In re Jacob W.

• Decision Date: 16 November 2017
• Docket Number: AC 40202
• Citation: 172 A.3d 1274,178 Conn.App. 195
• Court: Connecticut Court of Appeals
• Parties: IN RE JACOB W. et al.

178 Conn.App. 195

172 A.3d 1274

IN RE JACOB W. et al.^*

AC 40202

Appellate Court of Connecticut.

Argued September 7, 2017

Officially released November 16, 2017^**

James P. Sexton, assigned counsel, with whom was Marina L. Green, assigned counsel, for the appellant(petitioner).

Benjamin M. Wattenmaker, assigned counsel, with whom was Amir Shaikh, assigned counsel, for the appellee(respondentfather).

Cara S. Richert, for the minor children.

DiPentima, C.J., and Prescott and Mihalakos, Js.

DiPENTIMA, C.J.

The petitioner, the maternal grandmother of the minor children,¹ appeals from the judgments of the trial court denying her petitions to terminate the parental rights of the respondentfather as to his children, J, N and C.²On appeal, the petitioner challenges the trial court's conclusion that she had failed to prove the nonexistence of an ongoing parent-child relationship by clear and convincing evidence as required by General Statutes § 45a–717(g)(2)(C).³The petitioner argues, inter alia, that the trial court applied the incorrect legal test to determine whether such a relationship exists by focusing on the respondent's actions rather than the children's feelings.⁴We agree that the trial court applied the incorrect test because the court legally and logically cannot have found both that a parent-child relationship exists and that the custodians prevented such a relationship from existing.Moreover, even under the test as applied, the trial court's conclusions are inconsistent.Accordingly, we reverse the judgments of the trial court and remand the case for a new trial.

The following facts and procedural history are relevant to our consideration of this appeal.The respondent and the mother married in 2008.They had three children together: J was born in the fall of 2006, N in the summer of 2008 and C in the summer of 2012.The respondent, the mother and the children lived together first in an apartment and then in the maternal grandparents' (grandparents) home.

In April, 2014, the respondent was arrested on several counts of sexual assault of minors.In July, 2014, the mother was arrested for conspiring with the respondent to commit the same.Although the children were not among the victims of these crimes, the mother's minor sister(aunt),⁵ who also resided with the grandparents at the time, was.

Following the parents' arrests, the grandparents successfully petitioned the Ellington Probate Court for custody.Because the aunt still resided with the grandparents, a protective order was entered prohibiting the respondent from contacting the aunt's immediate family, including her parents and siblings.

After a criminal trial, the respondent was convicted on all counts and was sentenced in January, 2016, to twenty-nine years incarceration.The mother pleaded guilty and was sentenced in March, 2015, to five years incarceration.⁶At first, the children did not know that the respondent had been incarcerated.The grandparents later told the children that the respondent was in prison for hitting their mother.The respondent has had no contact with the children since his incarceration.

The petitioner first filed her petitions for termination of both parents' parental rights in the Ellington Probate Court in November, 2015.After initially alleging the statutory ground of denial of care by parental acts of commission or omission,⁷the petitioner, with leave of the court, amended her petitions in November, 2016, to allege the statutory grounds of abandonment and the nonexistence of an ongoing parent-child relationship.The attorney for the minor children moved to transfer the matter from the Probate Court to the Superior Court, which motion was granted in May, 2016.Shortly before the trial, the court appointed a guardian ad litem to represent the best interests of the children.As part of the proceedings, the Department of Children and Families(department) was ordered to complete a social study in April, 2016, pursuant to § 45a–717(e).⁸The study ultimately recommended termination of the parental rights of the respondent, but not the mother.The mother nevertheless consented to the termination of her parental rights four months later.

After a two-day trial in January, 2017, the court denied the petition to terminatethe respondent's parental rights, concluding that the petitioner had failed to prove either abandonment or the lack of an ongoing parent-child relationship by clear and convincing evidence.In its memorandum of decision, the court made the following adjudicatory findings and legal conclusions with respect to the existence or lack of an ongoing parent-child relationship.

"Here, the court finds that the petitioner has not demonstrated that there is a lack of a parent-child relationship nor that it would be detrimental to allow further time for the establishment of the relationship.Again, prior to his incarceration, [the]respondentfather worked and provided for the children financially.[The]respondentfather threw birthday parties and actively participated in the children's daily activities.[The]respondentfather facilitated a relationship between the minor children and their maternal relatives.[The]respondentfather is prohibited from making contact with the home of the maternal grandparents/legal guardian due to a protective order.During the pendency of his incarceration, [the]respondentfather contacted the [department] to request assistance in having contact with his children.[The]respondentfather also signed up to have Christmas gifts sent to the children through a program that purchases gifts for the children of incarcerated parents.On December 9, 2014, [the]respondentfather, through the Probate Court, requested updates regarding his children.The legal guardians agreed but did not provide updates.The Connecticut Appellate Court in In re Carla C., [167 Conn.App. 248, 143 A.3d 677(2016) ] found that ‘when a custodial parent has interfered with an incarcerated parent's visitation and other efforts to maintain an ongoing parent-child relationship with the parties' child, the custodial parent cannot terminate the noncustodial parent's parental rights on the ground of no ongoing parent-child relationship.’[ Id., at 251, 143 A.3d 677 ].Further, our Supreme Court, with the legislature's acquiescence, effectively has relaxed the requirement that a noncustodial parent's provision for a child's needs be on a ‘continuing, day-to-day basis' where visitation rights are limited: ‘Our 1979 decision in In re Juvenile Appeal (Anonymous), 177 Conn. [648, 675, 420 A.2d 875(1979) ], expressly rejected the trial court's determination that no ongoing parent-child relationship meant no meaningful relationship.’[Emphasis in original.]In re Carla C., [supra, at 267 n.19, 143 A.3d 677 ].

"[The]respondentfather is prohibited from having contact with the minor children because of the protective order disallowing contact with the home of the [petitioner].Despite the order, [the]father has reached out to [the department], and the Probate Court to facilitate contact.No party has facilitated contact with the children and father.The [petitioner] agreed to facilitate contact in 2014 but has not done so.The [petitioner] is custodial and has now filed a petition to terminate[the]respondentfather's parental rights alleging lack of parental contact.The children have developed a substantial bond with the legal guardians who wish to adopt the children.The court in In re Jessica M., 217 Conn. [459, 475, 586 A.2d 597(1991) ], noted that although the ability and willingness of the guardians to adopt the child might be relevant to a best interest determination, it is irrelevant in determining whether an ongoing parent-child relationship existed.

"There was no evidence presented by the petitioner at trial that would support a claim that additional time to reestablish a relationship with the children would be detrimental.The statements of dislike by very young children with false information about their father does not establish by clear and convincing evidence that reestablishing a relationship would be detrimental."

In regard to the § 45a–717(i) criteria, the court did not find "by clear and convincing evidence that the necessary statutory ground alleged by the petitioner for the termination of the parent's parental rights have been proven.However, before making a decision on whether or not to terminate the respondents' parental rights, the court must consider and make findings on each of the six criteria set out in ... § 45a–717( [i] )."The court found the criteria to have been established by clear and convincing evidence.

Specifically, with regard to the sixth criteria concerning " ‘[t]he extent to which a parent has been prevented from maintaining a meaningful relationship by the unreasonable act of any other person or by the economic circumstances of the parent,’ "the court found that "[t]here was no evidence presented demonstrating that [the]father was prevented from maintaining a meaningful relationship by the unreasonable acts of another person or by the economic circumstances of the parent."This appeal followed.Additional facts will be set forth as necessary.

We begin with the applicable legal principles.Termination of parental rights upon a petition by a private party is defined as "the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and the child's parent ...."General Statutes § 45a–707(8)."It is, accordingly, a most serious and sensitive judicial action."(Internal quotation marks omitted.)In re Jessica M., supra, 217 Conn. at 464, 586 A.2d 597.See alsoIn re Juvenile Appeal (Anonymous), supra, 177 Conn. at 671, 420 A.2d 875.

General Statutes § 45a–715(a)(2) permits a child's guardian, among others, to petition the Probate Court to terminate the parental rights of that child's parent(s).⁹

"In order to terminate a parent's...