*********************************************** 

The “officially released” date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was 

released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions 

and petitions for certification is the “officially released” 

date appearing in the opinion. 

All opinions are subject to modification and technical 

correction prior to official publication in the Connecticut 

Reports and Connecticut Appellate Reports. In the event of 

discrepancies between the advance release version of an 

opinion and the latest version appearing in the Connecticut 

Law Journal and subsequently in the Connecticut Reports 

or Connecticut Appellate Reports, the latest version is to 

be considered authoritative. 

The syllabus and procedural history accompanying the 

opinion as it appears in the Connecticut Law Journal and 

bound volumes of official reports are copyrighted by the 

Secretary of the State, State of Connecticut, and may not 

be reproduced and distributed without the express written 

permission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. 

*********************************************** 
IN RE TRESIN J.*

(SC 20267)

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

Syllabus

The respondent father appealed to the Appellate Court from the trial court’s

judgment terminating his parental rights with respect to his minor child,

T. The respondent had been incarcerated when T was two years old,

and T had last spoken with the respondent around that time. While

the respondent was incarcerated, T was placed in the custody of the

petitioner, the Commissioner of Children and Families, after the petitioner became aware that T’s mother, who was the custodial parent, was

experiencing mental health and substance abuse issues. The petitioner

thereafter filed a petition to terminate the respondent’s parental rights

on the statutory (§ 17-112 [j] [3] [D]) ground that he had no ongoing

parent-child relationship with T. In terminating the respondent’s parental

rights with respect to T, the trial court found that T, who was six years

old at the time of the termination hearing, did not know who his father

was or have any positive parental memories of the respondent. On

appeal, the respondent claimed, inter alia, that the trial court, in concluding that he had no ongoing parent-child relationship with T, failed to

consider the petitioner’s interference with the development of that relationship and his own positive feelings toward T in light of T’s young

age at the time the respondent was incarcerated. The Appellate Court

disagreed and affirmed the trial court’s judgment, concluding that there

was no evidence that the respondent sought visitation with or attempted

to contact T while he was incarcerated, and that there was no evidence

that T’s mother, who had custody of T during that period, had interfered

with the development of an ongoing parent-child relationship, or that

the petitioner’s alleged interference led to the lack of such relationship.

On the granting of certification, the respondent appealed to this court.

Held that the Appellate Court properly upheld the trial court’s termination of the respondent’s parental rights on the ground that there was

clear and convincing evidence of a lack of an ongoing parent-child

relationship, and the virtual infancy and interference exceptions to the

lack of an ongoing parent-child relationship ground for termination did

not apply in this case: at the time of the termination hearing, T had no

knowledge or memory of the respondent as his father; moreover, the

virtual infancy exception did not apply because, although T was two

years old when he was separated from the respondent as a result of his

incarceration, it is the child’s age at the time of the termination hearing

that controls for purposes of that exception, and T was six years old

at the time of the respondent’s termination hearing and able to communicate that he lacked present memories of the respondent as his parent;

furthermore, the respondent could not prevail on his claim that the

interference exception applied on the basis of the apparent inability of

T’s mother to foster a relationship between T and the respondent during

the respondent’s incarceration, as that exception is triggered only by

the conduct of the petitioner rather than that of a third party or some

other external factor that occasioned the separation between parent

and child.

Argued September 18—officially released December 31, 2019**

Procedural History

Petition by the Commissioner of Children and Families to terminate the respondents’ parental rights with

respect to their minor child, brought to the Superior

Court in the judicial district of Hartford, Juvenile Matters, and tried to the court, C. Taylor, J.; judgment

terminating the respondents’ parental rights, from

which the respondent father appealed to the Appellate
Court, DiPentima, C. J., and Alvord and Beach, Js.,

which affirmed the trial court’s judgment, and the

respondent father, on the granting of certification,

appealed to this court. Affirmed.

David J. Reich, assigned counsel, for the appellant

(respondent father).

Sara Nadim, assistant attorney general, with whom,

on the brief, were William Tong, attorney general, Clare

Kindall, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Opinion

ROBINSON, C. J. In this certified appeal, we consider

whether the parental rights of a father were properly

terminated for lack of an ongoing parent-child relationship when, at the time of the termination trial, the six

year old child had no knowledge or memory of his

father, who had been incarcerated when the child was

two years old. The respondent father, Aceion B.,

appeals, upon our grant of his petition for certification,1

from the judgment of the Appellate Court affirming the

judgment of the trial court in favor of the petitioner,

the Commissioner of Children and Families, which terminated his parental rights as to the child, Tresin J.,

pursuant to General Statutes § 17a-112 (j) (3) (D).2

In

re Tresin J., 187 Conn. App. 804, 805–806, 203 A.3d 711

(2019). Relying on the Appellate Court’s decision in In

re Carla C., 167 Conn. App. 248, 143 A.3d 677 (2016),

the respondent claims that the trial court should have

applied the virtual infancy and interference exceptions

to the lack of an ongoing parent-child relationship

ground for the termination of parental rights because

Tresin was only two years old when the respondent’s

incarceration separated them, and the circumstances

of this case, particularly the deficiencies of Tresin’s

mother, rendered contact impossible during his incarceration. In light of our recent explication of these

exceptions in In re Jacob W., 330 Conn. 744, 200 A.3d

1091 (2019), we disagree with the respondent’s claims.

Accordingly, we affirm the judgment of the Appellate

Court.

The record and the Appellate Court’s opinion set forth

the following background facts and procedural history.

‘‘Tresin was born in June, 2011. The respondent last

spoke to Tresin in April, 2013, when Tresin was less

than two years old. In May, 2013, the respondent was

convicted of possession of marijuana, his probation was

revoked,3 and he was sentenced to a term of incarceration. The respondent subsequently was taken into custody by federal authorities and detained for immigration

violations. The respondent remained in federal custody

until the fall of 2017.’’4

(Footnote in original.) In re

Tresin J., supra, 187 Conn. App. 806.

The Department of Children and Families (department) became involved with Tresin in May, 2015. The

department initiated an investigation when it was notified after one of Tresin’s half siblings was not picked

up from school on time. The department learned during

its investigation that Tresin and his two half siblings

were not up to date medically and that Tresin’s mother

recently had been evicted and had been experiencing

substance abuse difficulties; it referred her to mental

health and substance abuse treatment programs, but

she failed to comply with those programs’ requirements

over the ensuing year. Tresin’s mother subsequently

failed to arrange mental health evaluations and care for
Tresin’s older half sibling, who had been experiencing

severe behavioral issues in school over the course of

that year. In July, 2016, the department invoked a ninetysix hour hold with respect to Tresin and his two half

siblings after Tresin’s mother informed her caseworker

that her life was in danger and she planned to flee the

state with the children.

Subsequently, the petitioner ‘‘filed a neglect petition

with respect to Tresin and his two [half siblings], who

were in the care of Tresin’s mother. In addition, the

petitioner obtained an order of temporary custody with

respect to all three children.

‘‘In August, 2017, the petitioner filed a petition to

terminate the parental rights of the respondent. The

petitioner alleged that, pursuant to § 17a-112 (j) (3) (D),

the respondent had no ongoing parent-child relationship with Tresin. The termination of parental rights trial

was held on February 5 and March 9, 2018.

‘‘In a thoughtful memorandum of decision, issued on

May 22, 2018, the court found that the petitioner had

proved by clear and convincing evidence that there was

no ongoing parent-child relationship with respect to the

respondent and Tresin. In reaching its conclusion, the

court found that ‘Tresin does not know who his father is

and has no positive parental memories of his biological

father.’ ’’5

Id., 806–807.

The respondent appealed from the judgment terminating his parental rights to the Appellate Court, claiming that the trial court incorrectly ‘‘determined, pursuant to § 17a-112 (j) (3) (D), that no ongoing parentchild relationship exists between the respondent and

Tresin.’’6

Id., 808–809. The respondent argued specifically that the trial court’s conclusion was inconsistent

with the Appellate Court’s decision in In re Carla C.,

supra, 167 Conn. App. 248, because the trial court failed

to consider ‘‘(1) the petitioner’s interference with the

development of the parent-child relationship between

himself and Tresin, and (2) Tresin’s young age, in light

of which the respondent’s feelings toward Tresin are

significant.’’ In re Tresin J., supra, 187 Conn. App. 809.

The Appellate Court rejected the respondent’s arguments, observing first that he ‘‘presented no evidence

that he sought visitation or attempted to call Tresin

during those three years [that he was incarcerated].

The respondent does not allege any interference by the

child’s mother, who had custody of Tresin during that

time.’’ Id., 811. The Appellate Court also emphasized

that the petitioner had ‘‘presented undisputed evidence

that, in July, 2016, when Tresin was placed into the

petitioner’s custody and before any alleged interference

took place, Tresin did not know who his father was.

Therefore, unlike in In re Carla C., the respondent

did not present evidence that the petitioner’s alleged

interference led to the lack of an ongoing parent-child

relationship between the respondent and Tresin.’’
(Emphasis in original.) Id., 811–12. Accordingly, the

Appellate Court affirmed the judgment of the trial court,

having concluded that ‘‘the trial court properly applied

the law . . . and that its legal conclusion that the petitioner established the elements of § 17a-112 (j) (3) (D)

[was] supported by clear and convincing evidence.’’ Id.,

813. This certified appeal followed. See footnote 1 of

this opinion.

On appeal, the respondent relies on the Appellate

Court’s decision in In re Carla C., supra, 167 Conn.

App. 248, and claims that the virtual infancy exception

to the lack of an ongoing parent-child relationship

ground for the termination of parental rights is applicable to this case because Tresin, like the child in In re

Carla C., was two years old when the respondent was

incarcerated, meaning that both the trial court and the

Appellate Court improperly focused on Tresin’s lack of

memory of the respondent at the time of trial rather

than the respondent’s positive feelings for Tresin. The

respondent argues that the dispositive issue ‘‘is whether

the child was old enough to remember [his or her]

father when he was separated from the child,’’ rendering

the age of the child at separation the controlling factor.

The respondent also contends that the trial court should

have applied the interference exception by considering

the abilities of the custodial parent at the time of separation. Specifically, he argues that Tresin’s mother,

although not actively interfering in their relationship,

was unable to facilitate visits while he was incarcerated.

In response, the petitioner contends that the Appellate Court’s decision is in full accord with the legal

analysis set forth in In re Jacob W., supra, 330 Conn.

744, and In re Carla C., supra, 167 Conn. App. 248.

The petitioner argues that In re Carla C. is factually

distinguishable because the present case lacks ‘‘interference by any party to the proceeding’’ prior to the

institution of termination proceedings, and, as of the

day of removal, ‘‘Tresin already had no positive memories of [the respondent, and], thus no ongoing parentchild relationship already existed.’’ The petitioner also

contends that the virtual infancy exception is inapplicable because Tresin was six years old at the time of the

termination trial and could communicate his present

feelings. To this end, the petitioner relies on In re Carla

C. and In re Alexander C., 67 Conn. App. 417, 787 A.2d

608 (2001), aff’d, 262 Conn. 308, 813 A.2d 87 (2003),

and argues that incarceration does not trigger the virtual

infancy exception, even when the incarceration and

separation occur during infancy. Instead, the petitioner

emphasizes that, in such cases, the applicable exception

is interference, with consideration given to deliberate

interference by the petitioner and the efforts, or lack

thereof, by the respondent to maintain a relationship

during the period of incarceration.7 We agree with the

petitioner and conclude that the respondent was not

entitled to invoke the interference or virtual infancy
exceptions to the lack of an ongoing parent-child relationship ground for the termination of his parental

rights.

‘‘We begin with the applicable standard of review and

general governing principles. Although the trial court’s

subordinate factual findings are reviewable only for

clear error, the court’s ultimate conclusion that a

ground for termination of parental rights has been

proven presents a question of evidentiary sufficiency.

. . . That conclusion is drawn from both the court’s

factual findings and its weighing of the facts in considering whether the statutory ground has been satisfied.

. . . On review, we must determine whether the trial

court could have reasonably concluded, upon the facts

established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was

sufficient to justify its [ultimate conclusion]. . . .

When applying this standard, we construe the evidence

in a manner most favorable to sustaining the judgment

of the trial court. . . . To the extent we are required

to construe the terms of [§ 17a-112 (j) (3) (D)] or its

applicability to the facts of this case, however, our

review is plenary. . . .

‘‘Proceedings to terminate parental rights are governed by § 17a-112. . . . Under [that provision], a hearing on a petition to terminate parental rights consists

of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial

court must determine whether one or more of the . . .

grounds for termination of parental rights set forth in

§ 17a-112 [(j) (3)] exists by clear and convincing evidence. The commissioner . . . in petitioning to terminate those rights, must allege and prove one or more

of the statutory grounds. . . . Subdivision (3) of § 17a112 (j) carefully sets out . . . [the] situations that, in

the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. . . .

Because a respondent’s fundamental right to parent his

or her child is at stake, [t]he statutory criteria must

be strictly complied with before termination can be

accomplished and adoption proceedings begun.’’ (Citations omitted; internal quotation marks omitted.) In re

Egypt E., 327 Conn. 506, 525–27, 175 A.3d 21, cert.

denied sub nom. Morsy E. v. Commissioner, Dept. of

Children & Families, U.S. , 139 S. Ct. 88, 202

L. Ed. 2d 27 (2018).

We begin with a review of the lack of an ongoing

parent-child relationship ground and its exceptions.

Section 17a-112 (j) provides in relevant part: ‘‘The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed

pursuant to this section if it finds by clear and convincing evidence that (1) the Department of Children and

Families has made reasonable efforts to locate the par-
ent and to reunify the child with the parent in accordance with subsection (a) of section 17a-111b, unless

the court finds in this proceeding that the parent is

unable or unwilling to benefit from reunification efforts,

except that such finding is not required if the court has

determined at a hearing pursuant to section 17a-111b,

or determines at trial on the petition, that such efforts

are not required, (2) termination is in the best interest

of the child, and (3) . . . (D) there is no ongoing parent-child relationship, which means the relationship

that ordinarily develops as a result of a parent having

met on a day-to-day basis the physical, emotional, moral

and educational needs of the child and to allow further

time for the establishment or reestablishment of such

parent-child relationship would be detrimental to the

best interest of the child . . . .’’

In In re Jacob W., supra, 330 Conn. 754–55, we

recently considered the application of the near identical

lack of an ongoing parental relationship provision in

General Statutes § 45a-717 (g) (2) (C), which governs

actions for termination of parental rights brought in

Probate Court by private petitioners.8 We discussed our

previous decisions in In re Valerie D., 223 Conn. 492,

613 A.2d 748 (1992), In re Jessica M., 217 Conn. 459,

586 A.2d 597 (1991), and In re Juvenile Appeal (Anonymous), 177 Conn. 648, 420 A.2d 875 (1979), along with

the Appellate Court’s decision in In re Carla C., supra,

167 Conn. App. 248, and explained that the ‘‘inquiry . . .

is a two step process. First, the court must determine

whether the petitioner has proven the lack of an ongoing

parent-child relationship. Only if the court answers that

question in the affirmative may it turn to the second

part of the inquiry, namely, whether allowance of further time for the establishment or reestablishment of

the relationship would be contrary to the child’s best

interests. . . .

‘‘In interpreting the parameters of [§ 17a-112 (j) (3)

(D)], we must be mindful of what is at stake. [T]he

termination of parental rights is defined . . . as the

complete severance by court order of the legal relationship, with all its rights and responsibilities, between

the child and his parent . . . . It is, accordingly, a most

serious and sensitive judicial action. . . . Although the

severance of the parent-child relationship may be

required under some circumstances, the United States

Supreme Court has repeatedly held that the interest of

parents in their children is a fundamental constitutional

right that undeniably warrants deference and, absent a

powerful countervailing interest, protection. . . .

‘‘Moreover . . . the fact of incarceration, in and of

itself, cannot be the basis for a termination of parental

rights. . . . At the same time, a court properly may

take into consideration the inevitable effects of incarceration on an individual’s ability to assume his or her

role as a parent. . . . Extended incarceration severely
hinders the department’s ability to offer services and

the parent’s ability to make and demonstrate the

changes that would enable reunification of the family.

. . . This is particularly the case when a parent has

been incarcerated for much or all of his or her child’s

life and, as a result, the normal parent-child bond that

develops from regular contact instead is weak or

absent. . . . .

‘‘The lack of an ongoing parent-child relationship is a

no fault statutory ground for the termination of parental

rights. . . . This court has explained that the ground

of no ongoing parent-child relationship for the termination of parental rights contemplates a situation in

which, regardless of fault, a child either has never

known his or her parents, so that no relationship has

ever developed between them, or has definitively lost

that relationship, so that despite its former existence it

has now been completely displaced. . . . The ultimate

question is whether the child has some present memories or feelings for the natural parent that are positive

in nature. . . .

‘‘In its interpretation of the language of [the lack of

an ongoing parent-child relationship ground], this court

has been careful to avoid placing insurmountable burden[s] on noncustodial parents. . . . Because of that

concern, we have explicitly rejected a literal interpretation of the statute, which defines the relationship as

one 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

. . . . [D]ay-to-day absence alone, we clarified, is insufficient to support a finding of no ongoing parent-child

relationship. . . . We also have rejected the notion that

termination may be predicated on the lack of a meaningful relationship, explaining that the statute requires

that there be no relationship.’’ (Citations omitted;

emphasis altered; internal quotation marks omitted.) In

re Jacob W., supra, 330 Conn. 755–58; see In re Jessica

M., supra, 217 Conn. 470 (‘‘It is not unlikely that most

parent-child relationships in which state intervention

is required, including custody disputes incidental to

divorce, will exhibit signs of strain. While evidence of

a child’s ambivalent feelings toward a noncustodial parent would not alone justify a finding that ‘no ongoing

parent-child relationship’ exists, it is nevertheless reasonable to construe this statutory ground for termination to require a finding that no positive emotional

aspects of the relationship survive.’’).

We summarized our analysis in In re Jacob W. by

reciting ‘‘the proper legal test to apply when a petitioner

seeks to terminate a parent’s rights on the basis of no

ongoing parent-child relationship . . . . We reiterate[d] that the inquiry is a two step process. In the first

step, a petitioner must prove the lack of an ongoing

parent-child relationship by clear and convincing evi-
dence. In other words, the petitioner must prove by

clear and convincing evidence that the child has no

present memories or feelings for the natural parent that

are positive in nature. If the petitioner is unable to prove

a lack of an ongoing parent-child relationship by clear

and convincing evidence, the petition must be denied,

and there is no need to proceed to the second step of

the inquiry. If, and only if, the petitioner has proven a

lack of an ongoing parent-child relationship does the

inquiry proceed to the second step, whereby the petitioner must prove by clear and convincing evidence

that to allow further time for the establishment or reestablishment of the relationship would be contrary to

the best interests of the child. Only then may the court

proceed to the disposition phase.

‘‘There are two exceptions to the general rule that

the existence of an ongoing parent-child relationship

is determined by looking to the present feelings and

memories of the child toward the respondent parent.

The first exception . . . applies when the child is an

infant, and that exception changes the focus of the first

step of the inquiry. . . . [W]hen a child is virtually a

newborn infant whose present feelings can hardly be

discerned with any reasonable degree of confidence, it

makes no sense to inquire as to the infant’s feelings,

and the proper inquiry focuses on whether the parent

has positive feelings toward the child. . . . Under

those circumstances, it is appropriate to consider the

conduct of a respondent parent.9

‘‘The second exception . . . applies when the petitioner has engaged in conduct that inevitably has led

to the lack of an ongoing parent-child relationship

between the respondent parent and the child. This

exception precludes the petitioner from relying on the

lack of an ongoing parent-child relationship as a basis

for termination. Under these circumstances, even if neither the respondent parent nor the child has present

positive feelings for the other, and, even if the child

lacks any present memories of the respondent parent,

the petitioner is precluded from relying on [the lack

of an ongoing parent-child relationship] as a basis for

termination.’’ (Citation omitted; footnote added; internal quotation marks omitted.) In re Jacob W., supra,

330 Conn. 762–64. The interference ‘‘inquiry properly

focuses not on the petitioner’s intent in engaging in

the conduct at issue, but on the consequences of that

conduct. In other words, the question is whether the

petitioner engaged in conduct that inevitably led to a

noncustodial parent’s lack of an ongoing parent-child

relationship. If the answer to that question is yes, the

petitioner will be precluded from relying on the ground

of ‘no ongoing parent-child relationship’ as a basis for

termination regardless of the petitioner’s intent—or

not—to interfere.’’ (Emphasis added.) Id., 762.

Applying these principles to the present case,10 we
begin with the respondent’s claim that the virtual

infancy exception to the lack of an ongoing parent-child

relationship ground applies because Tresin was two

years old when the respondent was incarcerated. We

disagree. This claim is squarely controlled by In re

Jacob W., in which we rejected a parent’s claim that

the virtual infancy exception applied when the parent

was separated from the child by incarceration when

the child was one year old and the termination hearing

was held when the child was four years old. Id., 767–68

and n.5. We emphasized in In re Jacob W. that it was

not the child’s ‘‘age at the time of the respondent’s

incarceration three years prior to the termination hearing that controls for purposes of the application of the

virtual infancy exception, but [the child’s] age . . . at

the time of the termination hearing. To determine

whether a petitioner has established the lack of an

ongoing parent-child relationship, the trial court must

be able to discern a child’s present feelings toward or

memories of a respondent parent. The virtual infancy

exception takes account of the particular problem that

is presented when a child is too young to be able to

articulate those present feelings and memories. . . . .

It would make no sense to require a trial court to resolve

whether a child’s feelings could have been determined

at some time prior to the termination hearing. The

inability of the court to discern or to be presented with

evidence regarding a virtual infant’s present feelings

drives the exception. That finding must be made at

the time of the termination hearing.’’ (Citation omitted;

emphasis altered.) Id., 768 n.5.

Having reviewed the record, we conclude that it

amply supports the trial court’s conclusion, upheld by

the Appellate Court, that the virtual infancy exception

did not apply in this case. As of the time of the termination trial in February and March of 2018, Tresin was

six years old, and the respondent had not spoken or

visited with him since August, 2013, prior to his incarceration, when Tresin was two years old. The department’s social study, which was admitted into evidence,

noted that ‘‘Tresin has not seen his father since he was

two years old. Tresin would not recognize his father,

as [the respondent] is essentially a stranger to Tresin.

Tresin does not have any positive memories of his

time with his father, and, at the time of his removal

in July of 2016, Tresin was unclear about the identity

of his father and believed that his father was a longterm boyfriend of [his mother], who was not [the

respondent].’’ (Emphasis added.) We conclude, therefore, that the virtual infancy exception does not apply

in this case because Tresin was six years old at the

time of trial and able to communicate that he lacked

present memories of the respondent as his parent.11

Compare In re Jacob W., supra, 330 Conn. 768 n.5 (‘‘The

trial court had no difficulty discerning [the four year

old child’s] present memories of or feelings toward the
respondent. The court expressly found that [the child]

had ‘little to no memory’ of him. Accordingly, there was

no need to apply the virtual infancy exception.’’), with

In re Jessica M., supra, 217 Conn. 474 (guardians of

child who petitioned to terminate mother’s parental

rights could not rely on lack of ongoing parent-child

relationship ground when trial court’s findings ‘‘indicate

that the child recognizes the respondent as her mother,

that she would suffer some sense of loss if not permitted

to visit with her, and that the relationship between the

child and her mother is ‘an affectionate one and one

of mutual interest’ ’’).

We also disagree with the respondent’s contention

that the interference exception applies because of the

apparent inability of Tresin’s mother to foster their relationship during the respondent’s incarceration. He

argues that Tresin’s mother, although not actively

interfering in their relationship, ‘‘was barely able to

parent her children’’ and lacked ‘‘the wherewithal or

motivation to try to contact [the respondent] when he

was in prison. As a result, [the respondent] had no

knowledge regarding Tresin until the department

obtained custody of Tresin. Once Tresin was in custody,

[the respondent] kept in contact with the department

and requested contact with his son.’’ Our case law

makes clear that the interference exception is akin to

the equitable doctrine of ‘‘clean hands’’ and is triggered

only by the conduct of the petitioner rather than that

of a third party or some other external factor that occasioned the separation.12 Compare In re Jacob W., supra,

330 Conn. 766–67 (interference exception was inapplicable to grandparent petitioners who ‘‘played no role in

setting the protective order’’ that effectively precluded

respondent father from contacting children during his

incarceration), and In re Alexander C., supra, 67 Conn.

App. 424–25 (interference exception was inapplicable

because, although child was placed in foster care within

days of birth, ‘‘the respondent, rather than the commissioner, created the circumstances that caused and perpetuated the lack of an ongoing relationship’’ by committing physical and sexual abuse of minor child’s

sibling that resulted in his incarceration and entry of

protective order), with In re Valerie D., supra, 223 Conn.

531–34 (department was precluded from relying on lack

of ongoing parent-child relationship ground when it

took temporary custody of child within days of her birth

because of mother’s continued cocaine use, with only

few months having elapsed between department taking

custody and termination hearing, because ‘‘once the

child had been placed in foster care . . . a finding of

a lack of an ongoing parent-child relationship three and

one-half months later was inevitable . . . because

absent extraordinary and heroic efforts by the respondent, the petitioner was destined to have established

the absence of such a relationship’’), and In re Carla

C., supra, 167 Conn. App. 253–56, 262 (interference
exception was applicable when petitioner mother, who

was custodial parent, obtained order from prison in

which respondent father was incarcerated barring him

from all oral or written communication with her and

child, discarded cards and letters that he sent to child,

and filed motion to suspend child’s visitation with father

on ground that it was ‘‘unworkable’’). We conclude,

therefore, that the Appellate Court properly upheld the

trial court’s termination of the respondent’s parental

rights on the ground that there was clear and convincing

evidence of a lack of an ongoing parent-child relationship, with the interference and virtual infancy exceptions being inapplicable as a matter of law.13

The judgment of the Appellate Court is affirmed.

In this opinion the other justices 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.

** December 31, 2019, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.

1 We originally granted the respondent’s petition for certification, limited

to the following issue: ‘‘Did the Appellate Court correctly conclude that the

trial court, which terminated the respondent father’s parental rights based

on the absence of an ongoing parent-child relationship, was not required

to apply the infancy exception recognized in In re Carla C., 167 Conn.

App. 248, 143 A.3d 677 (2016)?’’ In re Tresin J., 331 Conn. 909, 202 A.3d

1022 (2019).

We note that the original certified question does not completely reflect

the issues in this appeal, particularly in the wake of our decision in In re

Jacob W., 330 Conn. 744, 762–64, 200 A.3d 1091 (2019), which clarified that

there exist two distinct exceptions to the lack of an ongoing parent-child

relationship ground for the termination of parental rights, for virtual infancy

and interference. Indeed, the Appellate Court considered the interference

claims; see In re Tresin J., 187 Conn. App. 804, 811–13, 203 A.3d 711 (2019);

which the petitioner briefed in this certified appeal and which we understand

to be factually and legally intertwined with the respondent’s virtual infancy

claims in light of In re Jacob W. Accordingly, our analysis in this appeal

reflects a rephrasing of the certified question to address the interference

exception, as well. See, e.g., In re Jacob W., supra, 747 n.1 (court may

rephrase certified questions).

2 General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior

Court, upon notice and hearing as provided in sections 45a-716 and 45a717, may grant a petition filed pursuant to this section if it finds by clear

and convincing evidence that (1) the Department of Children and Families

has made reasonable efforts to locate the parent and to reunify the child

with the parent in accordance with subsection (a) of section 17a-111b, unless

the court finds in this proceeding that the parent is unable or unwilling to

benefit from reunification efforts, except that such finding is not required

if the court has determined at a hearing pursuant to section 17a-111b, or

determines at trial on the petition, that such efforts are not required, (2)

termination is in the best interest of the child, and (3) . . . (D) there is

no ongoing parent-child relationship, which means the relationship that

ordinarily develops as a result of a parent having met on a day-to-day basis

the physical, emotional, moral and educational needs of the child and to

allow further time for the establishment or reestablishment of such parentchild relationship would be detrimental to the best interest of the child

. . . .’’

3

‘‘The respondent previously had been convicted of drug related offenses.

In 2008, the respondent was convicted of possession of marijuana, and in

2011, he was convicted of possession of marijuana with intent to sell.’’ In

re Tresin J., supra, 187 Conn. App. 806 n.2.

4 We note that the respondent testified at trial that he had been released

from federal immigration custody after the United States Court of Appeals

for the Second Circuit determined that his offenses were not deportable in
nature. The respondent did not, however, introduce evidence of the federal

court’s judgment affording him relief, and the trial court deemed his immigration status ‘‘precarious,’’ there being ‘‘[n]o credible evidence . . . produced

to show that his future residence in this country is anything other than

uncertain.’’ Our independent research has confirmed the existence of a

Second Circuit decision concluding that the United States Immigration Court

had committed reversible error in denying the respondent’s application for

deferral of removal to Jamaica under the Convention Against Torture. See

Brown v. Lynch, 665 Fed. Appx. 19, 20–21 (2d Cir. 2016). We agree with

the trial court, however, that there is no evidence in the record confirming

that this is the decision that definitively granted him relief from deportation

or otherwise indicating his immigration status after the Second Circuit’s

remand of his case to the Immigration Court.

5

‘‘The [trial] court also determined that it would be detrimental to Tresin’s

best interests to allow further time for a relationship with the respondent

to develop. The respondent does not challenge this determination.’’ In re

Tresin J., supra, 187 Conn. App. 807 n.3.

6

‘‘The parental rights of Tresin’s mother also were terminated, and she

has not appealed.’’ In re Tresin J., supra, 187 Conn. App. 806 n.1.

7 The petitioner also relies on the trial court’s finding ‘‘by clear and convincing evidence that no parental relationship ever existed between [the] respondent and Tresin’’ because, inter alia, the respondent ‘‘has never extended

paternal support to the child and has never provided or shown interest in

providing necessities to meet his daily needs.’’ The petitioner suggests that

the trial court, as the finder of fact, did not find credible the respondent’s

testimony that he had purchased diapers, clothes, and toys at the request

of Tresin’s mother and ‘‘pretty much [did] everything for Tresin before [he]

was incarcerated.’’ The trial court’s decision not to credit the respondent’s

testimony on this point does not—in the absence of other evidence—support

the opposite factual proposition, namely, that the petitioner has never provided material support to Tresin. See, e.g., Ventura v. East Haven, 330 Conn.

613, 641–42, 199 A.3d 1 (2019) (‘‘although the plaintiff is correct that the

jury was free to disbelieve all or any portion of [the witness’] testimony, it

was not permitted to draw a contrary inference on the basis of that disbelief’’

[internal quotation marks omitted]). Nevertheless, this is harmless error

because it remains undisputed that Tresin had no present memory of or

positive feelings toward the respondent, which provides an independent

statutory ground for the judgment terminating his parental rights.

8 Because the provisions governing the termination of parental rights under

§ 17a-112, which governs petitions regarding children previously committed

to the custody of the department, and § 45a-717, which is ‘‘the correspondent

statute for proceedings in the Probate Court’’ that governs such petitions

brought by private parties; In re Egypt E., supra, 327 Conn. 529; are virtually

identical, case law applying either statute is instructive in termination of

parental rights cases. See, e.g., id.; In re Valerie D., 223 Conn. 492, 497 n.3,

613 A.2d 748 (1992); In re Brian T., 134 Conn. App. 1, 12 n.3, 38 A.3d

114 (2012).

9 This virtual infancy inquiry, which focuses on the conduct of the respondent parent rather than the present feelings and memories of the child, is

akin to the separate abandonment ground for the termination of parental

rights set forth in §§ 45a-717 (g) (2) (C) and 17a-112 (j) (3) (A). See In re

Jacob W., supra, 330 Conn. 768 (‘‘[a]n inquiry similar to that of the abandonment ground cannot be applied to assess whether a petitioner has established

a lack of an ongoing parent-child relationship unless the child is an infant

at the time of the inquiry’’).

10 The respondent argues that our recent decision in In re Jacob W., supra,

330 Conn. 744, does not control because it was decided after both the

termination trial and the appeal before the Appellate Court in this case had

concluded. We disagree. It is a well established general principle that ‘‘a

rule enunciated in a case presumptively applies retroactively to pending

cases,’’ which includes decisions interpreting existing statutes. (Internal

quotation marks omitted.) State v. Elias G., 302 Conn. 39, 45, 23 A.3d 718

(2011); see id., 45–46 (concluding that this court’s interpretation of juvenile

transfer statute applied retroactively to certified appeal that was pending

when decision was issued). The defendant has not advanced any specific

arguments seeking relief from that general rule, and none is apparent to us

on the record of the present case, insofar as In re Jacob W. broke no new

ground but instead represents a distillation of existing case law. Cf. Campos

v. Coleman, 319 Conn. 36, 61, 123 A.3d 854 (2015) (discussing ‘‘the [three

part] test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S. Ct. 349,
30 L. Ed. 2d 296 [1971], for determining whether a decision must be applied

prospectively only . . . [under which a] common-law decision will be

applied nonretroactively only if: [1] it establishes a new principle of law,

either by overruling past precedent on which litigants have relied . . . or

by deciding an issue of first impression whose resolution was not clearly

foreshadowed . . . [2] given its prior history, purpose and effect, retrospective application of the rule would retard its operation; and [3] retroactive

application would produce substantial[ly] inequitable results, injustice or

hardship’’ [internal quotation marks omitted]). But cf. In re Daniel N., 323

Conn. 640, 652–53, 150 A.3d 657 (2016) (discussing retroactive application

of decisions in which this court exercises its supervisory authority over

administration of justice).

11 Even if we were to conclude that the virtual infancy exception applies

as a matter of law, rendering the respondent’s testimony about his positive

feelings toward Tresin relevant to this appeal, we note that ‘‘the parent’s

perpetuation of the lack of a relationship by failing to use available resources

to seek visitation or otherwise maintain contact with the child may establish

the lack of an ongoing parent-child relationship.’’ In re Carla C., supra, 167

Conn. App. 272–73. ‘‘[E]vidence of the existence of a parent-child relationship

is to be viewed in the light of circumstances that limited visitation . . .

including the conduct of the child’s custodian at the time of the petition.’’

(Citation omitted.) Id., 273. The record indicates that the respondent was

represented by counsel during his immigration proceedings and had relatives

in the Hartford area, including a sister whom he had identified as a potential

placement resource for Tresin. There is, however, no evidence that the

respondent attempted to use those resources to foster a relationship with

Tresin, regardless of the apparent inability of Tresin’s mother to assist in

that capacity. As his attorney conceded at oral argument before this court,

the respondent’s lack of effort was consistent with his belief that he was

going to be deported to Jamaica after his imprisonment. See footnote 4 of

this opinion. Accordingly, we disagree with the respondent’s argument that

the trial court improperly found that he lacked the requisite positive feelings

toward Tresin with respect to the lack of an ongoing parent-child relationship

ground. See In re Ilyssa G., 105 Conn. App. 41, 47–48, 936 A.2d 674 (2007)

(The lack of an ongoing parent-child relationship ground supported the

termination of the respondent father’s parental rights when he had not seen

his nine year old child since she was one year old, and ‘‘his efforts to be

involved in her life consisted of visiting the department once in 2004, more

than one year after she had been removed from her mother’s care, and

calling the residential care facility where the child was to inquire about her

care. The respondent also admitted that he had not informed the department

or anyone else involved with the case of his whereabouts after he had moved

from his last address on file.’’), cert. denied, 285 Conn. 918, 943 A.2d 475

(2008); In re Alexander C., supra, 67 Conn. App. 425–27 (concluding that

‘‘the record does not reveal that the respondent had positive feelings toward

the child’’ because, during his term of incarceration, he did not seek modification of protective order entered in light of allegations of his physical and

sexual abuse of infant child’s sibling, did not inquire about child’s health

or well-being, and did not seek out ‘‘parenting classes that would promote

the development of a relationship . . . [or] inquire about the availability

of individual counseling or sex offender treatment classes available at his

correctional facility’’).

12 By reference to his Appellate Court brief, we note that the respondent

obliquely argues that the actions of the department also constituted interference with his attempts to reestablish contact with Tresin. Specifically, the

respondent argues that, after the department located him in federal immigration custody in Alabama, he expressed interest in having contact with Tresin,

but the department ‘‘made no efforts to allow [him] to have any contact

and opposed [his] efforts to have contact.’’ We disagree with this reading of

the interference exception, which applies when the actions of the petitioner

rendered inevitable the initial lack of a relationship, which in this case had

occurred several years before the department became involved with the

respondent and his family. See In re Jacob W., supra, 330 Conn. 766–67;

In re Valerie D., supra, 223 Conn. 533–34. Put differently, it was not the

department’s opposition to visitation on the recommendation of Tresin’s

clinicians, who deemed it potentially disruptive to the progress that he was

making with his foster mother, which resulted in the separation that led to

the lack of a parent-child relationship.

13 We agree with Justice Ecker’s apt observation that ‘‘the social reality

operating beneath the surface of . . . cases involving incarcerated parents
who lose their children as a collateral consequence of the separation that

incarceration entails’’ presents a serious question of public policy, and we

join him in commending it to the legislature for further study. See, e.g., Doe

v. Hartford Roman Catholic Diocesan Corp., 317 Conn. 357, 438–39, 119

A.3d 462 (2015) (noting ‘‘the legislature’s primary responsibility in pronouncing the public policy of our state’’ and that legislature is better positioned to ‘‘evaluate . . . competing policy interests’’ [internal quotation

marks omitted]).