In re Gabriella M.

221 Conn.App. 827

303 A.3d 319

IN RE GABRIELLA M. et al. ^*

AC 46217

Appellate Court of Connecticut.

Argued September 6, 2023^**

Officially Released October 11, 2023

Matthew C. Eagan, assigned counsel, for the appellant (respondent mother).

Evan O'Roark, assistant solicitor general, with whom were Nisa Khan and Albert J. Oneto IV, assistant attorneys general, and, on the brief, William Tong, attorney general, for the appellee (petitioner).

Ingrid Swanson, for the minor children.

Alvord, Moll and Lavine, Js.

MOLL, J.

The respondent mother, Gina N., ¹ appeals from the judgments of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, terminating her parental rights as to her minor children, G and A, on the ground that she failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i). On appeal, the respondent claims that the court violated her right to substantive due process as guaranteed by the fourteenth amendment to the United States constitution by terminating her parental rights as to the children without making a finding that termination was the least restrictive means by which the petitioner could achieve the state's compelling interest in protecting the safety of the children. Assuming, without deciding, that the respondent's right to substantive due process required the court to make a "least restrictive" determination, we conclude, on the basis of the record in the present case, that the court necessarily determined that termination of the respondent's parental rights was the least restrictive disposition. Accordingly, we affirm the judgments of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to our resolution of this appeal. In April, 2019, following its investigation of reported "concerning behavior" by the respondent, ² the Department of Children and Families (department) invoked ninety-six hour holds on the respondent's children. Thereafter, the petitioner applied for ex parte orders of temporary custody and filed neglect petitions. On April 25, 2019, the court, Hon. Richard E. Burke , judge trial referee, issued orders of temporary custody, which were sustained on May 10, 2019. On July 23, 2019, the court, Conway, J. , adjudicated the children neglected ³ and committed them to the petitioner's custody. Thereafter, the petitioner placed the children in the home of their maternal grandmother, Lorraine N. On December 15, 2020, the court approved permanency plans of permanent legal guardianship to the maternal grandmother.

On September 13, 2021, the petitioner filed motions to review and to approve permanency plans of termination of the respondent's parental rights and adoption of the children. On September 14, 2021, the petitioner filed petitions to terminate the parental rights of the respondent ⁴ on the ground that, under § 17a-112 (j) (3) (B) (i), the children had been found to be neglected, abused, or uncared for in a prior proceeding and 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 the children, she could assume a responsible position in their lives. On October 21, 2021, the court, Hon. Shelley A. Marcus , judge trial referee, approved the permanency plans of termination of parental rights and adoption. ⁵ On November 16, 2021, the respondent filed a motion to transfer permanent legal guardianship to the maternal grandmother.

By agreement of the parties, the court, Chavey, J. , consolidated the hearing on the respondent's motion to transfer permanent legal guardianship with the trial on the termination petitions, which the court conducted on August 31, September 14 and October 26, 2022. On November 28, 2022, the court issued a memorandum of decision terminating the respondent's parental rights and appointing the petitioner as the children's statutory parent. The court determined that the petitioner had demonstrated, by clear and convincing evidence, that the children had been adjudicated neglected on July 23, 2019, and that the respondent had failed to sufficiently rehabilitate under § 17a-112 (j) (3) (B) (i). The court also found that the petitioner had made reasonable efforts to locate the respondent and to reunify her with the children. ⁶ The court proceeded to determine that termination of the respondent's parental rights was in the children's best interests. The court thereafter denied the respondent's motion to transfer permanent legal guardianship to the maternal grandmother. ⁷ This appeal followed. ⁸

At the outset, we set forth the following relevant legal principles. "Proceedings to terminate parental rights are governed by § 17a-112.... Under [that provision], a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional 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)] ⁹ exists by clear and convincing evidence. The [petitioner] ... in petitioning to terminate 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 countervailing interests sufficiently powerful to justify the termination 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. ...

"If the trial court determines that a statutory ground for termination exists, then it proceeds to the dispositional phase. During the dispositional phase, the trial court must determine whether termination is in the best interests of the child. ... The best interest determination also must be supported by clear and convincing evidence. ...

"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. ... In the dispositional phase ... 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 statutory factors delineated in [ § 17a-112 (k) ]. ¹⁰ ... The seven factors serve simply as guidelines for the court and are not statutory prerequisites that need to be proven before termination can be ordered. ... There is no requirement that each factor be proven by clear and convincing evidence." (Citations omitted; footnotes added; internal quotation marks omitted.) In re Christina C. , 221 Conn. App. 185, 215–17, 300 A.3d 1188 (2023).

"[A] judicial termination of parental rights may not be premised on a determination that it would be in the child's best interests to terminate the parent's rights in order to substitute another, more suitable set of adoptive parents. Our statutes and [case law] make it crystal clear that the determination of the child's best interests comes into play only after statutory grounds for termination of parental rights have been established by clear and convincing evidence." (Internal quotation marks omitted.) Id., at 217–18, 300 A.3d 1188.

On appeal, the respondent does not challenge the factual findings or legal conclusions made by the court in terminating her parental rights, nor does she claim error with respect to the court's denial of her motion to transfer permanent legal guardianship to the maternal grandmother. The respondent's sole claim, as she frames it, "is comprised of two closely related elements: (1) there is a substantive constitutional entitlement [pursuant to the due process clause of the fourteenth amendment to the United States constitution] to a less restrictive alternative to termination [of parental rights] where one exists; and (2) the trial court cannot order termination of parental rights without finding by clear and convincing evidence that such [an] alternative does not exist." See In re Azareon Y. , 309 Conn. 626, 637, 72 A.3d 1074 (2013) (describing identical claim). As the respondent contends, (1) our statutory scheme governing the termination of parental rights fails to comport with this substantive due process requirement because it does not mandate that a trial court find, as a prerequisite to terminating parental rights, that a less restrictive alternative to termination does not exist, and (2) the court's failure to make such a finding before terminating her parental rights pursuant to this statutory scheme violated her right to substantive due process. ¹¹

As the respondent concedes, she did not raise her claim of error before the trial court, and, therefore, she seeks review of her unpreserved claim under State v. Golding , 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R. , 317 Conn. 773, 781, 120 A.3d 1188 (2015). "Pursuant to Golding , 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. ... The first two steps in the Golding analysis address the reviewability of the claim, [whereas] the...