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*********************************************** 
IN RE ANTHONY L. ET AL.*

(AC 42534)

Lavine, Prescott and Bear, Js.

Syllabus

The respondent mother appealed to this court from the judgments of the

trial court terminating her parental rights as to three of her minor

children. The trial court found that, pursuant to statute (§ 17a-112 [j]

[3] [B] [i]), the mother had failed to achieve such a degree of personal

rehabilitation as would encourage the belief that within a reasonable

time she could assume a responsible position in the children’s lives.

She claimed, for the first time on appeal, that the court violated her

and her children’s substantive due process rights when, in its analysis

of the children’s best interests, it failed to determine whether the permanency plans for the children that were proposed by the respondent

Commissioner of Children and Families secured a more permanent and

stable life for them compared to that which she could provide if she

were given time to rehabilitate herself. Held that the respondent mother’s

unpreserved claim was not reviewable, as it was not raised during trial

and, thus, she failed to provide this court with an adequate record for

review of the claim; the trial court found that the petitioner had proved

that the children’s best interests were served by their living with their

maternal grandmother, the mother on appeal did not challenge that and

other relevant findings concerning the children’s best interests, and this

court was unable to discern any evidence in the record about when the

maternal grandmother eventually may not be able to continue to provide

a home for the children or as to why the children could not then be

transitioned to their fictive kin in accordance with the petitioner’s plan

for their residence with them and possible adoption.

Argued September 5—officially released October 21, 2019**

Procedural History

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

respect to their minor children, brought to the Superior

Court in the judicial district of Middlesex, Child Protection Session at Middletown, where the respondent

father was defaulted for failure to appear; thereafter,

the matters were tried to the court, Hon. Barbara M.

Quinn, judge trial referee; judgments terminating the

respondents’ parental rights, from which the respondent mother appealed to this court. Affirmed.

Matthew C. Eagan, assigned counsel, with whom was

James P. Sexton, assigned counsel, for the appellant

(respondent mother).

Evan O’Roark, assistant attorney general, with whom

were Benjamin Zivyon, assistant attorney general, and,

on the brief, William Tong, attorney general, for the

appellee (petitioner).

Christopher DeMatteo, for the minor children.
Opinion

PER CURIAM. The respondent mother appeals from

the judgments of the trial court rendered in favor of the

petitioner, the Commissioner of Children and Families,1

terminating her parental rights with respect to each of

the three oldest of her four minor children on the

grounds that the respondent failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i).2 On appeal, the

respondent claims that her and her children’s substantive due process rights were violated as a result of

the trial court’s analysis of whether termination of her

parental rights was in the children’s best interests. Specifically, the respondent claims that the court’s failure

to conduct a factual inquiry into the petitioner’s three

permanency plans, which called for the termination of

her parental rights and adoption,3

in its best interest

analysis denied her substantive due process of law. She

claims that, because adoption was not going to occur

immediately, due process required the court to determine whether the permanency plans secured a more

permanent and stable life for each of the children compared to that which she could provide if she were given

time to rehabilitate herself.

The record, however, contains insufficient evidence

in support of such a claim because it was not raised

and pursued by the respondent during trial. Neither the

petitioner nor the court were aware, during trial, that

it would be asserted as a claim on appeal. Accordingly,

for the reasons set forth herein, we decline to review

the respondent’s unpreserved claim and, therefore,

affirm the judgments of the trial court.4

The respondent failed to raise her substantive due

process claim in the trial court and, accordingly, she

seeks review by this court pursuant to State v. Golding,

213 Conn. 233, 567 A.2d 823 (1989), as modified by In

re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).5

’’[A] [respondent] can prevail on a claim of constitutional error not preserved at trial only if all of the

following conditions are met: (1) the record is adequate

to review the alleged claim of error; (2) the claim is

of constitutional magnitude alleging the violation of a

fundamental right; (3) the alleged constitutional violation . . . exists and . . . deprived the [respondent] of

a fair trial; and (4) if subject to harmless error analysis,

the [petitioner] has failed to demonstrate harmlessness

of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions,

the [respondent’s] claim will fail. The appellate tribunal

is free, therefore, to respond to the [respondent’s] claim

by focusing on whichever condition is most relevant in

the particular circumstances.’’ (Emphasis in original;

footnote omitted.) Id., 239–40. In this case, we focus on

the first prong of Golding.
In assessing whether the first prong of Golding has

been satisfied, it is well recognized that ‘‘[t]he [respondent] bears the responsibility for providing a record

that is adequate for review of [her] claim of constitutional error. If the facts revealed by the record are

insufficient, unclear or ambiguous as to whether a constitutional violation has occurred, we will not attempt

to supplement or reconstruct the record, or to make

factual determinations, in order to decide the [respondent’s] claim.’’ (Internal quotation marks omitted.) In

re Julianna B., 141 Conn. App. 163, 168–69, 61 A.3d

606, cert. denied, 310 Conn. 908, 76 A.3d 625 (2013); In

re Johnson R., 121 Conn. App. 464, 469, 994 A.2d 739

(2010), aff’d, 300 Conn. 486, 15 A.3d 145 (2011). ‘‘The

reason for this requirement demands no great elaboration: in the absence of a sufficient record, there is no

way to know whether a violation of constitutional magnitude in fact has occurred.’’ (Internal quotation marks

omitted.) In re Azareon Y., 309 Conn. 626, 635, 72 A.3d

1074 (2013).

The record reveals that the respondent and the children’s biological father were involved in an abusive

relationship for approximately six years. During this

relationship, they conceived four children together. On

November 1, 2016, the three older children were

removed from their parents’ care on orders of temporary custody due to ongoing and significant domestic

violence between the parents, transience, substance

abuse and mental health concerns. The children subsequently were placed with their maternal grandmother,

with whom they have resided during the pendency of

the proceedings. On March 26, 2018, after the court

approved the petitioner’s proposed permanency plan

for each child; see footnote 7 of this opinion; the petitioner filed petitions for the termination of the respondent’s and the father’s parental rights as to each of the

children, alleging that each of the children had been

adjudicated neglected, and that both parents had failed

to rehabilitate pursuant to § 17a-112 (j) (3) (B) (i)6

such

that neither could be relied on responsibly to parent

their children within the reasonably foreseeable future.

A trial was held and, on November 13, 2018, the court

granted each of the petitions for termination of parental rights.

The court’s memorandum of decision reveals that,

during the adjudicatory phase, the court considered the

evidence and determined that the respondent failed to

achieve sufficient personal rehabilitation pursuant to

§ 17a-112 (j) (3) (B) (i). In its best interest analysis in

the dispositional phase, the court examined relevant

factors including ‘‘[the children’s] interest in sustained

growth, development, well-being, stability and continuity of their environment . . . [as well as] their length

of stay in foster care, the nature of the relationship

with their biological parents, the degree and quality of
contact maintained with the biological parents, and

their genetic bonds to the extended family,’’ ultimately

concluding that termination of parental rights was in

the best interests of each of the three children. The

court did not, however, address separately the findings

underlying the petitioner’s permanency plans for the

children.7 Pursuant to our review of the record, we

conclude that the respondent’s claim is not reviewable

under the first prong of Golding because the respondent

has failed to provide this court with an adequate record

for review.

Our Supreme Court has declined to review a respondent mother’s Golding claim when the respondent

failed to satisfy Golding’s first prong. In In re Azareon

Y., the respondent mother argued that the ‘‘deficiency

in the evidentiary record [relevant to whether the permanency plan ordered was the least restrictive means

necessary to secure the state’s compelling interest in

safeguarding the best interests of her children] confirm[ed] that the trial court could not have undertaken

the constitutional analysis that substantive due process

required.’’ In re Azareon Y., supra, 309 Conn. 633. Similar to the argument put forth by the respondent in the

present matter, the respondent in In re Azareon Y.

relied on the fundamental liberty interest that parents

have in the ‘‘ ‘care, custody and control of their children’ ’’ to claim that the best interest analysis undertaken by the court was flawed. Id., 636.

The respondent in In re Azareon Y. proposed that a

judicial gloss be imposed on our termination of parental

rights statute, § 17a-112, that places the burden on the

petitioner to establish, by clear and convincing evidence, that a statutorily recognized permanency plan

shown to be less restrictive than the termination of

parental rights would not be appropriate in that case.8

See id. Our Supreme Court noted that if it were to allow

the respondent’s attempt to transform her claim of

‘‘deficient analysis by the trial court’’ into a claim alleging a ‘‘constitutionally deficient standard’’; (emphasis

in original) id., 639; it would permit future ‘‘claim[s]

lacking a factual predicate in the record [to] be reframed

as a pure legal question as to whether a deficient standard had been applied.’’ Id., 640. Our Supreme Court

declined to reach the merits of the respondent’s claim.

In the present case, the respondent’s claim mirrors

that of the respondent in In re Azareon Y. First, she

asserts that the record contains no evidence relevant

to the details of the posttermination likelihood or reality

of permanency for each of the children. Like the respondent in In re Azareon Y., she relies on that dearth of

evidence to support her argument that the court’s best

interest analysis was flawed, asserting that without

undertaking an inquiry into the details of the likelihood

or reality of permanency for the children, the court’s

analysis could not have been constitutionally proper.
Relying on the same fundamental liberty interest at

issue in In re Azareon Y., the respondent argues that ‘‘to

justify the permanent destruction of the fundamental

liberty interests shared by the respondent and her children, the [petitioner] must demonstrate that termination will result in the children being provided a more

permanent home than would result from continued

reunification efforts.’’

The petitioner, however, satisfied the court on this

point. In the disposition phase of the hearing, the court

found that the petitioner did prove that the children’s

best interests were served by their living with their

maternal grandmother: ‘‘[T]he children have resided

with their maternal grandmother for two years. She has

provided these three young children with consistency of

care, safety and stability not available in their parental

home . . . . [The respondent] has not been able to

sufficiently adjust her circumstances, given the safety

concerns around domestic violence . . . to have her

children returned to her.’’ The respondent on appeal

does not challenge these and other relevant findings

concerning the best interests of the children.

Additionally, although the maternal grandmother

eventually may not be able to continue to provide a

home for her grandchildren, we were unable to discern

any evidence in the record about when this might occur,

and as to why the children could not then be transitioned to the fictive kin9

in accordance with the petitioner’s plan for their residence with them and possible

adoption.10

‘‘Our role is not to guess at possibilities, but to review

claims based on a complete factual record developed

by the trial court. . . . Without the necessary factual

and legal conclusions furnished by the trial court . . .

any decision made by us respecting [the respondent’s

claims] would be entirely speculative.’’ (Internal quotation marks omitted.) State v. Duteau, 68 Conn. App.

248, 254, 791 A.2d 591, cert. denied, 260 Conn. 939, 835

A.2d 58 (2002). It is undisputed that the record contains

no evidence supporting alternatives to the general plan

of the petitioner to have the children reside with their

grandmother until that is no longer possible, and then

with the fictive kin. Just as our Supreme Court declined

to address the merits of the respondent’s claim in In

re Azareon Y., we, too, must decline to review the

respondent’s Golding claim in this matter because of

her failure to satisfy the first prong of the Golding

requirements.

The judgments are affirmed.

* 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.

** October 21, 2019, the date that this decision was released as a slip

opinion, is the operative date for all substantive and procedural purposes.
1 Counsel for the minor children has adopted the brief filed by the petitioner.

2 The parental rights of the children’s father also were terminated pursuant

to § 17a-112 (j) (3) (B) (1). The father has not participated in this appeal.

In this opinion, we refer to the respondent mother as the respondent.

3

‘‘A ‘permanency plan’ is the proposal for what the long-term, permanent

solution for the placement of the child should be. General Statutes §§ 17a111b (c) and 46b-129 (k). Our statutory scheme provides five permanency

options: (1) reunification with a parent; (2) long-term foster care; (3) permanent guardianship; (4) transfer of either guardianship or permanent guardianship; or (5) termination followed by adoption. General Statutes §§ 17a-111b

(c) and 46b-129 (k) (2).’’ (Footnotes omitted.) In re Adelina A., 169 Conn.

App. 111, 121, 148 A.3d 621, cert. denied, 323 Conn. 949, 169 A.3d 792 (2016).

In each of the three petitions for termination of parental rights, the petitioner

alleged that reasonable efforts to reunify were not required for the respondent because the court had approved a permanency plan other than reunification in accordance with § 17a-111b.

4 The respondent also argues on appeal that she has standing to bring

this substantive due process claim for both herself and her children. Because

we decline to reach the merits of her unpreserved claim, we need not address

the issue of the respondent’s standing to act on behalf of her children.

5 On March 1, 2019, subsequent to the judgments, the respondent filed a

motion for articulation of the decision to terminate her parental rights,

which the trial court denied. The respondent filed a motion for review with

this court on March 29, 2019. This court granted review but denied the relief

requested therein on April 17, 2019.

6 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) . . . (B) the child

(i) 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 pursuant to section 46b-129 and has failed to

achieve such degree of personal rehabilitation as would encourage 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

. . . .’’

7 The permanency plans proposed by the petitioner stated in relevant part:

‘‘The permanency plan for [each of the children] is [t]ermination of [p]arental

[r]ights and [a]doption. This is the best plan for the children as [the respondent] and [the father] have not addressed the issues that led the children

to be placed in foster care. . . .’’ The court approved these plans.

8 The proposed judicial gloss was as follows: ‘‘[T]he [trial] court must find

by clear and convincing evidence that a viable permanency plan recognized

by statute that is less restrictive than termination of parental rights is not

capable of providing the children with a permanent, safe and nurturing

home in light of their age and needs. The petitioner has the burden of proof

as to this finding.’’ (Internal quotation marks omitted.) In re Azareon Y.,

supra, 309 Conn. 636.

9 General Statutes § 17a-114 (a) (3) provides in relevant part: ‘‘[F]ictive

kin caregiver means a person who is twenty-one years of age or older and

who is unrelated to a child by birth, adoption or marriage but who has an

emotionally significant relationship with such child or such child’s family

amounting to a familial relationship . . . .’’ (Internal quotation marks

omitted.)

10 The court’s order in the present case is the usual order issued in a

termination of parental rights: ‘‘The [petitioner] is hereby appointed the

statutory parent for [each of the children]. The [petitioner] will file, within

thirty days hereof, a report as to the status of these children as required

by statute and such further reports shall be timely presented to the court

as required by law.’’

The petitioner, thus, is the statutory parent of each of the children, ulti-
mately and continuously responsible for their guardianship, custody and

care in the event of any concerns regarding the maternal grandmother or

the fictive kin unless and up to the time an adoption occurs.

This order is predicated on § 17a-112 (o), which provides: ‘‘In the case

where termination of parental rights is granted, the guardian of the person

or statutory parent shall report to the court not later than thirty days after

the date judgment is entered on a case plan, as defined by the federal

Adoption and Safe Families Act of 1997, as amended from time to time, for

the child which shall include measurable objectives and time schedules. At

least every three months thereafter, such guardian or statutory parent shall

make a report to the court on the progress made on implementation of the

plan. The court may convene a hearing upon the filing of a report and shall

convene and conduct a permanency hearing pursuant to subsection (k) of

section 46b-129 for the purpose of reviewing the permanency plan for the

child not more than twelve months from the date judgment is entered or

from the date of the last permanency hearing held pursuant to subsection

(k) of section 46b-129, whichever is earlier, and at least once a year thereafter

while the child remains in the custody of the Commissioner of Children

and Families. For children where the commissioner has determined that

adoption is appropriate, the report on the implementation of the plan shall

include a description of the reasonable efforts the department is taking to

promote and expedite the adoptive placement and to finalize the adoption

of the child, including documentation of child specific recruitment efforts.

At such hearing, the court shall determine whether the department has made

reasonable efforts to achieve the permanency plan. If the court determines

that the department has not made reasonable efforts to place a child in

an adoptive placement or that reasonable efforts have not resulted in the

placement of the child, the court may order the Department of Children and

Families, within available appropriations, to contract with a child-placing

agency to arrange for the adoption of the child. The department, as statutory

parent, shall continue to provide care and services for the child while a

child-placing agency is arranging for the adoption of the child.’’