204 Conn.App. 729
Conn. App. Ct.2021Background
- Skylar B., born Nov. 2017, was placed with her maternal aunt and uncle (relative foster parents) after DCF intervened for parental substance use and domestic violence.
- Father (respondent) had extensive criminal history, parole violations (including no‑contact violation), intermittent incarceration, and limited participation in offered services/visitation.
- DCF filed a petition to terminate parental rights in Nov. 2018; two‑day trial occurred while father remained in federal custody; psychologist’s evaluation raised concerns about rehabilitation and parenting capacity.
- Trial court found by clear and convincing evidence that father failed to rehabilitate under Conn. Gen. Stat. § 17a‑112(j)(3)(B)(i) and that termination was in the child’s best interest; foster family intended to adopt.
- On appeal father argued the court violated his substantive due process rights because a transfer of guardianship to the relatives was a less restrictive alternative to termination; he did not file a motion seeking transfer of guardianship below.
- Appellate court held the record inadequate under State v. Golding because interested parties and the court were not put on notice by a formal guardianship motion and therefore declined to reach the constitutional claim; judgment affirmed.
Issues
| Issue | Plaintiff's Argument (Commissioner) | Defendant's Argument (Jeffrey B.) | Held |
|---|---|---|---|
| Whether termination violated substantive due process because transfer of guardianship was a less restrictive means of permanency | DCF: record lacks motion/ findings about guardianship; statutory scheme permits but does not require transfer; termination supported by evidence | Father: transfer to relatives would provide permanency and is less restrictive than termination; termination unnecessary | Court: decline Golding review — record inadequate because no guardianship motion was filed; affirmed termination |
| Whether the trial court’s finding that there was insufficient time for bonding was clearly erroneous | DCF: expert testimony and visit history support the court’s finding | Father: he had consistent weekly visits for ~10 months before incarceration | Held: not clearly erroneous; expert supported the finding |
| Whether § 17a‑111a precludes filing termination when child is placed with relatives (statutory claim underpinning constitutional argument) | DCF: § 17a‑111a(b) is discretionary and does not bar filing termination petitions | Father: statute (and precedent) requires a compelling reason before filing if placed with relatives; thus termination should be limited | Held: § 17a‑111a(b) is discretionary (“not required”) and does not preclude termination petitions |
| Whether an appellate court may reach an unpreserved constitutional claim without a complete record or formal motion below | DCF: Golding requires adequate record; without a guardianship motion interested parties lacked notice and essential findings | Father: counsel’s closing argument asking for guardianship suffices to preserve the issue for review | Held: closing argument alone insufficient; proper motion needed to put parties and court on notice and to develop a factual record |
Key Cases Cited
- State v. Golding, 213 Conn. 233 (Conn. 1989) (test for appellate review of unpreserved constitutional claims)
- In re Yasiel R., 317 Conn. 773 (Conn. 2015) (Golding as modified; standards for reviewing unpreserved claims in child‑welfare context)
- In re Azareon Y., 309 Conn. 626 (Conn. 2013) (record inadequate where respondent did not request alternatives and petitioner lacked notice)
- In re Brayden E.-H., 309 Conn. 642 (Conn. 2013) (court reached merits where trial court made specific findings on guardianship alternatives)
- In re Unique R., 170 Conn. App. 833 (Conn. App. 2017) (discusses DCF investigatory duties and effect of relative placement on termination decisions)
- In re Adelina A., 169 Conn. App. 111 (Conn. App. 2016) (explains statutory preference for termination/adoption under ASFA and requirements for guardianship findings)