In re Skylar B.

• Decision Date: 17 May 2021
• Docket Number: AC 43916
• Citation: 204 Conn.App. 729,254 A.3d 928
• Parties: IN RE SKYLAR B.
• Court: Connecticut Court of Appeals

204 Conn.App. 729

254 A.3d 928

IN RE SKYLAR B.^*

AC 43916

Appellate Court of Connecticut.

Argued October 6, 2020

Officially released May 17, 2021^***

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

Rosemarie T. Weber, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon and Evan O'Roark, assistant attorneys general, for the appellee (petitioner).

David B. Rozwaski, counsel for the minor child.

Lavine, Elgo and Palmer, Js.^**

ELGO, J.

The respondent father, Jeffrey B., appeals from the judgment of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his minor child, Skylar B.,¹ on the ground that the respondent failed to rehabilitate in accordance with General Statutes § 17a-112 (j) (3) (B) (i).² On appeal, the respondent claims that the court deprived him of his right to substantive due process as guaranteed by the fourteenth amendment to the United States constitution because transfer of guardianship is a less restrictive means than termination of his parental rights to achieve permanency. We conclude that the record is inadequate to review the respondent's claim and, accordingly, affirm the judgment of the trial court.

The following facts and procedural history are relevant to this appeal. Skylar was born in November, 2017, and is the child of Easter M. (mother) and the respondent. The Department of Children and Families (department) had a long history of involvement with both parents due to the mother's mental health issues and extensive use of illicit substances, as well as the respondent's extensive involvement in the criminal justice system and history of intimate partner violence with the mother.³ At the time of Skylar's birth, a referral was made by a hospital social worker to the department because both Skylar and her mother tested positive for opiates.⁴ In the referral, the social worker also reported that the mother had been hospitalized in June, 2017, after being assaulted by the respondent while she was pregnant with Skylar.

On November 20, 2017, the department executed a ninety-six hour hold on Skylar and eventually placed her with the relative foster home of her maternal aunt and uncle. In the course of their investigation, the department eventually located the respondent, who at that time was incarcerated at the New Haven Correctional Center (facility). On November 22, 2017, the department filed an ex parte motion for an order of temporary custody, which the court granted. The order was sustained by agreement on December 1, 2017. On January 16, 2018, the court adjudicated Skylar neglected and committed her to the care and custody of the petitioner. The respondent was present and represented by counsel at the above hearings and was provided specific steps to facilitate reunification, which were duly approved and ordered by the court.

The respondent was released from the facility in June, 2018, but he failed to keep in contact with the department. In July, 2018, the respondent informed the department that he was serving parole in New York and he indicated his intention to have his parole transferred to Connecticut to be closer to Skylar and her mother. Although the department found service providers for the respondent in New York, the respondent declined to use them. The respondent also refused monthly visitation with Skylar, claiming that he did not want his daughter to see him while he was living in a hotel. In September, 2018, the respondent successfully transferred his parole from New York to Connecticut. The department referred the respondent to services for visitation, as well as substance abuse, intimate partner violence treatment, and parenting services.

Unbeknownst to the department, a no contact order was in place in connection with the respondent's parole, which prohibited him from contacting the mother. Despite that order, the respondent asked the department to arrange a joint visit with himself, the mother, and Skylar. A visit occurred in September, 2018, which led to the respondent's arrest for violating the conditions of his parole. The petitioner subsequently remained incarcerated until November, 2018. As a result, the services that the respondent was required to complete were placed on hold until his release.

On November 19, 2018, the petitioner filed a petition for termination of the respondent's parental rights, alleging that the respondent failed to achieve a sufficient degree of rehabilitation in accordance with § 17a-112 (j) (3) (B) (i)⁵ and that he had no ongoing parent-child relationship with Skylar. See General Statutes § 17a-112 (j) (3) (D).⁶ While that termination proceeding was pending, the respondent was arrested on federal charges stemming from gang related activities in New Haven.

A two day trial was held on the petition for termination of the respondent's parental rights, at which the respondent, who remained in federal custody, participated via video conference. On December 30, 2019, the court issued a memorandum of decision, in which it terminated the parental rights of the respondent.⁷ In its findings of fact, the court relied heavily on an evaluation of the respondent conducted on March 28, 2019, by a court-appointed psychologist, Jessica Biren Caverly.⁸ In her report, Caverly noted: "There are a number of concerns about the negative aspects of [the respondent's] history, including his significant legal history, arrests for substances that he denied using, and his minimization of intimate partner violence. These factors can be indicative of a personality disorder such as [a]ntisocial [p]ersonality [d]isorder or [n]arcissistic [p]ersonality [d]isorder. ... In regard to substances, [the respondent's] recent urine tests [were] clean of all substances, but it is highly likely he is abstaining from substances solely so he can complete his parole." (Internal quotation marks omitted.) Caverly was particularly troubled by his blatant violation of parole orders requiring no contact with the mother, reporting that the respondent telephoned the mother during her own evaluation with Caverly. The court noted in its memorandum of decision that "[t]his is indicative of [the respondent's] failure to change his behavior even on a minimal basis." The court also found that "[i]t is apparent from the description ... of the father-child [interaction] that the [respondent] presently is unable to meet Skylar's needs." In light of the foregoing, the court found by clear and convincing evidence that the respondent failed to rehabilitate pursuant to § 17a-112 (j) (3) (B) (i).⁹

Having found an adjudicatory ground for termination, the court turned to the dispositional phase of its ruling. The court determined by clear and convincing evidence that termination of the respondent's parental rights was in Skylar's best interest, and expressly considered the factors outlined in § 17a-112 (k).¹⁰ In so doing, the court emphasized the respondent's failure to benefit from services that were timely offered to him and the fact that there was insufficient time for Skylar to develop a relationship with the respondent due to his incarceration following parole. The court, pursuant to § 17a-112 (k), also considered Skylar's emotional ties with her maternal aunt and uncle, in whose physical care and custody she has remained since birth. To that end, the court credited Caverly's testimony that Skylar was "well bonded to her foster parents ... and ... looked to them for support," observing that they were her psychological parents and that their home was the only home she has ever known. Finally, the court found that the foster family had committed to being an adoptive resource for Skylar. The court thus found, by clear and convincing evidence, that it was in Skylar's best interest to have the respondent's parental rights terminated, and appointed the petitioner as Skylar's statutory parent. This appeal followed.

On appeal, the respondent generally does not challenge the trial court's factual findings and conclusions of law with respect to its determination that he failed to achieve a sufficient degree of personal rehabilitation pursuant to § 17a-112 (j) (3) (B) (i).¹¹ Rather, he claims that the court deprived him of his right to substantive due process, as guaranteed by the fourteenth amendment to the United States constitution, because the petitioner "was without a compelling reason to terminate his parental rights" given that Skylar was placed with relative foster parents "within the meaning of [General Statutes] § 17a-111a (b) (1)."¹² The respondent contends that, in light of Skylar's placement with relative foster parents, the petitioner "improperly allowed the relatives to select a permanency plan for the child calling for a termination of the respondent's parental rights, instead of using [her] authority under the statute to effectuate a transfer of guardianship to the relatives as a less restrictive means of permanency ...."

The respondent's counsel conceded at oral argument before this court that §§ 17a-111a and 17a-112 do not contain such "least restrictive means" language. Instead, the respondent relies primarily on footnote 11 of In re Unique R. , 170 Conn. App 833, 845 n.11, 156 A.3d 1 (2017), and on In re Azareon Y. , 309 Conn. 626, 634–37, 72 A.3d 1074 (2013), to support his claim that § 17a-111a "must be interpreted to preclude the petitioner from filing [petitions] to terminate parental rights under § 17a-112 if the child's health and safety can be protected by transferring guardianship of the child to a relative as a less restrictive means of permanency." This, the respondent claims, is the only way "to save [ §§ 17a-111a and 17a-112 ] from constitutional infirmity ...."¹³ The respondent acknowledges that he did not raise this issue before the trial court and, thus, seeks review of this unpreserved constitutional...