In re Oreoluwa O.

IN RE OREOLUWA O.

SC19501

Supreme Court of Connecticut

June 14, 2016

DISSENT

ESPINOSA, J., dissenting. I agree with the majority that the trial court's subordinate factual findings were not clearly erroneous, specifically, that as of December, 2013, it was unclear when the minor child in the present case, Oreoluwa O., would be medically able to travel, and, that as of the date of the trial on the petition for termination of the parental rights of the respondent father, Olusegun O., filed by the petitioner, the Commissioner of Children and Families, Oreoluwa was still not medically cleared to travel. Those subordinate factual findings, construed together with additional evidence in the record, including evidence that the respondent failed to travel to the United States in order to receive reunification services from the Department of Children and Families (department), provide sufficient evidentiary support for the trial court's ultimate factual finding pursuant to General Statutes (Supp. 2016) § 17a-112 (j) (1),¹ that, given the circumstances, the department made reasonable efforts toward reunification.² I therefore disagree with the majority that the Appellate Court improperly affirmed the judgment of the trial court terminating the parental rights of the respondent with respect to Oreoluwa. See In re Oreoluwa O., 157 Conn. App. 490, 116 A.3d 400 (2015). The majority's conclusion to the contrary fails to accord proper deference to the trial court's factual findings. That is, rather than properly viewing the evidence in the light most favorable to sustaining the judgment of the trial court and considering all of the evidence along with the reasonable inferences drawn therefrom to determine whether the record provides sufficient support for the trial court's judgment, the majority draws every inference possible to reverse that judgment. To be clear, whenever inferences may be drawn from the evidence in the record or the findings of the trial court, the majority and I draw opposite inferences—I draw the inference that supports the judgment of the trial court, while the majority draws the inference least likely to support that judgment. In addition, rather than considering the totality of the evidence, the majority reviews the record selectively, considering only the evidence that does not support the judgment of the trial court, and ignoring or discounting the evidence that does provide support. Finally, the majority turns the sufficiency of the evidence analysis on its head by grounding its conclusion that the evidence was insufficient not on a consideration of the evidence that was presented, along with reasonable inferences drawn therefrom, but on information that was not in the record. In other words, the majority examines the record to determine what was absent, and concludes that the information that was missing renders the record insufficient to support the judgment of the trial court. The majority does not cite to any authority to justify this approach to a sufficiency of the evidence inquiry.

Because I conclude that, viewing the evidence in the light most favorable to sustaining the judgment of the trial court, the Appellate Court properly affirmed the trial court's finding as to reasonable efforts; id., 502; I address the remainder of the respondent's claims on appeal, and conclude that the Appellate Court properly affirmed the trial court's finding that the respondent abandoned Oreoluwa and properly concluded that the respondent lacked standing to assert a due process challenge on behalf of Oreoluwa for alleged harms suffered by the respondent.³ Id., 506, 509. Accordingly, I respectfully dissent.

I

I begin with the issue of whether the department expended reasonable efforts toward reunification. In order to grant a petition to terminate parental rights, the trial court is required to find by clear and convincing evidence that the department "has made reasonable efforts . . . to reunify the child with the parent . . . unless the court finds . . . that the parent is unable or unwilling to benefit from reunification efforts . . . ." General Statutes (Supp. 2016) § 17a-112 (j) (1). "The word reasonable is the linchpin on which the department's efforts in a particular set of circumstances are to be adjudged . . . . Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [R]easonable efforts means doing everything reasonable, not everything possible." (Internal quotation marks omitted.) In re Samantha C., 268 Conn. 614, 632, 847 A.2d 883 (2004).

Because the question of whether the department made reasonable efforts depends on the particular circumstances of the case, I begin with the facts as evidenced in the record and found by the trial court. Pursuant to the applicable standard; see In re Shane M., 318 Conn. 569, 587-88, 122 A.3d 1247 (2015); I review the trial court's subordinate factual findings for clear error and its ultimate determinations, including the determination that the department engaged in reasonable efforts, for evidentiary sufficiency. That is, I "consider 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]." (Internal quotation marks omitted.) In re Gabriella A., 319 Conn. 775, 789, 127 A.3d 948 (2015). Because the majority does not abide by the applicable standard of review, I emphasize that "[i]t is not the function of this court to sit as the [fact finder] when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the [judgment of the trial court] . . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the [judgment] of which it is reasonably capable. . . . In other words, [i]f the [trial court] could reasonably have reached its conclusion, the [judgment] must stand, even if this court disagrees with it." (Internal quotation marks omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442, 815 A.2d 119 (2003). It is notable, as I will demonstrate later in this opinion, that the majority repeatedly and consistently construes the evidence in the manner least favorable to sustaining the judgment of the trial court.

The record reveals that the respondent's actions created a situation in which the petitioner was compelled to intervene in order to save Oreoluwa. Because of his choices and his actions, the respondent and his wife, Oreoluwa's mother, found themselves separated from their son by an ocean and the department was charged with the Herculean task of attempting to provide them with reunification services across that ocean. The trial court found that shortly before Oreoluwa's birth, his mother was among a group of pregnant Nigerian women who traveled to the United States for the purpose of giving birth in this country so that their babies would have dual citizenship in Nigeria and the United States. Although his wife suffered from mental illness, and had a history of postpartum depression, the respondent did not accompany her to the United States.

Although this account was the original explanation that the respondent and his wife offered for her trip to a foreign country so shortly before her due date, they later provided a different reason. They claimed that she had traveled here to shop for items for Oreoluwa prior to his birth, and decided to remain and deliver him here only after an ultrasound revealed that Oreoluwa had congenital heart defects. This revised account is consistent with the picture painted by the respondent of himself and his wife as hapless victims.

By contrast, the version of the story credited by the trial court reveals that the respondent took a calculated risk—gambling with the welfare of his mentally ill wife and his unborn child against the value of United States citizenship—that backfired on him, and then disavowed responsibility for the consequences of his actions and accused the petitioner of "wrench[ing]" his child from him. Any doubts as to the respondent's goals are quelled by his own words, in which he contrasted his chosen course of action with the choices of "other [A]fricans [who] are rushing to [E]urope." The ultimate goal was immigration—and there is nothing wrong with that—but it is completely disingenuous for the respondent to claim that he did not make choices that created a risk for both his unstable wife and his unborn child.

Accordingly, as a result of the respondent's own choices, when Oreoluwa was born in January, 2013, at Yale-New Haven Hospital (hospital), the respondent was in Nigeria. At the time of his birth, Oreoluwa was diagnosed with complex congenital heart disease. Specifically, he was diagnosed with "[p]ulmonary [a]tresia, [v]entricular [s]eptal [d]efect, with [m]ajor [a]ortopulmonary [c]ollateral [a]rteries including a collateral from his coronary circulation." Oreoluwa's condition required the administration of medication precisely as prescribed or he was at risk of sudden death. When he was born, his mother was informed that if Oreoluwa traveled to Nigeria, he was likely to live for only approximately one month. On the basis of that information, she chose to remain in the United States with him so that he could receive the medical treatment he needed.

Within weeks after Oreoluwa's birth, it became apparent that the mother was having difficulty caring for him. In February, Oreoluwa's pediatrician noted the mother's failure to adhere to Oreoluwa's feeding schedule, which was crucial because he needed to gain weight before he could have the first of several required surgeries. In March, 2013, following Oreoluwa's first major surgery, his...