Corrynn visited the school nurse with a blood blister
on her finger, as well as extensive bruising and red
welts on both of her inner forearms. Corrynn stated
that the respondent had hit her with a belt that morning
because she had forgotten to do her homework and
that she was afraid to go home for fear of being hit
again. The respondent denied the allegations, did not
show concern for Corrynn, and was arrested for risk
of injury to a child and assault in the second degree.
On April 4, 2018, the department held a considered
removal meeting, which resulted in a safety plan that
allowed the children to stay with a maternal great-aunt
until the Intensive Family Preservation (IFP) program
could begin working with the respondent and the chil-
dren at home. On April 6, 2018, the children were
allowed to return to the respondent’s care on the condi-
tion that she agree to work with the department and IFP
and continue counseling for Corrynn. The respondent
refused to engage with the department, but she worked
with IFP in the home. A department social worker
attempted to visit the home to assess the safety of the
children on numerous occasions but was unsuccessful
in gaining access to the home. The social worker addi-
tionally attempted to join the respondent in an IFP
session but was unsuccessful. From May to June, 2018,
the social worker was able to speak to the respondent
on only one occasion, on the telephone.
Between May and June, 2018, the respondent was
informed that neglect petitions would be filed, the
department would be requesting protective supervision
of the children, and she would have to comply with
court-ordered specific steps to facilitate reunification.
The steps included, but were not limited to, keeping all
appointments set by or with the department, cooperat-
ing with the department’s home visits, and taking part
in individual counseling. The respondent failed to
adhere to the required steps and, as a result, the peti-
tioner filed neglect petitions on behalf of Corrynn and
Riley on June 7, 2018. While the neglect petitions were
pending, the department received a referral on June 19,
2018, wherein it was reported by multiple individuals
that the respondent was physically and verbally abusing
Corrynn on a regular basis. The department immedi-
ately commenced an investigation.
A department investigator and social worker
attempted an unannounced visit to the home on June
20, 2018, with a New Haven police officer, but they
were unsuccessful in gaining access to the home or
seeing the children. However, the investigator and
social worker were able to meet with the police officer,
who informed them of an incident involving an assault
by the respondent on a neighbor, which also had
occurred on June 19, 2018, for which a warrant would
be sought for the charge of assault in the second degree.
Also on June 20, 2018, a department supervisor was
able to make telephone contact with the respondent.
The respondent was extremely agitated and defensive
and refused to meet with the department supervisor.
The department supervisor then made another visit to
the home, but nobody was present. The department
notified the New Haven police, who agreed to assist
in searching for the respondent’s car. The department
investigator and social worker attempted to visit the
home on June 21, 2018, but were unsuccessful in gaining
entry, even though it was apparent, on the basis of the
loud music heard inside, that people were present.
That same day, the department investigator received
a telephone call from the respondent’s criminal defense
attorney, during which she impressed upon the attorney
the urgency for the respondent to contact her and for
her to assess the safety of the children. The respondent
contacted the social worker and, after initially refusing
to meet, agreed to schedule a meeting for the next day,
June 22, 2018, with the children only. In a text message
sent later that day, however, the respondent refused to
make the children available the following day. Never-
theless, on June 22, 2018, the respondent made the
children available at the maternal great-aunt’s home.
The department social worker conducted a short meet-
ing with the children; the respondent was not present.
Almost daily communication between the respondent
and the department followed the June 22, 2018 meeting
with the children in an attempt to schedule a home
visit, but the respondent refused to cooperate.
A home visit was eventually scheduled for July 11,
2018, at 2 p.m. That morning, the respondent sent a
text message to the department investigator, asking her
to arrive at 3 p.m. instead. When the investigator arrived
at the home at 3 p.m., no one answered the door. The
investigator waited until 3:30 p.m., but the respondent
never appeared.
On July 12, 2018, the department received a telephone
call from the New Haven Police Department informing
it that the respondent had been taken into custody after
being arrested for assault in the second degree and
disorderly conduct regarding the June 19, 2018 assault
by the respondent on her neighbor and that the children
were in need of a caretaker. The respondent identified
some family resources, but they were either not avail-
able or deemed not appropriate. The department then
invoked a ninety-six hour administrative hold on behalf
of both Corrynn and Riley. As a result of the foregoing,
the petitioner applied for ex parte orders of temporary
custody on behalf of Corrynn and Riley, which were
granted on July 16, 2018. The children were placed in
a nonrelative foster home, where they remained as of
January, 2020.
The respondent appeared at her plea date on the
neglect petitions on July 10, 2018, was advised of her
rights, was appointed counsel, and entered pro forma
denials. She additionally appeared at the preliminary
hearing for the orders of temporary custody, choosing
to contest them, and a hearing was scheduled for July
27, 2018. The respondent left the hearing early on July
27, 2018, without permission of the court, during the
testimony of the department social worker. The hearing
did not conclude until August 2, 2018, at which time
the court sustained the orders of temporary custody.
The respondent failed to appear on August 2, 2018, as
well. In addition, the department established a visitation
schedule for the respondent, Riley, and Corrynn
between August and December, 2018. The respondent’s
compliance with the visitation schedule was sporadic.
The respondent failed to appear at the case status
conference on September 18, 2018. The same day, Riley
was adjudicated neglected and was committed to the
custody of the petitioner, subject to review in April,
2019. Final specific steps were ordered for the respon-
dent as well. A permanency plan of termination of
parental rights and adoption was approved by the court
on June 5, 2019, with respect to Riley.
On June 11, 2019, a maternal relative,2 who is a resi-
dent of New Jersey, contacted the department, offering
to be an adoptive resource for Riley. In June, 2019, the
petitioner attempted to submit a request for action,
pursuant to the Interstate Compact on the Placement
of Children (ICPC), to the state of New Jersey; see
General Statutes § 17a-175; but, as a result of a delay in
obtaining Riley’s social security card, the ICPC package
was not submitted until one week before December 5,
2019, the date of the trial conducted in the present case.
The ICPC results were pending at the time of trial.
On August 1, 2019, the petitioner filed a petition to
terminate the respondent’s parental rights as to Riley,
alleging, as the sole ground for termination, that the
respondent had failed to achieve a sufficient degree of
personal rehabilitation under General Statutes § 17a-
112 (j) (3) (B) (i).3 Following a judicial pretrial on Octo-
ber 1, 2019, the respondent filed a motion to transfer
guardianship to the maternal relative in New Jersey.
The motion was consolidated for trial with the termina-
tion of parental rights petition.
A trial on the petition was held on December 5, 2019.
The respondent appeared at trial by writ of habeas
corpus, as she was serving a two year term of incarcera-
tion that had commenced on October 28, 2019. Prior
to the evidentiary portion of trial, the petitioner urged
the denial of the respondent’s motion to transfer guard-
ianship because the ICPC process had not yet been
completed. In response, the respondent orally
requested that the court stay the proceedings until the
ICPC process was completed. The court reserved its
decision on the respondent’s request for stay until after
the conclusion of trial. Thereafter, several witnesses,
including the respondent, testified.
On January 14, 2020, the court, Marcus, J., issued a
memorandum of decision rendering judgment terminat-
ing the respondent’s parental rights as to Riley and
appointing the petitioner as Riley’s statutory parent. In
support of its judgment, the court determined, inter alia,
that (1) the department had made reasonable efforts
to locate the respondent and the respondent was unable
or unwilling to benefit from reunification services
offered by the department, (2) the petitioner had dem-
onstrated, by clear and convincing evidence, that the
respondent had failed to sufficiently rehabilitate under
§ 17a-112 (j) (3) (B) (i), and (3) terminating the respon-
dent’s parental rights was in Riley’s best interest. Addi-
tionally, the court denied the respondent’s motion to
transfer guardianship and request to stay the proceed-
ings. The court observed that the ICPC process was
not yet completed and correctly stated that, as a matter
of law, it could not ‘‘transfer guardianship of a child to
an out-of-state relative without the completion of an
ICPC,’’ citing In re Yarisha F., 121 Conn. App. 150,
164–65, 994 A.2d 296 (2010). This appeal followed.4
Additional facts and procedural history will be set forth
as necessary.
Before turning to the respondent’s claim, we briefly
review a trial court’s statutory obligations when consid-
ering a petition for the termination of parental rights.
‘‘Pursuant to § 17a-112 (j), the trial court must make
certain required findings after a hearing before it may
terminate a party’s parental rights. It is well established
that, [u]nder § 17a-112, a hearing on a petition to termi-
nate parental rights consists of two phases: the adjudi-
catory phase and the dispositional phase. During the
adjudicatory phase, the trial court must determine
whether one or more of the . . . grounds for termina-
tion of parental rights set forth in § 17a-112 [(j) (3) exist]
by clear and convincing evidence. . . . In contrast to
custody proceedings, 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 ter-
mination can be accomplished and adoption proceed-
ings begun. . . . Section [17a-112 (j) (3)] carefully sets
out . . . [the] situations that, in the judgment of the
legislature, constitute countervailing interests suffi-
ciently powerful to justify the termination of parental
rights in the absence of consent. . . . If the trial court
determines that a statutory ground for termination
exists, then it proceeds to the dispositional phase. Dur-
ing the dispositional phase, the trial court must deter-
mine whether termination is in the best interests of the
child. . . . Also, as part of the adjudicatory phase, the
department is required to prove, by clear and convinc-
ing evidence, that it has made reasonable efforts . . .
to reunify the child with the parent, unless the court
finds . . . that the parent is unable or unwilling to ben-
efit from reunification . . . . 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.’’ (Citations omitted; internal quota-
tion marks omitted.) In re Elijah C., 326 Conn. 480,
499–500, 165 A.3d 1149 (2017).
In the present appeal, the respondent does not chal-
lenge the court’s adjudicatory findings. Instead, the
respondent claims that the judgment terminating her
parental rights violated her right to substantive due
process as guaranteed by the fourteenth amendment
to the United States constitution because the petitioner
was without a compelling reason to sever her liberty
interest in the integrity of her family. Specifically, the
respondent argues that a transfer of guardianship to
Riley’s maternal relative in New Jersey would have
served as a less restrictive means to achieve the state’s
dual goals of protecting Riley from harm and affording
her permanency. The respondent acknowledges that
her claim of constitutional error was not preserved.
Accordingly, she seeks review under State v. Golding,
213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified
by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188(2015). The petitioner responds that, among other
things, the record is inadequate for review, and, there-
fore, the respondent’s claim fails under the first prong
of Golding. We agree with the petitioner.
‘‘Under Golding, a [party] can prevail on a claim of
constitutional error not preserved at trial only if the
following conditions are met: (1) the record is adequate
to review the alleged claim of error; (2) the claim is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the [party] of a fair
trial; and (4) if subject to harmless error analysis, the
state has failed to demonstrate harmlessness of the
alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions,
the [party’s] claim will fail. The appellate tribunal is
free, therefore, to respond to the [party’s] claim by
focusing on whichever condition is most relevant in the
particular circumstances.’’ (Internal quotation marks
omitted.) In re Adelina A., 169 Conn. App. 111, 119,
148 A.3d 621, cert. denied, 323 Conn. 949, 169 A.3d
792 (2016).
Our Supreme Court repeatedly has emphasized that
‘‘Golding is a narrow exception to the general rule that
an appellate court will not entertain a claim that has
not been raised in the trial court. The reason for the
rule is obvious: to permit a party to raise a claim on
appeal that has not been raised at trial—after it is too
late for the trial court or the opposing party to address
the claim—would encourage trial by ambuscade, which
is unfair to both the trial court and the opposing party.
. . . Nevertheless, because constitutional claims impli-
cate fundamental rights, it also would be unfair auto-
matically and categorically to bar a defendant from
raising a meritorious constitutional claim that warrants
a new trial solely because the defendant failed to iden-
tify the violation at trial. Golding strikes an appropriate
balance between these competing interests: the
[respondent] may raise such a constitutional claim on
appeal, and the appellate tribunal will review it, but
only if the trial court record is adequate for appellate
review. The reason for this requirement demands no
great elaboration: in the absence of a sufficient record,
there is no way to know whether a violation of constitu-
tional magnitude in fact has occurred. Thus, as we
stated in Golding, we will not address an unpreserved
constitutional claim [i]f the facts revealed by the record
are insufficient, unclear or ambiguous as to whether a
constitutional violation has occurred . . . .’’ (Empha-
sis added; internal quotation marks omitted.) State v.
Canales, 281 Conn. 572, 580–81, 916 A.2d 767 (2007).
‘‘In assessing whether the first prong of Golding has
been satisfied, it is well recognized that [t]he [respon-
dent] bears the responsibility for providing a record
that is adequate for review of [her] claim of constitu-
tional error. If the facts revealed by the record are
insufficient, unclear or ambiguous as to whether a con-
stitutional violation has occurred, we will not attempt
to supplement or reconstruct the record, or to make
factual determinations, in order to decide the [respon-
dent’s] claim. . . . The reason for this requirement
demands no great elaboration: in the absence of a suffi-
cient record, there is no way to know whether a viola-
tion of constitutional magnitude in fact has occurred.’’
(Citations omitted; internal quotation marks omitted.)
In re Anthony L., 194 Conn. App. 111, 114–15, 219 A.3d
979 (2019), cert. denied, 334 Conn. 914, 221 A.3d 447(2020).
‘‘To determine whether the record is adequate to
ascertain whether a constitutional violation occurred,
we must consider the respondent’s alleged claim of
impropriety and whether it requires any factual predi-
cates.’’ In re Azareon Y., 309 Conn. 626, 636, 72 A.3d
1074 (2013).
As stated previously in this opinion, the crux of the
respondent’s claim is that her substantive due process
rights were violated because there was a less restrictive
alternative to the termination of her parental rights in
the form of a transfer of Riley’s guardianship to the
respondent’s relative in New Jersey. The primary fac-
tual predicate to that claim required an evidentiary
showing that Riley’s maternal relative was in fact ame-
nable to guardianship of Riley. It is undisputed, how-
ever, that the record is devoid of any evidence that the
maternal relative was amenable to guardianship.5 In
the absence of this basic factual predicate, there is an
insufficient record to permit us to review the respon-
dent’s substantive due process claim. See In re Brayden
E.-H., 309 Conn. 642, 656–57, 72 A.3d 1083 (2013)
(reserving for another day questions of whether sub-
stantive due process requires determination that termi-
nation is least restrictive means to protect child’s best
interest and, if so, whether § 17a-112 violates that
requirement). ‘‘Our role is not to guess at possibilities,
but to review claims based on a complete factual record
developed by the trial court. . . . Without the neces-
sary factual and legal conclusions furnished by the trial
court . . . any decision made by us respecting [the
respondent’s claim] would be entirely speculative.’’
(Internal quotation marks omitted.) In re Anthony L.,
supra, 194 Conn. App. 119–20.
Accordingly, we decline to review the respondent’s
unpreserved constitutional claim because it fails to sat-
isfy the first prong of Golding. See, e.g., In re Azareon
Y., supra, 309 Conn. 636–41 (affirming this court’s deter-
mination that respondent’s unpreserved substantive
due process claim was not reviewable in light of inade-
quate record on issue of valid alternative permanency
plan); In re Madison C., 201 Conn. App. 184, 189–96,
241 A.3d 756 (concluding that respondent’s substantive
due process claim was unreviewable because record
contained no factual predicates to permit review of
claim that lesser restrictive means, other than termina-
tion of her parental rights, were available to protect
best interests of children), cert. denied, 335 Conn. 985,
242 A.3d 480 (2020); In re Adelina A., supra, 169 Conn.
App. 114, 125–27 (concluding that respondent’s claim
was unreviewable because there was no evidence pre-
sented concerning alternative permanency plan).
The judgment is affirmed.
* 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.
** March 31, 2021, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The trial court also rendered judgment terminating the parental rights
of Riley’s father, Kevin M. Kevin M. has not appealed from the judgment
terminating his parental rights, and, therefore, we refer in this opinion to
Jacquanita B. as the respondent.
2
We note that the record contains inconsistent references to this individual
as a maternal cousin or a maternal aunt. The discrepancy has no impact
on our analysis.
3
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing as provided in sections 45a-716 and 45a-
717, may grant a petition filed pursuant to this section if it finds by clear
and convincing evidence that (1) the Department of Children and Families
has made reasonable efforts to locate the parent and to reunify the child
with the parent in accordance with subsection (a) of section 17a-111b, unless
the court finds in this proceeding that the parent is unable or unwilling to
benefit from reunification efforts, except that such finding is not required
if the court has determined at a hearing pursuant to section 17a-111b, or
determines at trial on the petition, that such efforts are not required, (2)
termination is in the best interest of the child, and (3) . . . (B) the child
(i) has been found by the Superior Court or the Probate Court to have been
neglected, abused or uncared for in a prior proceeding, or (ii) is found to
be neglected, abused or uncared for and has been in the custody of the
commissioner for at least fifteen months and the parent of such child has
been provided specific steps to take to facilitate the return of the child to
the parent pursuant to section 46b-129 and has failed to achieve such degree
of personal rehabilitation as would encourage the belief that within a reason-
able time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child . . . .’’
4
The attorney for Riley has adopted the petitioner’s brief.
5
Indeed, during oral argument before this court, when asked on what
evidence he relied for the proposition that a maternal relative was interested
in guardianship of the child, the respondent’s counsel answered: ‘‘There
was no evidence.’’