In re Oreoluwa O.

321 Conn. 523

139 A.3d 674

In re OREOLUWA O.^*

No. 19501.

Supreme Court of Connecticut.

Argued Nov. 5, 2015.

Decided May 31, 2016.^**

Michael S. Taylor, assigned counsel, with whom were James P. Sexton, assigned counsel, Hartford, and, on the brief, Matthew C. Eagan, assigned counsel, for the appellant (respondent father).

Michael Besso, assistant attorney general, with whom were Jessica B. Gauvin, assistant attorney general, and, on the brief, George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Owen Murphy, for the minor child.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and ROBINSON, Js.

EVELEIGH, J.

In this certified appeal,¹ we must decide whether the Appellate Court properly affirmed the judgment of the trial court terminating the parental rights of the respondent father, Olusegun O., as to his minor son, Oreoluwa O.² See In re Oreoluwa O., 157 Conn.App. 490, 116 A.3d 400 (2015). On appeal, the respondent asserts, inter alia, that the Appellate Court improperly affirmed the judgment of the trial court concluding that the Department of Children and Families (department) had made reasonable efforts to reunify Oreoluwa with the respondent in accordance with General Statutes (Supp.2016) § 17a–112 (j)(1).³ We agree with the respondent and, accordingly, reverse the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following relevant facts and procedural history. “The respondent, together with his wife, Oreoluwa's mother,⁴ live in Nigeria. Oreoluwa's mother traveled to the United States while pregnant [and gave birth to him in the United States]. Prior to his birth, it was determined that he suffered significant congenital heart defects, and he was diagnosed with several complex heart conditions after he was born. Initially, he was released from the hospital to his mother's care, and the two lived with a family in Milford for a short time after his birth before moving into a hotel. In mid-April, 2013, when he was approximately three months old, Oreoluwa was readmitted to the hospital, where medical personnel observed his mother behaving erratically and having difficulty administering his medications.

“On May 3, 2013, the petitioner, the Commissioner of Children and Families (commissioner), sought from the court an order of temporary custody and filed a neglect petition as to Oreoluwa. The commissioner alleged that Oreoluwa was neglected in that he was being denied proper care and was being permitted to live under conditions injurious to his [well-being], and that he was uncared for in that his home could not provide the specialized care that he required. Oreoluwa was adjudicated neglected and committed to the custody of the commissioner. The court approved specific steps for the respondent to take so he could be reunited with Oreoluwa. On December 23, 2013, the commissioner filed a petition for the termination of the respondent's parental rights regarding Oreoluwa on the grounds that (1) Oreoluwa had been abandoned by the respondent in the sense that he failed to maintain a reasonable degree of interest, concern, or responsibility as to [Oreoluwa's welfare], and (2) there was no ongoing parent-child relationship with the respondent ‘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 [Oreoluwa] ... and [that] to allow further time for the establishment or reestablishment of the parent-child ... relationship would be detrimental to [Oreoluwa's] best interests....' On February 27, 2014, the court entered a default as to the respondent because of his failure to appear at the plea hearing....

“The hearing on the termination of parental rights petition was held on March 12, 2014. On March 20, 2014, the court rendered an oral decision terminating the parental rights of the respondent. The respondent subsequently filed a motion for reargument and reconsideration, which was denied. On June 14, 2014, the respondent [appealed]. The respondent also filed a motion for articulation of the decision to terminate parental rights, which was denied. The respondent filed a motion for review with [the Appellate Court], which granted the motion. On October 10, 2014, the trial court issued its articulation.

“The court found by clear and convincing evidence pursuant to ... § 17a–112 (j)(1) that the department made reasonable efforts to reunify Oreoluwa with the respondent given the circumstances. The court noted that ‘the [respondent's] absence from the state, and indeed from this country, has limited the type and number of services that the department has been able to provide to him. When a parent is not available to participate in services, the reasonableness of the department's efforts must be judged in that context.’ The court explained that although the department was not able to provide [the respondent with] services, it had provided him with contact information for the Nigerian consulate in New York, maintained communication with him, investigated a possible placement resource for Oreoluwa suggested by the respondent, and attempted, although unsuccessfully, to set up visitation via [an Internet based video conference system known as] Skype....

“After finding that the allegations of the petition were proven by clear and convincing evidence, the court then determined whether termination was in the best interest of Oreoluwa. The court considered the seven statutory factors and [in its articulation] made written findings as to each factor pursuant to § 17a–112 (k). The court ultimately concluded that there was clear and convincing evidence that it was in Oreoluwa's best interest to terminate the respondent's parental rights.” (Footnotes altered.) In re Oreoluwa O., supra, 157 Conn.App. at 493–96, 116 A.3d 400.

The respondent appealed from the judgment of the trial court to the Appellate Court. On appeal, the respondent claimed that the trial court improperly determined that “(1) the [department] made reasonable efforts to reunify him with Oreoluwa, (2) the respondent abandoned Oreoluwa, and (3) the respondent had no ongoing parent-child relationship with Oreoluwa. He also claim[ed], on behalf of Oreoluwa, that the guarantee of due process under the fourteenth amendment to the United States constitution required the trial court to provide the respondent with notice of alternative means of participation in the termination trial and required the court to undertake reasonable efforts to use those alternative means.” Id., at 492–93, 116 A.3d 400.

The Appellate Court affirmed the judgment of the trial court. In regard to the reunification efforts, the Appellate Court recognized as follows: “The department maintained communication with the respondent via e-mail and telephone calls, and, when the respondent indicated a possible placement resource for Oreoluwa with an attorney in Philadelphia, the department contacted the potential resource. The department was later informed by the [respondent], however, that he no longer wished for the potential placement resource to be involved. Although the respondent argues that these efforts by the department did not actually relate to reunification, we conclude that under the circumstances of the present case, the actions taken by the department were reasonable and related to reunification.” Id., at 501, 116 A.3d 400.

The Appellate Court further concluded that the trial court's findings as to reasonable efforts had adequate evidentiary support. Id. In regard to the trial court's finding “that the respondent's absence from the country prevented the department from being able to provide him with any services,” the Appellate Court agreed that “the reasonableness of the department's efforts must be assessed in light of this key finding.” Id. In view of the foregoing, the Appellate Court concluded that “the trial court's finding that the department made reasonable efforts to reunify Oreoluwa with the respondent was not clearly erroneous.” Id., at 502, 116 A.3d 400. This appeal followed.

Although the respondent has raised several issues on appeal to this court,⁵ we need address only one, because our resolution of that claim is dispositive of the appeal. The respondent claims that the Appellate Court improperly affirmed the judgment of the trial court because the department failed to undertake the reasonable efforts required by § 17a–112 (j)(1) to reunite him with Oreoluwa before it filed the petition to terminate his parental rights. We conclude that the department failed to undertake such efforts and, accordingly, we reverse the judgment of the Appellate Court on that basis.

Pursuant to § 17a–112 (j),⁶ the trial court must make certain required findings after a hearing before it may terminate a party's parental rights. It is well established that, “[u]nder § 17a–112, 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) ] exists by clear and convincing evidence.... In contrast to custody proceedings, in which the best interests of the child are always the paramount consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun.... Section [17a–112 (j)(3) ] 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.” (Citation omitted; footnote omitted; internal quotation marks omitted.) In re Eden F., 250 Conn. 674, 688–89, 741 A.2d 873 (1999). “If the trial...