In re Anthony L.

194 Conn.App. 111

219 A.3d 979

IN RE ANTHONY L. et al.^*

AC 42534

Appellate Court of Connecticut.

Argued September 5, 2019

Officially released October 21, 2019^**

Matthew C. Eagan, assigned counsel, with whom was James P. Sexton, assigned counsel, for the appellant (respondent mother).

Evan O'Roark, assistant attorney general, with whom were Benjamin Zivyon, assistant attorney general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).

Christopher DeMatteo, for the minor children.

Lavine, Prescott and Bear, Js.

PER CURIAM.

The respondent mother appeals from the judgments of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families,¹ terminating her parental rights with respect to each of the three oldest of her four minor children on the grounds that the respondent failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i).² On appeal, the respondent claims that her and her children's substantive due process rights were violated as a result of the trial court's analysis of whether termination of her parental rights was in the children's best interests. Specifically, the respondent claims that the court's failure to conduct a factual inquiry into the petitioner's three permanency plans, which called for the termination of her parental rights and adoption,³ in its best interest analysis denied her substantive due process of law. She claims that, because adoption was not going to occur immediately, due process required the court to determine whether the permanency plans secured a more permanent and stable life for each of the children compared to that which she could provide if she were given time to rehabilitate herself.

The record, however, contains insufficient evidence in support of such a claim because it was not raised and pursued by the respondent during trial. Neither the petitioner nor the court were aware, during trial, that it would be asserted as a claim on appeal. Accordingly, for the reasons set forth herein, we decline to review the respondent's unpreserved claim and, therefore, affirm the judgments of the trial court.⁴

The respondent failed to raise her substantive due process claim in the trial court and, accordingly, she seeks review by this court pursuant to State v. Golding , 213 Conn. 233, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015).⁵ ''[A] [respondent] can prevail on a claim of constitutional 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 ... exists and ... deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent's] claim will fail. The appellate tribunal is free, therefore, to respond to the [respondent's] claim by focusing on whichever condition is most relevant in the particular circumstances.'' (Emphasis in original; footnote omitted.) Id., at 239–40, 567 A.2d 823. In this case, we focus on the first prong of Golding .

In assessing whether the first prong of Golding has been satisfied, it is well recognized that "[t]he [respondent] bears the responsibility for providing a record that is adequate for review of [her] claim of constitutional error. If the facts revealed by the record are insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt to supplement or reconstruct the record, or to make factual determinations, in order to decide the [respondent's] claim." (Internal quotation marks omitted.) In re Julianna B. , 141 Conn. App. 163, 168–69, 61 A.3d 606, cert. denied, 310 Conn. 908, 76 A.3d 625 (2013) ; In re Johnson R. , 121 Conn. App. 464, 469, 994 A.2d 739 (2010), aff'd, 300 Conn. 486, 15 A.3d 145 (2011). "The reason for this requirement demands no great elaboration: in the absence of a sufficient record, there is no way to know whether a violation of constitutional magnitude in fact has occurred." (Internal quotation marks omitted.) In re Azareon Y. , 309 Conn. 626, 635, 72 A.3d 1074 (2013).

The record reveals that the respondent and the children's biological father were involved in an abusive relationship for approximately six years. During this relationship, they conceived four children together. On November 1, 2016, the three older children were removed from their parents' care on orders of temporary custody due to ongoing and significant domestic violence between the parents, transience, substance abuse and mental health concerns. The children subsequently were placed with their maternal grandmother, with whom they have resided during the pendency of the proceedings. On March 26, 2018, after the court approved the petitioner's proposed permanency plan for each child; see footnote 7 of this opinion; the petitioner filed petitions for the termination of the respondent's and the father's parental rights as to each of the children, alleging that each of the children had been adjudicated neglected, and that both parents had failed to rehabilitate pursuant to § 17a-112 (j) (3) (B) (i)⁶ such that neither could be relied on responsibly to parent their children within the reasonably foreseeable future. A trial was held and, on November 13, 2018, the court granted each of the petitions for termination of parental rights.

The court's memorandum of decision reveals that, during the adjudicatory phase, the court considered the evidence and determined that the respondent failed to achieve sufficient personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i). In its best interest analysis in the dispositional phase, the court examined relevant factors including "[the children's] interest in sustained growth, development, well-being, stability and continuity of their environment ... [as well as] their length of stay in foster care, the nature of the relationship with their biological parents, the degree and quality of contact maintained with the biological parents, and their genetic bonds to the extended family," ultimately concluding that termination of parental rights was in the best interests of each of the three children. The court did not, however, address separately the findings underlying the petitioner's permanency plans for the children.⁷ Pursuant to our review of the record, we conclude that the respondent's claim is not reviewable under the first prong of Golding because the respondent has failed to provide this court with an adequate record for review.

Our Supreme Court has declined to review a respondent mother's Golding claim when the respondent failed to satisfy Golding 's first prong. In In re Azareon Y. , the respondent mother argued that the "deficiency in the evidentiary record [relevant to whether the permanency plan ordered was the least restrictive means necessary to secure the state's compelling interest in safeguarding the best interests of her children] confirm[ed] that the trial court could not have undertaken the constitutional analysis that substantive due process required." In re Azareon Y. , supra, 309 Conn. at 633, 72 A.3d 1074. Similar to the argument put forth by the respondent in the present matter, the respondent in In re Azareon Y. relied on the fundamental liberty interest that parents have in the " ‘care, custody and control of their children’ " to claim that the best interest analysis undertaken by the court was flawed. Id., at 636, 72 A.3d 1074.

The respondent in In re Azareon Y. proposed that a judicial gloss be imposed on our termination of parental rights statute, § 17a-112, that places the burden on the petitioner to establish, by clear and convincing evidence, that a statutorily recognized permanency plan shown to be less restrictive than the termination of parental rights would not be appropriate in that case.⁸ See id. Our Supreme Court noted that if it were to allow the respondent's attempt to transform her claim of "deficient analysis by the trial court" into a claim alleging a "constitutionally deficient standard "; (emphasis in original) id., at 639, 72 A.3d 1074 ; it would permit future "claim[s] lacking a factual predicate in the record [to] be reframed as a pure legal question as to whether a deficient standard had been applied." Id., at 640, 72 A.3d 1074. Our Supreme Court declined to reach the merits of the respondent's claim.

In the present case, the respondent's claim mirrors that of the respondent in In re Azareon Y. First, she asserts that the record contains no evidence relevant to the details of the posttermination likelihood or reality of permanency for each of the children. Like the respondent in In re Azareon Y. , she relies on that dearth of evidence to support her argument that the court's best interest analysis was flawed, asserting that without undertaking an inquiry into the details of the likelihood or reality of permanency for the children, the court's analysis could not have been constitutionally proper. Relying on the same fundamental liberty interest at issue in In re Azareon Y. , the respondent argues that "to justify the permanent destruction of the fundamental liberty interests shared by the respondent and her children, the [petitioner] must demonstrate that termination will result in the children being provided a more permanent home than would result from continued reunification efforts."

The petitioner, however, satisfied the court on this point. In the disposition phase of the hearing, the court found that the petitioner did prove that the children's best interests were served by their living with their maternal grandmother: "[T]he children...