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IN RE MINDY F.*
(AC 36696)
DiPentima, C. J., and Sheldon and Dupont, Js.
Argued September 15—officially released November 20, 2014**
(Appeal from Superior Court, judicial district of New
Haven, Juvenile Matters, Cronan, J.)
Alison P. Gaston, for the appellant (respondent
father).
Rene´e Bevacqua Bollier, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Benjamin Zivyon, assistant attorney gen-
eral, for the appellee (petitioner).
Thomas B. Pursell, for the minor child.
Opinion
DiPENTIMA, C. J. The respondent father, Jason F.
(father), appeals from the judgment of the trial court
terminating his parental rights as to his child, Mindy
F.1 On appeal, the father claims that the trial court
improperly: (1) concluded that he had failed to achieve
a sufficient degree of personal rehabilitation within the
meaning of General Statutes § 17a-112 (j) (3) (B) (i);
(2) determined that the termination of his parental
rights was in Mindy’s best interest; (3) denied his motion
to transfer guardianship to the child’s paternal great
aunt; and (4) approved a permanency plan calling for
the termination of his parental rights before holding a
full evidentiary hearing on that issue, as required by
General Statutes § 46b-129 (k) (1). We affirm the judg-
ment of the trial court.
The record reveals the following relevant facts and
procedural history. On April 15, 2011, the petitioner,
the Commissioner of Children and Families (commis-
sioner), filed a neglect petition alleging, inter alia, that
Mindy was being denied proper care and was being
permitted to live under conditions injurious to her well-
being. Mindy, who was born in January, 2010, was
approximately fourteen months old at the time. On Sep-
tember 2, 2011, the commissioner filed a motion for
temporary custody, alleging that Mindy had been
injured as a result of an automobile accident.2 The com-
missioner further alleged that Mindy’s mother, who was
a passenger in the car at the time of the accident, was
under the influence of alcohol at that time. At the time
of the accident, the father was incarcerated. The court
granted the motion and issued specific steps for the
father to take in order to reunify him with Mindy. He
was also advised of the need to comply with the spe-
cific steps.
Mindy was adjudicated neglected by the court on
December 6, 2011.3 On January 30, 2012, the father,
who had been released from prison, was arrested for
possession of narcotics, and sentenced to one year in
prison. Mindy was committed to the care and custody
of the commissioner on March 5, 2012. On June 1, 2012,
the commissioner filed a motion to review the perma-
nency plan for Mindy that contemplated the termination
of the father’s parental rights and her subsequent adop-
tion (initial permanency plan). The court approved the
initial permanency plan on August 6, 2012, and ordered
the commissioner to file a petition for termination of
parental rights within sixty days. On October 5, 2012,
the commissioner filed such a termination petition. On
November 15, 2012, the father filed a motion seeking
to transfer guardianship and custody of Mindy to her
paternal great aunt, who had been granted intervenor
status by the court. On May 3, 2013, the commissioner
filed a motion to review a second permanency plan that
continued to contemplate termination of the father’s
parental rights and a subsequent adoption (second per-
manency plan). The father filed an objection to the
second permanency plan on June 13, 2013.
The hearings on the motion to transfer guardianship
and the motion to review the second permanency plan
were consolidated with the termination of parental
rights trial. The consolidated proceedings began on Sep-
tember 9, 2013, and then continued on September 10
and 12, 2013, and January 15 and 29, 2014. On January
29, 2014, the commissioner requested that the court
approve the second permanency plan. At that point in
the consolidated proceedings, the commissioner had
rested, but the father had not yet begun to present his
evidence. Before ruling, the trial court inquired whether
‘‘anyone want[ed] to be heard on the [second perma-
nency] plan.’’ In response, the father stated to the court
that he had ‘‘filed an objection to the plan earlier on
and I still object to the plan.’’4 The father, however, did
not request the opportunity to offer any witnesses in
support of his objection before the court ruled. The
court overruled the objection and approved the second
permanency plan. The father then presented his evi-
dence and a posttrial brief in opposition to the termina-
tion petition.
At the conclusion of the termination trial, the court
issued a written memorandum of decision, outlining its
findings. As to the adjudicatory phase of the proceed-
ings, the trial court found by clear and convincing evi-
dence that the Department of Children and Families
(department) ‘‘ha[d] made reasonable efforts to reunify
the family, but that the [father is] unwilling or unable
to fully benefit from reunification services at this time,’’
and that the father had ‘‘failed to achieve the degree of
personal rehabilitation that would foster the belief that
within a reasonable period of time, considering the age
and needs of the child, [he] could assume a responsible
position in the child’s life.’’
As to the dispositional phase of the proceedings, the
court first considered and then made written findings
pursuant to § 17a-112 (k). Specifically, the court found
that the department had made reasonable efforts to
reunite Mindy and the father, and that the services
offered were ‘‘timely and extensive.’’ The court also
concluded that the father had been incarcerated for a
‘‘good part of the time’’ and, as a result, was unable to
comply with the specific steps. In addition, the court
determined that Mindy had been residing with her foster
mother since September 2, 2011, and that her emotional
attachment to her birth parents was ‘‘unclear.’’ Ulti-
mately, the court concluded by clear and convincing
evidence that the termination of the father’s parental
rights was in the best interest of Mindy. The court also
denied the father’s motion to transfer guardianship to
the paternal great aunt. This appeal followed.5
We begin by setting forth the statutory requirements
for granting a petition for the termination of parental
rights. ‘‘A hearing on a petition to terminate parental
rights consists of two phases, adjudication and disposi-
tion. . . . If the trial court determines that a statutory
ground for termination exists [by clear and convincing
evidence], it proceeds to the dispositional phase. In the
dispositional phase, the trial court determines whether
termination is in the best interest of the child.’’ (Internal
quotation marks omitted.) In re Roshawn R., 51 Conn.
App. 44, 52, 720 A.2d 1112 (1998).
‘‘Our standard of review on appeal from a termination
of parental rights is limited to whether the challenged
findings are clearly erroneous. . . . A finding is clearly
erroneous when either there is no evidence in the record
to support it, or the reviewing court is left with the
definite and firm conviction that a mistake has been
made. . . . [G]reat weight is given to the judgment of
the trial court because of [the trial court’s] opportunity
to observe the parties and the evidence. . . . [An appel-
late court does] not examine the record to determine
whether the trier of fact could have reached a conclu-
sion other than the one reached. . . . [Rather,] every
reasonable presumption is made in favor of the trial
court’s ruling.’’ (Internal quotation marks omitted.) In
re Jah’za G., 141 Conn. App. 15, 30, 60 A.3d 392, cert.
denied, 308 Conn. 926, 64 A.3d 329 (2013).
I
In his first claim, the father challenges the trial court’s
finding that he failed to rehabilitate within the meaning
of § 17a-112 (j) (3) (B) (i). Specifically, the father claims
that he has made significant progress in achieving suffi-
cient personal rehabilitation by seeking out and suc-
cessfully completing multiple substance abuse
treatment programs, earning his general equivalency
diploma, taking parenting classes, and obtaining gainful
employment and stable housing. This progress, the
father contends, establishes that he could have assumed
a responsible position in Mindy’s life, and that the find-
ings of the trial court to the contrary are clearly errone-
ous. We disagree.
Pursuant to § 17a-112 (j) (3) (B) (i), the court may
grant a petition to terminate parental rights only after
it has determined, by clear and convincing evidence,
inter alia, that the ‘‘parent . . . has been provided spe-
cific 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 reasonable
time, considering the age and needs of the child, such
parent could assume a responsible position in the life
of the child . . . .’’
‘‘In making that determination, the proper focus is
on the parent’s demonstrable development in relation
to the needs of the child. As we have observed: [i]n
assessing rehabilitation, the critical issue is not whether
the parent has improved [his] ability to manage [his]
own life, but rather whether [he] has gained the ability
to care for the particular needs of the child at issue.
. . . Furthermore, our courts are required to construe
liberally the provisions of § 17a-112 in the best interest
of the child for whom a petition has been filed, rather
than the parent thereof.’’ (Citation omitted; internal quo-
tation marks omitted.) In re Emerald C., 108 Conn.
App. 839, 853–54, 949 A.2d 1266, cert. denied, 289 Conn.
923, 958 A.2d 150 (2008). Moreover, as our cases have
held, ‘‘even if a parent has made successful strides in
[his] ability to manage [his] life and may have achieved
a level of stability within [his] limitations, such improve-
ments, although commendable, are not dispositive on
the issue of whether, within a reasonable period of time,
[he] could assume a responsible position in the life of
[his] child.’’ (Internal quotation marks omitted.) In re
Kristy A., 83 Conn. App. 298, 318, 848 A.2d 1276, cert.
denied, 271 Conn. 921, 859 A.2d 579 (2004).
The record in this case provides sufficient support
for the court’s determination that the father has failed
to rehabilitate. Even though the court acknowledged
that the father was ‘‘actively attempting to turn his life
around,’’ it nevertheless concluded that he had failed to
achieve the necessary degree of personal rehabilitation.
Specifically, the court found that the father ‘‘has not
had sufficient time to establish a viable track record’’
to satisfy the statutory requirement. The court based
its finding on the fact that the father ‘‘was incarcerated
from January, 2012, and remained incarcerated for most
of the period when the specific steps were to be imple-
mented.’’ The court heard testimony from Tomi Handy,
a social worker employed by the department, that the
father refused to have Mindy visit him while he was
incarcerated and that only ‘‘nearing the end of his jail
sentence’’ did he begin having monthly visits with her.6
In addition, the evidence before the court included the
expert testimony of Ines Schroeder, a psychologist who
conducted the court-ordered evaluation of the family.
She testified that the father’s ability to maintain sobriety
and to avoid a substance abuse related relapse remained
uncertain because ‘‘[he has] only had a few months of
time of sobriety outside of a controlled setting . . . .’’
Additionally, Schroeder expressed concerns about the
father’s ability to be ‘‘a strong advocate for Mindy if
she should be in his care,’’ as well as the degree of
his understanding of Mindy’s psychological health and
related attachment issues. Schroeder’s ultimate recom-
mendation was the termination of parental rights and
the eventual adoption of Mindy by her foster family.
Having reviewed the record before us, we conclude
that the court’s finding that the father failed to achieve
a sufficient degree of personal rehabilitation was not
clearly erroneous. The evidence presented at trial is
sufficient to support the finding, and we are not left
with the definite and firm conviction that a mistake has
been made. See, e.g., In re Sheila J., 62 Conn. App. 470,
481–82, 771 A.2d 244 (2001) (respondent’s efforts at
rehabilitation ‘‘too little and too late,’’ and court’s find-
ing that she failed to achieve sufficient rehabilitation
despite some level of stability not clearly erroneous).
II
The father next claims that the court erred by finding
that the termination of his parental rights was in Mindy’s
best interest. Specifically, he argues that the court
improperly: (1) concluded that the department had pro-
vided timely and appropriate services to him; (2) deter-
mined that the department had made reasonable efforts
to reunite him with Mindy; (3) failed to consider the
emotional ties between Mindy and him; and (4) found
that he had not been prevented from maintaining a
meaningful relationship with the child because of an
unreasonable act or conduct of any other person.7 We
are not persuaded.
‘‘In the dispositional phase of a termination of paren-
tal rights hearing, the emphasis appropriately 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] environ-
ment. . . . [T]he trial court must determine 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. In arriving at this
decision, the court is mandated to consider and make
written findings regarding seven factors delineated in
[§ 17a-112 (k)]. . . . The seven factors serve simply as
guidelines for the court and are not statutory prerequi-
sites that need to be proven before termination can be
ordered. . . . There is no requirement that each factor
be proven by clear and convincing evidence.’’ (Internal
quotation marks omitted.) In re Alison M., 127 Conn.
App. 197, 211, 15 A.3d 194 (2011). ‘‘As with the findings
made in the adjudicatory phase, we reverse the court’s
determination of the best interest of the child only if
the court’s findings are clearly erroneous.’’ In re Albert
M., 124 Conn. App. 561, 566, 6 A.3d 815, cert. denied,
299 Conn. 920, 10 A.3d 1050 (2010). A review of the
record convinces us that the court properly made find-
ings pursuant to the mandated statutory factors and
that its ultimate conclusion with respect to the best
interest of Mindy was not clearly erroneous.
A
As to the first statutory factor, the father claims the
court improperly concluded that the department had
provided timely and appropriate services to him. Ini-
tially, the court determined that the department pro-
vided the father with ‘‘timely and extensive’’ services,
including ‘‘assistance with visitation, parenting, [and]
outpatient substance abuse and mental health ser-
vices.’’ The evidence supports the court’s findings as
to the father. During the trial, Laura Selsky, a social
worker employed by the department, testified that the
father was referred to participate in ‘‘an intensive reuni-
fication program’’ in which his participation had been
minimal because it purportedly conflicted with his work
schedule. She further testified that the father was
referred for individual substance abuse counseling, in
which he remained engaged, however, he was later
arrested in January, 2012, for possession of narcotics.
Additionally, both Selsky and Handy testified that the
father had been offered the opportunity to have visita-
tions with Mindy while he was incarcerated, but that he
had refused to see her until near the end of his sentence.
Nevertheless, the father maintains that the depart-
ment ‘‘did not give timely and appropriate services
[because] it failed to increase [his] visitation when
requested.’’ The father, however, does not provide suffi-
cient support to corroborate his claim. The two motions
for increased visitation offered to substantiate his claim
were filed with the trial court, but the record contains
no evidence that a similar request was made to the
department.8 There is no support for the father’s claims
that the department ‘‘had written [him] off’’ and had
‘‘delayed, acting as if termination was a fait accompli.’’9
Absent any reliable evidence to the contrary, we con-
clude that the court’s finding that the department pro-
vided timely and extensive services was not clearly
erroneous.
B
The father next challenges the court’s determination
that the department made reasonable efforts to reunite
him with Mindy. He maintains that, by ignoring his
requests for increased visitation while he was incarcer-
ated from January, 2012, to February, 2013, the depart-
ment did not provide him with adequate access to
Mindy. The record, once again, offers sufficient support
for the trial court’s finding that the department’s efforts
were ‘‘relevant, available, adequate and accessible.’’ As
with the father’s previous claim, this claim also is not
supported by the evidence in the record. To the con-
trary, the testimony at trial established that, during his
incarceration, the father had declined visits from Mindy
for a period of ‘‘several months,’’ and that the visits only
began once the father changed his mind and decided to
allow Mindy to visit him in prison. Accordingly, we find
no error in the court’s finding. See In re Kyara H., 147
Conn. App. 855, 873, 83 A.3d 1264 (collecting cases
affirming conclusion that department made reasonable
effort at reunification ‘‘in light of the fact that the [par-
ent] rejected many of the services’’), cert. denied, 311
Conn. 923, 86 A.3d 468 (2014).
C
The father next argues that the court did not give
proper consideration to the emotional ties between
Mindy and himself. The court found: ‘‘Mindy has been
residing with her foster mother since September 2, 2011.
She has had regular visits with her mother and more
recently with [the] father.’’ The court concluded, how-
ever, that ‘‘Mindy is often resistant to attending visits
and the emotional attachment to her parents is unclear.’’
The court heard testimony from multiple witnesses sup-
porting its finding. Selsky testified about the father’s
initial refusal to visit with Mindy while he was incarcer-
ated and his minimal participation in the family reunifi-
cation program after he was released. Schroeder
testified that she had observed Mindy being shy
towards, and not wanting to engage with, the father.
She also testified that Mindy resisted contact with the
father ‘‘[e]very time that he attempted to engage [her]
physically, either [by] pick[ing] her up or hug[ging] her
or kiss[ing] her . . . .’’ Ultimately, Schroeder opined
that a parent-child relationship between Mindy and the
father was not ‘‘evident.’’ In addition, Handy testified
that, even though Mindy enjoyed seeing her father and
called him ‘‘daddy,’’ she nevertheless identified herself
with the foster family and saw visitations with the father
as ‘‘a play date.’’ Handy also testified that on occasions
when she observed Mindy get hurt or otherwise require
some comfort or security, she would reach out to her
‘‘foster mom,’’ even when the father was present.
The father argues that the trial court erred because
it did not properly consider testimony that described
his bond with Mindy in a more favorable way.10 It is
well settled, however, that the function of the reviewing
court is ‘‘to review and not to retry the proceeding of
the trial court. . . . The probative force of conflicting
evidence is for the trier to determine. . . . We defer
to the trier of fact’s assessment of the credibility of the
witnesses based on its firsthand observation of their
conduct, demeanor and attitude. The trier is the judge
of the credibility of all the witnesses and the weight to
be given their testimony, and may accept part, all or
none of the testimony. . . . Where . . . the record
reveals that the trial court’s ultimate conclusions are
supported by clear and convincing evidence, we will
not reach an opposite conclusion on the basis of any one
segment of the many factors considered in a termination
proceeding.’’ (Citation omitted; internal quotation
marks omitted.) In re Victoria B., 79 Conn. App. 245,
262–63, 829 A.2d 855 (2003). Thus, our review of the
record in this case leaves us convinced that the court’s
finding was not in error.
D
The father next argues that the court erred in its
finding that he had not been prevented from maintaining
a meaningful relationship with Mindy because of the
unreasonable act or conduct of any other person. The
father maintains that the department ‘‘created a road-
block to visitation which prevented [him] from ‘main-
taining a meaningful relationship’ with Mindy.’’ As with
his previous claims, the father offers no evidence to
support this claim, and our review of the record reveals
none. On the contrary, the evidence in the case supports
the court’s finding.
In its memorandum of decision, the court found by
clear and convincing evidence that Mindy’s best interest
would be served by terminating the father’s parental
rights. Our review of the record in this case leaves us
convinced that the trial court’s findings were supported
by the record, and, thus, were not clearly erroneous.
III
The father next claims that the court erroneously
denied his motion to transfer guardianship to Mindy’s
paternal great aunt.11 Specifically, the father claims that
the court erred by denying that motion based only on
its determination as to the best interests of the child
pursuant to General Statutes § 46b-57, without making
any finding as to whether the proposed guardian was
‘‘suitable and worthy,’’ as mandated by General Statutes
§ 46b-129 (j) (2) (C). We are not convinced.
In order to resolve the father’s claim, it is necessary
for us to examine and assess the applicability of the
statute and Practice Book provision upon which the
father bases his claim, namely, § 46b-129 (j) (2) and
Practice Book § 35a-12A.12 ‘‘[I]ssues of statutory con-
struction raise questions of law, over which we exercise
plenary review. . . . The process of statutory interpre-
tation involves the determination of the meaning of the
statutory language as applied to the facts of the case,
including the question of whether the language does so
apply. . . . When construing a statute, [o]ur fundamen-
tal objective is to ascertain and give effect to the appar-
ent intent of the legislature. . . . In other words, we
seek to determine, in a reasoned manner, the meaning
of the statutory language as applied to the facts of [the]
case . . . . In seeking to determine that meaning, Gen-
eral Statutes § 1-2z directs us first to consider the text
of the statute itself and its relationship to other statutes.
If, after examining such text and considering such rela-
tionship, the meaning of such text is plain and unambig-
uous and does not yield absurd or unworkable results,
extratextual evidence of the meaning of the statute shall
not be considered.’’ (Internal quotation marks omitted.)
In re Avirex R., 151 Conn. App. 820, 828, 96 A.3d 662
(2014).
As we have previously held, properly granting a
motion to transfer guardianship under subsection (j)
of § 46b-129,13 requires a two step analysis. ‘‘[T]he court
must first determine whether it would be in the best
interest[s] of the child for guardianship to be transferred
from the petitioner to the proposed guardian. . . .
[Second,] [t]he court must then find that the third party
is a suitable and worthy guardian.’’ (Citations omitted.)
Id., 834. This principle is echoed in Practice Book § 35a-
12A (d), which provides that ‘‘the moving party has the
burden of proof that the proposed guardian is suitable
and worthy and that transfer of guardianship is in the
best interests of the child.’’ See also In re Averiella
P.,146 Conn. App. 800, 804, 81 A.3d 272 (2013) (applying
best interests standard to motion to transfer guard-
ianship).
In his brief to this court, the father attempts to place
significance on the order in which the required findings
must be made. The father maintains that the court
should have made the determination of ‘‘whether the
proposed guardian is a suitable and worthy caregiver’’
before proceeding to the best interests determination
because ‘‘a suitable and worthy caregiver can be an
integral part of determining what is in the best interests
of the child.’’ We do not find his argument to be persua-
sive. Neither the language of § 46b-129 (j) (2) nor that
of Practice Book § 35a-12A (d) requires such an integra-
tion of the suitability and worthiness of the guardian
into the best interests analysis. What is required is that
a party seeking to transfer guardianship must satisfy
both requirements, and, thus, the failure to satisfy either
one necessarily precludes the transfer of guardianship.
In this case, the court determined that Mindy’s best
interests would not be served by the transfer of guard-
ianship to the paternal great aunt because the child
‘‘ha[d] a safe, secure bond and attachment to her current
caregivers, and that her removal from their care would
[have been] traumatic . . . .’’ Once this finding was
made by the court, the father could not prevail on his
motion. We conclude that, once it was determined that
the transfer was not in Mindy’s best interests, the court
was not required to make any further findings, as the
denial of the motion to transfer guardianship was
required by law.
IV
The father’s final claim is that the trial court errone-
ously approved the second permanency plan contem-
plating termination of his parental rights before holding
a full evidentiary hearing on the issue as required by
§ 46b-129 (k) (1). We note that he failed to bring this
matter to the attention of the trial court. On appeal,
the father argues that the judgment of the trial court
terminating his parental rights should be reversed
because the premature approval of the second perma-
nency plan deprived him of a fair trial, which is plain
error that resulted in manifest injustice.14 Alternatively,
the father seeks review of this claim under State v.
Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).
We are not persuaded by his arguments.
We begin by setting forth the applicable standard of
review. Practice Book § 60-5 provides in relevant part
that the reviewing court ‘‘may in the interests of justice
notice plain error not brought to the attention of the
trial court.’’ ‘‘[P]lain error review is reserved for truly
extraordinary situations where the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . A defendant cannot prevail under [the plain error
doctrine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice.’’ (Internal quotation marks omitted.) In re Justice
V., 111 Conn. App. 500, 508, 959 A.2d 1063 (2008), cert.
denied, 290 Conn. 911, 964 A.2d 545 (2009).
The statutes governing permanency plans, including
§ 46b-129 (k), were adopted to comply with federal law
regulating state access to federal funding for children
who have been removed from their parents. In re Dar-
ien S., 82 Conn. App. 169, 174, 175–76, 842 A.2d 1177,
cert. denied, 269 Conn. 904, 852 A.2d 733 (2004). Con-
gress requires that, in order to continue to receive fed-
eral funds, states must review their permanency plans
every twelve months. 42 U.S.C. § 622 (a) and (b) (8)
(A) (ii) (2012). In addition, Congress also requires states
to ‘‘make specific choices about the appropriate perma-
nent placement of children in their care by specifying
whether the child will be returned to a parent, placed
for adoption, placed with a relative, referred to legal
guardianship or, if a compelling reason is shown, placed
in another planned permanent living arrangement.’’ In
re Darien S., supra, 175. These, and other, federal
requirements were codified by our legislature in
§ 46b-129.
Section 46b-129 (k) (1) provides in relevant part that
the ‘‘court shall hold evidentiary hearings in connection
with any contested motion for review of the perma-
nency plan and credible hearsay evidence regarding any
party’s compliance with specific steps ordered by the
court shall be admissible at such evidentiary hearings.
. . .’’ The plain language of the statute is unambiguous;
the trial court must hold evidentiary hearings before
approving any contested permanency plan.
‘‘Parents have a constitutionally protected right to
raise and care for their own children. . . . Where the
legislature has chosen specific means to effectuate a
fundamental right, failure to follow the mandatory pro-
visions of the statute is plain error. . . . It is plain error
for a trial court to fail to apply an applicable statute,
even in the absence of the statute having been brought
to its attention by the parties.’’ (Citations omitted; inter-
nal quotation marks omitted.) In re Justice V., supra,
111 Conn. App. 507. In this case, the court erroneously
approved the permanency plan without affording the
father an opportunity to present evidence in opposition
to the plan. This conclusion, however, does not end
our analysis; the father still has to demonstrate that
this error resulted in manifest injustice. See id., 508.
We conclude that he has failed to do so.
In this case, the petition to terminate the father’s
parental rights was filed pursuant to the initial perma-
nency plan approved on August 6, 2012.15 The father
does not claim that the termination proceedings, initi-
ated under the initial permanency plan, had to be sus-
pended until the hearing on the second permanency
plan could be held. Additionally, there is no indication
that he challenged or opposed consolidating the hearing
on the second permanency plan with the termination
proceedings. Moreover, the father did not raise any
procedural objection during the termination proceed-
ings. He does argue, however, that because ‘‘[a] perma-
nency plan determines whether [termination
proceedings are] appropriate in the first instance,’’ the
judgment of the court terminating his parental rights
should be reversed as it was based on an improper
prior finding. To support his claim, the father cites In
re Joseph W., 121 Conn. App. 605, 607, 997 A.2d 512
(2010), aff’d, 301 Conn. 245, 21 A.3d 723 (2011), in which
we reversed the trial court’s judgment terminating the
respondent’s parental rights because it was premised
on an improper adjudication of neglect.16 We conclude
that the rationale in In re Joseph W. is inapplicable
here. In In re Joseph W., supra, 621, the trial court’s
decision was reversed because the adjudication of
neglect was used as a prerequisite to the termination
proceeding. The error during the neglect proceedings
resulted in a flawed termination of parental rights. Id.
In this case, however, the ultimate decision to termi-
nate the father’s parental rights was not premised on
the premature approval of the permanency plan.
Instead, the court reached its ultimate determination
only after all of the evidence and testimony in the termi-
nation case was presented by all parties. The father
does not argue that the erroneous ruling by the court
regarding the second permanency plan prevented him
from introducing any additional evidence at trial. To the
contrary, the record reflects that he presented evidence
and multiple witnesses at trial to support his position
opposing the termination of his parental rights. In fact,
the court considered this evidence and credited the
father’s efforts to turn his life around, as demonstrated
by the evidence, but found that the father’s efforts were
insufficient.17 Ultimately, the court concluded that the
commissioner had proven that the termination of the
father’s parental rights was in Mindy’s best interest by
clear and convincing evidence—a higher standard of
proof than that required for approval of a permanency
plan. See Practice Book § 35a-14 (d) (whether perma-
nency plan in best interests of child must be proven
by preponderance of evidence). Because the court’s
finding as to the best interests of Mindy was made by
clear and convincing evidence, the father would not
have been able to prevail in opposing the second perma-
nency plan, which needed to be proven only under a
preponderance standard.
Similar reasoning leads us to conclude that the
father’s claim fails under the third prong of the Golding
test.18 We base our conclusion that there is no clear
constitutional violation and the father was not deprived
of a fair trial on the following previously discussed
factors. The termination proceedings were initiated
under the initial permanency plan approved in August,
2012, and their suspension pending the approval of the
second permanency plan was not required. The father
was able to present his case during the termination
proceedings. The court reached its final conclusion to
terminate the father’s parental rights only after he had
presented his entire case to the court. Finally, the court
determined that it was in Mindy’s best interest to termi-
nate the father’s parental rights by applying the higher
standard of proof, namely, clear and convincing evi-
dence, during the dispositional phase of the termination
trial. We conclude that the father failed to prove that
he was deprived of a fair trial due to the premature
approval of the second permanency plan. Accordingly,
his final claim must fail.
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.
** November 20, 2014, 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 terminated the parental rights of Mindy’s mother,
Cindy T., during the same proceedings. The mother, however, is challenging
the trial court’s decision in a separate appeal. See In re Mindy F., 153 Conn.
App. , A.3d (2014).
2
The testimony at trial established that, as a result of this accident, Mindy
sustained a physical trauma that requires constant medical monitoring.
3
The court granted the commissioner’s motion to amend the neglect
petition to include the circumstances surrounding the accident.
4
The mother as well as the paternal great aunt also filed their objections
to the second permanency plan.
5
On appeal, the attorney for the minor child adopted the commission-
er’s brief.
6
Although it is understandable that a parent might not wish to have his
child view him in prison surroundings, the overriding fact is that, by refusing
visitation, he risks negatively affecting the relationship with his child.
7
General Statutes § 17a-112 (k) provides in relevant part that a court shall
consider and make written findings regarding: ‘‘(1) [t]he timeliness, nature
and extent of services offered . . . to the parent and the child . . . (2)
whether the [d]epartment . . . has made reasonable efforts to reunite the
family . . . (3) the terms of any applicable court order entered into . . .
and the extent to which all parties have fulfilled their obligations under
such order; (4) the feelings and emotional ties of the child with respect to
the child’s parents . . . 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; (5) the age of the child; (6)
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
such child home in the foreseeable future . . . and (7) the extent to which
a parent has been prevented from maintaining a meaningful relationship
with the child by . . . the unreasonable act of any other person . . . .’’
8
The record does not indicate that the trial court took any action on
the motions.
9
Moreover, the court filings indicate that the father’s visits with Mindy
were increased from one visit per month when he was incarcerated, to four
hourly visits per month shortly after he was released from prison. This
increase occurred approximately two months after the second motion for
increased visitation had been filed. In addition, the court file indicates that
the father’s visits were increased once more after the conclusion of the
termination proceedings upon a negative drug use test result.
10
At trial, Nicole Burman, who provided transportation and supervised
visits after being referred by the department, testified that she observed the
demeanor between the father and Mindy grow ‘‘more positive as they . . .
redevelop[ed] a relationship.’’ In addition, the paternal great aunt also testi-
fied that she had observed mutual affection displayed between Mindy and
the father.
11
We note that the father’s appeal form does not indicate that he has
appealed from the ruling on the motion to transfer, which was included in
the trial court’s memorandum of decision terminating the father’s parental
rights. In Rocque v. DeMilo & Co., 85 Conn. App. 512, 526–28, 857 A.2d 976
(2004), this court concluded that, because the appellant failed to appeal
from a ruling, it had no jurisdiction to review that claim. Thereafter, our
Supreme Court in Pritchard v. Pritchard, 281 Conn. 262, 277, 914 A.2d 1025
(2007), distinguished Rocque, noting that in Rocque there was no indication
of an intent to challenge the ruling until the appellate brief had been filed.
Here, as in Pritchard, the intent of the father to appeal from the denial of
the motion to transfer was clear. The father’s preliminary statement of issues
filed with the appeal form included the claim relating to the transfer of
guardianship ruling. Following Pritchard, we address the claim.
12
In the father’s reply brief to this court he argues Practice Book § 35a-
20 (e) provides the relevant test. This section, however, applies to a postdis-
position transfer of guardianship. Practice Book § 35a-12A applies to predis-
position transfers.
13
‘‘After a child has been found to be neglected or abused, § 46b-129 (j)
(2) grants a court four dispositional options: [T]he court may (A) commit
such child or youth to the Commissioner of Children and Families, and such
commitment shall remain in effect until further order of the court, except
that such commitment may be revoked or parental rights terminated at any
time by the court; (B) vest such child’s or youth’s legal guardianship in any
private or public agency that is permitted by law to care for neglected,
uncared-for or abused children or youths or with any other person or persons
found to be suitable and worthy of such responsibility by the court, including,
but not limited to, any relative of such child or youth by blood or marriage;
(C) vest such child’s or youth’s permanent legal guardianship in any person
or persons found to be suitable and worthy of such responsibility by the
court, including, but not limited to, any relative of such child or youth by
blood or marriage in accordance with the requirements set forth in subdivi-
sion (5) of this subsection; or (D) place the child or youth in the custody
of the parent or guardian with protective supervision by the Commissioner
of Children and Families subject to conditions established by the court.’’
(Internal quotation marks omitted.) In re Avirex R., supra, 151 Conn.
App. 829.
14
As an alternative to the reversal of the judgment terminating his parental
rights, the father seeks a remand for a full evidentiary hearing on the second
permanency plan. Because we affirm the court’s termination of the father’s
parental rights, we need not consider the father’s request for a new hearing
on the second permanency plan, as no practical relief is available to him
in ordering such a hearing. See Hechtman v. Savitsky, 62 Conn. App. 654, 659,
772 A.2d 673 (2001) (‘‘[i]n determining mootness, the dispositive question is
whether a successful appeal would benefit the [appellant] in any way’’).
15
The father does not challenge the approval of the initial permanency
plan on appeal.
16
In In re Joseph W., supra, 121 Conn. App. 612, 621, the trial court
precluded the father from participating during the neglect proceedings
because it erroneously concluded that, as a noncustodial parent, the father
was not entitled to contest the neglect petition. Subsequently, the children
were adjudicated neglected by the trial court, and this adjudication was
used at a later termination of parental rights proceedings. Id., 612. This
court reversed the termination of parental rights, concluding that it was
based on an improper adjudication of neglect because the father had the
right to contest the neglect proceedings. Id., 621.
17
We also reject the father’s claim that the court’s premature approval of
the second permanency plan ‘‘foreshadowed the outcome of the termination
of parental rights trial.’’ In his brief, the father does not direct us to any
evidence, and our review of the record uncovered none, showing that the
court referred to or relied on its prior best interests determination in approv-
ing the permanency plan as a basis for making its ultimate best interest
determination in the termination trial. Without such proof, the father’s accu-
sations are without merit. Further, to the extent this claim suggests judicial
bias, we express our disapproval of making such an unsupported claim that
was never raised to the trial court. See Burns v. Quinnipiac University,
120 Conn. App. 311, 316, 991 A.2d 666 (‘‘Our Supreme Court has criticized
the practice whereby an attorney, cognizant of circumstances giving rise to
an objection before or during trial, waits until after an unfavorable judgment
to raise the issue. We have made it clear that we will not permit parties to
anticipate a favorable decision, reserving a right to impeach it or set it aside
if it happens to be against them, for a cause which was well known to them
before or during the trial.’’ [Internal quotation marks omitted.]), cert. denied,
297 Conn. 906, 995 A.2d 634 (2010).
18
Pursuant to Golding: ‘‘[An appellant] can prevail on a claim of constitu-
tional error not preserved at trial only if all of 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 violation clearly exists and clearly
deprived the [appellant] of a fair trial; and (4) if subject to harmless error
analysis, the [appellee] has failed to demonstrate harmlessness of the alleged
constitutional violation beyond a reasonable doubt. In the absence of any one
of these conditions, the [appellant’s] claim will fail. The appellate tribunal is
free, therefore, to respond to the [appellant’s] claim by focusing on which-
ever condition is most relevant in the particular circumstances.’’ (Emphasis
in original; footnote omitted.) State v. Golding, supra, 213 Conn. 239–40.