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In re Adelina A.

Court of Appeals of Connecticut

October 11, 2016

IN RE ADELINA A. [*]

          Argued September 7, 2016 [**]

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

          David J. Reich, for the appellant (respondent mother).

          Tammy Nguyen-O'Dowd, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D'Auria, solicitor general, and Benjamin Zivyon and Michael Besso, assistant attorneys general, for the appellee (petitioner).

          DiPentima, C. J., and Alvord and Pellegrino, Js.

          OPINION

          ALVORD, J.

         The respondent mother, Kristina D., appeals from the judgment of the trial court terminating her parental rights with respect to her daughter, Adelina A., pursuant to General Statutes § 17a-112 (j).[1] On appeal, the respondent claims that the trial court violated her substantive due process rights, as guaranteed by the fourteenth amendment to the United States constitution, by failing to (1) consider whether there was a less restrictive permanency plan available to ‘‘safeguard'' her daughter than termination of her parental rights[2] and (2) require the petitioner, the Commissioner of Children and Families, to ‘‘prove, by clear and convincing evidence, that there was no less restrictive'' permanency plan than termination of parental rights. We determine that the record to support the respondent's constitutional claim is inadequate for review. Accordingly, we affirm the judgment of the trial court.

         I

         The following facts are undisputed or were found by the court by clear and convincing evidence. On July 27, 2013, at the age of six months, Adelina was placed by the agreement of the family and the Department of Children and Families (department) with her paternal grandfather and his fiance´e, Monica, [3] after Adelina's parents were arrested for using heroin in her presence. On September 19, 2013, the petitioner filed a neglect petition after the respondent and Adelina's father refused to cooperate with substance abuse evaluations. On December 5, 2013, the petitioner sought, and was granted, an order of temporary custody after the paternal grandfather was determined to be using heroin and abusing prescription drugs. On December 10, 2013, the paternal grandfather and Monica filed motions to intervene, but the motions were denied without prejudice.

         On March 24, 2014, Adelina was adjudicated neglected. That same day, the paternal grandfather and Monica renewed their motions to intervene, but, on March 31, 2014, the court denied the paternal grandfather's motion with prejudice because of his drug abuse and denied Monica's motion without prejudice because she resided with him. On April 1, 2014, Adelina was committed to the custody of the petitioner. Monica and one of the respondent's cousins continued to make efforts to intervene and become placement resources for Adelina, but by the fall of 2014, both relatives had indicated that they no longer wanted to be placement resources. At that time, the respondent and Adelina's father did not identify any additional relatives for placement, and Adelina continued to live with her legal risk foster family.[4] On January 28, 2015, the petitioner filed a petition to terminate the respondent's parental rights.

         In the summer of 2015, the respondent's half brother, Victor, and his wife, Samantha, expressed their interest in becoming licensed foster parents for Adelina to the department. The respondent also indicated in her pre-trial memorandum, dated July 6, 2015, that she would consider consenting to the termination of her parental rights if ‘‘a meaningful agreement for an open adoption can be reached or in the event that her brother, [Victor], is granted custody of Adelina and is ultimately able to adopt her.'' The department elected not to disrupt Adelina's current foster placement and not to pursue licensing Victor and Samantha. The department reasoned that because Victor and Samantha had not maintained any relationship with Adelina since her removal from her parents when she was six months old[5] and Adelina had bonded with her current foster family, with whom she had resided since November, 2014, it was not in her best interests to have her placement altered again. The department encouraged Victor and Samantha to be a family support resource for Adelina, and they have visited with Adelina on a monthly basis. However, Victor and Samantha never filed a motion to intervene in this matter, and the respondent never filed a motion to transfer guardianship to them.

         On January 5and 6, 2016, a trial was held to determine whether the court would grant the petition to terminate the respondent's parental rights.[6] The respondent did not present any evidence concerning the viability of granting permanent guardianship to Victor and Samantha as an alternative to terminating her parental rights.[7]However, during the trial, there was testimony from various individuals concerning Adelina's relationship with Victor and Samantha and the fact that Victor and Samantha had previously expressed interest in being placement resources for Adelina. Samantha also testified that she and Victor were still interested in being resources for Adelina.

         The respondent stated her preference for Adelina to be placed with Victor and Samantha during the trial as well. During her testimony, the respondent acknowledged that ‘‘[Adelina] would be best off with a family member, preferably my brother and his wife, Samantha . . . .'' During closing argument, the respondent's counsel also argued that, although the respondent was ‘‘not independently prepared to parent, '' termination was ‘‘not necessary because the evidence shows that she has family supports of her own that allow the child to, in fact, have stability and permanence within her own biological family.''

         On January 22, 2016, the court granted the petition to terminate the respondent's parental rights after finding that inter alia, a statutory ground for termination existed pursuant to § 17a-112 (j) (3) (B) and that termination was in the best interests of Adelina. In a footnote in its written memorandum of decision, the court addressed the respondent's stated preference that Ade-lina be placed with Victor and Samantha. The court first noted that ‘‘[t]he only matter before the court is the [termination of parental rights] petition. No motion to revoke or transfer guardianship was filed and remained pending. As has been intimated throughout this memorandum, the evidence was clear that [the respondent] acknowledges she is not [in] a position to have Adelina reunified with her at any time soon.''

         The court went on to acknowledge that the respondent's ‘‘desire is for Adelina to be placed with relatives.'' The court reviewed the unsuccessful efforts to place Adelina with the paternal grandfather, with Monica, and with the respondent's cousin. It also discussed how the respondent ‘‘belatedly suggested placement of the child with Victor and Samantha'' and why the department decided not to disrupt Adelina's foster placement. The court concluded: ‘‘It is unknown and irrelevant if Victor and Samantha would have been approved for a foster care license due to [Victor's] past history.[8] The issue of placement of the child is not before the court. ‘Where [a child] should reside and with whom, however, are not questions that relate to whether it is in [the child's] best interests to terminate [her] relationship with [her] parents.' (Emphasis in original.) In re Denzel A., 53 Conn.App. 827, 834, 733 A.2d 298 (1999).'' (Footnote added.)

         This ...


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