In re Mariana A.

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IN RE MARIANA A.*
(AC 40760)
Alvord, Prescott and Bear, Js.

Syllabus

The petitioner, the Commissioner of Children and Families, appealed to
this court from the judgment of the trial court denying her petition to
terminate the parental rights of the respondent parents with respect to
their minor child. The petitioner had claimed that the respondent mother
had failed to achieve such degree of rehabilitation as would encourage
the belief that within a reasonable time, considering the age and needs
of the child, the mother could assume a responsible position in the life
of the child. The petitioner claimed, as to the respondent father, that he
had abandoned the child because he had failed to maintain a reasonable
degree of interest, concern or responsibility as to her welfare. On appeal,
the petitioner claimed, inter alia, that the trial court improperly con-
cluded that she had not met her burden of proving that the mother had
failed to achieve a sufficient degree of rehabilitation, which was based,
inter alia, on the petitioner’s assertion that the mother refused to accept
that her boyfriend had physically abused the child. Held:
1. The trial court’s decision to deny the petition for termination of parental
rights with respect to the respondent mother was legally and logically
correct and was supported by the evidence in the record:
a. The petitioner’s claim that the trial court, in evaluating the mother’s
rehabilitative efforts, failed to consider the mother’s refusal to acknowl-
edge the alleged abuse of the child by her boyfriend was unavailing:
the record showed that the court gave due consideration to that claim
but ultimately rejected it as a basis for concluding that the petitioner
had demonstrated the mother’s failure to rehabilitate, especially given
that there was never any adjudication or express finding in the record
definitively identifying the mother’s boyfriend as the cause of certain
injuries sustained by the child, and the court reasonably could have
found that the mother had made and continued to make therapeutic
progress and that, accordingly, she soon could assume a responsible
position in the child’s life; moreover, the record demonstrated that the
trial court considered the mother’s rehabilitation in light of the child’s
age and particular needs, and reasonably could have concluded that the
mother had achieved a sufficient level of progress in her rehabilitation
efforts to preclude termination of her parental rights.
b. The trial court’s factual finding that the Department of Children
and Families had acknowledged the respondent mother’s successful
completion of a domestic violence program was not clearly erroneous;
the petitioner at trial did not challenge the admission of testimony by
a social worker that the mother had successfully completed the program,
the specific steps that the court had ordered the mother to take toward
reunification with the child required the mother to understand domestic
violence and how it affected the child and the mother’s functioning,
and there was no evidence that the mother’s belief that the child had
lied about having been slapped by the mother’s boyfriend rendered
meaningless and, thus, unsuccessful the mother’s completion of the
domestic violence program.
2. The trial court properly denied the petition for the termination of the
respondent father’s parental rights, the petitioner having failed to demon-
strate that the father had abandoned the child; although the father for
many years had failed to take any action that would suggest an interest
in or concern for the child’s welfare, the court reasonably could have
concluded that, after the father learned about the child’s situation and
over some period of time up to the relevant adjudicatory date, the father
had made an effort to foster a relationship with the child, which she
enjoyed and wanted to continue, by taking actions that included calling
her on a regular basis, and providing her with a photograph of himself
and financial support to the respondent mother.
Argued January 31—officially released April 18, 2018**
Procedural History

Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of Hartford, Juvenile Mat-
ters, where the respondent father was defaulted for
failure to appear; thereafter, the matter was tried to
the court, Hon. Robert G. Gilligan, judge trial referee;
judgment denying the petition, from which the peti-
tioner appealed to this court. Affirmed.
Andrei V. Tarutin, assistant attorney general, with
whom were Benjamin Zivyon, assistant attorney gen-
eral, and, on the brief, George Jepsen, attorney general,
for the appellant (petitioner).
Karen Oliver Damboise, for the appellee (respon-
dent mother).
Joshua Michtom, assistant public defender, for the
minor child.
Opinion

PRESCOTT, J. The petitioner, the Commissioner of
Children and Families, appeals from the judgment of
the trial court denying her petition to terminate the
parental rights of the respondent parents, Jane A.
(mother) and Johnny B. (father), with respect to their
minor child, Mariana A. The petitioner claims that the
court improperly (1) concluded that she had not met
her burden of proving by clear and convincing evidence
that the mother had failed to rehabilitate in accordance
with General Statutes § 17a-112 (j) (3) (B) (i), and (2)
failed to analyze properly whether the father had aban-
doned Mariana pursuant to § 17a-112 (j) (3) (A). We
disagree with the petitioner’s claims and, accordingly,
affirm the judgment of the trial court.
The record reveals the following relevant facts and
procedural history, as set forth by the trial court in its
memorandum of decision, or that otherwise are undis-
puted in the record. The mother was raised by her aunt
in Puerto Rico, but frequently traveled between Puerto
Rico and Connecticut. She completed her high school
education, attending adult education classes while preg-
nant with Mariana but is unable to work due to epilepsy.
She receives social security disability benefits and food
stamps. She became pregnant with Mariana in 2007
while in Puerto Rico but returned to Connecticut when
she was two months pregnant.1 She currently lives with
her unemployed boyfriend, Christian G., with whom
she has another child, Alexis. Alexis was born on
November 30, 2015.2
There is limited information regarding Mariana’s
father. He lives and works in Puerto Rico. He never has
seen Mariana in person, although, after she was placed
in foster care, he sent her a photograph of himself and
has spoken to her on the telephone. At times, he has
paid child support to the mother for Mariana, beginning
several months after the Department of Children and
Families (department) became involved with the
family.3
In February, 2014, Mariana’s kindergarten teacher
reported to the department that Mariana had come to
school with a bloody lip. Although Mariana initially
told her teacher that her mother had slapped her while
walking her to school because she had been ‘‘mouthing
off,’’ she later said to department investigators that she
cut her lip when she fell while jumping on her mother’s
bed. After concluding its investigation of the incident,
the department was not able to substantiate any allega-
tions of physical abuse.
Four months later, in June, 2014, the department
received a second call from Mariana’s school indicating
that she again had reported to school with minor injur-
ies, this time on her nose. Although there were visible
marks on the skin of Mariana’s nose, the skin was not
broken. When asked about her nose, Mariana explained
that her mother’s boyfriend, Christian G., whom she
referred to as ‘‘father,’’ had bitten her. Mariana neverthe-
less gave no indication to school officials that she was
afraid to return home. When contacted by the depart-
ment, the mother explained that Mariana had fallen
while jumping on a couch. Mariana was taken to a
hospital where she was examined independently by two
physicians. Each of the physicians concluded that it
was not possible to determine the cause of the marks
on Mariana’s nose and that the marks were too small
to be submitted for a forensic dental examination. The
physicians did not observe any other questionable
marks or bruises on Mariana. On July 24, 2014, following
its investigation of this second incident, the department
issued a report substantiating allegations of abuse and
neglect against Christian G.
On September 23, 2014, the petitioner filed a neglect
petition that alleged both physical abuse and neglect
of Mariana. In addition to citing the incidents involving
Mariana’s bloody lip and injured nose, the petition con-
tained allegations that (1) Mariana had been exposed
to domestic violence between the mother and Christian
G.,4 (2) Christian G. abused substances and was permit-
ted to be alone with Mariana, and (3) the mother refused
to engage in services offered by the department unless
ordered to do so by a court.
The mother pleaded nolo contendere with regard to
the neglect petition, but only as to the neglect allegation
that Mariana was ‘‘being permitted to live under condi-
tions, circumstances or associations injurious to [her]
well-being.’’5 On December 30, 2014, the court, Burgd-
orff, J., accepted the plea and adjudicated Mariana
neglected. The court ordered that Mariana remain in
the mother’s custody subject to a six month order of
protective supervision by the department. On April 9,
2015, the court, Dannehy, J., extended the order of
protective supervision for an additional six months at
the request of the department, which sought to have
additional time to oversee the mother’s compliance with
treatment services. The mother signed a service
agreement/safety plan with the department in which
she agreed, inter alia, that Christian G. would leave her
residence and have no contact with Mariana.
On June 3, 2015, Mariana’s therapist reported to the
department that Mariana had arrived for a therapy ses-
sion with ‘‘two faint but visible marks on her face.’’
Mariana told the therapist that Christian G. had slapped
her. When the mother was told what Mariana had
reported, she stated that Mariana was a liar. Later that
same day, the department went to the mother’s home
to investigate the report. Christian G. was there when
investigators arrived, which was in violation of the ser-
vice agreement/safety plan. He explained that he was
present only to clear his name with respect to Mariana’s
claim that he had slapped her. According to the investi-
gator’s report, which was admitted at trial and quoted
by the trial court, ‘‘the [department] social worker
requested the mother to wake Mariana so she could
be interviewed. When awakened, Mariana immediately
went to Christian G. and sat in his lap. The [child]
appeared to be very bonded to Christian and would not
talk with [the social] worker at all. [The social worker]
observed Mariana’s face and did not see the marks that
were reported by the [therapist].’’ Before she left, the
social worker had the mother sign another service
agreement/safety plan indicating that she would not
allow unsupervised contact between Christian G. and
Mariana, and that she would not permit Christian G. to
return to her home.
On June 5, 2015, on the basis of the June 3, 2015
incident, the petitioner filed for an ex parte order of
temporary custody, which the court, Burgdorff, J.,
granted. On June 8, 2015, the petitioner filed a motion
to open and modify the disposition of protective super-
vision, rendered as part of the earlier neglect adjudica-
tion, to an order of commitment to the petitioner. The
court, Lobo, J., at a preliminary hearing on June 10, 2015,
consolidated the hearing on the order of temporary
custody with the hearing on the petitioner’s motion to
modify disposition.
On June 29, 2015, following that hearing, the court,
Dannehy, J., rendered a decision granting the petition-
er’s motion to modify disposition and finding that com-
mitment to the petitioner was in Mariana’s best interest.
The court found under the fair preponderance of the
evidence standard that the petitioner had established
an ‘‘ongoing pattern of abuse’’ involving both the mother
and Mariana, and that ‘‘the fact that the mother contin-
ues to minimize or deny indicates that she has no insight
into [Christian G.’s] behaviors.’’ The court further found
that the mother had violated her service agreements
with the department, which required that she not permit
Christian G. to have contact with Mariana or to reside
in her home. The court, however, made no express
findings regarding any specific instances of abuse of
Mariana or her mother by Christian G. Mariana was
removed from the home and eventually was placed
by the department into foster care with her maternal
great aunt.6
Judge Dannehy subsequently approved the depart-
ment’s permanency plan of termination of parental
rights and adoption. On September 22, 2016, the peti-
tioner filed the petition for termination of parental
rights at issue in this appeal. The sole adjudicatory
ground asserted with respect to the mother was that
she had failed ‘‘to achieve such degree of personal reha-
bilitation as would encourage the belief that within a
reasonable time, considering the age and needs of the
child, [she] could assume a responsible position in the
life of the child . . . .’’ General Statutes § 17a-112 (j) (3)
(B) (i). With respect to the father, the petition alleged,
pursuant to § 17a-112 (j) (3) (A), that Mariana had been
abandoned because he allegedly had ‘‘failed to maintain
a reasonable degree of interest, concern or responsibil-
ity as to the welfare of the child.’’
Following a trial, the court, Hon. Robert G. Gilligan,
judge trial referee, issued a memorandum of decision
on July 13, 2017, denying the petition. The court made
initial findings that the department made reasonable
efforts to locate both parents and, having accomplished
the same, made reasonable efforts to reunify them with
Mariana.7 Despite the findings of reasonable efforts by
the department, the court nonetheless concluded on
the basis of the totality of the evidence admitted at trial
that the department had failed to meet its burden of
demonstrating by clear and convincing evidence the
adjudicatory ground for termination asserted in the peti-
tion against each of the parents.
The court first addressed the petitioner’s claim that
the mother had failed to demonstrate a sufficient level
of personal rehabilitation such that, within a reasonable
period of time, she would be able to assume some
responsible position in Mariana’s life. The court recog-
nized that the mother’s involvement with the depart-
ment arose as a result of suspected physical abuse of
Mariana as well as intimate partner violence between
Christian G. and the mother. The court acknowledged
the petitioner’s argument that the mother continued to
adhere to her belief that Mariana had lied about being
abused by Christian G. and that her steadfast adherence
amounted to conclusive evidence that she had failed
to gain the needed insight and ability to care for Mari-
ana. The court also considered the mother’s arguments
that there was insufficient evidence corroborating Mari-
ana’s inconsistent reports of the cause of her injuries,
and, therefore, the mother’s beliefs that her daughter
had lied and that Christian G. was not an abuser were
not unreasonable under the circumstances and cannot
provide a sufficient basis for the termination of her
parental rights.
The court made no findings on the basis of its review
of the record as to whether Christian G. ever had physi-
cally injured Mariana. Although the court took judicial
notice that Mariana had been found neglected in a prior
proceeding, it also noted that the mother had entered a
nolo contendere plea only with respect to the allegation
that Mariana had been permitted to live in conditions
injurious to her well-being, not as to the abuse allega-
tions, which were never adjudicated in the underlying
neglect proceedings. The court’s recitation of the under-
lying history demonstrates the lack of any specific find-
ings by a court that Christian G. caused Mariana’s
various injuries. For example, there was never any sub-
stantiation of abuse with respect to the bloody lip inci-
dent. The physicians who examined Mariana’s nose
were unable to determine the cause of the visible marks
observed by the school and also did not observe any
evidence of physical mistreatment. With respect to Mar-
iana’s reporting that Christian G. slapped her on June
3, 2015, the court highlighted that the department’s
investigator did not observe the reported marks on Mar-
iana’s face on the day that such marks were reported
and that the mother believed Mariana was lying, a posi-
tion to which she consistently has adhered. Moreover,
the investigator observed Mariana’s demeanor around
Christian G., noting that she voluntarily sat in his lap
and appeared very bonded to him.
Ultimately, the court found that it was unnecessary
to resolve the parties’ claims regarding the cause of
Mariana’s injuries because the court concluded that
there were other reasons to deny the petition. The court
relied in part on the fact that the mother substantially
had completed the specific steps ordered by the court,
continued to engage in her individual therapy sessions,
and had weekly visits with Mariana. The court noted
that Mariana and the mother had a loving relationship
with each other. The court also recognized that Mariana
had bonded with her half sibling, Alexis, who had
remained in the custody of the mother and Christian
G. without incident for nineteen months. At the time
of the court’s decision, Mariana, through counsel, had
expressed an interest in continuing to live with her
great aunt, which the court recognized might be a ‘‘more
suitable custodial arrangement’’ for Mariana. The court
opined, however, that the mother could still assume a
responsible position in Mariana’s life without necessar-
ily regaining full physical custody and that a transfer
of guardianship could achieve this objective without
terminating completely the legal relationship between
Mariana and her mother.
With respect to the father, the court found that as of
the adjudicatory date of September 22, 2016, the father
had demonstrated a sufficient degree of interest in Mari-
ana. In particular the court credited the fact that he
had sent Mariana a photograph of himself and had called
her at her foster home on a regular basis. The court
also credited the statement of the attorney for Mariana
that Mariana had been excited to learn about the exis-
tence of her father and was happy to receive his photo-
graph and phone calls. Furthermore, the court found
it significant that the father made monthly child support
payments beginning in late 2014 or early 2015, and that
those payments had continued through the adjudica-
tory date.
On the basis of these findings, the court concluded
that the petitioner had failed to establish by clear and
convincing evidence an adjudicatory ground against
either the mother or the father. It did not reach, there-
fore, whether termination was in Mariana’s best inter-
est. This appeal followed.8
I
The petitioner first claims that the trial court improp-
erly denied the petition to terminate the mother’s paren-
tal rights pursuant to § 17a-112 (j) (3) (B) (i). The
petitioner’s claim is twofold, each part predicated on
the mother’s refusal to accept that Christian G. had
physically abused Mariana. First, the petitioner claims
that Christian G.’s alleged abuse of Mariana was central
to the department’s involvement with this family, and
that the court failed to consider the mother’s refusal
to acknowledge the abuse in assessing the adequacy of
her rehabilitation efforts, particularly in light of Mari-
ana’s age and needs. Second, the petitioner claims that,
in assessing the mother’s rehabilitation efforts, the
court relied on an erroneous factual finding, namely,
that the mother successfully had completed an intimate
partner violence program. The petitioner takes the posi-
tion that successful completion necessarily would have
required her to acknowledge the abuse by Christian G.
We are not persuaded.
We begin with general principles of law and our appli-
cable standard of review. ‘‘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 adjudica-
tory phase, the trial court must determine whether one
or more . . . grounds for termination of parental rights
set forth in § 17a-112 [(j) (3)] exists by clear and con-
vincing evidence. The commissioner . . . in petition-
ing to terminate those rights, must allege and prove one
or more of the statutory grounds.’’ (Internal quotation
marks omitted.) In re Egypt E., 327 Conn. 506, 526,
175 A.3d 21 (2018). ‘‘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 substan-
tially greater than the probability that they are false or
do not exist.’’ (Internal quotation marks omitted.) In
re Carla C., 167 Conn. App. 248, 258, 143 A.3d 677
(2016). If the trial court determines that the petitioner
has failed to meet this high burden, it must deny the
petition.
Turning to the applicable standard of review, we note
that the majority of appeals taken from a trial court’s
decision on a petition to terminate parental rights are
brought by a respondent parent challenging the granting
of such a petition. Appeals by the petitioner from the
denial of a petition are far less common. The difference
in procedural posture alters somewhat our standard of
review. In an appeal from the granting of a petition, our
Supreme Court has indicated that the court’s ultimate
conclusion as to whether a ground for termination of
parental rights has been proven presents a question of
evidentiary sufficiency. See In re Egypt E., supra, 327
Conn. 526; In re Shane M., 318 Conn. 569, 587–88, 122
A.3d 1247 (2015). Thus, in reviewing the granting of a
petition, ‘‘we must determine whether the trial court
could have reasonably concluded, upon the facts estab-
lished and the reasonable inferences drawn therefrom,
that the cumulative effect of the evidence was sufficient
to justify its [ultimate conclusion].’’ (Internal quotation
marks omitted.) In re Egypt E., supra, 526.
In an appeal challenging the denial of a petition to
terminate parental rights, however, our role as a
reviewing court no longer involves evaluating the
record for evidentiary sufficiency. In denying a petition,
the trial court, in its role as the trier of fact, has evalu-
ated and weighed the evidence admitted in support of
the petition and found that evidence lacking or insuffi-
cient to meet the petitioner’s high burden of proof. In
the absence of clearly erroneous factual findings that
are material to the decision, the question is not simply
whether there is some evidence that would support
the granting of the petition. Rather, we must review
whether, in light of the facts found by the court and
the evidence it credited, the only rational outcome
would have been for the court to grant the petition.9
We cannot reweigh the evidence or reevaluate the credi-
bility of witnesses to determine whether, in our own
view, the evidence could have warranted granting the
petition. Every reasonable presumption must be made
in favor of the trial court’s ruling denying the petition.
See In re Jayce O., 323 Conn. 690, 716, 150 A.3d 640
(2016) (‘‘[i]f the [trial court] could reasonably have
reached its conclusion, the [judgment] must stand, even
if this court disagrees with it’’ [internal quotation marks
omitted]). As indicated, we are bound by the trial court’s
subordinate factual findings, which are reviewable only
for clear error. In re Shane M., supra, 318 Conn. 587.
Finally, ‘‘[t]o the extent we are required to construe the
terms of [a relevant statutory provision] or its applica-
bility to the facts of [a particular] case . . . our review
is plenary’’; In re Egypt E., supra, 327 Conn. 526; how-
ever, it bears repeating that we do not reevaluate de
novo the merits of the adjudicatory grounds asserted.
With these principles in mind we turn to the petition-
er’s claims.
A
We begin with the petitioner’s claim that the trial
court failed to take into account properly the central
issue that led to the department’s involvement with this
family, namely, the abuse allegations against Christian
G. The petitioner also suggests that the court failed to
consider the mother’s rehabilitation efforts in light of
Mariana’s age and specific needs. We are not persuaded.
Section 17a-112 (j) (3) (B) (i) authorizes the Superior
Court to grant a petition for termination of parental
rights on the ground of failure to rehabilitate. The peti-
tioner may prove this statutory ground by showing,
among other requirements, that the child ‘‘has been
found by the Superior Court or the Probate Court to
have been neglected, abused or uncared for in a prior
proceeding . . . and the parent of such child has been
provided specific steps to take to facilitate the return
of the child to the parent . . . and has failed to achieve
such degree of personal rehabilitation as would encour-
age the belief that within a reasonable time, considering
the age and needs of the child, such parent could
assume a responsible position in the life of the child.’’
‘‘[P]ersonal rehabilitation . . . refers to the restora-
tion of a parent to his or her former constructive and
useful role as a parent . . . [and] requires the trial
court to analyze the [parent’s] rehabilitative status as
it relates to the needs of the particular child, and further,
that such rehabilitation must be foreseeable within a
reasonable time. . . . [Section 17a-112 (j) (3) (B) (i)]
does not require [a parent] to prove precisely when
[she] will be able to assume a responsible position in
[her] child’s life. Nor does it require [her] to prove that
[she] will be able to assume full responsibility for [her]
child, unaided by available support systems. It requires
the court to find, by clear and convincing evidence, that
the level of rehabilitation [she] has achieved, if any,
falls short of that which would reasonably encourage
a belief that at some future date [she] can assume a
responsible position in [her] child’s life.’’ (Internal quo-
tation marks omitted.) In re Elvin G., 310 Conn. 485,
507, 78 A.3d 797 (2013).
‘‘Specific steps provide notice and guidance to a par-
ent as to what should be done to facilitate reunification
and prevent termination of rights. Their completion or
noncompletion, however, does not guarantee any out-
come. A parent may complete all of the specific steps
and still be found to have failed to rehabilitate. . . .
Conversely, a parent could fall somewhat short in com-
pleting the ordered steps, but still be found to have
achieved sufficient progress so as to preclude a termina-
tion of his or her rights based on a failure to rehabili-
tate.’’ (Citation omitted.) Id., 507–508.
The petitioner argues that the court’s assessment of
the mother’s rehabilitation level should have included
consideration of the mother’s alleged lack of progress
because she failed to acknowledge that Christian G.
had abused both her and Mariana. The petitioner argues
that the court ‘‘refused’’ to engage in any analysis of this
issue. Our review of the court’s memorandum, however,
indicates that the court took account of the petitioner’s
argument that the mother’s continued adherence to her
belief that Mariana lied regarding physical abuse by
Christian G. undermined her progress toward meaning-
ful rehabilitation. The court clearly gave due consider-
ation to the petitioner’s argument, but ultimately
rejected it as a basis for concluding that the petitioner
had demonstrated the mother’s failure to rehabilitate.
Although the petitioner argues, as it did before the
trial court, that the alleged abuse by Christian G. had
already been established as a matter of law in the under-
lying neglect proceedings, the record does not support
this assertion, as indicated by the trial court. There was
never any adjudication or express finding that Mariana’s
injuries were the result of abuse by Christian G. The
mother entered a nolo plea with respect to the abuse
and neglect petition but only as to one allegation of
neglect, which did not include the abuse. Any findings
by Judge Dannehy in modifying the neglect disposition
from protective supervision to commitment were made
under the fair preponderance of the evidence standard
rather than the more exacting clear and convincing
standard that applies in termination of parental rights
adjudications. Further, although Judge Dannehy stated
that the petitioner had established an ‘‘ongoing pattern
of abuse’’ involving both the mother and Mariana, he
did not state how this was established or make any
subordinate findings regarding any particular instances
of abuse. Because of the lack of a finding in the record
definitively identifying Christian G. as the cause of Mari-
ana’s injuries, we cannot conclude that the trial court
committed reversible error by failing to focus its analy-
sis on the mother’s failure to acknowledge him as an
abuser in evaluating her rehabilitative efforts.
We agree with the petitioner that, as a general propo-
sition, the failure to acknowledge and make progress
in addressing the issues that led to a child’s removal
may be one of many contributing factors to a court’s
determination that a parent has failed to achieve a suffi-
cient degree of personal rehabilitation. None of the
cases cited by the petitioner in her appellate brief, how-
ever, holds that this factor is necessarily determinative,
suggesting only that it is one of any number of consider-
ations that should inform a court’s final determination.
The court found that the mother continued to fully
engage and participate in therapy, and that she contin-
ued to visit and bond with Mariana. Thus, contrary to
the petitioner’s views, the court reasonably could have
found on this record that the mother had made and
continued to make therapeutic progress and that,
accordingly, she soon could assume a responsible posi-
tion in Mariana’s life, if in fact she had not already.
Our review of the record in this case convinces us
that the trial court also considered the mother’s rehabili-
tation in light of Mariana’s age and particular needs,
and reasonably could have concluded that the mother
had achieved a sufficient level of progress in her rehabil-
itation efforts to preclude termination of her parental
rights. As the court properly found, the mother success-
fully participated in and completed her domestic vio-
lence program and continued to work through various
issues in her individual therapy sessions, which, at the
time of the termination trial, remained ongoing.
Although the court acknowledged that Mariana had
expressed a desire to remain in her placement with her
relative foster parent, it also considered that the mother
had regular visits with Mariana and that she and Mariana
had a loving relationship. Additionally, the court noted
in its decision that Mariana had bonded with Alexis,
who continued to live with the mother and Christian
G. The court certainly appears to have taken the entire
broad set of circumstances into account in concluding
that, even if full custodial parenting might not resume,
Mariana’s placement with a close relative coupled with
the mother’s therapeutic progress to date demonstrated
that she could assume a responsible role in Mariana’s
life. Having reviewed the record in its entirety, we can-
not conclude that the trial court failed to consider the
mother’s refusal to acknowledge the alleged abuse by
Christian G. in evaluating the mother’s rehabilitative
efforts.
B
We next address the petitioner’s related claim that,
in reaching its decision to deny the petition, the trial
court relied on a clearly erroneous factual finding. Spe-
cifically, the petitioner asserts that the court errone-
ously found that the mother completed successfully a
domestic violence program and that the department
acknowledged this at trial. This is the sole factual find-
ing of the court challenged by the petitioner. The mother
responds that there is ample evidence in the record to
support the court’s finding. We agree with the mother.
The following additional facts are relevant to our
resolution of this claim. Following the adjudication of
neglect, the court ordered the mother to comply with
a number of specific steps, including that the mother
take part in counseling with the following specified
goal: ‘‘Mother to understand domestic violence and how
it affects the child and mother’s functioning.’’ The court
further ordered a domestic violence assessment and
treatment. The orders also provided that the mother
shall not permit Christian G. to have contact with Mari-
ana. In its memorandum of decision denying the termi-
nation of parental rights petition, the court, in
discussing the mother’s efforts at personal rehabilita-
tion found that ‘‘[the department] acknowledges that
[the mother] has engaged in and successfully completed
her Intimate Partner Violence program.’’
At the trial on the petition for termination of parental
rights, a department social worker testified in response
to direct examination by the petitioner that the mother
had accepted all of the department’s referrals for treat-
ment and fully complied by attending appointments
and participating in programs. The social worker also
testified that, despite her compliance with various treat-
ment programs, the mother continued to believe and
assert that Mariana had lied about the abuse allegations
against Christian G. The petitioner asked the social
worker whether she believed that denying the abuse
allegations was consistent with being compliant with
the specific steps ordered by the trial court, but counsel
for the mother objected, arguing that the social worker’s
belief was irrelevant and what mattered was whether
the mother had completed the required programs. The
court sustained the objection, indicating that it was the
court’s role to determine whether there was compliance
or not. The petitioner does not challenge this ruling
on appeal.
During cross-examination by counsel for the mother,
the social worker was asked again directly whether
the mother successfully had completed the domestic
violence components of the specific steps. The social
worker answered ‘‘yes,’’ without any qualifications. The
petitioner did not object to her rendering this opinion.
As previously indicated, ‘‘[i]t is axiomatic that a trial
court’s factual findings are accorded great deference.
. . . A [factual] finding is clearly erroneous when either
there is no evidence in the record to support it, or
the reviewing court is left with the definite and firm
conviction that a mistake has been made.’’ (Internal
quotation marks omitted.) In re Baciany R., 169 Conn.
App. 212, 225, 150 A.3d 744 (2016).
With the exception of the requirement that Christian
G. not be allowed to have contact with Mariana, the
petitioner’s social worker testified that the mother suc-
cessfully complied with all of the specific steps ordered
by the court. This necessarily included the requirement
that the mother participate in a domestic violence pro-
gram. The social worker later replied in the affirmative
to a question by the mother’s counsel asking if the
mother completed successfully the domestic violence
component of the specific steps. If the social worker
believed that the mother’s failure to acknowledge Chris-
tian G. as an abuser necessarily meant that she had not
successfully completed the domestic violence program,
she presumably would have answered that question in
the negative or answered yes with a qualifying explana-
tion. Instead, she unequivocally testified that the mother
had successfully completed the program. Accordingly,
there was direct evidence in the record that supports
the trial court’s factual finding that the department had
acknowledged the mother’s successful completion of
the domestic violence program.
Furthermore, we are not left with a firm conviction
that a mistake was made by the court. The specific
steps did not explicitly require the mother to acknowl-
edge that Christian G. had abused her or Mariana.
Rather, the steps ordered her to ‘‘understand domestic
violence and how it affects the child and mother’s func-
tioning.’’ Thus, the order focused on education rather
than obtaining an admission regarding past instances
of abuse. There simply is no evidence in the record
before the trial court that the mother’s continued belief
that Mariana lied about being slapped by Christian G.
rendered meaningless, and thus unsuccessful, her com-
pletion of the domestic violence program. Although it
appears that the department attempted to solicit sup-
port for this proposition from the social worker who
testified at trial, the court sustained an objection to that
inquiry. The petitioner does not challenge that eviden-
tiary ruling on appeal or the admission of the social
worker’s opinion that the mother successfully com-
pleted the program. Accordingly, we reject the petition-
er’s claim that the trial court rendered its decision on
the basis of a clearly erroneous factual finding.
In sum, we cannot conclude on the basis of this
record that the trial court’s decision to deny the petition
for termination of parental rights with respect to the
mother was not legally correct or logically supported
by the evidence admitted and credited by the court.
II
Finally, the petitioner claims that the court improp-
erly denied the petition for termination of parental
rights with respect to the father. Specifically, the peti-
tioner claims that the court failed to properly analyze
whether the father had abandoned Mariana pursuant
to § 17a-112 (j) (3) (A). We are not persuaded.
We agree with the petitioner that whether the trial
court applied the proper legal standard in assessing
if the petitioner had presented clear and convincing
evidence of abandonment is a question of law over
which our review is plenary. If we determine that the
court applied the proper statutory requirements, how-
ever, we do not engage in a reweighing of the evidence
admitted to reach our own conclusion regarding aban-
donment. Rather, as previously indicated, we review
the trial court’s decision that the petitioner failed to
meet her burden of proof for whether the trial court’s
conclusion is both legally and logically correct in light
of the credited evidence.
‘‘It is not lack of interest alone which is the criterion in
determining abandonment. Abandonment under [§ 17a-
112 (j) (3) (A)] requires failure to maintain interest,
concern or responsibility as to the welfare of the child.
Attempts to achieve contact with a child, telephone
calls, the sending of cards and gifts, and financial sup-
port are indicia of interest, concern or responsibility
for the welfare of a child. . . . [If] a parent fails to visit
a child, fails to display any love or affection for the
child, has no personal interaction with the child, and no
concern for the child’s welfare, statutory abandonment
has occurred. . . . General Statutes [§ 17a-112 (j) (3)
(A)] does not contemplate a sporadic showing of the
indicia of interest, concern or responsibility for the
welfare of a child. A parent must maintain a reasonable
degree of interest in the welfare of his or her child.
Maintain implies a continuing, reasonable degree of
concern.’’ (Internal quotation marks omitted.) In re
Shane P., 58 Conn. App. 244, 251, 754 A.2d 169 (2000).
In assessing as part of the adjudicatory phase whether
the petitioner has proven the asserted ground for termi-
nation of parental rights, the trial court generally is
confined to consider only evidence occurring prior to
the adjudicatory date, i.e., the date the petition was
filed or the date of the latest amendment to the petition.
Practice Book § 35a-7.10
The court found that the father, who continues to
reside in Puerto Rico, has never met Mariana in person,
indicating that the mother left Puerto Rico when she
was only two months pregnant with Mariana. According
to the department social worker, the father acknowl-
edged to the department that he was aware that the
mother had given birth to his child in Connecticut but
that he knew very little about her. It was only after the
department contacted the father to inform him that
Mariana was in the custody of the department that he
took an interest in Mariana and began to communicate
with her. It is not entirely clear from the record precisely
when the father became aware that he was Mariana’s
biological father.
The father also did not appear in the underlying
neglect proceedings. Although this reasonably could be
construed as demonstrating a lack of interest in the
legal proceedings and, thus, an implicit disinterest in
remaining a parent to Mariana, that evidence would
not have compelled the court to grant the petition and
terminate the father’s parental rights. Furthermore, this
was not the only evidence that the court had to consider.
In support of its conclusion that the petitioner had
failed to meet her burden of demonstrating abandon-
ment by the father, the court made the following find-
ings: ‘‘As of the adjudicatory date, [the father]
demonstrated an interest in Mariana. Evidence was
received that [the father] sent Mariana a picture of
himself and called her by telephone at her foster home
on a regular basis. With regard to financial support,
[the mother] reported that she began receiving $210-
$280 in monthly child support payments for Mariana
from [the father] beginning sometime in late 2014 or
early 2015, which support she continues to receive.’’
(Internal quotation marks omitted.) As previously indi-
cated, ‘‘[a]ttempts to achieve contact with a child, tele-
phone calls, the sending of cards and gifts, and financial
support are indicia of interest, concern or responsibility
for the welfare of a child.’’ (Internal quotation marks
omitted.) In re Shane P., supra, 58 Conn. App. 251.
We recognize that reasonable jurists listening to the
testimony and considering the evidence could disagree
regarding whether the petitioner had established aban-
donment by clear and convincing evidence. We further
recognize there is merit in the petitioner’s assertion
that for many years the father appears to have failed
to take any action that would suggest an interest in
Mariana or a concern for her welfare. Nevertheless, the
evidence admitted and credited by the court shows that,
after learning of Mariana’s situation from the depart-
ment, the father took some actions to establish a rela-
tionship with his daughter, including calling Mariana at
her foster home on a regular basis, providing her with a
photograph of himself, and providing financial support.
Thus, over some period of time up to the relevant adjudi-
catory date,11 there was evidence from which the court
reasonably could have concluded that the father had
made an effort to foster a relationship with Mariana, a
relationship that her attorney indicated to the court
she enjoys and wants to continue. We simply are not
persuaded on this record that the court’s decision to
reject the petition on the ground of abandonment con-
stitutes reversible error.
The judgment is affirmed.
In his opinion the other judges concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** April 18, 2018, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The court notes in its memorandum of decision that the Department of
Children and Families’ social study, which was admitted into evidence,
indicates that ‘‘[Mariana’s] father was married to mother’s mother at the
time of the affair.’’
2
According to the social study admitted into evidence at the trial, the
Department of Children and Families (department) received a referral
through its Careline on the day that the mother gave birth to Alexis. Because
of the department’s removal of Mariana from the mother’s care, the hospital
staff wanted clearance from the department that the newborn infant could
be released into the care of her parents. According to the social study,
‘‘[t]he Department conducted an assessment of family functioning and of
the situation and allowed Alexis to be discharged from the hospital to [the
mother]’s care. The Department enacted a Service Agreement/Safety Plan
with the family to ensure Alexis’ safety and well-being.’’ Shortly thereafter,
on December 10, 2015, the petitioner filed a petition alleging that Alexis
had been neglected. The petitioner, however, withdrew the petition on May
27, 2016, without any adjudication of the merits or the rendering of any
orders.
3
Although the trial court found that, as of the adjudicatory date, the father
continued to pay child support for Mariana, there was no definitive evidence
presented at trial as to whether the father currently is employed.
4
According to the petition, the police were dispatched to the mother’s
home on July 21, 2013, to respond to a domestic violence complaint involving
the mother and Christian G. At that time, the mother indicated to the police
that Christian G. had slapped her face during an argument, had a violent
temper, and had pushed her in the past. The mother declined, however, to
provide any written statement to the police and refused assistance to locate
a safe shelter. A warrant was issued for Christian G., although he was not
arrested until nearly one year later.
5
The petitioner on appeal places great significance on the fact that the
mother entered a nolo contendere plea during the neglect proceeding, seem-
ing to suggest that, by doing so, she forfeited her right to disagree with the
facts alleged by the department, including that Christian G. was responsible
for some or all of Mariana’s injuries. Unquestionably, the mother’s nolo
contendere plea to the neglect allegations relieved the petitioner from having
to prove at trial on the termination petition that Mariana previously had
been neglected. The nolo plea, however, was not an admission of all factual
allegations made by the department in its neglect petition, particularly those
supporting the abuse allegations to which the plea did not apply. See In re
Elijah J., 141 Conn. App. 173, 199–201, 60 A.3d 1060, cert. denied, 308 Conn.
927, 64 A.3d 332 (2013). As we indicated in In re Elijah J., there is a
meaningful distinction between an express admission by a parent of the
allegations of a petition and a plea of nolo contendere. ‘‘The consequences
of an express admission are well understood to be that the parent admits
the truth of the facts alleged in the petition for all purposes and agrees to
the entry of judgment with respect to his or her child on the basis of those
admitted facts. Such an admission can be used against the admitting parent
in any future proceeding to which the admission is legally relevant. By
contrast, the consequences of a plea of nolo contendere, which is not based
upon an express admission of the allegations of the petition, is that those
allegations are tacitly admitted for the purpose of the proceeding where
the plea is entered, with the understanding that judgment may enter against
the pleader with respect to his children on the basis of such allegations.
Although a judgment entered against a party on the basis of a plea of nolo
contendere can later be used as evidence against that party in any future
proceeding to which the judgment is legally relevant, the plea itself is not
admissible against him in any such later proceeding, either as an admission
of the truth of the allegations underlying the claim or charge to which he
pleaded or for any other purpose.’’ (Emphasis omitted.) Id., 200–201. Here,
the mother’s nolo contendere plea does not constitute an admission that
Christian G. abused Mariana.
6
Shortly after the trial on the termination of parental rights petition, the
great aunt indicated to the department that she no longer wanted to be
considered as a placement option for Mariana and asked that Mariana be
removed from her care. At the time of oral argument, however, Mariana
remained with the great aunt.
7
In particular, the court found that, in addition to providing case manage-
ment services, the department had made numerous referrals on behalf of
the mother for services intended to aid her in addressing the issues that
led to her involvement with the department and to facilitate Mariana’s
return, including parenting education services and intimate partner violence
services. With respect to the father, the court found that the department
initially offered him an opportunity to be considered as a placement resource
for Mariana and offered to pay for the father’s plane fare from Puerto Rico
and hotel expenses so he could meet Mariana and discuss placement and
reunification with the department. Although he initially expressed an interest
in being considered as a placement option for Mariana, the father claimed
that he could not come to Connecticut. He provided conflicting reasons to
the department, stating both that he was unemployed and that his employer
would not approve the necessary time off.
8
At trial, the attorney for the minor child took the position that the petition
for termination of parental rights should be granted as to the mother and
denied as to the father. The attorney for the minor child has changed that
position on appeal as to the mother, however, largely because of the fact
that Mariana no longer has the option of a stable and permanent placement
with the great aunt, who has indicated to the department that she no longer
wants to care for Mariana and that it should find a different placement for
her. With respect to the father, the attorney for the minor child continues
to advocate that his parental rights should not be terminated. In sum, the
attorney for the minor child now advocates that we affirm the trial court’s
decision as to both parents, which will allow the department to explore all
placement options, including the possibility of returning custody of Mariana
to her mother or father. Resolution of this appeal does not require us to
determine whether the father is a placement option in light of any factual
question regarding whether his whereabouts are now unknown.
9
To be clear, if a court’s decision to deny a petition rested on clearly
erroneous and material findings of fact, then the petitioner would be entitled
to a new trial in which the evidence could be reconsidered in the absence
of the erroneous finding.
It bears noting that in the petitioner’s brief, she requests only that we
reverse the trial court’s decision because ‘‘it is legally and factually deficient.’’
She fails to indicate whether, if she were to prevail, we should order a new
trial on the petition or direct the trial court to grant the petition and terminate
the mother’s parental rights.
10
Practice Book § 35a-7 (a) provides: ‘‘In the adjudicatory phase, the
judicial authority is limited to evidence of events preceding the filing of the
petition or the latest amendment, except where the judicial authority must
consider subsequent events as part of its determination as to the existence
of a ground for termination of parental rights.’’
Accordingly, in those instances in which it may be necessary due to
the adjudicatory ground asserted, the court may look to evidence arising
subsequent to the adjudicatory date. For example, in assessing the ground
of failure to rehabilitate, ‘‘the court may rely on events occurring after the
[adjudicatory date] when considering the issue of whether the degree of
rehabilitation is sufficient to foresee that the parent may resume a useful
role in the child’s life within a reasonable time.’’ (Emphasis in original;
internal quotation marks omitted.) In re Jennifer W., 75 Conn. App. 485,
495, 816 A.2d 697, cert. denied, 263 Conn. 917, 821 A.2d 770 (2003).
11
We note that the addendum to the social study dated March 6, 2017,
which was admitted as exhibit E at trial, indicates that, as of the date of
the addendum, the father had stopped communicating with the foster parent
about Mariana’s well-being, he no longer was in contact with Mariana, and
the department was unaware of the father’s whereabouts because he had
not made himself available to the department. Because this information,
however, postdates the filing of the petition to terminate on September 22,
2016, it properly was not considered by the trial court in evaluating whether
the department had proven the asserted ground of abandonment by clear
and convincing evidence. See Practice Book § 35a-7 (a).