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IN RE DANIEL N. ET AL.*
(AC 38454)
Alvord, Sheldon and Keller, Js.
Argued February 4—officially released March 9, 2016**
(Appeal from Superior Court, judicial district of New
Haven, Juvenile Matters, Cronan, J.)
David J. Reich, for the appellant (respondent
mother).
Renee Bevacqua Bollier, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Michael Besso and Benjamin Zivyon,
assistant attorneys general, for the appellee (peti-
tioner).
Thomas F. Mitola, for the minor children.
Opinion
SHELDON, J. The respondent mother, Nadine D.,
appeals from the judgments rendered in favor of the
petitioner, the Commissioner of Children and Families,
in which the trial court terminated the respondent’s
parental rights with respect to her three minor children,
Daniel N., Molli O. and Joel O.1 On appeal, the respon-
dent claims that the court (1) violated her substantive
due process rights by not properly considering, as the
least restrictive alternative to the termination of her
parental rights, a transfer of guardianship of Molli and
Joel to their paternal grandparents, and (2) improperly
determined that the termination of her parental rights
was in the best interests of her three children. We affirm
the judgments of the trial court.
The following factual and procedural history is rele-
vant to the claims on appeal. Daniel was born to the
respondent and his father, Jose N., in 2006. Molli and
Joel, who have a different father than Daniel, namely,
Manuel O., are twins who were born in 2012. Shortly
after Daniel’s birth, the Department of Children and
Families (department) became involved with the family,
and the department continued to be involved through-
out a period of time extending to and after the birth
of Daniel’s half-siblings, because of substance abuse,
domestic violence, and mental health issues. On Sep-
tember 27, 2012, the court granted the petitioner’s
motion for an order of temporary custody with respect
to all three children, which led to an adjudication of
neglect and their resulting commitment to the care and
custody of the petitioner. Daniel was returned to his
mother’s care on January 24, 2013, and Molli and Joel
were returned to her care on April 4, 2013, all under
orders of protective supervision. On September 17,
2013, the department invoked a ninety-six hour hold as
to the three children after being informed by a represen-
tative of the Family Based Recovery program that the
respondent was in a drug-induced condition. The
ninety-six hour hold was followed by a court order of
temporary custody. The fathers of all children were
both incarcerated at that time, and thus were not poten-
tial resources for their care. The petitioner later moved
that the orders of protective supervision be modified
to an order of commitment, which the court granted
on October 8, 2013. All three children have remained
in the care and custody of the petitioner since that date.
On December 26, 2013, the petitioner filed petitions
to terminate the parental rights of the respondent and
the fathers of the children. On January 16, 2014, Manuel
O. filed a motion to transfer guardianship of Molli and
Joel to his parents, the children’s paternal grandparents.
That motion was consolidated for hearing along with
the trial of the termination petitions, which was held
on February 3, 4, and 5, and June 24 and 25, 2015. The
respondent was represented by counsel throughout the
trial, and the respondent testified at trial. Several wit-
nesses also testified at trial, and multiple exhibits were
admitted into evidence in this fully contested case.
The court issued its memorandum of decision on
September 4, 2015. In that decision, the court made
the following determinations: the department had made
reasonable efforts to reunify the respondent with her
children but she was unable or unwilling to benefit from
the reunification efforts; the respondent had failed to
achieve such a degree of personal rehabilitation as
would encourage the belief that within a reasonable
time, considering the age and needs of each child, she
could assume a responsible position in their lives; the
respondent has had ‘‘repeated incidents of drug involve-
ment’’ and ‘‘ongoing involvement with a culture of
domestic violence’’; all three children have had multiple
placements in their lives; Daniel was hospitalized twice
in 2013 for psychiatric problems; Molli and Joel were
placed initially in a relative foster home after their
removal from the respondent’s care, but those relatives
were unwilling to take them in after their second
removal; Molli and Joel were subsequently placed with
a paternal aunt, but that placement did not work out,
and thus they were placed in the same therapeutic foster
home as Daniel; relying upon the testimony of Dr. Ines
Schroeder, who had conducted court-ordered psycho-
logical evaluations of the respondent and all three chil-
dren, Daniel would suffer significantly if he were moved
again because he has been at his current home for a
long period of time and has developed a relationship
with his foster parents to the point of calling them
‘‘mom’’ and ‘‘dad’’; Schroeder also had concerns for the
well-being of Molli and Joel if they were moved again;
although the paternal grandparents of Molli and Joel
had presented themselves as possible resources for
them, several factors impeded the placement of the
twins with them; and there was ‘‘no justification for
allowing more time for the parents to work on reunifica-
tion.’’ The court, throughout its opinion, referenced the
applicable statutes and stated that the petitioner had
carried her burden in the termination proceedings by
clear and convincing evidence. Under that standard,
the court made the adjudicatory determination that the
petitioner had established grounds for the termination
of the respondent’s parental rights, and the subsequent
dispositional determination that such termination was
in the children’s best interests. This appeal followed.
‘‘Our standard of review on appeal from a termination
of parental rights is whether the challenged findings are
clearly erroneous. . . . The determinations reached by
the trial court that the evidence is clear and convincing
will be disturbed only if [any challenged] finding is
not supported by the evidence and [is], in light of the
evidence in the whole record, clearly erroneous. . . .
‘‘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. . . .
‘‘Our Supreme Court has determined that [i]n order
to terminate a parent’s parental rights under [General
Statutes] § 17a-112, the petitioner is required to prove,
by clear and convincing evidence, that: (1) the depart-
ment has made reasonable efforts to reunify the family;
General Statutes § 17a-112 (j) (1); (2) termination is in
the best interest of the child; General Statutes § 17a-
112 (j) (2); and (3) there exists any one of the seven
grounds for termination delineated in § 17a-112 (j)
(3). . . .
‘‘[A] hearing on a petition to terminate parental rights
consists of two phases, adjudication and disposition.
. . . In the adjudicatory phase, the trial court deter-
mines whether one of the statutory grounds for termina-
tion of parental rights . . . exists by clear and
convincing evidence. If the trial court determines that
a statutory ground for termination exists, it proceeds
to the dispositional phase. . . . In the dispositional
phase of a termination of parental rights hearing, the
trial court must determine whether it is established by
clear and convincing evidence that the continuation of
the [parent’s] parental rights is not in the best interests
of the child. In arriving at that decision, the court is
mandated to consider and make written findings regard-
ing seven factors delineated in . . . § [17a-112 (k)]
. . . .’’ (Citations omitted; internal quotation marks
omitted.) In re Joseph M., 158 Conn. App. 849, 858–59,
120 A.3d 1271 (2015). With these principles in mind, we
address the respondent’s claims in turn.
I
The respondent first claims that the court violated
her substantive due process rights by failing to consider,
as the least restrictive alternative to the termination of
her parental rights as to Molli and Joel, a transfer of
their guardianship to their paternal grandparents.2
We disagree.
As to the motion to transfer guardianship of Molli
and Joel to their paternal grandparents, the trial court
explained: ‘‘The court heard evidence that the paternal
grandparents presented themselves as resources. The
court does not question their intentions and commends
them for coming forward. However, it was not clear
how this could be accomplished. The grandparents
offered to move to Connecticut, which would require
the paternal grandfather to give up a steady job and
sell the family home in Florida. Paternal grandmother
came to Connecticut but paternal grandfather was still
working in Florida. In addition, witness Georgia Goldb-
urn, the director of the Hope Child Development Center,
testified that the twins display very challenging behav-
iors and she did not think that the grandmother had
the resources to manage and deal with the children on
a daily basis. . . . In addition, the court heard evidence
that paternal grandfather had involvement with the
criminal justice system in Florida concerning one of his
children.’’ The court thus implicitly denied the motion to
transfer guardianship of Molli and Joel to their paternal
grandparents and found ‘‘through clear and convincing
evidence that termination is in the best interests of all
three children.’’
On appeal, the respondent argues: ‘‘In this case, the
trial court did consider the transfer of guardianship
but found that the grandmother would have difficulty
handling both twins. . . . Though the court did con-
sider and deny the transfer of guardianship, it did not
apply the least restrictive placement standard.’’ The
respondent contends that the court’s failure to consider
transfer of guardianship as the least restrictive alterna-
tive to termination violated her right to due process.
She concedes that she did not raise her due process
claim at trial, and thus she asks this court to review
her unpreserved constitutional claim pursuant to State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989).3
In considering the paternal grandparents as a poten-
tial placement resource for Molli and Joel, the trial
court clearly did so as an alternative to termination of
the rights of their parents, and that placement would
have been less restrictive than termination. We thus
conclude that in finding that termination of the parental
rights was in the best interests of the children, the
court necessarily found that termination was the least
restrictive permanency plan required to protect the chil-
dren’s best interests. See In re Brayden E.-H., 309 Conn.
642, 661, 72 A.3d 1083 (2013) (in applying best interests
standard, trial court necessarily found that termination
was least restrictive permanency plan consistent with
children’s best interests). Accordingly, we conclude, as
did our Supreme Court in In re Brayden E.-H., that
‘‘even if we were to assume, arguendo, such a least
restrictive determination is constitutionally mandated
. . . the respondent’s claim fails because the record
reflects that this standard was satisfied.’’4 Id., 645.
II
The respondent also claims that the court improperly
determined that the termination of her parental rights
was in the best interests of her three children. As to
Molli and Joel, she claims that the court erroneously
denied the motion to transfer guardianship to their
paternal grandparents. As to Daniel, the respondent
claims that the court failed to consider his feelings and
emotional ties to her pursuant to § 17-112 (k) (4). 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. . . . It is well settled that we will overturn
the court’s decision that the termination of parental
rights is in the best interest of the [child] only if the
court’s findings are clearly erroneous. . . . The best
interests of the child include the child’s interests in
sustained growth, development, well-being, and conti-
nuity and stability of [his or her] environment. . . . In
the dispositional phase of a termination of parental
rights hearing, the 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.’’ (Footnote
omitted; internal quotation marks omitted.) In re Joseph
M., supra, 158 Conn. App. 868–69; see also In re Nevaeh
W., 317 Conn. 723, 739, 120 A.3d 1177 (2015).
A
As to Molli and Joel, the respondent claims that the
trial court erred in not transferring guardianship to their
paternal grandparents.5 The respondent principally
challenges the court’s reliance on Goldburn’s testimony
that Molli and Joel display challenging behaviors that
she did not think the grandmother could handle on a
daily basis. Although the respondent did not object to
this testimony at trial, she now argues that Goldburn
lacks the expertise to render such an opinion, which
was based upon Goldburn’s daily contact with the chil-
dren. The respondent also challenges the court’s reli-
ance on Goldburn’s opinion that the grandmother might
not be able to handle the children because Goldburn
acknowledged that her own staff had difficulty handling
them. In making this claim that the court’s decision was
based upon ‘‘questionable evidence,’’ the respondent
asserts the perplexing argument that Goldburn’s testi-
mony demonstrates that the children would be difficult
for anyone to handle. This argument, however, does
not contradict or undermine the court’s concern that
the grandmother might not be able to handle the chil-
dren, but rather underscores it. The respondent also
fails to address other factors cited by the trial court in
addressing the propriety of vesting guardianship with
the paternal grandparents, notably the fact that they
reside and are employed in Florida and the grandfa-
ther’s criminal history. The respondent has thus failed
to demonstrate that the trial court erroneously deter-
mined that the termination of her parental rights was
in the best interests of Molli and Joel.
B
As to Daniel, the respondent claims that the court
erred in finding that termination of her parental rights
was in his best interests because it failed to consider
his feelings for her, that he had a strong bond with her
and wished to return to her. We disagree.
In assessing Daniel’s best interests, the court noted
that he had had multiple placements in his young life
and that he had been hospitalized twice in 2013 for
psychiatric problems. The court noted Schroeder’s
opinion that Daniel ‘‘has had a very difficult childhood:
many moves, changes in primary caregivers, instability
in those primary caregivers, great difficulty in wit-
nessing discord and anger and domestic violence situa-
tions with his parents . . . each move is extremely
difficult for him. . . . Daniel would suffer significantly
if he were moved again because of the fact that he has
been in [his current] placement for a long period of
time. He has developed a relationship with his foster
parents to the point of calling them mom and dad. And
it seems that he is comfortable in this setting and has
made strong attachments.’’ The court found that the
respondent ‘‘has not demonstrated an ability to deal
with the needs of Daniel.’’
The respondent claims that the court failed to con-
sider Daniel’s bond with the respondent. Our Supreme
Court has explained: ‘‘[T]he fact that the legislature [has
interpolated] objective guidelines into the open-ended
fact-oriented statutes which govern [parental termina-
tion] disputes . . . should not be construed as a prede-
termined weighing of evidence . . . by the legislature.
Where . . . the record reveals that the trial court’s ulti-
mate conclusions [regarding termination of parental
rights] 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 . . . .
‘‘Indeed . . . [t]he balancing of interests in a case
involving termination of parental rights is a delicate
task and, when supporting evidence is not lacking, the
trial court’s ultimate determination as to a child’s best
interest is entitled to the utmost deference. . . .
Although a judge [charged with determining whether
termination of parental rights is in a child’s best interest]
is guided by legal principles, the ultimate decision
[whether termination is justified] is intensely human.
It is the judge in the courtroom who looks the witnesses
in the eye, interprets their body language, listens to the
inflections in their voices and otherwise assesses the
subtleties that are not conveyed in the cold transcript.
. . . [Thus] although a trial court shall consider and
make written findings regarding the factors enumerated
in § 17a-112 (k), a trial court’s determination of the best
interests of a child will not be overturned on the basis
of one factor if that determination is otherwise factually
supported and legally sound.’’ (Citations omitted; inter-
nal quotation marks omitted.) In re Nevaeh W., supra,
317 Conn. 739–40.
Here, the court stated in its memorandum of decision
that it had considered all of the factors set forth in
§17a-112 (k), including the emotional ties between the
children and their parents. The respondent argues that:
‘‘If a child has a strong enough attachment to a parent,
the loss of that relationship might override the need
for permanency.’’ Although that may be true, the inverse
may also be true—other factors that support termina-
tion might override a child’s connection with his or her
parent. It is evident from an examination of the trial
court’s decision in its entirety that it considered all of
the required statutory factors. In light of the trial court’s
additional findings regarding the respondent’s inability
to parent her children due to her history of substance
abuse and domestic violence, which are unchallenged
by her, we conclude that the court considered Daniel’s
feelings toward his mother, but balanced them against
those other factors and determined that termination
was in Daniel’s best interests. We thus conclude that
the trial court’s finding as to Daniel’s best interests was
factually supported and legally sound.
The judgments are affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** March 9, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The parental rights of the children’s fathers were also terminated.
Because they are not parties to this appeal, we refer in this opinion to the
respondent mother as the respondent.
2
The respondent also claims that such consideration should have been
given in the adjudicatory phase of the termination trial, not in the disposi-
tional phase, which is the context in which the court considered the grand-
parents’ potential role as placement resources in this case. The respondent
argues this claim as one of first impression in Connecticut and asks this
court to read such a requirement into § 17a-112 (j). The legal authority
presented by the respondent in support of this argument consists of three
out of state cases that do not stand for the proposition advanced by the
respondent. The respondent’s argument that a less restrictive permanency
plan must be considered prior to reaching the dispositional phase of a
termination trial finds no support in our law and is inadequately briefed.
We fail to discern the relevance of an alternative permanency plan to the
threshold adjudication of parental fitness.
3
We will review an unpreserved claim when ‘‘(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 . . . exists and . . . deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has failed to demonstrate
harmlessness of the alleged constitutional violation beyond a reasonable
doubt. In the absence of any one of these conditions, the defendant’s claim
will fail.’’ (Emphasis omitted; footnote omitted.) State v. Golding, supra,
213 Conn. 239–40; see In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188
(2015) (modifying third prong).
4
In In re Brayden E.-H., supra, 309 Conn. 656, the court eschewed deciding
the constitutional question of whether the respondent had a substantive
due process right to a determination that termination is the least restrictive
means to protect a child’s best interest. We do the same.
5
We note that the respondent did not file the motion to transfer guardian-
ship to the paternal grandparents; nor did she present any evidence at trial
in support of that motion.