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In re Carla C.

Court of Appeals of Connecticut

July 22, 2016

IN RE CARLA C.[*]

          Argued April 7, 2016

         Appeal from Superior Court, judicial district of Middlesex, Child Protection Session at Middletown, C. Taylor, J.

          Benjamin M. Wattenmaker, assigned counsel, for the appellant (respondent father).

          Joshua Michtom, assistant public defender, for the appellee (petitioner).

          Brya A. Darley, for the minor child.

          Beach, Sheldon and Mullins, Js.

          OPINION

          MULLINS, J.

         In this appeal from the termination of the parental rights of the respondent father, Carlos C., the dispositive issues are (1) whether a parent’s involvement in a crime before the birth of his child may be an act of parental commission or omission forming the basis for termination of his parental rights pursuant to General Statutes § 45a-717 (g) (2) (B), [1] and (2) whether a court may find that no ongoing parent-child relationship exists, pursuant to § 45a-717 (g) (2) (C), [2] when a custodial parent’s conduct has contributed significantly to the establishment of that ground for termination. We agree with the respondent that his commission of a crime before the birth of the child in this case, Carla C. (Carla), is not a parental act of commission or omission, as that basis for termination properly is understood. We also agree with the respondent 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. Accordingly, we reverse the judgment of the trial court granting the petition of the petitioner mother, Glenda G., for termination of the respondent’s parental rights as to Carla.

         The following facts and procedural history, as found by the trial court or as undisputed in the record, inform our resolution of the respondent’s appeal. The parties began a relationship in September, 2008, shortly after which the petitioner became pregnant. On January 9, 2009, while the petitioner was pregnant, the respondent was involved in a drive-by shooting in Torrington. Carla was born six months later on July 13, 2009. On July 29, 2009, the respondent executed an acknowledgment of paternity as to Carla.

         On August 4, 2009, the respondent was arrested and charged in connection with the drive-by shooting.[3] On June 3, 2011, the respondent pleaded guilty to one count of conspiracy to commit assault in the first degree in violation of General Statutes §§ 53a-59 (a) (1) and 53a-48 (a), and one count of assault in the first degree as an accessory in violation of § 53a-59 (a) (1). The respondent subsequently was sentenced to a total effective term of twenty years incarceration, execution suspended after nine years, with five years probation.[4] The respondent’s maximum release date is May 7, 2018.

         On seven occasions between August 26, 2009, and August 19, 2011, the petitioner took Carla to visit the respondent in prison. She then decided that she no longer wanted to be in a relationship or raise a child with the respondent. Accordingly, she unilaterally decided that visits with the respondent were no longer in Carla’s best interest. The respondent has not seen Carla since August 19, 2011.

         In the meantime, the petitioner met and began a relationship with Steve M. (Steve), whom she described as a ‘‘real man’’ and ‘‘[the] father figure that [Carla] deserves.’’ The petitioner and Carla moved into Steve’s home in the summer of 2011 and remained there until May, 2014, when the relationship ended for a time and the petitioner and Carla moved into their own apartment.[5] The petitioner and Steve resumed their relationship in early 2015. Since then, Steve and the petitioner, together with Carla, frequently stay at each other’s home. Carla refers to Steve by name and as ‘‘Dad’’ or ‘‘Daddy Steve.’’ Steve, who shares with the petitioner the cost of Carla’s dance lessons and day care, intends to adopt Carla if the respondent’s parental rights are terminated.

         Since his last visit with Carla in 2011, the respondent has sent her cards and letters. The petitioner threw away all of the cards and letters without showing them to Carla, including letters and drawings that the respondent had asked Carla’s attorney to give to the petitioner to give to Carla. The respondent last spoke to Carla by telephone on her birthday in 2014, when she was at the Florida home of the petitioner’s mother. He acknowledged that during that call, Carla did not recognize him as her father.

         In early 2012, after she had decided she no longer wanted the respondent in Carla’s life, the petitioner obtained an order from the MacDougall-Walker Correctional Institution (MacDougall-Walker), where the respondent was incarcerated, directing the respondent to cease all oral and written communication with the petitioner and Carla, either directly or through a third party. The order notified the respondent that his failure to comply with it would result in disciplinary action.

         The petitioner subsequently initiated a separate custody action in the judicial district of Litchfield, pursuant to which, on June 26, 2012, the parties entered into a stipulation awarding the petitioner sole legal and physical custody of Carla, and permitting the respondent one visit with Carla every sixty days. The stipulation provided that the respondent’s mother would transport Carla to and from MacDougall-Walker. The stipulation also provided that the respondent’s parenting access was to be reevaluated upon his release from prison. Although the petitioner believed that visits between the respondent and Carla in prison were not in Carla’s best interest, she did not seek to modify the visitation order.

         Despite the parties’ stipulation, none of the bimonthly visits provided for in the stipulation took place. As a result, the respondent filed a number of motions for contempt in which he sought to enforce the visitation provided for in the stipulation.[6] Pursuant to these motions, the court issued orders on April 18, and October 8, 2013, that the respondent be given visits.[7] The court ordered that the visits were to occur on May 19 and November 24, 2013. Neither of the visits took place.[8]

         While incarcerated, the respondent, whose employment history consists of two weeks of work at a Wendy’s restaurant in Florida, has obtained a general equivalency diploma and a diploma in business management. He also has completed course work in real estate appraisal. The respondent’s mother, who has supported the respondent financially throughout his life, has paid for his education in prison. At the time of the trial on the petition for termination of parental rights, the respondent expected to enroll in anger management and parenting programs provided by the Department of Correction.

         On December 18, 2013, the petitioner filed a petition for termination of the respondent’s parental rights in Torrington Probate Court. In the petition, the petitioner alleged two statutory grounds for termination: (1) that Carla had been denied the care, guidance, or control necessary for her physical, educational, moral, or emotional well-being, by reason of the respondent’s act of commission or omission; see footnote 1 of this opinion; and (2) that there was no ongoing relationship between the respondent and Carla, and to allow further time for the establishment of the relationship would be detrimental to Carla’s best interest. See footnote 2 of this opinion. The petitioner submitted an accompanying affidavit in which she averred the following: that the respondent was incarcerated following a conviction for assault and risk of injury to a child; that the respondent had participated in a drive-by shooting of a house in which a child was present; that the respondent will be incarcerated until 2018; that the respondent had seen Carla only a handful of times; and that visiting the respondent in prison was not in Carla’s best interest.[9]

         By motion dated December 20, 2013, the petitioner sought to suspend the respondent’s visitation with Carla. In the motion to suspend visitation, the petitioner represented that although the respondent’s mother had attempted to facilitate visitation, the arrangement was unworkable, and that, in any event, visiting the respondent in prison was not in Carla’s best interest. By notice dated February 21, 2014, the court granted the petitioner’s motion to suspend visitation, pending the outcome of the Probate Court proceedings on the petition to terminate the respondent’s parental rights.

         By motion dated February 21, 2014, the respondent successfully sought transfer of the action to the Superior Court for Juvenile Matters. The Superior Court for Juvenile Matters subsequently transferred the action to the Child Protection Session at Middletown. On September 12, 2014, the respondent moved for an order of visitation with Carla pending the resolution of the petition for termination of parental rights. The court, Ginocchio, J., consolidated for trial the respondent’s motion for visitation and the petition for termination of parental rights.

         The court, C. Taylor, J., held a trial on the consolidated petition for termination of parental rights and motion for visitation on June 5 and 9, 2015, with closing arguments on June 23, 2015. By memorandum of decision dated October 13, 2015, the court concluded that the petitioner had proven both alleged grounds for termination and that termination was in Carla’s best inter-est.[10] The court made no ruling on the respondent’s motion for visitation. Accordingly, the court granted the petition for termination of parental rights. This appeal followed. Additional facts will follow as necessary.

         The respondent presents three principal claims on appeal, one pertaining to the first ground for termination and two pertaining to the second. With regard to the first ground, the respondent claims that the court erred as a matter of law in determining that the respondent deprived Carla of the care necessary to her well-being. With regard to the second ground, the respondent claims that (1) as a matter of law, [11] a parent may not prevent the other parent from maintaining a relationship with their child and then successfully petition to terminate parental rights on the ground that there is no ongoing parent-child relationship, and (2) the respondent’s incarceration, standing alone, is an insufficient basis on which to terminate his parental rights.

         ‘‘A hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more grounds for termination of parental rights set forth in . . . General Statutes . . . [§] 45a-717 (g) (2)[12] has been proven by clear and convincing evidence.[13] . . .

         ‘‘In the dispositional phase . . . the emphasis appropriately shifts from the conduct of the parent to the best interest of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of [her] environment. . . . [T]he trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child.’’[14](Citations omitted; footnotes added; internal quotation marks omitted.) In re Payton V., 158 Conn.App. 154, 160, 118 A.3d 166, cert. denied, 317 Conn. 924, 118 A.3d 549 (2015).

         ‘‘Clear and convincing proof is a demanding standard denot[ing] a degree of belief that lies between the belief that is required to find the truth or existence of the [fact in issue] in an ordinary civil action and the belief that is required to find guilt in a criminal prosecution. . . . [The burden] is sustained if evidence induces in the mind of the trier a reasonable belief that the facts asserted are highly probably true, that the probability that they are true or exist is substantially greater than the probability that they are false or do not exist.’’ (Internal quotation marks omitted.) In re Justice V., 111 Conn.App. 500, 513, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009).

         ‘‘Our standard of review on appeal from a termination of parental rights is whether the challenged findings are clearly erroneous. . . . The determinations reached by the trial court that the evidence is clear and convincing will be disturbed only if [the 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. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached . . . nor do we retry the case or pass upon the credibility of the witnesses. . . . Rather, on review by this court every reasonable presumption is made in favor of the trial court’s ruling.’’ (Internal quotation marks omitted.) In re Pay-ton V., supra, 158 Conn.App. 161.

         I

         ACT OF PARENTAL COMMISSION OR OMISSION

         The respondent first claims that the trial court erred as a matter of law in finding that the petitioner proved that he had deprived Carla of the care necessary to her well-being because there was no evidence that any specific act of parental commission or omission caused Carla to suffer serious physical or emotional injury. Specifically, he argues that the trial court could not properly conclude that this ground for termination had been established because it did not find either (1) that Carla had suffered a serious physical or emotional injury or (2) that he had committed an act of parental commission or omission. To the extent that the court did find that he had committed an act of parental commission or omission, he argues, the court improperly based its finding on conduct that occurred before Carla was born-namely, his participation in the drive-by shooting for which he currently is incarcerated.

         The petitioner counters that the denial of care, guidance, and control that must be proven to establish this ground for termination does not require a finding of serious physical or emotional injury. She also argues that the court properly found that the respondent had engaged in an act of commission or omission. She characterizes this act as ‘‘the respondent’s voluntary absence from his daughter’s life . . . which continued for at least six years after Carla’s birth.’’

         Under our well established law, to provide a basis for termination of parental rights on the ground set forth in § 45a-717 (g) (2) (B); see footnote 1 of this opinion; an act of parental commission or omission must occur after the birth of the child. ‘‘[P]arental conduct justifying termination of parental rights pursuant to § [45a-717 (g) (2) (B)] must occur after birth and . . . the statute does not contemplate termination of parental rights upon the basis of prenatal conduct.’’ In re Valerie D., 223 Conn. 492, 513, 613 A.2d 748 (1993); id., 525 (mother’s injection of cocaine hours before child’s birth could not justify termination of mother’s parental rights on ground of act of parental commission or omission).

         In the present case, on the basis of our review of the court’s memorandum of decision, we conclude that the court improperly based its conclusion that the respondent had engaged in an act of parental commission or omission on its finding that the respondent was involved in the 2009 drive-by shooting while the petitioner was pregnant with Carla. The trial court characterized the petitioner’s alleged ground for termination as follows: ‘‘[The petitioner] . . . claims that [the respondent’s] act or acts of parental commission or omission revolve around his involvement in the criminal activities that culminated in his participation in the Torrington drive-by shooting in [January], [15] 2009, and his substantial jail sentence resulting from his criminal activities.’’ The court concluded that β€˜β€˜the petitioner has proven, by clear and convincing evidence, that ...


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