In re Tresin J.

          Argued September 18, 2019

         Procedural History

         Petition by the Commissioner of Children and Families to terminate the respondents' parental rights with respect to their minor child, brought to the Superior Court in the judicial district of Hartford, Juvenile Matters, and tried to the court, C. Taylor, J.; judgment terminating the respondents' parental rights, from which the respondent father appealed to the Appellate Court, DiPentima, C. J., and Alvord and Beach, Js., which affirmed the trial court's judgment, and the respondent father, on the granting of certification, appealed to this court. Affirmed.

          David J. Reich, assigned counsel, for the appellant (respondent father).

          Sara Nadim, assistant attorney general, with whom, on the brief, were William Tong, attorney general, Clare Kindall, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

          Robinson, C. J., and Palmer, McDonald, Kahn and Ecker, Js.

          OPINION

          ROBINSON, C. J.

         In this certified appeal, we consider whether the parental rights of a father were properly terminated for lack of an ongoing parent-child relationship when, at the time of the termination trial, the six year old child had no knowledge or memory of his father, who had been incarcerated when the child was two years old. The respondent father, Aceion B., appeals, upon our grant of his petition for certification, ^[1]from the judgment of the Appellate Court affirming the judgment of the trial court in favor of the petitioner, the Commissioner of Children and Families, which terminated his parental rights as to the child, Tresin J., pursuant to General Statutes § 17a-112 (j) (3) (D).^[2] In re Tresin J., 187 Conn.App. 804, 805-806, 203 A.3d 711 (2019). Relying on the Appellate Court's decision in In re Carla C., 167 Conn.App. 248, 143 A.3d 677 (2016), the respondent claims that the trial court should have applied the virtual infancy and interference exceptions to the lack of an ongoing parent-child relationship ground for the termination of parental rights because Tresin was only two years old when the respondent's incarceration separated them, and the circumstances of this case, particularly the deficiencies of Tresin's mother, rendered contact impossible during his incarceration. In light of our recent explication of these exceptions in In re Jacob W., 330 Conn. 744, 200 A.3d 1091 (2019), we disagree with the respondent's claims. Accordingly, we affirm the judgment of the Appellate Court.

         The record and the Appellate Court's opinion set forth the following background facts and procedural history. ‘‘Tresin was born in June, 2011. The respondent last spoke to Tresin in April, 2013, when Tresin was less than two years old. In May, 2013, the respondent was convicted of possession of marijuana, his probation was revoked, ^[3] and he was sentenced to a term of incarceration. The respondent subsequently was taken into custody by federal authorities and detained for immigration violations. The respondent remained in federal custody until the fall of 2017.''^[4] (Footnote in original.) In re Tresin J., supra, 187 Conn.App. 806.

         The Department of Children and Families (department) became involved with Tresin in May, 2015. The department initiated an investigation when it was notified after one of Tresin's half siblings was not picked up from school on time. The department learned during its investigation that Tresin and his two half siblings were not up to date medically and that Tresin's mother recently had been evicted and had been experiencing substance abuse difficulties; it referred her to mental health and substance abuse treatment programs, but she failed to comply with those programs' requirements over the ensuing year. Tresin's mother subsequently failed to arrange mental health evaluations and care for Tresin's older half sibling, who had been experiencing severe behavioral issues in school over the course of that year. In July, 2016, the department invoked a ninety-six hour hold with respect to Tresin and his two half siblings after Tresin's mother informed her caseworker that her life was in danger and she planned to flee the state with the children.

         Subsequently, the petitioner ‘‘filed a neglect petition with respect to Tresin and his two [half siblings], who were in the care of Tresin's mother. In addition, the petitioner obtained an order of temporary custody with respect to all three children.

         ‘‘In August, 2017, the petitioner filed a petition to terminate the parental rights of the respondent. The petitioner alleged that, pursuant to § 17a-112 (j) (3) (D), the respondent had no ongoing parent-child relationship with Tresin. The termination of parental rights trial was held on February 5 and March 9, 2018.

         ‘‘In a thoughtful memorandum of decision, issued on May 22, 2018, the court found that the petitioner had proved by clear and convincing evidence that there was no ongoing parent-child relationship with respect to the respondent and Tresin. In reaching its conclusion, the court found that ‘Tresin does not know who his father is and has no positive parental memories of his biological father.' ''^[5] Id., 806-807.

         The respondent appealed from the judgment terminating his parental rights to the Appellate Court, claiming that the trial court incorrectly ‘‘determined, pursuant to § 17a-112 (j) (3) (D), that no ongoing parent-child relationship exists between the respondent and Tresin.''^[6] Id., 808-809. The respondent argued specifically that the trial court's conclusion was inconsistent with the Appellate Court's decision in In re Carla C., supra, 167 Conn.App. 248, because the trial court failed to consider ‘‘(1) the petitioner's interference with the development of the parent-child relationship between himself and Tresin, and (2) Tresin's young age, in light of which the respondent's feelings toward Tresin are significant.'' In re Tresin J., supra, 187 Conn.App. 809. The Appellate Court rejected the respondent's arguments, observing first that he ‘‘presented no evidence that he sought visitation or attempted to call Tresin during those three years [that he was incarcerated]. The respondent does not allege any interference by the child's mother, who had custody of Tresin during that time.'' Id., 811. The Appellate Court also emphasized that the petitioner had ‘‘presented undisputed evidence that, in July, 2016, when Tresin was placed into the petitioner's custody and before any alleged interference took place, Tresin did not know who his father was. Therefore, unlike in In re Carla C., the respondent did not present evidence that the petitioner's alleged interference led to the lack of an ongoing parent-child relationship between the respondent and Tresin.'' (Emphasis in original.) Id., 811-12. Accordingly, the Appellate Court affirmed the judgment of the trial court, having concluded that ‘‘the trial court properly applied the law . . . and that its legal conclusion that the petitioner established the elements of § 17a-112 (j) (3) (D) [was] supported by clear and convincing evidence.'' Id., 813. This certified appeal followed. See footnote 1 of this opinion.

         On appeal, the respondent relies on the Appellate Court's decision in In re Carla C., supra, 167 Conn.App. 248, and claims that the virtual infancy exception to the lack of an ongoing parent-child relationship ground for the termination of parental rights is applicable to this case because Tresin, like the child in In re Carla C., was two years old when the respondent was incarcerated, meaning that both the trial court and the Appellate Court improperly focused on Tresin's lack of memory of the respondent at the time of trial rather than the respondent's positive feelings for Tresin. The respondent argues that the dispositive issue ‘‘is whether the child was old enough to remember [his or her] father when he was separated from the child, '' rendering the age of the child at separation the controlling factor. The respondent also contends that the trial court should have applied the interference exception by considering the abilities of the custodial parent at the time of separation. Specifically, he argues that Tresin's mother, although not actively interfering in their relationship, was unable to facilitate visits while he was incarcerated.

         In response, the petitioner contends that the Appellate Court's decision is in full accord with the legal analysis set forth in In re Jacob W., supra, 330 Conn. 744, and In re Carla C., supra, 167 Conn.App. 248. The petitioner argues that In re Carla C. is factually distinguishable because the present case lacks ‘‘interference by any party to the proceeding'' prior to the institution of termination proceedings, and, as of the day of removal, ‘‘Tresin already had no positive memories of [the respondent, and], thus no ongoing parent-child relationship already existed.'' The petitioner also contends that the virtual infancy exception is inapplicable because Tresin was six years old at the time of the termination trial and could communicate his present feelings. To this end, the petitioner relies on In re Carla C. and In re Alexander C., 67 Conn.App. 417, 787 A.2d 608 (2001), aff'd, 262 Conn. 308, 813 A.2d 87 (2003), and argues that incarceration does not trigger the virtual infancy exception, even when the incarceration and separation occur during infancy. Instead, the petitioner emphasizes that, in such cases, the applicable exception is interference, with consideration given to deliberate interference by the petitioner and the efforts, or lack thereof, by the respondent to maintain a relationship during the period of incarceration.^[7] We agree with the petitioner and conclude that the respondent was not entitled to invoke the interference or virtual infancy exceptions to the lack of an ongoing parent-child relationship ground for the termination of his parental rights.

         ‘‘We begin with the applicable standard of review and general governing principles. Although the trial court's subordinate factual findings are reviewable only for clear error, the court's ultimate conclusion that a ground for termination of parental rights has been proven presents a question of evidentiary sufficiency. . . . That conclusion is drawn from both the court's factual findings and its weighing of the facts in considering whether the statutory ground has been satisfied. . . . On review, we must determine whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion]. . . . When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court. . . . To the extent we are required to construe the terms of [§ 17a-112 (j) (3) (D)] or its applicability to the facts of this case, however, our review is plenary. . . .

         ‘‘Proceedings to terminate parental rights are governed by § 17a-112. . . . Under [that provision], 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 of the . . . grounds for termination of parental rights set forth in § 17a-112 [(j) (3)] exists by clear and convincing evidence. The commissioner . . . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. . . . Subdivision (3) of § 17a-112 (j) carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. . . . Because a respondent's fundamental right to parent his or her child is at stake, [t]he statutory criteria must be strictly complied with before termination can be accomplished and adoption proceedings begun.'' (Citations omitted; internal quotation marks omitted.) In re Egypt E., 327 Conn. 506, 525-27, 175 A.3d 21, cert. denied sub nom. Morsy E. v. Commissioner, Dept. of Children & Families, U.S., 139 S.Ct. 88, 202 L.Ed.2d 27 (2018).

         We begin with a review of the lack of an ongoing parent-child relationship ground and its exceptions. Section 17a-112 (j) provides in relevant part: ‘‘The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and Families has made reasonable efforts to locate the parent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless the court finds in this proceeding that the parent is unable or unwilling to benefit from reunification efforts, except that such finding is not required if the court has determined at a hearing pursuant to section 17a-111b, or determines at trial on the petition, that such efforts are not required, (2) termination is in the best interest of the child, and (3) . . . (D) there is no ongoing parent-child relationship, which means the relationship that ordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of such parent-child relationship would be detrimental to the best interest of the child . . . .''

         In In re Jacob W., supra, 330 Conn. 754-55, we recently considered the application of the near identical lack of an ongoing parental relationship provision in General Statutes § 45a-717 (g) (2) (C), which governs actions for termination of parental rights brought in Probate Court by private petitioners.^[8] We discussed our previous decisions in In re Valerie D., 223 Conn. 492, 613 A.2d 748 (1992), In re Jessica M., 217 Conn. 459, 586 A.2d 597 (1991), and In re Juvenile Appeal (Anonymous), 177 Conn. 648, 420 A.2d 875 (1979), along with the Appellate Court's decision in In re Carla C., supra, 167 Conn.App. 248, and explained that the ‘‘inquiry . . . is a two step process. First, the court must determine whether the petitioner has proven the lack of an on going parent-child relationship. Only if the court answers that question in the affirmative may it turn to the second part of the inquiry, namely, whether allowance of further time for the establishment or reestablishment of the relationship would be contrary to the child's best interests. . . .

         ‘‘In interpreting the parameters of [§ 17a-112 (j) (3) (D)], we must be mindful of what is at stake. [T]he termination of parental rights is defined . . . as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent . . . . It is, accordingly, a most serious and sensitive judicial action. . . . Although the severance of the parent-child relationship may be required under some circumstances, the United States Supreme Court has repeatedly held that the interest of parents in their children is a fundamental constitutional right that undeniably warrants deference and, absent a powerful countervailing interest, protection. . . .

         ‘‘Moreover . . . the fact of incarceration, in and of itself, cannot be the basis for a termination of parental rights. . . . At the same time, a court properly may take into consideration the inevitable effects of incarceration on an individual's ability to assume his or her role as a parent. . . . Extended incarceration severely hinders the department's ability to offer services and the parent's ability to make and demonstrate the changes that would enable reunification of the family. . . . This is particularly the case when a parent has been incarcerated for ...