In re Denzel A.

• Decision Date: 22 June 1999
• Docket Number: (AC 18225)
• Citation: 53 Conn. App. 827,733 A.2d 298
• Parties: IN RE DENZEL A
• Court: Connecticut Court of Appeals

53 Conn. App. 827

733 A.2d 298

IN RE DENZEL A¹

(AC 18225)

Appellate Court of Connecticut.

Argued February 19, 1999.

Officially released June 22, 1999.

Schaller, Sullivan and Dupont, JS. Teri E. Bayer, for the appellant (intervening maternal grandmother).

Michael McKenna, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman, assistant attorney general, for the appellee (petitioner).

Lisabeth B. Mindera, for the minor child.

Opinion

DUPONT, J.

This appeal arises out of an action for termination of parental rights. The maternal grandmother of the minor child, Denzel A., appeals from the judgment of the trial court terminating the parental rights of Denzel's mother and father. On appeal, the grandmother claims that the trial court improperly (1) found that it was in Denzel's best interests to terminate his parents' parental rights and (2) failed to consider the grandmother's motion requesting revocation of commitment and transfer of Denzel from the guardianship and custody of the commissioner of children and families to her.

The following facts are pertinent to our resolution of this appeal. Denzel was born on March 12, 1993. On December 28, 1995, the commissioner filed a petition claiming Denzel was a neglected or uncared for child. On May 15, 1996, the petition was granted and Denzel was committed to the care of the commissioner as an uncared for child for a period of twelve months.² The commitment was thereafter extended.

Denzel's mother, M, has ongoing emotional problems. She has not visited or maintained an interest in her son and she has had no contact with him since November, 1995. She alleges that Denzel's father is her own father and that he sexually abused her and fathered all four of her children. M's father has never been adjudicated the father of Denzel, his whereabouts are unknown and he has played no part in Denzel's life. Denzel has three older sisters, who reside with his and their maternal grandmother, the appellant.

On September 5, 1997, the commissioner filed a petition, pursuant to General Statutes (Rev. to 1997) § 17a-112,³ seeking to terminate the mother's and father's parental rights to Denzel. On November 12, 1997, the trial court granted the grandmother's motion to intervene, allowing her to intervene in the dispositional phase of the proceedings but not in the adjudicatory phase. Hearings on the petition for termination were held on December 10, 1997, and February 27, 1998. Neither parent attended the hearings. On December 17, 1997, the grandmother filed a motion for revocation of commitment and transfer of guardianship and custody pursuant to General Statutes (Rev. to 1997) § 46b-129 (g).⁴ On February 27, 1998, in an oral decision,⁵ the trial court found clear and convincing evidence to support the termination of parental rights of Denzel's mother and father, and appointed the commissioner as Denzel's statutory parent. Specifically, the trial court found that the commissioner established by clear and convincing evidence the adjudicatory grounds of abandonment, failure to achieve rehabilitation and no ongoing parent-child relationship with respect to both parents.⁶ Furthermore, the trial court, in the dispositional phase, found by clear and convincing evidence that it was in Denzel's best interests that parental rights be terminated. The court also ordered a case plan for permanency within ninety days. See General Statutes (Rev. to 1997) § 17a-112 (i).⁷

The grandmother does not challenge the trial court's finding that the statutory grounds for the termination of parental rights existed. Her motion to intervene in the adjudicatory phase of the hearing was denied, and this appeal does not address any of the trial court's findings with respect to that phase of the hearing. She claims, instead, that the trial court improperly determined that termination of parental rights was in Denzel's best interests.⁸ She also claims that the trial court improperly failed to consider her motion for revocation of the commitment of Denzel to the commissioner, and improperly failed to transfer Denzel's guardianship and custody to her.⁹

"The standard for review on appeal [from a termination of parental rights] is whether the challenged findings are clearly erroneous. In re Luis C., [210 Conn. 157, 166, 554 A.2d 722 (1989)]; In re Christina V., 38 Conn. App. 214, 223, 660 A.2d 863 (1995). The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [any challenged] finding is not supported by the evidence and [is], in light of the evidence in the whole record, clearly erroneous....

"On appeal, our function is to determine whether the trial court's conclusion was legally correct and factually supported. In re Michael M., [29 Conn. App. 112, 121, 614 A.2d 832 (1992)]; In re Megan M., 24 Conn. App. 338, 342, 588 A.2d 239 (1991) .... We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached; Pandolphe's Auto Parts, Inc. v. Manchester, [181 Conn. 217, 222, 435 A.2d 24 (1980)]; nor do we retry the case or pass upon the credibility of the witnesses. In re Christine F., 6 Conn. App. 360, 366-67, 505 A.2d 734, cert. denied, 199 Conn. 808, 809, 508 A.2d 769, 770 (1986). Rather, on review by this court every reasonable presumption is made in favor of the trial court's ruling....

"A hearing on a petition to terminate parental rights consists of two phases, adjudication and disposition. In re Tabitha P., 39 Conn. App. 353, 360, 664 A.2d 1168 (1995). 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, the trial court determines whether termination is in the best interests of the child." (Citations omitted; internal quotation marks omitted.) In re Danuael D., 51 Conn. App. 829, 836-37, 724 A.2d 546 (1999); In re Roshawn R., 51 Conn. App. 44, 51-52, 720 A.2d 1112 (1998). It is thus possible for a court to find that a statutory ground for termination of parental rights exists but that it is not in the best interests of the child to terminate the parental relationship, although removal from the custody of the parent may be justified. In re Baby Girl B., 224 Conn. 263, 279-80, 618 A.2d 1 (1992).

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 parents' 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 General Statutes (Rev. to 1997) § 17a-112 (e).¹⁰

Here, the grandmother claims that even though statutory grounds exist for termination of parental rights, it is not in Denzel's best interests that those rights be terminated. The grandmother claims that Denzel should remain committed to the custody of the commissioner in order to allow the grandmother to establish a relationship with him and eventually to assume guardianship. In essence, the grandmother argues for time so that she could be considered in the future as a resource for Denzel. She claims that it is in Denzel's best interests to be placed eventually with her and his biological family rather than to terminate parental rights, which would allow him to be freed for adoption by strangers.

This case requires a resolution of the parameters of the role of an intervening grandparent in the dispositional phase of a termination of parental rights action. During the dispositional phase, the court must consider all of the facts that are relevant to the welfare of the child. "Termination of parental rights does not follow automatically from parental conduct justifying the removal of custody." In re Baby Girl B., supra, 224 Conn. 279. After the statutory grounds for termination are proved by clear and convincing evidence in an adjudicatory phase, the question then to be decided in a dispositional phase is whether it is in the best interests of the child to sever the parent-child relationship. That is different from the question of who should have custody of the child if termination of parental rights is determined to be in the best interests of the child. See Practice Book § 33-5.¹¹

The only reason in this case not to sever the parent-child relationship would be if the severance would ensure that Denzel could reside with his grandmother. Where he should reside and with whom, however, are not questions that relate to whether it is in his best interests to terminate his relationship with his parents. "It bears emphasis that 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." In re Baby Girl B., supra, 224 Conn. 280. The purpose of the intervention of a grandparent in a termination of parental rights case does not include the right to effect an adoption or to obtain custody for the grandparent but is solely for the purpose of affecting the termination itself. In re Ryan V., 46 Conn. App. 69, 72, 698 A.2d 371 (1997).

The appellant...