In re Athena C.

181 Conn.App. 803

186 A.3d 1198

IN RE ATHENA C.^*

AC 40809

Appellate Court of Connecticut.

Argued January 29, 2018

Officially released April 30, 2018^**

David J. Reich, for the appellant (respondent father).

John E. Tucker, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Keller, Bright and Norcott, Js.

NORCOTT, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Athena C. The respondent claims that the trial court improperly (1) determined that the termination of his parental rights was in the child's best interest; and (2) denied his motion to transfer guardianship of the child to the child's maternal grandmother (grandmother).¹ We affirm the judgment of the trial court.

The following relevant facts were found by the court or are otherwise undisputed. On October 30, 2015, the petitioner, the Commissioner of Children and Families (petitioner), filed coterminous petitions of neglect and termination of the respondent's and the mother's parental rights to their child.² Subsequently, the petitioner also filed a motion to review and approve the permanency plan of termination of parental rights and adoption. By way of background, the Department of Children and Families (department) became involved with the family due to incidents of domestic violence and the mother's serious recurrent substance abuse. The department had twice obtained temporary custody of the child and placed her with her current foster parents. On both occasions, the grandmother declined to take care of the child due to age and health issues. At the time of the second placement, the child already was staying with the foster parents under an informal arrangement and the grandmother suggested to the department that the child remain in their care. At the time of disposition, the child was four years old and had been living with the foster parents for more than two years.

On July 19, 2016, the mother filed a motion for transfer of guardianship of the child to the grandmother, which was adopted by the respondent. The mother then sought to consolidate this motion with the coterminous petitions. Thereafter, the trial court consolidated the above matters and heard argument over the course of a five day trial. The court heard testimony from various witnesses, including the grandmother, the foster mother, the court-appointed psychologist, Derek Franklin, and an independent psychologist, Bruce Freedman, who had been retained by the mother. On July 25, 2017, the court, Hon. Henry S. Cohn , judge trial referee, in an oral decision, adjudicated the child neglected on the ground that she had been denied proper care and attention and permitted to live under conditions injurious to her well-being. In the same decision, the court terminated the parental rights of the respondent and the mother on the ground that they had failed to rehabilitate within a reasonable time, and denied the mother's motion to transfer guardianship. This appeal followed.

After hearing argument, this court, sua sponte, issued an order for articulation and supplemental briefing. Specifically, we ordered the court to "please articulate what other facts [it] found, besides the existence of the bond between the child and her foster parents, to support its determination that termination of parental rights was in the child's best interest and its denial of the motion to transfer guardianship to the maternal grandmother." The trial court thereafter filed an articulation with this court, which states in relevant part: "In determining that terminating the respondent parents' parental rights is in [the child's] best interest, the court has considered various factors, including her interest in sustained growth, development, well-being, and in the continuity and stability of her environment ... her age and needs; the length and nature of her stay in foster care; the contact and lack thereof that she has had with her father and mother; the potential benefit or detriment of her retaining a connection with her biological parents; [and] her genetic bond to each birth parent ... and the seven statutory factors and the court's finding thereon. The court has also balanced [the] child's intrinsic need for stability and permanency against the potential benefit of maintaining a connection with her biological parents.... In consideration of all these factors and after weighing all of the evidence, the court found that clear and convincing evidence established that it was in the best interests of [the] child to terminate the parental rights of both respondent parents." (Citations omitted; internal quotation marks omitted.) In light of the trial court's articulation, the parties provided supplemental briefing. Additional facts will be set forth as necessary.

I

The respondent first claims that the trial court improperly determined that the termination of his parental rights was in the best interest of the child. Specifically, the respondent argues that the court, in basing its dispositional finding on the child's bond with the foster parents and the extended duration for which she had lived with them, essentially engaged in an improper comparison of the "foster parents' relationship with the child and the stability of their home with that of the biological parents." In making this argument, the respondent relies on In re Paul M. , 154 Conn. App. 488, 107 A.3d 552 (2014), where this court observed that it is "improper for a termination of parental rights to be grounded on a finding that a child's prospective foster or adoptive home will be ‘better’ than life with one or more biological parent." Id., at 505, 107 A.3d 552. The respondent acknowledges that our observation in In re Paul M. addresses a comparison of material advantages between the homes of foster and biological parents. He argues, however, that the trial court's reasoning amounted to a comparison of "relative abilities to care for the child" and that "[s]uch a comparison is just as damaging as comparing material advantage because it would also tend to prejudice the court to look at the advantages of the adoptive placement rather than the statutory grounds."

In his supplemental brief, the respondent also argues that the "statutory finding regarding the positive bond that the child has with the foster parents should ... not be used to support a termination." Rather, it "should only be used as a factor in finding that it would not be in the child's best interest to terminate ... parental rights." (Emphasis omitted.) Finally, the respondent argues that the court's reliance on the child's bond with the foster parents constituted an improper consideration, at the dispositional phase of the termination proceeding, of where the child should reside posttermination.³

We disagree that the trial court's consideration of the child's bond with the foster parents was improper, or that it led to an improper determination of where the child would reside. We also disagree with the respondent's theory of how the best interest standard should be applied.

"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 considering 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 therefrom, 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." (Citations omitted; internal quotation marks omitted.) In re Egypt E. , 327 Conn. 506, 525–26, 175 A.3d 21 (2018).

"[A] hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition.... In the adjudicatory phase, the trial court determines whether one of the statutory grounds for termination 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 regarding seven factors delineated in ... § [17a–112 (k) ]."⁴

(Internal quotation marks omitted.) In re Joseph M. , 158 Conn. App. 849, 858–59, 120 A.3d 1271 (2015).

"In the dispositional phase of a termination of parental 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 trial 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 continuity 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...