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IN RE TRESIN J.*
(SC 20267)
Robinson, C. J., and Palmer, McDonald, Kahn and Ecker, Js.
Syllabus
The respondent father appealed to the Appellate Court from the trial court’s
judgment terminating his parental rights with respect to his minor child,
T. The respondent had been incarcerated when T was two years old,
and T had last spoken with the respondent around that time. While
the respondent was incarcerated, T was placed in the custody of the
petitioner, the Commissioner of Children and Families, after the peti-
tioner became aware that T’s mother, who was the custodial parent, was
experiencing mental health and substance abuse issues. The petitioner
thereafter filed a petition to terminate the respondent’s parental rights
on the statutory (§ 17-112 [j] [3] [D]) ground that he had no ongoing
parent-child relationship with T. In terminating the respondent’s parental
rights with respect to T, the trial court found that T, who was six years
old at the time of the termination hearing, did not know who his father
was or have any positive parental memories of the respondent. On
appeal, the respondent claimed, inter alia, that the trial court, in conclud-
ing that he had no ongoing parent-child relationship with T, failed to
consider the petitioner’s interference with the development of that rela-
tionship and his own positive feelings toward T in light of T’s young
age at the time the respondent was incarcerated. The Appellate Court
disagreed and affirmed the trial court’s judgment, concluding that there
was no evidence that the respondent sought visitation with or attempted
to contact T while he was incarcerated, and that there was no evidence
that T’s mother, who had custody of T during that period, had interfered
with the development of an ongoing parent-child relationship, or that
the petitioner’s alleged interference led to the lack of such relationship.
On the granting of certification, the respondent appealed to this court.
Held that the Appellate Court properly upheld the trial court’s termina-
tion of the respondent’s parental rights on the ground that there was
clear and convincing evidence of a lack of an ongoing parent-child
relationship, and the virtual infancy and interference exceptions to the
lack of an ongoing parent-child relationship ground for termination did
not apply in this case: at the time of the termination hearing, T had no
knowledge or memory of the respondent as his father; moreover, the
virtual infancy exception did not apply because, although T was two
years old when he was separated from the respondent as a result of his
incarceration, it is the child’s age at the time of the termination hearing
that controls for purposes of that exception, and T was six years old
at the time of the respondent’s termination hearing and able to communi-
cate that he lacked present memories of the respondent as his parent;
furthermore, the respondent could not prevail on his claim that the
interference exception applied on the basis of the apparent inability of
T’s mother to foster a relationship between T and the respondent during
the respondent’s incarceration, as that exception is triggered only by
the conduct of the petitioner rather than that of a third party or some
other external factor that occasioned the separation between parent
and child.
Argued September 18—officially released December 31, 2019**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Hartford, Juvenile Mat-
ters, and tried to the court, C. Taylor, J.; judgment
terminating the respondents’ parental rights, from
which the respondent father appealed to the Appellate
Court, DiPentima, C. J., and Alvord and Beach, Js.,
which affirmed the trial court’s judgment, and the
respondent father, on the granting of certification,
appealed to this court. Affirmed.
David J. Reich, assigned counsel, for the appellant
(respondent father).
Sara Nadim, assistant attorney general, with whom,
on the brief, were William Tong, attorney general, Clare
Kindall, solicitor general, and Benjamin Zivyon, assis-
tant attorney general, for the appellee (petitioner).
Opinion
ROBINSON, C. J. In this certified appeal, we consider
whether the parental rights of a father were properly
terminated for lack of an ongoing parent-child relation-
ship when, at the time of the termination trial, the six
year old child had no knowledge or memory of his
father, who had been incarcerated when the child was
two years old. The respondent father, Aceion B.,
appeals, upon our grant of his petition for certification,1
from the judgment of the Appellate Court affirming the
judgment of the trial court in favor of the petitioner,
the Commissioner of Children and Families, which ter-
minated his parental rights as to the child, Tresin J.,
pursuant to General Statutes § 17a-112 (j) (3) (D).2 In
re Tresin J., 187 Conn. App. 804, 805–806, 203 A.3d 711
(2019). Relying on the Appellate Court’s decision in In
re Carla C., 167 Conn. App. 248, 143 A.3d 677 (2016),
the respondent claims that the trial court should have
applied the virtual infancy and interference exceptions
to the lack of an ongoing parent-child relationship
ground for the termination of parental rights because
Tresin was only two years old when the respondent’s
incarceration separated them, and the circumstances
of this case, particularly the deficiencies of Tresin’s
mother, rendered contact impossible during his incar-
ceration. In light of our recent explication of these
exceptions in In re Jacob W., 330 Conn. 744, 200 A.3d
1091 (2019), we disagree with the respondent’s claims.
Accordingly, we affirm the judgment of the Appellate
Court.
The record and the Appellate Court’s opinion set forth
the following background facts and procedural history.
‘‘Tresin was born in June, 2011. The respondent last
spoke to Tresin in April, 2013, when Tresin was less
than two years old. In May, 2013, the respondent was
convicted of possession of marijuana, his probation was
revoked,3 and he was sentenced to a term of incarcera-
tion. The respondent subsequently was taken into cus-
tody by federal authorities and detained for immigration
violations. The respondent remained in federal custody
until the fall of 2017.’’4 (Footnote in original.) In re
Tresin J., supra, 187 Conn. App. 806.
The Department of Children and Families (depart-
ment) became involved with Tresin in May, 2015. The
department initiated an investigation when it was noti-
fied after one of Tresin’s half siblings was not picked
up from school on time. The department learned during
its investigation that Tresin and his two half siblings
were not up to date medically and that Tresin’s mother
recently had been evicted and had been experiencing
substance abuse difficulties; it referred her to mental
health and substance abuse treatment programs, but
she failed to comply with those programs’ requirements
over the ensuing year. Tresin’s mother subsequently
failed to arrange mental health evaluations and care for
Tresin’s older half sibling, who had been experiencing
severe behavioral issues in school over the course of
that year. In July, 2016, the department invoked a ninety-
six hour hold with respect to Tresin and his two half
siblings after Tresin’s mother informed her caseworker
that her life was in danger and she planned to flee the
state with the children.
Subsequently, the petitioner ‘‘filed a neglect petition
with respect to Tresin and his two [half siblings], who
were in the care of Tresin’s mother. In addition, the
petitioner obtained an order of temporary custody with
respect to all three children.
‘‘In August, 2017, the petitioner filed a petition to
terminate the parental rights of the respondent. The
petitioner alleged that, pursuant to § 17a-112 (j) (3) (D),
the respondent had no ongoing parent-child relation-
ship with Tresin. The termination of parental rights trial
was held on February 5 and March 9, 2018.
‘‘In a thoughtful memorandum of decision, issued on
May 22, 2018, the court found that the petitioner had
proved by clear and convincing evidence that there was
no ongoing parent-child relationship with respect to the
respondent and Tresin. In reaching its conclusion, the
court found that ‘Tresin does not know who his father is
and has no positive parental memories of his biological
father.’ ’’5 Id., 806–807.
The respondent appealed from the judgment termi-
nating his parental rights to the Appellate Court, claim-
ing that the trial court incorrectly ‘‘determined, pursu-
ant to § 17a-112 (j) (3) (D), that no ongoing parent-
child relationship exists between the respondent and
Tresin.’’6 Id., 808–809. The respondent argued specifi-
cally that the trial court’s conclusion was inconsistent
with the Appellate Court’s decision in In re Carla C.,
supra, 167 Conn. App. 248, because the trial court failed
to consider ‘‘(1) the petitioner’s interference with the
development of the parent-child relationship between
himself and Tresin, and (2) Tresin’s young age, in light
of which the respondent’s feelings toward Tresin are
significant.’’ In re Tresin J., supra, 187 Conn. App. 809.
The Appellate Court rejected the respondent’s argu-
ments, observing first that he ‘‘presented no evidence
that he sought visitation or attempted to call Tresin
during those three years [that he was incarcerated].
The respondent does not allege any interference by the
child’s mother, who had custody of Tresin during that
time.’’ Id., 811. The Appellate Court also emphasized
that the petitioner had ‘‘presented undisputed evidence
that, in July, 2016, when Tresin was placed into the
petitioner’s custody and before any alleged interference
took place, Tresin did not know who his father was.
Therefore, unlike in In re Carla C., the respondent
did not present evidence that the petitioner’s alleged
interference led to the lack of an ongoing parent-child
relationship between the respondent and Tresin.’’
(Emphasis in original.) Id., 811–12. Accordingly, the
Appellate Court affirmed the judgment of the trial court,
having concluded that ‘‘the trial court properly applied
the law . . . and that its legal conclusion that the peti-
tioner established the elements of § 17a-112 (j) (3) (D)
[was] supported by clear and convincing evidence.’’ Id.,
813. This certified appeal followed. See footnote 1 of
this opinion.
On appeal, the respondent relies on the Appellate
Court’s decision in In re Carla C., supra, 167 Conn.
App. 248, and claims that the virtual infancy exception
to the lack of an ongoing parent-child relationship
ground for the termination of parental rights is applica-
ble to this case because Tresin, like the child in In re
Carla C., was two years old when the respondent was
incarcerated, meaning that both the trial court and the
Appellate Court improperly focused on Tresin’s lack of
memory of the respondent at the time of trial rather
than the respondent’s positive feelings for Tresin. The
respondent argues that the dispositive issue ‘‘is whether
the child was old enough to remember [his or her]
father when he was separated from the child,’’ rendering
the age of the child at separation the controlling factor.
The respondent also contends that the trial court should
have applied the interference exception by considering
the abilities of the custodial parent at the time of separa-
tion. Specifically, he argues that Tresin’s mother,
although not actively interfering in their relationship,
was unable to facilitate visits while he was incarcerated.
In response, the petitioner contends that the Appel-
late Court’s decision is in full accord with the legal
analysis set forth in In re Jacob W., supra, 330 Conn.
744, and In re Carla C., supra, 167 Conn. App. 248.
The petitioner argues that In re Carla C. is factually
distinguishable because the present case lacks ‘‘inter-
ference by any party to the proceeding’’ prior to the
institution of termination proceedings, and, as of the
day of removal, ‘‘Tresin already had no positive memo-
ries of [the respondent, and], thus no ongoing parent-
child relationship already existed.’’ The petitioner also
contends that the virtual infancy exception is inapplica-
ble because Tresin was six years old at the time of the
termination trial and could communicate his present
feelings. To this end, the petitioner relies on In re Carla
C. and In re Alexander C., 67 Conn. App. 417, 787 A.2d
608 (2001), aff’d, 262 Conn. 308, 813 A.2d 87 (2003),
and argues that incarceration does not trigger the virtual
infancy exception, even when the incarceration and
separation occur during infancy. Instead, the petitioner
emphasizes that, in such cases, the applicable exception
is interference, with consideration given to deliberate
interference by the petitioner and the efforts, or lack
thereof, by the respondent to maintain a relationship
during the period of incarceration.7 We agree with the
petitioner and conclude that the respondent was not
entitled to invoke the interference or virtual infancy
exceptions to the lack of an ongoing parent-child rela-
tionship ground for the termination of his parental
rights.
‘‘We begin with the applicable standard of review and
general governing principles. Although the trial court’s
subordinate factual findings are reviewable only for
clear error, the court’s ultimate conclusion that a
ground for termination of parental rights has been
proven presents a question of evidentiary sufficiency.
. . . That conclusion is drawn from both the court’s
factual findings and its weighing of the facts in consider-
ing whether the statutory ground has been satisfied.
. . . On review, we must determine whether the trial
court could have reasonably concluded, upon the facts
established and the reasonable inferences drawn there-
from, that the cumulative 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. . . . To the extent we are required
to construe the terms of [§ 17a-112 (j) (3) (D)] or its
applicability to the facts of this case, however, our
review is plenary. . . .
‘‘Proceedings to terminate parental rights are gov-
erned by § 17a-112. . . . Under [that provision], a hear-
ing on a petition to terminate parental rights consists
of two phases: the adjudicatory phase and the disposi-
tional phase. During the adjudicatory phase, the trial
court must determine whether one or more of the . . .
grounds for termination of parental rights set forth in
§ 17a-112 [(j) (3)] exists by clear and convincing evi-
dence. The commissioner . . . in petitioning to termi-
nate those rights, must allege and prove one or more
of the statutory grounds. . . . Subdivision (3) of § 17a-
112 (j) carefully sets out . . . [the] situations that, in
the judgment of the legislature, constitute countervail-
ing interests sufficiently powerful to justify the termina-
tion of parental rights in the absence of consent. . . .
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.’’ (Cita-
tions omitted; internal quotation marks omitted.) In re
Egypt E., 327 Conn. 506, 525–27, 175 A.3d 21, cert.
denied sub nom. Morsy E. v. Commissioner, Dept. of
Children & Families, U.S. , 139 S. Ct. 88, 202
L. Ed. 2d 27 (2018).
We begin with a review of the lack of an ongoing
parent-child relationship ground and its exceptions.
Section 17a-112 (j) provides in relevant part: ‘‘The Supe-
rior Court, upon notice and hearing as provided in sec-
tions 45a-716 and 45a-717, may grant a petition filed
pursuant to this section if it finds by clear and convinc-
ing evidence that (1) the Department of Children and
Families has made reasonable efforts to locate the par-
ent and to reunify the child with the parent in accor-
dance 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) . . . (D) there is no ongoing par-
ent-child relationship, which means the relationship
that ordinarily develops as a result of a parent having
met on a day-to-day basis the physical, emotional, moral
and educational needs of the child and to allow further
time for the establishment or reestablishment of such
parent-child relationship would be detrimental to the
best interest of the child . . . .’’
In In re Jacob W., supra, 330 Conn. 754–55, we
recently considered the application of the near identical
lack of an ongoing parental relationship provision in
General Statutes § 45a-717 (g) (2) (C), which governs
actions for termination of parental rights brought in
Probate Court by private petitioners.8 We discussed our
previous decisions in In re Valerie D., 223 Conn. 492,
613 A.2d 748 (1992), In re Jessica M., 217 Conn. 459,
586 A.2d 597 (1991), and In re Juvenile Appeal (Anony-
mous), 177 Conn. 648, 420 A.2d 875 (1979), along with
the Appellate Court’s decision in In re Carla C., supra,
167 Conn. App. 248, and explained that the ‘‘inquiry . . .
is a two step process. First, the court must determine
whether the petitioner has proven the lack of an ongoing
parent-child relationship. Only if the court answers that
question in the affirmative may it turn to the second
part of the inquiry, namely, whether allowance of fur-
ther time for the establishment or reestablishment of
the relationship would be contrary to the child’s best
interests. . . .
‘‘In interpreting the parameters of [§ 17a-112 (j) (3)
(D)], we must be mindful of what is at stake. [T]he
termination of parental rights is defined . . . as the
complete severance by court order of the legal relation-
ship, with all its rights and responsibilities, between
the child and his parent . . . . It is, accordingly, a most
serious and sensitive judicial action. . . . Although the
severance of the parent-child relationship may be
required under some circumstances, the United States
Supreme Court has repeatedly held that the interest of
parents in their children is a fundamental constitutional
right that undeniably warrants deference and, absent a
powerful countervailing interest, protection. . . .
‘‘Moreover . . . the fact of incarceration, in and of
itself, cannot be the basis for a termination of parental
rights. . . . At the same time, a court properly may
take into consideration the inevitable effects of incar-
ceration on an individual’s ability to assume his or her
role as a parent. . . . Extended incarceration severely
hinders the department’s ability to offer services and
the parent’s ability to make and demonstrate the
changes that would enable reunification of the family.
. . . This is particularly the case when a parent has
been incarcerated for much or all of his or her child’s
life and, as a result, the normal parent-child bond that
develops from regular contact instead is weak or
absent. . . . .
‘‘The lack of an ongoing parent-child relationship is a
no fault statutory ground for the termination of parental
rights. . . . This court has explained that the ground
of no ongoing parent-child relationship for the termina-
tion of parental rights contemplates 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. . . . The ultimate
question is whether the child has some present memo-
ries or feelings for the natural parent that are positive
in nature. . . .
‘‘In its interpretation of the language of [the lack of
an ongoing parent-child relationship ground], this court
has been careful to avoid placing insurmountable bur-
den[s] on noncustodial parents. . . . Because of that
concern, we have explicitly rejected a literal interpreta-
tion of the statute, which defines the relationship as
one that ordinarily develops as a result of a parent
having met on a continuing, day-to-day basis the physi-
cal, emotional, moral and educational needs of the child
. . . . [D]ay-to-day absence alone, we clarified, is insuf-
ficient to support a finding of no ongoing parent-child
relationship. . . . We also have rejected the notion that
termination may be predicated on the lack of a mean-
ingful relationship, explaining that the statute requires
that there be no relationship.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.) In
re Jacob W., supra, 330 Conn. 755–58; see In re Jessica
M., supra, 217 Conn. 470 (‘‘It is not unlikely that most
parent-child relationships in which state intervention
is required, including custody disputes incidental to
divorce, will exhibit signs of strain. While evidence of
a child’s ambivalent feelings toward a noncustodial par-
ent would not alone justify a finding that ‘no ongoing
parent-child relationship’ exists, it is nevertheless rea-
sonable to construe this statutory ground for termina-
tion to require a finding that no positive emotional
aspects of the relationship survive.’’).
We summarized our analysis in In re Jacob W. by
reciting ‘‘the proper legal test to apply when a petitioner
seeks to terminate a parent’s rights on the basis of no
ongoing parent-child relationship . . . . We reiter-
ate[d] that the inquiry is a two step process. In the first
step, a petitioner must prove the lack of an ongoing
parent-child relationship by clear and convincing evi-
dence. In other words, the petitioner must prove by
clear and convincing evidence that the child has no
present memories or feelings for the natural parent that
are positive in nature. If the petitioner is unable to prove
a lack of an ongoing parent-child relationship by clear
and convincing evidence, the petition must be denied,
and there is no need to proceed to the second step of
the inquiry. If, and only if, the petitioner has proven a
lack of an ongoing parent-child relationship does the
inquiry proceed to the second step, whereby the peti-
tioner must prove by clear and convincing evidence
that to allow further time for the establishment or rees-
tablishment of the relationship would be contrary to
the best interests of the child. Only then may the court
proceed to the disposition phase.
‘‘There are two exceptions to the general rule that
the existence of an ongoing parent-child relationship
is determined by looking to the present feelings and
memories of the child toward the respondent parent.
The first exception . . . applies when the child is an
infant, and that exception changes the focus of the first
step of the inquiry. . . . [W]hen a child is virtually a
newborn infant whose present feelings can hardly be
discerned with any reasonable degree of confidence, it
makes no sense to inquire as to the infant’s feelings,
and the proper inquiry focuses on whether the parent
has positive feelings toward the child. . . . Under
those circumstances, it is appropriate to consider the
conduct of a respondent parent.9
‘‘The second exception . . . applies when the peti-
tioner has engaged in conduct that inevitably has led
to the lack of an ongoing parent-child relationship
between the respondent parent and the child. This
exception precludes the petitioner from relying on the
lack of an ongoing parent-child relationship as a basis
for termination. Under these circumstances, even if nei-
ther the respondent parent nor the child has present
positive feelings for the other, and, even if the child
lacks any present memories of the respondent parent,
the petitioner is precluded from relying on [the lack
of an ongoing parent-child relationship] as a basis for
termination.’’ (Citation omitted; footnote added; inter-
nal quotation marks omitted.) In re Jacob W., supra,
330 Conn. 762–64. The interference ‘‘inquiry properly
focuses not on the petitioner’s intent in engaging in
the conduct at issue, but on the consequences of that
conduct. In other words, the question is whether the
petitioner engaged in conduct that inevitably led to a
noncustodial parent’s lack of an ongoing parent-child
relationship. If the answer to that question is yes, the
petitioner will be precluded from relying on the ground
of ‘no ongoing parent-child relationship’ as a basis for
termination regardless of the petitioner’s intent—or
not—to interfere.’’ (Emphasis added.) Id., 762.
Applying these principles to the present case,10 we
begin with the respondent’s claim that the virtual
infancy exception to the lack of an ongoing parent-child
relationship ground applies because Tresin was two
years old when the respondent was incarcerated. We
disagree. This claim is squarely controlled by In re
Jacob W., in which we rejected a parent’s claim that
the virtual infancy exception applied when the parent
was separated from the child by incarceration when
the child was one year old and the termination hearing
was held when the child was four years old. Id., 767–68
and n.5. We emphasized in In re Jacob W. that it was
not the child’s ‘‘age at the time of the respondent’s
incarceration three years prior to the termination hear-
ing that controls for purposes of the application of the
virtual infancy exception, but [the child’s] age . . . at
the time of the termination hearing. To determine
whether a petitioner has established the lack of an
ongoing parent-child relationship, the trial court must
be able to discern a child’s present feelings toward or
memories of a respondent parent. The virtual infancy
exception takes account of the particular problem that
is presented when a child is too young to be able to
articulate those present feelings and memories. . . . .
It would make no sense to require a trial court to resolve
whether a child’s feelings could have been determined
at some time prior to the termination hearing. The
inability of the court to discern or to be presented with
evidence regarding a virtual infant’s present feelings
drives the exception. That finding must be made at
the time of the termination hearing.’’ (Citation omitted;
emphasis altered.) Id., 768 n.5.
Having reviewed the record, we conclude that it
amply supports the trial court’s conclusion, upheld by
the Appellate Court, that the virtual infancy exception
did not apply in this case. As of the time of the termina-
tion trial in February and March of 2018, Tresin was
six years old, and the respondent had not spoken or
visited with him since August, 2013, prior to his incar-
ceration, when Tresin was two years old. The depart-
ment’s social study, which was admitted into evidence,
noted that ‘‘Tresin has not seen his father since he was
two years old. Tresin would not recognize his father,
as [the respondent] is essentially a stranger to Tresin.
Tresin does not have any positive memories of his
time with his father, and, at the time of his removal
in July of 2016, Tresin was unclear about the identity
of his father and believed that his father was a long-
term boyfriend of [his mother], who was not [the
respondent].’’ (Emphasis added.) We conclude, there-
fore, that the virtual infancy exception does not apply
in this case because Tresin was six years old at the
time of trial and able to communicate that he lacked
present memories of the respondent as his parent.11
Compare In re Jacob W., supra, 330 Conn. 768 n.5 (‘‘The
trial court had no difficulty discerning [the four year
old child’s] present memories of or feelings toward the
respondent. The court expressly found that [the child]
had ‘little to no memory’ of him. Accordingly, there was
no need to apply the virtual infancy exception.’’), with
In re Jessica M., supra, 217 Conn. 474 (guardians of
child who petitioned to terminate mother’s parental
rights could not rely on lack of ongoing parent-child
relationship ground when trial court’s findings ‘‘indicate
that the child recognizes the respondent as her mother,
that she would suffer some sense of loss if not permitted
to visit with her, and that the relationship between the
child and her mother is ‘an affectionate one and one
of mutual interest’ ’’).
We also disagree with the respondent’s contention
that the interference exception applies because of the
apparent inability of Tresin’s mother to foster their rela-
tionship during the respondent’s incarceration. He
argues that Tresin’s mother, although not actively
interfering in their relationship, ‘‘was barely able to
parent her children’’ and lacked ‘‘the wherewithal or
motivation to try to contact [the respondent] when he
was in prison. As a result, [the respondent] had no
knowledge regarding Tresin until the department
obtained custody of Tresin. Once Tresin was in custody,
[the respondent] kept in contact with the department
and requested contact with his son.’’ Our case law
makes clear that the interference exception is akin to
the equitable doctrine of ‘‘clean hands’’ and is triggered
only by the conduct of the petitioner rather than that
of a third party or some other external factor that occa-
sioned the separation.12 Compare In re Jacob W., supra,
330 Conn. 766–67 (interference exception was inappli-
cable to grandparent petitioners who ‘‘played no role in
setting the protective order’’ that effectively precluded
respondent father from contacting children during his
incarceration), and In re Alexander C., supra, 67 Conn.
App. 424–25 (interference exception was inapplicable
because, although child was placed in foster care within
days of birth, ‘‘the respondent, rather than the commis-
sioner, created the circumstances that caused and per-
petuated the lack of an ongoing relationship’’ by com-
mitting physical and sexual abuse of minor child’s
sibling that resulted in his incarceration and entry of
protective order), with In re Valerie D., supra, 223 Conn.
531–34 (department was precluded from relying on lack
of ongoing parent-child relationship ground when it
took temporary custody of child within days of her birth
because of mother’s continued cocaine use, with only
few months having elapsed between department taking
custody and termination hearing, because ‘‘once the
child had been placed in foster care . . . a finding of
a lack of an ongoing parent-child relationship three and
one-half months later was inevitable . . . because
absent extraordinary and heroic efforts by the respon-
dent, the petitioner was destined to have established
the absence of such a relationship’’), and In re Carla
C., supra, 167 Conn. App. 253–56, 262 (interference
exception was applicable when petitioner mother, who
was custodial parent, obtained order from prison in
which respondent father was incarcerated barring him
from all oral or written communication with her and
child, discarded cards and letters that he sent to child,
and filed motion to suspend child’s visitation with father
on ground that it was ‘‘unworkable’’). We conclude,
therefore, that the Appellate Court properly upheld the
trial court’s termination of the respondent’s parental
rights on the ground that there was clear and convincing
evidence of a lack of an ongoing parent-child relation-
ship, with the interference and virtual infancy excep-
tions being inapplicable as a matter of law.13
The judgment of the Appellate Court is affirmed.
In this opinion the other justices 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.
** December 31, 2019, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
We originally granted the respondent’s petition for certification, limited
to the following issue: ‘‘Did the Appellate Court correctly conclude that the
trial court, which terminated the respondent father’s parental rights based
on the absence of an ongoing parent-child relationship, was not required
to apply the infancy exception recognized in In re Carla C., 167 Conn.
App. 248, 143 A.3d 677 (2016)?’’ In re Tresin J., 331 Conn. 909, 202 A.3d
1022 (2019).
We note that the original certified question does not completely reflect
the issues in this appeal, particularly in the wake of our decision in In re
Jacob W., 330 Conn. 744, 762–64, 200 A.3d 1091 (2019), which clarified that
there exist two distinct exceptions to the lack of an ongoing parent-child
relationship ground for the termination of parental rights, for virtual infancy
and interference. Indeed, the Appellate Court considered the interference
claims; see In re Tresin J., 187 Conn. App. 804, 811–13, 203 A.3d 711 (2019);
which the petitioner briefed in this certified appeal and which we understand
to be factually and legally intertwined with the respondent’s virtual infancy
claims in light of In re Jacob W. Accordingly, our analysis in this appeal
reflects a rephrasing of the certified question to address the interference
exception, as well. See, e.g., In re Jacob W., supra, 747 n.1 (court may
rephrase certified questions).
2
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) . . . (D) there is
no ongoing parent-child relationship, which means the relationship that
ordinarily develops as a result of a parent having met on a day-to-day basis
the physical, emotional, moral and educational needs of the child and to
allow further time for the establishment or reestablishment of such parent-
child relationship would be detrimental to the best interest of the child
. . . .’’
3
‘‘The respondent previously had been convicted of drug related offenses.
In 2008, the respondent was convicted of possession of marijuana, and in
2011, he was convicted of possession of marijuana with intent to sell.’’ In
re Tresin J., supra, 187 Conn. App. 806 n.2.
4
We note that the respondent testified at trial that he had been released
from federal immigration custody after the United States Court of Appeals
for the Second Circuit determined that his offenses were not deportable in
nature. The respondent did not, however, introduce evidence of the federal
court’s judgment affording him relief, and the trial court deemed his immigra-
tion status ‘‘precarious,’’ there being ‘‘[n]o credible evidence . . . produced
to show that his future residence in this country is anything other than
uncertain.’’ Our independent research has confirmed the existence of a
Second Circuit decision concluding that the United States Immigration Court
had committed reversible error in denying the respondent’s application for
deferral of removal to Jamaica under the Convention Against Torture. See
Brown v. Lynch, 665 Fed. Appx. 19, 20–21 (2d Cir. 2016). We agree with
the trial court, however, that there is no evidence in the record confirming
that this is the decision that definitively granted him relief from deportation
or otherwise indicating his immigration status after the Second Circuit’s
remand of his case to the Immigration Court.
5
‘‘The [trial] court also determined that it would be detrimental to Tresin’s
best interests to allow further time for a relationship with the respondent
to develop. The respondent does not challenge this determination.’’ In re
Tresin J., supra, 187 Conn. App. 807 n.3.
6
‘‘The parental rights of Tresin’s mother also were terminated, and she
has not appealed.’’ In re Tresin J., supra, 187 Conn. App. 806 n.1.
7
The petitioner also relies on the trial court’s finding ‘‘by clear and convinc-
ing evidence that no parental relationship ever existed between [the] respon-
dent and Tresin’’ because, inter alia, the respondent ‘‘has never extended
paternal support to the child and has never provided or shown interest in
providing necessities to meet his daily needs.’’ The petitioner suggests that
the trial court, as the finder of fact, did not find credible the respondent’s
testimony that he had purchased diapers, clothes, and toys at the request
of Tresin’s mother and ‘‘pretty much [did] everything for Tresin before [he]
was incarcerated.’’ The trial court’s decision not to credit the respondent’s
testimony on this point does not—in the absence of other evidence—support
the opposite factual proposition, namely, that the petitioner has never pro-
vided material support to Tresin. See, e.g., Ventura v. East Haven, 330 Conn.
613, 641–42, 199 A.3d 1 (2019) (‘‘although the plaintiff is correct that the
jury was free to disbelieve all or any portion of [the witness’] testimony, it
was not permitted to draw a contrary inference on the basis of that disbelief’’
[internal quotation marks omitted]). Nevertheless, this is harmless error
because it remains undisputed that Tresin had no present memory of or
positive feelings toward the respondent, which provides an independent
statutory ground for the judgment terminating his parental rights.
8
Because the provisions governing the termination of parental rights under
§ 17a-112, which governs petitions regarding children previously committed
to the custody of the department, and § 45a-717, which is ‘‘the correspondent
statute for proceedings in the Probate Court’’ that governs such petitions
brought by private parties; In re Egypt E., supra, 327 Conn. 529; are virtually
identical, case law applying either statute is instructive in termination of
parental rights cases. See, e.g., id.; In re Valerie D., 223 Conn. 492, 497 n.3,
613 A.2d 748 (1992); In re Brian T., 134 Conn. App. 1, 12 n.3, 38 A.3d
114 (2012).
9
This virtual infancy inquiry, which focuses on the conduct of the respon-
dent parent rather than the present feelings and memories of the child, is
akin to the separate abandonment ground for the termination of parental
rights set forth in §§ 45a-717 (g) (2) (C) and 17a-112 (j) (3) (A). See In re
Jacob W., supra, 330 Conn. 768 (‘‘[a]n inquiry similar to that of the abandon-
ment ground cannot be applied to assess whether a petitioner has established
a lack of an ongoing parent-child relationship unless the child is an infant
at the time of the inquiry’’).
10
The respondent argues that our recent decision in In re Jacob W., supra,
330 Conn. 744, does not control because it was decided after both the
termination trial and the appeal before the Appellate Court in this case had
concluded. We disagree. It is a well established general principle that ‘‘a
rule enunciated in a case presumptively applies retroactively to pending
cases,’’ which includes decisions interpreting existing statutes. (Internal
quotation marks omitted.) State v. Elias G., 302 Conn. 39, 45, 23 A.3d 718
(2011); see id., 45–46 (concluding that this court’s interpretation of juvenile
transfer statute applied retroactively to certified appeal that was pending
when decision was issued). The defendant has not advanced any specific
arguments seeking relief from that general rule, and none is apparent to us
on the record of the present case, insofar as In re Jacob W. broke no new
ground but instead represents a distillation of existing case law. Cf. Campos
v. Coleman, 319 Conn. 36, 61, 123 A.3d 854 (2015) (discussing ‘‘the [three
part] test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349,
30 L. Ed. 2d 296 [1971], for determining whether a decision must be applied
prospectively only . . . [under which a] common-law decision will be
applied nonretroactively only if: [1] it establishes a new principle of law,
either by overruling past precedent on which litigants have relied . . . or
by deciding an issue of first impression whose resolution was not clearly
foreshadowed . . . [2] given its prior history, purpose and effect, retrospec-
tive application of the rule would retard its operation; and [3] retroactive
application would produce substantial[ly] inequitable results, injustice or
hardship’’ [internal quotation marks omitted]). But cf. In re Daniel N., 323
Conn. 640, 652–53, 150 A.3d 657 (2016) (discussing retroactive application
of decisions in which this court exercises its supervisory authority over
administration of justice).
11
Even if we were to conclude that the virtual infancy exception applies
as a matter of law, rendering the respondent’s testimony about his positive
feelings toward Tresin relevant to this appeal, we note that ‘‘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. ‘‘[E]vidence of the existence of a parent-child relationship
is to be viewed in the light of circumstances that limited visitation . . .
including the conduct of the child’s custodian at the time of the petition.’’
(Citation omitted.) Id., 273. The record indicates that the respondent was
represented by counsel during his immigration proceedings and had relatives
in the Hartford area, including a sister whom he had identified as a potential
placement resource for Tresin. There is, however, no evidence that the
respondent attempted to use those resources to foster a relationship with
Tresin, regardless of the apparent inability of Tresin’s mother to assist in
that capacity. As his attorney conceded at oral argument before this court,
the respondent’s lack of effort was consistent with his belief that he was
going to be deported to Jamaica after his imprisonment. See footnote 4 of
this opinion. Accordingly, we disagree with the respondent’s argument that
the trial court improperly found that he lacked the requisite positive feelings
toward Tresin with respect to the lack of an ongoing parent-child relationship
ground. See In re Ilyssa G., 105 Conn. App. 41, 47–48, 936 A.2d 674 (2007)
(The lack of an ongoing parent-child relationship ground supported the
termination of the respondent father’s parental rights when he had not seen
his nine year old child since she was one year old, and ‘‘his efforts to be
involved in her life consisted of visiting the department once in 2004, more
than one year after she had been removed from her mother’s care, and
calling the residential care facility where the child was to inquire about her
care. The respondent also admitted that he had not informed the department
or anyone else involved with the case of his whereabouts after he had moved
from his last address on file.’’), cert. denied, 285 Conn. 918, 943 A.2d 475
(2008); In re Alexander C., supra, 67 Conn. App. 425–27 (concluding that
‘‘the record does not reveal that the respondent had positive feelings toward
the child’’ because, during his term of incarceration, he did not seek modifica-
tion of protective order entered in light of allegations of his physical and
sexual abuse of infant child’s sibling, did not inquire about child’s health
or well-being, and did not seek out ‘‘parenting classes that would promote
the development of a relationship . . . [or] inquire about the availability
of individual counseling or sex offender treatment classes available at his
correctional facility’’).
12
By reference to his Appellate Court brief, we note that the respondent
obliquely argues that the actions of the department also constituted interfer-
ence with his attempts to reestablish contact with Tresin. Specifically, the
respondent argues that, after the department located him in federal immigra-
tion custody in Alabama, he expressed interest in having contact with Tresin,
but the department ‘‘made no efforts to allow [him] to have any contact
and opposed [his] efforts to have contact.’’ We disagree with this reading of
the interference exception, which applies when the actions of the petitioner
rendered inevitable the initial lack of a relationship, which in this case had
occurred several years before the department became involved with the
respondent and his family. See In re Jacob W., supra, 330 Conn. 766–67;
In re Valerie D., supra, 223 Conn. 533–34. Put differently, it was not the
department’s opposition to visitation on the recommendation of Tresin’s
clinicians, who deemed it potentially disruptive to the progress that he was
making with his foster mother, which resulted in the separation that led to
the lack of a parent-child relationship.
13
We agree with Justice Ecker’s apt observation that ‘‘the social reality
operating beneath the surface of . . . cases involving incarcerated parents
who lose their children as a collateral consequence of the separation that
incarceration entails’’ presents a serious question of public policy, and we
join him in commending it to the legislature for further study. See, e.g., Doe
v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 438–39, 119
A.3d 462 (2015) (noting ‘‘the legislature’s primary responsibility in pro-
nouncing the public policy of our state’’ and that legislature is better posi-
tioned to ‘‘evaluate . . . competing policy interests’’ [internal quotation
marks omitted]).