In re Madison C.

• Citation: 213 Conn.App. 164,277 A.3d 247
• Decision Date: 08 June 2022
• Docket Number: AC 44926
• Parties: IN RE MADISON C. et al.
• Court: Appellate Court of Connecticut

213 Conn.App. 164

277 A.3d 247

IN RE MADISON C. et al.^*

AC 44926

Appellate Court of Connecticut.

Argued February 3, 2022

Officially released June 8, 2022^**

Albert J. Oneto IV, assigned counsel, for the appellant (respondent mother).

Benjamin Abrams, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Evan O'Roark, assistant attorney general, for the appellee (petitioner Commissioner of Children and Families).

Moll, Cradle and Clark, Js.

CLARK, J.

Following the termination of her parental rights as to her three children,¹ the respondent, Patricia K., filed a petition for a new trial (petition),² pursuant to General Statutes § 52-270.³ In response, the Commissioner of Children and Families (commissioner) filed a motion to strike for failure to state a claim upon which relief can be granted, which the court ultimately granted and rendered judgment thereon. The respondent appeals from that judgment, claiming that the court improperly granted the motion to strike her petition because she had alleged newly discovered evidence that, if known during the pendency of her trial, likely would have altered the outcome.⁴ Because the facts averred in the respondent's petition do not constitute newly discovered evidence within the meaning of § 52-270, we affirm the judgment of the trial court.

The following facts, as summarized by this court in the respondent's direct appeal from the judgments terminating her parental rights; see In re Madison C. , 201 Conn. App. 184, 241 A.3d 756, cert. denied, 335 Conn. 985, 242 A.3d 480 (2020) ; and procedural history are relevant to our resolution of this appeal. The respondent and Chester C. are the biological parents of Madison, Ryan, and Andrew. Id., at 186, 241 A.3d 756. The Department of Children and Families (department) became involved with the family in 2013, when Madison tested positive for marijuana and methadone upon birth. Id. Ryan, too, tested positive for marijuana and methadone when he was born in 2015. Id. Both Madison and Ryan were discharged from the hospital in the care of their parents. Id. In April, 2017, the police responded to a domestic dispute at the family's home where they found drug paraphernalia. Id. The police also found that the house was in deplorable condition. Id. On May 2, 2017, Madison and Ryan were removed from their parents’ care pursuant to an order of temporary custody and placed in a nonrelative foster home. Id. That day, the commissioner also filed neglect petitions as to Madison and Ryan, alleging that they were being permitted to live under conditions, circumstances, or associations injurious to their well-being. Id.

When Andrew was born in November, 2017, he tested positive for marijuana, methadone, and cocaine. Id., at 187, 241 A.3d 756. Pursuant to an order of temporary custody, Andrew was discharged from the hospital to the care of a nonrelative foster family. Id. On November 20, 2017, the commissioner filed a neglect petition as to Andrew on the basis of predictive neglect. Id. On November 30, 2017, the court, Hon. Barbara M. Quinn , judge trial referee, consolidated the three neglect petitions, adjudicated the children neglected, and ordered them committed to the custody of the commissioner. Id. The court also ordered specific steps for the respondent and Chester C. Id.

On February 1, 2019, the commissioner filed petitions to terminate the parental rights of the respondent and Chester C. to each of the three children "on the grounds that the court in the prior proceeding found the children to have been neglected, and [the parents] had failed to achieve the degree of personal rehabilitation that would encourage the belief that, within a reasonable time and considering the ages and needs of the children, they could assume a responsible position in their children's lives."⁵ Id. ; see General Statutes § 17a-112 (j) (3) (B) (i). The court, Aaron, J. , tried the termination of parental rights petitions on August 5, 6, 7, and 16, 2019.⁶ In re Madison C. , supra, 201 Conn. App. at 188, 241 A.3d 756. On August 16, 2019, prior to the close of evidence, the commissioner withdrew the termination petitions as to Chester C.⁷ Id.

The court issued a memorandum of decision on November 8, 2019, granting the petitions to terminate the respondent's parental rights to the children. Id. In the adjudicatory phase of the proceedings, the court found by clear and convincing evidence that the respondent had not and would not achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the ages and needs of all three children, she could assume a responsible position in their lives. Id., at 188–89, 241 A.3d 756.

In the dispositional phase of the proceedings, the court made findings on the criteria set forth in § 17a-112 (k), and "noted that the respondent had not successfully taken advantage of or complied with the services provided by the department and had not shown a willingness or ability to provide a safe and nurturing environment in which she appropriately could parent the children. Additionally, the court found that there was credible evidence to suggest that the ‘toxic relationship between the parents and [the] respondent's overbearing and manipulative behavior toward [Chester C.] is an impediment to [Chester C.’s] effective parenting of the children.’ " Id., at 189, 241 A.3d 756. The court rendered judgments terminating the respondent's parental rights to each of the children. The respondent appealed.

On appeal to this court, the respondent did not challenge Judge Aaron's findings that she had failed to rehabilitate, had not taken advantage of the services offered to her by the department, had not shown a willingness or ability to provide a safe and nurturing environment for the children or that her behavior toward Chester C. was an impediment to his ability to effectively parent the children. See id., at 189, 241 A.3d 756. Rather, she claimed that the "court deprived her of her substantive due process rights as guaranteed by the fourteenth amendment to the United States constitution because termination of her parental rights was not the least restrictive means necessary to ensure the state's compelling interest in protecting the best interests of the children." Id., at 189–90, 241 A.3d 756.

The respondent's argument that there were less restrictive alternatives to the termination of her parental rights was predicated on the commissioner's withdrawal, on the last day of trial, of the termination petitions as to Chester C., which resulted in the commissioner's filing of new permanency plans to reunify the children with Chester C., rather than to place them for adoption.

Id., at 191, 241 A.3d 756. She argued that, because there was a change of permanency plans, "alternatives to termination were appropriate because the court did not base its decision on a finding that she posed a physical threat to the safety of the children or that she would abuse her parental status in ways that could harm the children if the children were reunified with Chester C. Rather, she argue[d], the court based its decision to terminate [her parental rights] on its concern that she was ‘an impediment to [the] father's effective parenting of the children.’ She contend[ed] that the trial court's concerns about the potential for her to undermine Chester C.’s parenting could have been addressed through further orders limiting her guardianship, rather than by terminating her parental rights." Id. The respondent, however, acknowledged that she had not preserved this claim of constitutional error at trial; id., at 190, 241 A.3d 756 ; and sought to prevail on appeal pursuant to 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).

This court concluded that the record was inadequate to review the respondent's unpreserved constitutional claim and affirmed the judgments of the trial court. In re Madison C. , supra, Turner v. Commissioner of Correction , 201 Conn. App. 196, 242 A.3d 512 ; see also State v. Golding , supra, 213 Conn. at 239, 567 A.2d 823 (party can prevail on constitutional claim that was not preserved at trial only if record is adequate to review alleged error). In reaching this conclusion, this court noted that the respondent had not proposed any alternative permanency plans at trial that would have addressed the trial court's concerns while allowing her to maintain her parental rights. In re Madison C. , supra, at 196, 241 A.3d 756. "[T]he only possible reference to an alternative plan came, not during the presentation of evidence, but during closing arguments when the respondent's counsel stated: ‘If your plan is to reunify with the father and not free these children for adoption, I submit that my client's parental rights should not be terminated in this matter.’ " Id., at 194, 241 A.3d 756. In the absence of alternative proposals, the trial court had no factual predicates on which to make a finding as to whether there were narrower means, other than termination, available to protect the children's welfare and afford them permanency. Id., at 194–96, 241 A.3d 756. Accordingly, this court concluded that the respondent's failure to raise this claim at trial, file a motion to reargue or seek an articulation as to whether the court had considered alternatives to terminating her parental rights "left the record devoid of evidence and findings necessary to review her constitutional claim." Id., at 194, 241 A.3d 756.

On January 21, 2021, the respondent filed the instant petition for a new termination of parental rights trial pursuant to § 52-270. She alleged in relevant part that "[o]n or about August 16, 2019, the ... commissioner withdrew the petitions to terminate [Chester C.’s] parental rights, but proceeded with a trial to terminate the [respondent's] parental rights. ... [P]ursuant to the ...