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*********************************************** 
IN RE JACOB W.—DISSENT

D’AURIA, J., with whom McDONALD and ECKER,

Js., join, dissenting. I would reverse the Appellate

Court’s judgment and remand the case to that court

with direction to affirm the trial court’s denial of the

petitions filed by the petitioner, the maternal grandmother of the three minor children at issue, to terminate

the parental rights of the respondent father, Daniel W.,

as to those children.

My disagreement with the Appellate Court centers

on what I view as its failure to adequately address the

fact that in addition to finding that the petitioner had

failed to prove that there was no ongoing parent-child

relationship at the time of trial—a ruling the Appellate

Court concluded was in error—the trial court also found

that the petitioner had failed to prove that ‘‘to allow

further time for the establishment or reestablishment

of the parent-child relationship would be detrimental

to the best interest of the child.’’ This latter finding independently would have sufficed to deny the petitions.1

My disagreement with the majority is similar. I believe

that by focusing on the trial court’s isolated and subordinate statement that ‘‘[t]here was no evidence presented

by the petitioner at trial that would support a claim

that additional time to reestablish a relationship with

the children would be detrimental,’’ and declaring that

statement clearly erroneous, the majority has mistakenly avoided the fact that the latter finding was equally

dispositive of the trial court’s denial of the petitions.

In my view, the majority (1) misreads the meaning of the

trial court’s memorandum of decision; (2) in essence,

substitutes its judgment for the trial court’s judgment on

an issue of fact entrusted to trial judges in our juvenile

session; and (3) ultimately awards the petitioner no real

practical relief. I, therefore, respectfully dissent.

I

The respondent is serving a total effective sentence

of twenty-nine years in prison. The conduct that landed

him in prison (sexually abusing his children’s young

aunt, who lives with them) is reprehensible. His children

are not aware of that conduct, but the conduct that

they believe landed him in prison (beating their mother,

which they witnessed) is also reprehensible. It is not

difficult to predict that this respondent might well be

on the road to having his parental rights terminated. If

I had been the trial judge, I might have ruled on the

record presented to terminate his parental rights. But

no one on this court was the trial judge in this case.

The trial court judge who did address the petitions

in the present case was confronted with an issue that

is not unusual in juvenile cases in which a parent faces

a long term of incarceration: whether and when to ter-
minate the parental rights of the parent-inmate. The

reality is that some parents serving lengthy prison sentences may not play any significant role in the upbringing of their children and will not do so because of their

own conduct. Without extraordinary effort of their own

or active cooperation from the children’s caregivers,

parent-inmates might have little or no contact with their

children at all.

But, as the majority observes, although a court may

consider the ‘‘inevitable effects of incarceration’’ on an

individual’s ability to parent, ‘‘the fact of incarceration,

in and of itself, cannot be the basis for a termination

of parental rights.’’ In re Elvin G., 310 Conn. 485, 514,

78 A.3d 797 (2013); see also In re Juvenile Appeal

(Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808

(1982). Termination of parental rights implicates a fundamental constitutional right; In re Yasiel R., 317 Conn.

773, 792, 120 A.3d 1188 (2015); and has implications

beyond a child’s childhood. When parental rights have

been terminated, it becomes unlikely that the child and

the parent will ever have any relationship, even as

adults.

Children, of course, also have rights, as well as a

need for a continuous, stable home environment. See

In re Davonta V., 285 Conn. 483, 494, 940 A.2d 733

(2008). In some cases, terminating a parent’s rights is

exactly the right thing for a child’s best interests. Perhaps this is such a case. My point in dissenting from

the majority should not be read as suggesting that this

respondent is a good example of someone who should

necessarily play a parental role in the lives of his children, given his conduct and the other circumstances

relevant to that determination. My point is that we are

not well positioned to make that determination. Rather,

this is a difficult decision assigned to our trial court

judges sitting in the juvenile session. Specifically, as it

relates to the ground asserted and solely pursued by

the petitioner in the present case—‘‘no ongoing parentchild relationship’’—the trial court is entrusted not just

with determining whether to terminate a parent’s rights,

but when to do so. In adjudicating this particular

ground, as applied to a parent who will be incarcerated

throughout a child’s childhood, General Statutes § 45a717 (g) (2) (C) places discretion in the hands of the

trial court to determine whether the ‘‘effects of incarceration’’ are indeed ‘‘inevitable’’ under the particular facts

of the case, or whether allowing more time for the

relationship to establish or reestablish is detrimental

to the children’s best interest.

II

Section 45a-717 (g) provides in relevant part that ‘‘the

court may approve a petition terminating . . . parental

rights . . . if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest

of the child, and (2) . . . (C) there is no ongoing parent-
child relationship which is defined as the relationship

that ordinarily develops as a result of a parent having

met on a continuing, 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 the parent-child relationship would be detrimental to the best interests of the child . . . .’’

(Emphasis added.) Thus, to satisfy subsection (g) (2)

(C) of the statute, the court must find both (1) that

the petitioner has established that there is no ongoing

parent-child relationship (the ‘‘no ongoing parent-child

relationship’’ prong) and (2) that permitting the parent

further time to establish or reestablish such a relationship would be detrimental to the children’s best interests (the ‘‘further time’’ prong). See In re Jonathon

G., 63 Conn. App. 516, 525, 777 A.2d 695 (2001). The

petitioner must prove both prongs by clear and convincing evidence. See In re Baby Girl B., 224 Conn. 263,

300–301, 618 A.2d 1 (1992).

The trial court in the present case found that the

petitioner had failed to establish either prong by clear

and convincing evidence. Specifically, the court found

‘‘that the petitioner has not demonstrated that there is

a lack of parent-child relationship nor that it would be

detrimental to allow further time for the establishment

of the relationship.’’ (Emphasis added.) Regarding the

‘‘further time’’ prong, the trial court stated that ‘‘[t]here

was no evidence presented by the petitioner at trial

that would support a claim that additional time to reestablish a relationship with the children would be detrimental.’’ The trial court also found that terminating the

respondent’s parental rights would not have been in

the best interest of the children.2

III

Rather than awaiting the ‘‘further time’’ contemplated

by § 45a-717 (g) (2) (C) and either amending her petitions or bringing new petitions,3

the petitioner appealed

to the Appellate Court, claiming that all three of the

trial court’s critical findings were clearly erroneous.

Specifically, she argued to the Appellate Court that

upon the record presented, the trial court should have

found by clear and convincing evidence that (1) there

was no ongoing parent-child relationship between the

respondent and his children; (2) permitting the respondent further time to establish or reestablish such a

relationship would be detrimental to the children’s best

interests; and (3) termination of the respondent’s parental rights would be in the children’s best interests. The

petitioner claimed that if she was correct that the trial

court erred in each of its findings, she would be entitled

to directed judgments terminating the respondent’s

rights, rather than merely the new trial the Appellate

Court ordered and the majority today affirms. See In

re James T., 9 Conn. App. 608, 644, 520 A.2d 608 (1987)

(‘‘[f]rom the facts presented in the court’s memoran-
dum, to the effect that [the Department of Children and

Families (department)] ‘clearly established’ that it is

not in the child’s best interest to allow further time to

establish a relationship, we conclude that [the department] did meet its burden of clear and convincing proof,

and the petition should have been granted’’).

As the majority notes, the Appellate Court did not

address the petitioner’s claims on appeal that the trial

court’s findings were clearly erroneous. Nor did it

address at all the trial court’s finding that it had not

been proven to the court that allowing further time

would be detrimental to the children’s best interests.

Instead, the Appellate Court reversed the trial court’s

judgments denying the petitions, holding that the trial

court’s reasoning was legally and logically inconsistent,

and that its factual findings were fatally inconsistent.

In re Jacob W., 178 Conn. App. 195, 215, 172 A.3d 1274

(2017). Specifically, the Appellate Court held that the

trial court had applied the wrong legal test to determine

whether there was an ongoing parent-child relationship.

Id., 211. It determined that the trial court’s findings

were legally inconsistent in that the trial court found

both ‘‘that an ongoing parent-child relationship exists

and that unreasonable interference inevitably prevented the respondent from maintaining an ongoing

parent-child relationship.’’ (Emphasis omitted.) Id. It

also determined that the trial court’s findings were factually inconsistent in that the trial court ‘‘found both

that the grandparents’ unreasonable conduct constituted interference and that there was no evidence of

unreasonable interference by any person.’’ Id., 215–16.

The Appellate Court therefore ordered a new trial on

the petitioner’s amended petitions. Id., 219.

Although the trial court’s memorandum of decision

is not entirely clear—and is in one place inconsistent—

neither the parties nor the Appellate Court saw fit to

ask the trial court to clarify or articulate its ruling.4 See

Practice Book § 66-5; see also In re Jason R., 306 Conn.

438, 460, 51 A.3d 334 (2012) (trial court states burden

of proof correctly in articulations to clarify ambiguity

in memorandum of decision regarding allocation of burden of proof). Trial court judges operate under tremendous time pressure and without the resources available

to this court and the Appellate Court. See K. Stith, ‘‘The

Risk of Legal Error in Criminal Cases: Some Consequences of the Asymmetry in the Right to Appeal,’’ 57

U. Chi. L. Rev. 1, 61 n.99 (1990) (‘‘appellate judges have

more resources [time, staff, and so on than trial

judges]’’). Thus, a trial court ‘‘opinion must be read as

a whole, without particular portions read in isolation,

to discern the parameters of its holding.’’ (Internal quotation marks omitted.) In re Jason R., supra, 453.

More significantly for this case, even if the trial court’s

decision was in some way unclear, the examples provided by the Appellate Court concerned only the ‘‘no
ongoing parent-child relationship’’ prong. The Appellate

Court identified no lack of clarity or inconsistency concerning the ‘‘further time’’ prong, which provides an

independent basis for upholding the trial court’s decision. See footnote 6 of this dissenting opinion. Therefore, whatever flaws the trial court’s opinion might have

contained, I had no trouble understanding from my

review that the court found that the time had not yet

come to terminate the respondent’s parental rights. I

therefore would not have reversed the trial court’s judgments on the ground that the Appellate Court did.

IV

We granted certification in the present case limited to

the following issue: ‘‘Did the Appellate Court correctly

reverse the trial court’s judgment denying the custodian’s petition to terminate the father’s parental rights

when it determined that the trial court’s judgment was

legally and logically inconsistent?’’ In re Jacob W., 328

Conn. 902, 177 A.3d 563 (2018). The majority does not

affirm the Appellate Court’s judgment on the ‘‘legally

and logically inconsistent’’ rationale of that court, however, but rather, it concludes that in addressing the ‘‘no

ongoing parent-child relationship’’ prong, the trial court

did not properly take account of the ‘‘children’s negative

feelings toward or lack of memory of the respondent,’’

improperly focusing instead on the respondent’s conduct. I do not believe we need to reach that issue,

however (and I do not), because even if the trial court

considered the ‘‘no ongoing parent-child relationship’’

prong under an incorrect standard, the trial court also

found that the petitioner had failed to establish that ‘‘to

allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child.’’5

In my view,

the trial court’s ruling on this second prong sufficed

independently to deny the petitions.6

The majority does not hold, as the petitioner has

asked us to hold, that the trial court’s ruling on the

‘‘further time’’ prong is clearly erroneous and that,

therefore, this prong has in fact been established by

clear and convincing evidence. This would be a difficult

chore. Determining that a trial court’s finding that the

failure to prove an element by clear and convincing

evidence is clearly erroneous is even more challenging

an undertaking than contesting any other pedestrian

finding.

The majority instead takes on a subordinate statement of the trial court: ‘‘[t]here was no evidence presented by the petitioner at trial that would support a

claim that additional time to reestablish a relationship

with the children would be detrimental.’’ The majority

protests that there was in fact ‘‘evidence presented that

was relevant to this question’’ and that for the trial court

to say otherwise was so clearly erroneous that a new

trial is warranted. The examples the majority provides,
however, are not in my view directly relevant to the

finding that further time would not be detrimental, but

instead relate to whether additional time will be productive.

For example, the majority states that there was evidence that the children had intensely negative feelings

about the respondent (including feelings that he is a

bad parent) or no present feelings at all. The children

were not asking to see or speak with him and wanted

to have their last name changed. The majority also

claims that the trial court did not consider the recommendations of the department, the guardian ad litem,

and the children’s attorney to terminate the respondent’s parental rights, along with whether the little ‘‘likelihood’’ of reestablishing a relationship, and the time it

would have taken to do so, would have been detrimental

to the children’s best interest.

However, I do not agree with the majority that the

trial court did not give consideration to all of the evidence the majority cites. In my view, a full and fair

reading of the memorandum of decision does not support a conclusion that the trial court ‘‘did not accord

any effect to,’’ ‘‘did not consider,’’ or ‘‘took no account

of’’ such evidence. Judges presumptively consider whatever evidence is in front of them. See Lewis v. Commissioner of Correction, 117 Conn. App. 120, 128, 977 A.2d

772 (‘‘There is nothing in the record that suggests that

the court failed to review thoroughly the testimony and

evidence submitted to it. . . . [A] judge is presumed

to have performed his duty properly unless the contrary

appears [in the record].’’ [Internal quotation marks

omitted.]), cert. denied, 294 Conn. 904, 982 A.2d 647

(2009). And here, the trial court did expressly find and

take note in its memorandum of decision of the children’s negative and nonexistent feelings, as well as the

department’s report and the guardian ad litem’s recommendation.

Thus, unlike the majority, I would not so strictly

scrutinize the trial court’s statement that there was ‘‘no

evidence . . . that would support a claim that additional time to reestablish a relationship with the children would be detrimental.’’ The majority finds fault

with this statement because, in its view, there was relevant evidence. Just because evidence is relevant, however, does not mean it clearly and convincingly

establishes a fact. I read the trial court’s statement as

more likely meaning that the court found ‘‘no direct

evidence’’7 or ‘‘no persuasive evidence’’ that more time

would be detrimental. ‘‘[W]e read an ambiguous trial

court record so as to support, rather than contradict,

its judgment.’’ (Internal quotation marks omitted.) In

re Jason R., supra, 306 Conn. 453. The trial court might

not have been persuaded by the evidence the majority

believes it should have been persuaded by, but instead

determined that there was not clear and convincing
evidence that affording additional time would be detrimental to the children’s best interests. Although the

trial court’s analysis may be sparse, it is clear to me from

its factual findings that it considered all the evidence

in reaching its determination as to the ‘‘further time’’

prong. In my view, the majority has substituted its judgment for the discretion of the trial court and called it

clearly erroneous review.

For example, the trial court could have found that,

although relevant, the children’s statements of dislike

of the respondent were not direct evidence of further

time being detrimental to their best interest.8 Although

a trial court could have found that further time would

be detrimental because the children were upset and

any further contact with the respondent would serve

only to upset them further, it also could have found that

those negative feelings were going to exist regardless

of whether the respondent’s parental rights are terminated, that termination will not affect those feelings,

and that additional time might provide an opportunity

for the respondent to attempt to repair his relationship

with his children. In fact, in many of such ‘‘no ongoing

parent-child relationship’’ cases, the present feelings of

the children may be negative or nonexistent. That is

why the relationship has to be reestablished. And, that

is what the additional time is for: things can change.

Thus, when the trial court stated that ‘‘[t]he statements

of dislike by very young children with false information

about [the respondent] does not establish by clear and

convincing evidence that reestablishing a relationship

would be detrimental,’’ I think that means no more than

that: the quantum of evidence necessary was not met

by the cited evidence.

Further, although the trial court acknowledged that

the department had recommended termination of the

respondent’s parental rights, and that the guardian ad

litem found it unlikely that further time would be productive on the basis of the respondent’s incarceration

and the ongoing protective order preventing contact

between him and the children, it did not find this to be

direct evidence of detriment if it allowed further time.

Lack of productivity does not necessarily equate to

detriment, but rather is a factor to consider in determining whether further time would be detrimental.

Although the trial court in this case could have found

that there was little likelihood of productivity because

of the protective order, it also could have found that

because the respondent could have sought to modify

the protective order or set up some arrangement to

have contact with his children, there was a possibility

that further time would give the respondent an opportunity to reestablish his relationship with his children.

Thus, although relevant, this evidence does not necessarily support a claim that additional time to reestablish

a relationship with the children would be detrimental.
It is for the trial court to determine whether there is

a lack of productivity and, if so, whether it would be

detrimental. The trial court in the present case determined that any predicted lack of productivity in providing additional time did not equate to detriment—in this

case, at that time—especially in light of the fact that

the children had been thriving with their grandparents.

In my view, this finding is not clearly erroneous. It is

important that in reviewing such a finding, we do not

substitute our own judgment for the trial court’s judgment on an issue of fact entrusted to trial judges in our

juvenile session because, especially in cases involving

incarcerated parents, it will be a highly fact-bound question whether additional time is not likely to establish

or reestablish the relationship. It is not necessarily true

that in each of those cases, granting the additional time

would be detrimental. Rather, this is, in my view, an

issue best left to the trial judge, who is in the best

position to weigh the evidence before her or him.

V

Hard cases make bad law. In my view, this case qualifies. The respondent’s appalling conduct and its consequences would seem to make it highly unlikely that he

will play a significant parenting role in his children’s

lives. I am concerned, however, that the majority’s opinion will be read to require trial court judges to consider

the ‘‘further time’’ prong to be more of a predictor of

the likelihood of reestablishing a relationship. Although

I agree that the likelihood that further time will be

productive may be a factor in determining whether further time would be detrimental to the children’s best

interest, I am concerned that judges sitting in our juvenile session will interpret the majority’s opinion as

equating the probable lack of productivity with detriment.

Thus, in this case, I do not believe that any assumed

lack of productivity should not be considered by the

trial court, but rather I believe that the trial court did

indeed consider it and did not find it to be evidence of

detriment. There is no requirement that a trial court

make a finding of detriment even if there is little foreseeability of reestablishing a relationship. Rather, this is a

fact-based issue that will differ under the circumstances

of each case. Unless the court’s finding is clearly erroneous, we should defer to the trial court’s judgment on

such an issue. Otherwise, I am concerned that appellate

scrutiny will override and overshadow the trial court’s

prerogative to weigh the evidence and determine not

only whether parental rights should be terminated, but

when. I am simply unwilling to arrogate to myself the

authority to make this determination, and unwilling to

so strictly scrutinize the trial court’s memorandum of

decision in such a pursuit.

I am especially unwilling to do so when the reward
the majority confers upon the petitioner is so meager.

The majority’s decision today will not hasten the termination of the respondent’s parental rights. In fact, the

appellate process might very well have delayed it. This

is because all the petitioner has gained by prevailing

before both the Appellate Court and this court is a new

trial on a trio of two year old petitions. A Pyrrhic victory

to be sure. Practically, this is no relief at all because

any new trial that follows from a reversal of the trial

court’s denial of the petitions will necessarily have to

measure any ‘‘ongoing’’ relationship as of the time of

the new trial, not based on the date of the prior trial.

See In re Juvenile Appeal (83-DE), supra, 190 Conn.

318 (‘‘the issue of whether termination of parental rights

is appropriate must be decided upon the basis of conditions as they appear at the time of trial’’). If a new trial

on these petitions would be any different from a trial

on new petitions alleging no ongoing parent-child relationship, that difference is lost on me. See footnote 3

of this dissenting opinion. It is little wonder that that

is not the relief the petitioner sought in the Appellate

Court, but rather that she sought directed judgments

based upon an appellate determination that all of the

trial court’s findings on the elements of the no ongoing

parent-child relationship prong were clearly erroneous.9

Thus, although my disagreement with the majority is

fundamental, it results in little difference to the parties

in this case. I therefore respectfully dissent.

1 The petitioner originally alleged that the children had been denied the

care, guidance, or control necessary for their physical, educational, moral,

or emotional well-being by reason of acts of parental commission or omission. See General Statutes § 45a-717 (g) (2) (B). In her amended petitions,

the petitioner withdrew that allegation and instead alleged abandonment

and the lack of an ongoing parent-child relationship as grounds for termination. See General Statutes § 45a-717 (g) (2) (A) and (C). The trial court ruled

against the petitioner on both grounds. The only ground relevant to this

appeal, however, is the ground of no ongoing parent-child relationship. See

General Statutes § 45a-717 (g) (2) (C).

2

In support of these findings, the trial court made the following subordinate findings: The respondent is the father of three children, Jacob, N, and

C. Because of a protective order put into place to prevent the respondent

from having contact with the children’s maternal aunt, with whom they live,

the respondent has not been able to contact his children while in prison.

Nevertheless, while incarcerated, he has requested assistance to arrange

visits with and updates about his children, and participated in programs to

send Christmas gifts to them. Although Jacob initially stated that he missed

the respondent, he has since called him a ‘‘bad parent.’’ N has stated that

he hates the respondent, and C has little to no memory of him. Both Jacob

and N have stated that they want no contact with the respondent. The

children have bonded with the petitioner, their maternal grandmother, who

wants to change their last name. Additionally, the guardian ad litem has

opined that termination of the respondent’s parental rights is in the children’s

best interest because there would be no benefit in the children forming

a relationship with him, as he will be incarcerated for the remainder of

their childhood.

3 My research identifies nothing that prevents (or would have prevented)

the petitioner from pursuing termination on the ‘‘no ongoing parent-child

relationship’’ ground, or any other ground, at some point after the trial court

ruled against her on the present petitions. This court has held that a party

can file an amended or new petition alleging either new grounds or a material

change in circumstances so as to avoid both res judicata and collateral

estoppel issues. See In re Baby Girl B., supra, 224 Conn. 293–94 (‘‘it makes

no difference whether [the Department of Children and Families] chooses

to honor its obligation by filing an amended petition or by filing a second
independent petition alleging [a material change in circumstances or] new

grounds for termination’’); see id., 294 n.19; In re Juvenile Appeal (83-DE),

190 Conn. 310, 318–19, 460 A.2d 1277 (1983) (‘‘[T]he doctrines of res judicata

and collateral estoppel ordinarily afford very little protection to a parent

who has once successfully resisted an attempt to terminate his [or her

parental] rights to a child. . . . An adjudication that a ground for termination did not exist at one time does not mean such ground has not arisen

at a later time.’’ [Citations omitted.]). This is because § 45a-717 (g) (2) (C)

looks at whether there is a present ongoing relationship, which necessarily

must be assessed as of the time of trial. See In re Juvenile Appeal (83-

DE), supra, 318 (‘‘the issue of whether termination of parental rights is

appropriate must be decided upon the basis of conditions as they appear

at the time of trial’’).

4

In the absence of an articulation, we do not know if the trial court’s

memorandum of decision truly is inconsistent, or if the legal ‘‘inconsistencies’’ are arguments in the alternative and the factual ‘‘inconsistencies’’ are

scrivener’s errors. Because we must read a memorandum of decision as a

whole; In re Jason R., 306 Conn. 438, 453, 51 A.3d 334 (2012); and because

there is a presumption that the trial court properly applied the law and

considered the facts; State v. Henderson, 312 Conn. 585, 598, 94 A.3d 614

(2014); Walton v. New Hartford, 223 Conn. 155, 165, 612 A.2d 1153 (1992);

we should construe these ‘‘inconsistencies’’ to conform to the trial

court’s holding.

5 The majority states that the trial court’s holding under the dispositional

phase of the proceedings that termination was not in the children’s best

interest also ‘‘was affected by its application of an incorrect legal test during

the adjudicatory phase’’ and by these inconsistencies. These concerns do

not apply to the trial court’s finding under the ‘‘further time’’ prong. The

‘‘best interest’’ analysis under the second prong of § 45a-717 (g) (2) (C) is

separate and distinct from the ‘‘best interest’’ analysis under subsection

(g) (1).

6 Citing In re Juvenile Appeal (Anonymous), 177 Conn. 648, 675–76, 420

A.2d 875 (1979), the majority indicates that ‘‘[o]nly if’’ the trial court determines that the petitioner has proven the lack of an ongoing parent-child

relationship ‘‘may it turn to the second part of the inquiry . . . .’’ The

majority focuses on a single sentence from In re Juvenile Appeal (Anonymous): ‘‘The ‘best interests’ standard . . . comes into play only if it has

been determined that no ongoing parent-child relationship exists, in order

to decide whether allowance of further time for the establishment or reestablishment of the relationship would be contrary to the child’s best interests.’’

(Emphasis omitted.) Id. The majority and the Appellate Court have interpreted this sentence to mean that the trial court cannot and should not address

the ‘‘further time’’ prong unless the ‘‘no ongoing parent-child relationship’’

prong has been established. If there is an ongoing relationship, then there

is no reason or purpose for affording further time to establish such a relationship. Thus, according to the majority, if this court determines that the trial

court’s finding as to the first prong was clearly erroneous, it cannot affirm

the trial court’s decision on the basis of the second prong, but rather must

remand the case for a new trial.

I do not agree with such an interpretation of In re Juvenile Appeal

(Anonymous), especially when reading the sentence at issue in context. In

In re Juvenile Appeal (Anonymous), the juvenile court found there to be

no meaningful ongoing parent-child relationship, and, on appeal, the Superior Court upheld that decision, ‘‘characteriz[ing] the decision of the Juvenile

Court as holding that ‘it was in the best interest of said child that the

petition for termination of parental rights be granted.’ ’’In re Juvenile Appeal

(Anonymous), supra, 177 Conn. 675. In doing so, the Superior Court combined the first and second prongs of § 45a-717 (g) (2) (C), upholding the

juvenile court’s finding of no meaningful ongoing parent-child relationship

under the first prong because it was in the children’s best interest. This

court in In re Juvenile Appeal (Anonymous) was holding that the Superior

Court improperly upheld the juvenile court’s finding as to the first prong

on the basis of the child’s best interest, which could be considered only as

a part of the second prong. Based on this context, I do not read the sentence

cited by the majority as prohibiting a trial court from considering the ‘‘further

time’’ prong unless the ‘‘no ongoing parent-child relationship’’ prong is first

established. Rather, this sentence establishes simply that ‘‘best interest’’ is

considered only as part of the second prong, not the first prong.

If the cited sentence in In re Juvenile Appeal (Anonymous) is read to

mean that the trial court cannot consider the second prong (‘‘further time’’)
before it has found the first prong to be established, in my view this court

should overrule that holding. Although it is obvious that the trial court may

not grant a termination petition if it does not find the lack of an ongoing

parent-child relationship, because both prongs must be established, the

petition can fail under either prong. Similarly, even if the trial court finds

there is not clear and convincing evidence of no ongoing parent-child relationship, there is no reason why the court cannot go on to determine whether

further time would be detrimental as an alternative reason for denying the

petitions. See Meribear Productions, Inc. v. Frank, 328 Conn. 709, 724, 183

A.3d 1164 (2018) (‘‘whenever feasible, the far better practice would be for

the trial court to fully address the merits of all theories litigated, even those

that are legally inconsistent’’).

7

In my view, an example of what would be direct evidence (or at least

more direct evidence) might be where termination will lead to a different

placement or some other contingency. But here, these children will be with

the grandparents, regardless.

8 The majority takes issue with the trial court’s statement that ‘‘[t]he

statements of dislike by very young children with false information about

[the respondent] does not establish by clear and convincing evidence that

reestablishing a relationship would be detrimental.’’ According to the majority, the trial court improperly discounted ‘‘the negative feelings of the children on the basis of the grandparents’ alleged ‘interference,’ ’’ and, if properly

considered, these negative feelings would have been at least some evidence

that further time would be detrimental, making the trial court’s finding of

‘‘no evidence’’ clearly erroneous. The problem with this argument, however,

is that it presupposes that the children’s negative feelings necessarily equate

to evidence that further time would be detrimental to their best interest.

As explained previously, the children’s negative feelings reasonably can be

considered not to be direct evidence of detriment, but rather are open to

interpretation by the trial court.

9

In her appeal to the Appellate Court, the petitioner specifically asked

the court to direct judgments terminating the respondent’s parental rights

on the ground that the trial court’s findings as to § 45a-717 (g) (2) (C) were

clearly erroneous because its subordinate findings establish that there was

no ongoing parent-child relationship and that allowing further time would

be detrimental to the children’s best interest. Although the petitioner has

repeated this argument before this court as an alternative ground for

affirming the judgment of the Appellate Court, she has not specifically

requested directed judgments from this court.