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IN RE JAYCE O.*

(SC 19669)

Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and

Robinson, Js.

Argued September 15—officially released December 8, 2016**

Karen Oliver Damboise for the appellant (respondent mother).

Benjamin Zivyon, assistant attorney general, with

whom were Evan O’Roark, assistant attorney general,

and, on the brief, George Jepsen, attorney general, and

Gregory T. D’Auria, solicitor general, for the appellee (petitioner).

Sharon A. Peters, for the minor child.
Opinion

ESPINOSA, J. The respondent mother, Kaitlyn J.,

appeals from the judgment of the trial court terminating

her parental rights with respect to her minor child,

Jayce O.1 The respondent contends that her right to

due process under both the federal and state constitutions was violated because the trial court relied in part,

pursuant to General Statutes (Supp. 2016) § 17a-112

(j) (3) (E),2 on the prior voluntary termination of her

parental rights with respect to another child when the

respondent was a minor (prior termination).

The respondent also contends that the trial court, in

its decision on the petition for termination of parental

rights filed by the petitioner, the Commissioner of Children and Families: (1) improperly concluded that the

Department of Children and Families (department)

made reasonable efforts toward reunification; (2) failed

to make a finding that the respondent was unable or

unwilling to benefit from those reasonable efforts; and

(3) improperly found that the respondent had failed to

rehabilitate. We affirm the judgment of the trial court

and address each of the respondent’s claims in turn.

We begin with the factual findings of the trial court

as set forth in its carefully crafted and thorough memorandum of decision.3 At the time of trial, the respondent

was twenty-two years old. ‘‘Hers is the life story of a

child who fell between the cracks of two parents, too

young and immature to have a child themselves. [The

respondent]lived with herfather after her parents’ separation when she was three. When she was out of control

and using marijuana, her father would not deal with

her. She then went to live with her mother at age thirteen. She apparently was not closely supervised or given

proper structure or nurturing attention by either parent.

She was out of control, belligerent and unwilling to

follow normal parental guidelines. She recalls both parents using drugs and [observed] drug activity when she

was quite young. . . . [A]t age fourteen, she became

pregnant herself. She followed early in the footsteps of

her neglectful parents, and the next events in her life

are all too common and to be expected when a child

gives birth to yet another child.

‘‘She came into [the care of the department] and her

parents’rights to her were terminated.[The respondent]

was placed in a home with wraparound services, so

she could remain with her infant. Her daughter was

born in January, 2008, a few short months before her

own fifteenth birthday. To [the respondent’s] credit,

she remained in the home for [more than] a year. But

by July, 2009, stability ended for [the respondent]. [She]

ran away from her placement, [and] an order of temporary custody was granted. Her daughter was adjudicated neglected and on November 18, 2010, [the

respondent] consented to the termination of her rights
to this child when she herself was just seventeen. Her

daughter was adopted by her paternal grandmother and

she continued to have some contact with her for a time.

[The respondent] remained in [the department’s] care

until she signed herself out at age eighteen. As noted in

[the department’s] records at the time, [the respondent]

was resistant to treatment, engaged in substance abuse

and was unable to benefit from the mental health services offered to her. Those same problems, unfortunately for her, are still with her at present time, some

six years later.

‘‘After she left [the department’s] care, [the respondent] began a relationship with [a] woman and the two

decided to have a child together. She reports she had

sex with Jayce’s father one time, for purposes of getting

pregnant and Jayce was the result. In 2013, she moved

with Jayce to California to be with her friend, and lived

with her and her family for about a year. The family

was not supportive of her and . . . a year later, in 2014,

she returned with Jayce, by herself, to Connecticut, and

lived for a short time with her paternal aunt and uncle.

‘‘She then planned to move into an apartment with

her father, and she did so, but her father never [moved

in] and [he] was not financially supportive. Due to [the

respondent’s] lack of education, she is only able [to]

secure employment without significant remuneration

and has had considerable difficulty in adequately supporting herself. The efforts to maintain herself and her

child and [to] lead a stable and sober lifestyle were

overwhelming to her. She regularly smoked marijuana,

used other drugs and led a chaotic life, leaving Jayce

with different caretakers with criminal records and

child protection histories while she partied. There were

several [department] contacts with [the respondent]

and Jayce before the events [that] led to Jayce’s

removal.

‘‘On September 12, 2014, a day afterthe [department’s

social] worker had warned [the respondent] about going

to her substance abuse treatment and getting food for

Jayce, the [social] worker arrived at the home to find

that [the respondent] was out and Jayce had been left

with [her] girlfriend. [The respondent] and her friend

had had an argumentthe night before and herfriend said

that she was concerned about Jayce as [the respondent]

was very abrasive to [Jayce]. There was also no food

in the home for Jayce. When [the respondent] returned

home, she was belligerent and angrily told the [social]

worker to get out of her apartment and her life. She

stated that she can ‘see whoever she wants’ and [the

department] cannot run her life.

‘‘An [order of temporary custody] was granted and

Jayce was initially placed in the home of a social worker

to whom [the respondent] had been close when she

herself was in [the department’s] care. Thereafter,

[Jayce] came into the care of his present foster parents.
He has remained in [their] care since September, 2014.’’

As for the services provided to the respondent and

her progress toward rehabilitation, the trial court made

the following findings. ‘‘Many services have been provided to [the respondent] by [the department] since

Jayce’s removal. Specific steps in this case were

ordered for her on September 16, 2014, and finalized

on January 23, 2015, when Jayce was adjudicated

neglected. [The respondent] has not been compliant

with these steps nor has she made any significant strides

in addressing her continued substance use and ongoing

mental health difficulties and medication needs. She

fundamentally refuses to believe, despite her assertions

to the contrary, that marijuana presents a problem for

her. Until recently, she has consistently denied the efficacy of any medications to assist her with her deepseated mental health difficulties, including self-reported

daily panic attacks lasting [twenty] minutes or more

and significant anxiety.

‘‘[The respondent] has attended many of the services

offered to her, but has failed to engage in any meaningful long-term way. She minimized her past trauma, and

has made little progress in trauma-focused therapy. She

remains poor at self-regulation, caring for herself emotionally or dealing competently with financial or other

issues confronting her. She has attended and participated in drug recovery programs, parenting services,

as well as receiving both group and individual therapy

for her mental health difficulties for some considerable time.

‘‘The list of service providers and their struggles to

keep her engaged and complete the programs demonstrates the reasonable services provided to her. Her

therapist and parent coach are clearly supportive of

her, but frustrated. She has secured section 8 housing,

which she disparages, but nonetheless allows her reasonable accommodation[s], given her limited income.

Due to the slow progress being made in her counseling

sessions and her medication issues, intensive outpatient

services were at one point recommended for her. The

coordination of services for her remains a major

challenge.

‘‘[The respondent] has taken seriously her parent

coaching and her time with Jayce. She and he are affectionate with each other and the child clearly has a

connection to her. He is happy to see her when they

are able to meet. But in many other respects, [the

respondent] continues to be dogged by the same difficulties noted in her own . . . record [with the department] when she was younger. She remains resistant to

treatment and change, she is easy to anger, belligerent,

and immature in her responses to any demands made

on her. She remains convinced she can self-medicate

her mental health and other difficulties with the use

of marijuana. Her inability to address her significant
underlying needs and problems [was] highlighted in the

psychological evaluation performed. . . .

‘‘The court-appointed evaluator noted in his testimony that [he met with the respondent] in March,

August and September [of 2015]. She exhibited only a

mixed level of cooperation with the process. In March,

she was unwilling to stay the entire day, repeatedly

distracted and both irritable and irritated, and hostile.

She constantly permitted interruptions by focusing on

cell phone texts, despite instructions not to do so. She

could not concentrate and focus and gave other things

too much precedence. She was unwilling to respond to

and engage with the evaluation. She would not speak

with any level of openness about herself. It was apparent that topics about past emotional injury to her continued to trouble her. She insisted on leaving early so

that she could attend a birthday party for her younger

girlfriend, forcing her [social] worker to transport

her early.

‘‘She was unwilling, the evaluator noted, to be forthcoming about the nature of her relationship with her

girlfriend and much about her own inner life. She also

remained unable, at that time, to psychologically understand why she was a risky parent for Jayce and that

she could and did jeopardize her child’s safety.

‘‘Nonetheless, given the seriousness of the [the

department’s] claims against her and the pending termination proceedings, as well as her son’s connection

to her, the evaluator reported that: ‘[The respondent]

relates very effectively to [Jayce]. He is delighted to

see her and is very responsive to her. The [respondent]

is able to read him well and to anticipate his behaviors

and manage them well. The [respondent] has the capacity to develop her relationship with Jayce. In terms of

parenting ability alone, she probably has the capacity

to develop a satisfactory overall parenting capacity for

Jayce. Her danger most likely would come from other

areas of her life, including her relationship problems,

her distrust, her oppositional and defiant tendencies

and her clinical difficulties. She remains at risk for

substance abuse.’

‘‘[The evaluator] recommended that [the respondent]

receive an additional six months in which to rehabilitate

while Jayce remained in the foster home. He recommended services that [the respondent] would need to

complete for reunification to progress. They included

substance abuse maintenance treatment, medical mental health treatment to address her anxiety problems

and panic problems as well as to help her with her

irritability and anger, anger management treatment,

combined individual psychotherapy to address her psychological challenges and underlying anger, distrust,

irritability and [post-traumatic stress disorder]

symptoms.
‘‘By early May, 2015, [the respondent] had been sober

for some time and it was expected that furtherreunification services could begin. But testing and her own

admission revealed just at this crucial time in the decision-making concerning her ability to reunify with

Jayce, [the respondent] had again begun using drugs.

In addition, she became convinced that the medication

she was prescribed did not help her mood. She unilaterally stopped taking those medications. She did not discuss her decision with her medication providers or seek

different dosages for increased effectiveness.

‘‘In August and early September, the court-appointed

evaluator met with [the respondent] again. He spoke

with many of her treatment providers concerning her

progress. It is apparent in his report, that by late August

and early September, [the respondent] continued to

deny marijuana was a problem for her. She has maintained this stance, despite the fact that her reunification

efforts with Jayce were derailed by it. She is insistent

that it helps her with her anxiety and she does not see

why she cannot use it in that fashion.

‘‘[The respondent] again did not fully participate in

the evaluation process, and presented as before as irritable and defensive and using poor judgment, although

her mood improved as time went on. She did not believe

she needed medication for her anxiety, attention difficulties and to stabilize her mood. She stated she went

[twenty-two] years without such drugs. ‘I am just under

stress and I can go another [twenty-two] years without

it too.’

‘‘At that point in time, given all her treatment providers’ reports about her very slow progress and with her

continued moody, irritable oppositional behavior, her

prognosis was not good. The evaluator stated that [the

respondent]: ‘meets some of the diagnostic criteria for

[p]ost-[t]raumatic [s]tress [d]isorder, [b]orderline [p]ersonality [d]isorder and [d]ysthymic [d]isorder . . . .

[The respondent] still has strong reservations about

the consumption of clinical services and the use of

medications to manage her turbulent and unpredictable

emotions. These attitudes can interfere with diagnostic

and treatment progress.’

‘‘[The evaluator] could not recommend reunification

and noted that [the respondent] needed an additional

[eight to twelve] months to establish an unbroken rehabilitation trajectory [that] has durability and a satisfactory measure of reliability. He noted that it is less risky

for Jayce to have [the respondent’s] rights terminated

and be free for adoption than to postpone a permanency

decision so much longer. His testimony in court echoed

the same strong opinion.’’ (Footnotes omitted.)

The court summarized its findings regarding the

respondent’s progress, stating that ‘‘it is apparent that

[the respondent] has not progressed far, despite many
interventions, from the observations made about her

psychological status as a teenager in [the department’s]

care. She remains significantly resistant to clinical treatment and medication to help with her intrusive anxiety

and regular panic attacks, to therapeutic interventions

requiring her to examine her emotions and to limiting

her use of marijuana, despite her own testimony to

the contrary about this. She is currently on medication

which she believes does give her relief and she wishes

she had received it earlier. Nonetheless, her anger and

irritability and mood continue to make her a very risky

parent for Jayce, despite her evident ability to connect

to him.

‘‘Her parent coach is more hopeful that [the respondent] could do better with supports in place, although

the length of time for such rehabilitation was uncertain.

Unfortunately, given the totality of the evidence, the

court does not find this likely, given her demonstrated

and persistent resistance to such supports. How much

greater will be her opportunity to end such involvement

when the eyes of others and the court are no longer

on her? The court also concludes, from all of the clear

and convincing testimony and evidence in the record,

that [the respondent] is not in a position to care for

her young son either now or in the foreseeable future,

given Jayce’s age and needs for structure, nurturing and

permanency in his young life.’’

With respect to Jayce, the trial court made the following additional findings. ‘‘Jayce will be three in December. He has been in foster care a little over one year.

. . . He remains attached to [the respondent] and

enjoys visiting with her. When he came into care, he

was in need of Birth to Three services as his speech

was significantly delayed. He also had significant delays

in his personal and social development as well as his

cognitive development. He knew only a very few words

and would point and grunt when he wanted something.

He often grew frustrated. The Birth to Three provider

noted the focus was on communication and very soon,

Jayce made great progress. She worked regularly with

the foster parents as well as with [the respondent] to

support this child. He now is on a more normal trajectory and his cognitive and social skills are now in the

normal range. Nonetheless, he will receive services

through the end of his third year, to make sure his

progress is secure and solidified.

‘‘He is presently in nursery school and is doing well,

after he was transitioned to a second day care program

last school year. It is apparent that he needs significant

structure and predictability in his life. When there are

too many changes, he regresses and needs additional

help, as happened this summer when he was away on

vacation and then transitioned to nursery school. He is

now a happy outgoing child, who does well when he

has the support and structure he needs. He has done
well in his present home and, as noted, is happy to see

[the respondent] regularly as well.’’

In a subsequent articulation of its memorandum of

decision, the trial court clarified that, notwithstanding

its finding, pursuant to § 17a-112 (j) (1), that the department had made reasonable efforts toward reunification,

the court also found, pursuant to the same subsection,

that the respondent was unable or unwilling to benefit

from those reasonable efforts.

I

DUE PROCESS

We first address the respondent’s claim that, by

grounding its judgment terminating her parental rights

with respect to Jayce, in part, on the prior termination

of her parental rights as to another child, the trial court

violated her right to procedural due process. Specifically, the respondent claims that reliance on the prior

termination, pursuant to § 17a-112 (j) (3) (E), was

improper because she was a minor at the time that she

consented, and she lacked notice that one consequence

of her consent would be that the petitioner might be

able subsequently to file coterminous petitions with

respect to another child. She also argues that consensual terminations in general do not serve as a reliable

indicator of a lack of parental fitness, particularly when

too much time has elapsed between the prior termination and the present proceeding. We conclude that the

trial court’s reliance on the prior termination did not

violate the respondent’s right to procedural due

process.4

‘‘The fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in a

meaningful manner. Mathews v. Eldridge, 424 U.S. 319,

333, [96 S. Ct. 893, 47 L. Ed. 2d 18] (1976) . . . . In

reviewing a procedural due process claim, we must

first determine whether a protected liberty or property

interest is involved. If it is, then we must determine the

nature and extent of the process due. . . .

‘‘A due process violation exists only when a claimant

is able to establish that he or she was denied a specific

procedural protection to which he or she was entitled.

The type and quantity of procedural protection that

must accompany a deprivation of a particular property

right or liberty interest is determined by a balancing

test, weighing: (1) the individual interest at stake; (2)

the risk of erroneous deprivation of the interest through

the procedures used and the probable value, if any, of

additional or substitute procedural safeguards; and (3)

the [s]tate’s interest in the procedures used, including

the fiscal and administrative burdens that any additional

or substitute procedures would entail.’’ (Citation omitted; internal quotation marks omitted.) In re Tayler F.,

296 Conn. 524, 553–54, 995 A.2d 611 (2010).

There is no question that the respondent’s individual
interest—her right to parent her child—is a fundamental right, entitled to constitutional protection. Troxel v.

Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 147 L. Ed.

2d 49 (2000) (observing that parents’ interest ‘‘in the

care, custody, and control of their children—is perhaps

the oldest of the fundamental liberty interests recognized by [the United States Supreme] Court’’). We have

explained that ‘‘[u]nquestionably, these important

rights are severely threatened by the state’s initiation

of termination proceedings. Such proceedings may

result not only in the modification orlimitation of parental rights, but may irrevocably sever the relationship

between parent and child. . . . This deprivation is

unique and complete. . . . Consequently, under the

first prong of the Mathews . . . test, the private interest of a parent in a termination proceeding is considerable.’’(Citations omitted.)In re Alexander V., 223 Conn.

557, 561, 613 A.2d 780 (1992).

The second prong of the Mathews test requires us to

consider, under the particular facts and circumstances

of the present case, whether and to what extent the

trial court’s consideration of the respondent’s prior termination gave rise to a risk of erroneous deprivation

of her parental rights, and the probable value of any

additional procedural safeguards. See Mathews v.

Eldridge, supra, 424 U.S. 335. Our review of the respondent’s claims reveals that she has not demonstrated

that the consideration of that prior termination gave

rise to any risk of erroneous deprivation of her parental

rights. That is, in contrast to the respondent’s claims,

the record demonstrates that she was provided with

sufficient procedural safeguards to protect her fundamental right to parent her child, including sufficient

notice of proceedings, additional visitation time, and

the provision of numerous services to assist her with

rehabilitation. She was also provided with specific steps

and given an additional six months of time to rehabilitate, even though neither of these procedural protections is required by § 17a-112 (j) (3) (E). In short, as

we now set forth in detail, the respondent was provided

with more than adequate procedural safeguards to protect her fundamental right to parent and every effort

was made to assist her in rehabilitating sufficiently in

order to be reunified with her child.

We begin with the observation that a prior termination of parental rights, standing on its own, would be

insufficient to support the termination of parentalrights

pursuant to § 17a-112 (j) (3) (E). In order to bear its

burden to demonstrate that a parent’s rights should

be terminated under that provision, the petitioner is

required to prove the following, by clear and convincing

evidence: (1) the department has made reasonable

efforts toward reunification, or the parent is unwilling

or unable to benefit from such efforts; (2) termination

is in the best interest of the child; and (3) the child is

underthe age of seven years and is neglected or uncared
for, and the parent has failed, or is unable or unwilling

to achieve such degree of personal rehabilitation as

would encourage the belief that within a reasonable

period of time, considering the age and needs of the

child, the parent could assume a responsible position

in the life of the child, and the parent’s parental rights

with respect to another child were previously terminated. General Statutes (Supp. 2016) § 17a-112 (j).

The petitioner’s failure to bear her burden as to any

single one of these elements will result in a denial of

the petition for termination of parental rights, even if

the petitioner proves all of the remaining elements by

clear and convincing evidence. Moreover, there is no

evidence in the record that the trial court considered

the respondent’s prior termination in holding the petitioner to her proof on the remaining elements. To the

contrary, the trial court’s memorandum of decision

reflects that although the court held the petitioner to

her burden to prove the prior termination by clear and

convincing evidence, the primary focus of the court’s

inquiry was on determining whether the department

had provided the respondent with reasonable services

and whether she had rehabilitated. The court’s decision

further reflects that the court did not rely on the prior

termination to conclude that the respondent failed to

rehabilitate. Instead, in arriving at that conclusion, the

court evaluated only the evidence that was directly

relevant to the issue of whether the respondent had

rehabilitated.

Our review of the particular procedural protections

afforded to the respondent in the present case provides

further support for the conclusion that she was given

the process that she was due. Before the department

invoked the ninety-six hour hold on Jayce on September

12, 2014, the social worker assigned to the case had

visited the respondent’s apartment a number of times,

putting the respondent on notice that the department

had legitimate and serious concerns regarding Jayce,

and also allowing the department to begin providing

services to the respondent. Specifically, during the very

first conversation between the social worker and the

respondent, in August, 2014, the respondent agreed to

undergo a substance abuse evaluation and to accept a

referral for Jayce to Early Headstart. That visit had

been prompted by a neighbor’s report that she had

heard Jayce crying for an extensive period of time, and

had entered the apartment after knocking yielded no

answer. The neighbor discovered Jayce wedged

between the wall and the sofa, with abrasions on his

shoulders. The ‘‘ ‘babysitter’ ’’ was passed out. When

the social worker reported to the home to investigate

the report, an adult male answered the door—a person

who the social worker later discovered had a criminal

record and a history of child protection involvement.

During the visit, the respondent admitted to using marijuana regularly and indicated that she had no intention
of quitting. Soon after this initial visit, the social worker

learned that the respondent had missed an appointment

for a Birth to Three referral, had failed to attend the

substance abuse assessment and failed to follow up on

the referral to Early Headstart.

The same concerns dominated the next visit that the

social worker made to the respondent’s home. The

respondent acknowledged missing the Birth to Three

appointment but denied receiving an intake packet from

Early Headstart, and questioned the need for a substance abuse evaluation. She and the social worker also

discussed the looming threat of eviction and the lack

of food in the home. The only food in the apartment

was a half empty box of cereal. The social worker told

the respondent that she would return the following day.

When the social worker returned the next day, September 12, 2014, the respondent was not there, and had

left Jayce in the care of her seventeen year old girlfriend,

with only a box of frozen peas in the apartment. When

the respondent returned home, the social worker again

raised the issues of the respondent’s lack of appropriate

follow-through in accepting services that had been

referred to her, her ongoing substance abuse and her

reliance on inappropriate caregivers. The respondent

ordered the social worker to leave, stating that she

would use whoever she wanted to watch Jayce, and

that she would continue to use marijuana.

After the department removed Jayce from the home,

the respondent’s rights were safeguarded by a number

of procedural protections, beginning with the provision

of appointed counsel, who represented her at the September 26, 2014 preliminary hearing on the petitioner’s

motion seeking an order of temporary custody. The

respondent was also provided with preliminary specific

steps as early as September 16, 2014. The specific steps

required her to take part in counseling, focusing both

on individual mental health and the development of

parenting skills, with the goal of improving her judgment and helping her to understand how her poor

choices impacted Jayce. She also was required to accept

in-home support services, follow recommendations for

substance abuse treatment and submit to random drug

testing. She was prohibited from using illegal drugs

or abusing alcohol or medicine. She was required to

cooperate with service providers, including those providing Birth to Three and individual counseling services.

Additionally, she was ordered to cooperate with courtordered evaluations, secure or maintain adequate housing and a legal income, refrain from involvement in the

criminal justice system, and participate in supervised

visitation with Jayce. The respondent signed an

acknowledgment of receipt of the preliminary specific

steps and, by so doing, agreed to cooperate with them.

She also acknowledged: ‘‘I understand that if I do not

follow these steps the existing order or disposition may
be changed. I understand that if I do not follow these

specific steps it will increase the chance that a petition

may be filed to terminate my parental rights permanently so that my child may be placed in adoption. I

understand that I should contact my lawyer and/or [the

department social] worker if I need help in reaching

any of these steps.’’ These specific steps served to place

the respondent on notice both of what she was required

to do in order to regain custody of Jayce and of the

possible consequences of failing to comply with the

specific steps. The specific steps also provided her with

her best road map toward rehabilitation.

The respondent was afforded every opportunity to

comply with the specific steps and to rehabilitate. She

was provided with a myriad of services that were specifically targeted to assist her in meeting those requirements. Those services included individual therapy with

Janet Juliano, who provided her with trauma focused,

cognitive behavioral therapy in order to address her

current anger management and other mental health

issues by focusing on her childhood trauma. The department also offered her group therapy for her anger management issues, but she declined to participate. She was

provided with parent coaching and education through

Connect to Kids, the service provider that supervised

her visitation with Jayce. She received case management services, which included assistance in obtaining

housing, as well as furniture and items for Jayce.

Although the department did not pay the balances on

the respondent’s prior bills, it worked with her on budgeting so that she could make payments. She received

treatment for her substance abuse issues, including a

referral to a relapse recovery group, and also received

medication management services. She and Jayce also

received services through Birth to Three. Finally, the

department arranged for the respondent to meet with a

court-appointed psychological evaluator, who met with

her on at least two occasions. Despite receiving all of

these services, the respondent was unable to achieve

a level of rehabilitation that would encourage the belief

that within a reasonable period of time, considering

Jayce’s age and his needs, the respondent would be

able to assume a responsible position in his life.

It is noteworthy that, although the petitioner filed

coterminous petitions on September 16, 2014, Jayce

was adjudicated neglected on January 23, 2015, and the

trial on the petition for termination of the respondent’s

parental rights was delayed specifically for the purpose

of allowing the respondent more time to rehabilitate.

The actual procedure that the respondent received,

therefore, was not the typical procedure received by

a respondent when the petitioner files a coterminous

petition and the adjudication of neglect and termination

of parental rights are decided simultaneously. This

departure from the usual procedure renders irrelevant

the respondent’s claim that she lacked notice that her
prior termination would allow the petitioner to file a

coterminous petition in the present case. She does not

raise any additional claims of lack of notice with respect

to the proceedings. Finally, at trial, the respondent

cross-examined the petitioner’s witnesses, and introduced evidence and presented testimony in support of

her case.

The respondent does not identify any additional procedural safeguards that would have reduced any risk

of erroneous deprivation. Instead, she claims that the

trial court in the present case should not have relied

on her prior termination of parental rights. We agree

with the trial court that the respondent’s argument,

rather than asking for an additional procedural safeguard, suggests that this court should modify the statutory requirements of § 17a-112 (j) (3) (E). For the sake

of argument, however, we assume that in advancing

this claim, the respondent has identified an additional

procedural safeguard. We therefore consider whether

she would have received any greater protection of her

fundamental right to parent J if the trial court had not

been required to consider the prior termination of her

parentalrights as one of the elements that the petitioner

was required to prove in order to prevail on the petition.

That inquiry will allow us to determine the probable

value, if any, of the change advocated by the

respondent.

The respondent essentially offers two arguments in

support of her contention that reliance on her prior

termination violated her right to procedural due process. First, she argues that her consent to the prior

termination should not be given effect in the present

case because she was a minor at the time that she

consented, and because she lacked notice that one of

the consequences of her consent was that the petitioner

would be able to file coterminous petitions, allowing

her no opportunity to rehabilitate. Second, she argues

that the prior termination does not provide a reliable

indicator of her current ability to parent because it was

consensual rather than involuntary, and also because

too much time had passed between the prior termination and the present termination proceedings. We

emphasize that the task before us in considering the

respondent’s procedural due process claim is to determine whetherthe change in procedure advocated by the

respondent would have decreased the risk of erroneous

deprivation of her fundamental right to parent. Because

we conclude that the respondent received the same

process that she would have received under § 17a-112

(j) (3) (B) (i), which does not require the consideration

of a prior termination of parental rights, we need not

address the substance of the respondent’s arguments

in favor of her claim that her prior termination should

not have been considered.

Just as required by § 17a-112 (j) (3) (E), in order to
prevail on a petition for the termination of parental

rights pursuant to § 17a-112 (j) (3) (B) (i), the petitioner

must prove by clear and convincing evidence the department’s reasonable efforts or the parent’s inability or

unwillingness to benefit therefrom, and that termination is in the best interest of the child. In addition, under

General Statutes (Supp. 2016) § 17a-112 (j) (3) (B) (i),

the petitioner must prove by clear and convincing evidence that ‘‘the child . . . has been found by the Superior Court or the Probate Court to have been neglected,

abused or uncared for in a prior proceeding . . . and

the parent of such child has been provided specific

steps to take to facilitate the return of the child to the

parent 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 . . . .’’ See also In re Elvin G., 310 Conn. 485,

499, 78 A.3d 797 (2013) (construing § 17a-112 [j] [3] [B]

[i] to require provision to parent of specific steps toward

rehabilitation prior to termination of parental rights).

As we have already observed, § 17a-112 (j) (3) (B)

(i), unlike § 17a-112 (j) (3) (E), does not require the

petitioner to prove that the parent had a prior termination of parental rights with respect to another child.

There are two additional distinctions between § 17a112 (j) (3) (B) (i) and (E), that are noteworthy. First,

in order to terminate a parent’s rights under § 17a-112

(j) (3) (B) (i), the parent must have been provided

with specific steps toward the goal of rehabilitation.

By contrast, under § 17a-112 (j) (3) (E), a parent’s rights

may be terminated without the provision of specific

steps. Second, under § 17a-112 (j) (3) (B) (i), the trial

court may grant a petition for termination only if there

was a finding of neglect in a prior proceeding, whereas

pursuant to § 17a-112 (j)(3)(E), the petitioner may seek

a simultaneous adjudication of neglect and a judgment

terminating parental rights.

In the present case, as we have already noted, the

respondent was provided with specific steps in September, 2014. Additionally, although the petitioner initially

filed coterminous petitions pursuant to § 17a-112 (j) (3)

(E), Jayce was adjudicated neglected in January, 2015,

and action on the petition for termination was postponed specifically for the purpose of allowing the

respondent additional time to rehabilitate. Accordingly,

the respondent was given the same process that she

would have received if the petitioner had proceeded

under § 17a-112 (j) (3) (B) (i). That is, just as would

have occurred under § 17a-112 (j)(3)(B)(i), the respondent was provided with specific steps toward rehabilitation and was allowed time to rehabilitate—a little more

than one year. Moreover, although the petition for

neglect and the petition for termination were filed

simultaneously, the court first adjudicated Jayce
neglected, and only addressed the petition for termination of parental rights at trial, more than six months

later. Accordingly, because she received the same process that she would have received even if her rights

had not been terminated pursuant to § 17a-112 (j) (3)

(E), in part, on the basis of the prior termination, the

respondent has failed to demonstrate that the procedural change that she advocates would have provided

her with any benefit.

Because we conclude that the respondent has failed

to show that, under the facts of the present case, the

requirement of § 17a-112 (j) (3) (E) that the petitioner

prove the prior termination by clear and convincing

evidence created any risk of erroneous deprivation of

the respondent’s parentalrights, and that she also failed

to demonstrate that she would have received any additional benefit if the court was not required to consider

the prior termination, it is unnecessary for us to consider ‘‘the [s]tate’s interest in the procedures used,

including the fiscal and administrative burdens that any

additional or substitute procedures would entail.’’

(Internal quotation marks omitted.) In re Tayler F.,

supra, 296 Conn. 554; see also Mathews v. Eldridge,

supra, 424 U.S. 335. Accordingly, we conclude that the

respondent has failed to demonstrate that her right to

procedural due process was violated by the trial court’s

consideration ofthe priortermination of parentalrights.

II

REASONABLE EFFORTS AND INABILITY

OR UNWILLINGNESS TO

BENEFIT THEREFROM

The respondent next claims that the trial court

improperly concluded that the department made reasonable efforts toward reunification and that the trial

court failed to make a finding that she was unable or

unwilling to benefit from reasonable efforts. We

disagree.

We have explained that ‘‘the [petitioner] must prove

either that [the department] has made reasonable

efforts to reunify or, alternatively, that the parent is

unwilling or unable to benefit from reunification efforts.

Section 17a-112 (j) clearly provides that the [petitioner]

is not required to prove both circumstances. Rather,

either showing is sufficient to satisfy this statutory element.’’ (Emphasis omitted.) In re Jorden R., 293 Conn.

539, 552–53, 979 A.2d 469 (2009). Although the trial

court did not, in its November 5, 2015 memorandum of

decision, expressly state that it found that the respondent was unable or unwilling to benefit from reunification efforts, the court later clarified that it had made

that finding. Specifically, in its January 20, 2016 articulation, the court explained that it had found that the

respondent was both unwilling and unable to benefit

from those efforts. That finding was supported by suffi-
cient evidence in the record, as explained at length in

the trial court’s memorandum of decision. See In re

Gabriella A., 319 Conn. 775, 789–90, 127 A.3d 948 (2015)

(trial court’s finding that respondent was unable or

unwilling to benefit from reunification efforts reviewed

for evidentiary sufficiency).

Because the court stated in its articulation that it had

found that the respondent was neither willing nor able

to benefit from the department’s reasonable efforts

toward reunification, it was not necessary for the court

to make any finding as to whether the department’s

efforts were reasonable.5 See id. We reject the respondent’s suggestion that the court’s failure to make this

finding expressly in the memorandum of decision precluded the court from later clarifying that it had made

the finding.

III

FAILURE TO REHABILITATE

Lastly, the respondent argues that the trial court

improperly found that she had failed to rehabilitate. In

support of her claim, the respondent points to evidence

in the record that: she complied with the specific steps;

the decision to postpone the trial on the petition for

termination was made in light of her progress up to that

point; the trial court granted her motion for additional

visitation; and her service providers observed that she

was making progress and her individual counselor

stated to the court-appointed evaluator that if the

respondent had the proper services in place and

received the proper medication, she would in time be

able to provide a stable home for Jayce.6 We disagree

that the evidence relied on by the respondent calls into

question the sufficiency of the evidence to support the

trial court’s finding that she failed to rehabilitate.

We review the trial court’s subordinate factual findings for clear error, and review its finding that the

respondent failed to rehabilitate for evidentiary sufficiency. In re Shane M., 318 Conn. 569, 587–88, 122

A.3d 1247 (2015). In reviewing that ultimate finding for

evidentiary sufficiency, we inquire ‘‘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].’’ (Internal

quotation marks omitted.) Id., 588. We emphasize that

‘‘[i]t is not the function of this court to sit as the [fact

finder] when we review the sufficiency of the evidence

. . . rather, we must determine, in the light most favorable to sustaining the verdict, whetherthe totality of the

evidence, including reasonable inferences therefrom,

supports the [judgment of the trial court] . . . . In

making this determination, [t]he evidence must be given

the most favorable construction in support of the [judgment] of which it is reasonably capable. . . . In other
words, [i]f the [trial court] could reasonably have

reached its conclusion, the [judgment] must stand, even

if this court disagrees with it.’’(Internal quotation marks

omitted.) Carrol v. Allstate Ins. Co., 262 Conn. 433, 442,

815 A.2d 119 (2003).

An important corollary to these principles is that the

mere existence in the record of evidence that would

support a different conclusion, without more, is not

sufficient to undermine the finding of the trial court.

Our focus in conducting a review for evidentiary sufficiency is not on the question of whether there exists

support for a different finding—the proper inquiry is

whether there is enough evidence in the record to support the finding that the trial court made. Applying that

standard to the present case, we conclude that there

was sufficient evidence in the record to support the

trial court’s finding that the respondent failed to achieve

a sufficient degree of rehabilitation.

The trial court offered the following summary of the

respondent’s failure to rehabilitate: ‘‘She has not been

compliant with [the specific] steps nor has she made

any significant strides in addressing her continued substance use and ongoing mental health difficulties and

medication needs.’’ The court found that the respondent

persisted in refusing to accept that her use of marijuana

was a problem for her, and also observed that she ‘‘consistently denied the efficacy of any [prescribed] medications to assist her with her deep-seated mental health

difficulties . . . .’’ The court further determined that

although the respondent attended many of the services

that were offered to her, she failed to engage in a meaningful manner. Further, the court found that the respondent had made little progress in her trauma focused,

individual therapy, and she had not made significant

gains in her ability to regulate herself or in learning to

deal with financial or other problems that confronted

her. The court also noted the respondent’s relapse in

May, 2015, and her unilateral decision to stop taking

the medications that had been prescribed to her for her

mental health.

The court also relied on the report of the courtappointed evaluator, who reported that as late as

August and early September, 2015, shortly before trial,

the respondent continued to deny that her marijuana

use was a problem for her. The court cited to the evaluator’s conclusion that he could notrecommend reunification, and also noted that the evaluator had reported

that the respondent ‘‘needed an additional [eight to

twelve] months to establish an unbroken rehabilitation

trajectory [that] has durability and a satisfactory measure of reliability.’’

The trial court observed that the one bright spot was

that the respondent has done well in her supervised

visitation with Jayce, and has maintained a strong bond

with him. That alone, however, was not sufficient to
persuade the court that, given the respondent’s continued resistance to clinical treatment, her denial of the

effects of her marijuana use on her ability to parent

Jayce, her slow progress in dealing with her mental

health issues, and her resistance to medication, that

the respondent would be able ‘‘to achieve such degree

of personalrehabilitation as would encourage the belief

that within a reasonable period of time, considering the

age and needs of the child, such parent could assume

a responsible position in the life of the child . . . .’’

General Statutes (Supp. 2016) § 17a-112 (j) (3) (E). The

evidence relied on by the trial court was more than

sufficient to support its finding that the respondent

failed to rehabilitate.

The respondent’s argument to the contrary emphasizes that some of the evidence in the record could

have supported the opposite conclusion. While that may

be true, it is not relevant to our analysis of whether

there exists sufficient evidence in the record to support

the trial court’s ultimate finding that the respondent

failed to rehabilitate. As we have explained, the mere

fact that there was evidence in the record that would

have supported a different finding is not enough to call

into question the sufficiency of the evidence that does

provide support for the court’s finding.

Additionally, much of the evidence relied on by the

respondent, although it may provide some support for

the conclusion that she made progress, is not inconsistent with the trial court’s finding that she failed to rehabilitate. For example, she cites to the extra time that

she was given to rehabilitate in light of her progress

up to that point in time. Allowing a parent additional

time to rehabilitate is not dispositive, one way or the

other, on the issue of whether the parent has successfully rehabilitated. While such a decision reflects the

court’s belief that rehabilitation is possible, it also necessarily means that the court does not believe that the

parent has at that time successfully rehabilitated.

Another piece of evidence relied on by the respondent

is similarly consistent with the trial court’s finding that

she failed to rehabilitate. She notes that her service

providers reported to the court-appointed evaluator

that she had made significant progress. Although that

general statement reflects well on the respondent, and

the providers did report to the evaluatorthat the respondent had made significant progress, that statement provides an incomplete picture. For example, Andrea

Fisher, who supervised the respondent’s visitation with

Jayce, and provided her with parent coaching and education, generally had positive comments about the

respondent’s progress, and stated that her parenting

skills were sufficient at that time to support reunification. She also reported, however, that it was not possible to predict how the respondent would parent when

not supervised, ‘‘especially if her clinical and relation-
ship issues are unresolved.’’ Fisher’s opinion that the

respondent would be ready for reunification, therefore,

was conditioned on the resolution of the respondent’s

clinical issues—issues that the trial court expressly

found had not been resolved. Juliano, the respondent’s

individual therapist, provided a similarreport. Although

Juliano opined that the respondent ‘‘would be able to’’

provide a full-time home for Jayce, she qualified that

statement on the provision of proper services and medication. It is significant that as of the date of trial, the

court found that the respondent continued to deny the

efficacy of prescribed medications and to insist that her

self-medication with marijuana was a viable alternative.

The court specifically noted, in fact, that the opinions

offered by her providers—that the respondent may,

with proper supports and medications, be able to rehabilitate—left the estimated time required for such rehabilitation uncertain. That lack of certainty was rendered

even more significant in light of the respondent’s continued resistance to supports. The evidence relied on by

the respondent, therefore, does not call into question

the trial court’s determination that she failed to rehabilitate.

The judgment 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 8, 2016, the date that this decision was released as a slip

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

1

Jayce’s father, whose parental rights were also terminated by the judgment of the trial court, has not appealed from that judgment.

2 Although § 17a-112 (j) has been amended by the legislature since the

events underlying this appeal; see, e.g., Public Acts 2016, No. 16-70; Public

Acts 2015, No. 15-159; those amendments have no bearing on the merits of

this appeal. In the interest of simplicity, all references to § 17a-112 (j) in

this opinion are to the version appearing in the 2016 supplement to the

General Statutes.

3 We take the somewhat unusual step of incorporating the trial court’s

statement of its factual findings in its entirety in order to emphasize the

meticulous and thorough nature of those findings, which provides the best

illustration that the trial court properly considered all of the elements of

§ 17a-112 (j) in arriving at its ultimate conclusion that the respondent’s

parental rights should be terminated.

4 We observe that the respondent has not claimed that her right to substantive due process was violated. Nor has she claimed that § 17a-112 (j) (3)

(E) is unconstitutional on its face. She has claimed only that the statute is

unconstitutional as applied to her and only insofar as it deprives her of

procedural due process.

5 As for the respondent’s challenge to the trial court’s finding that the

department made reasonable efforts, we merely observe that the respondent

does not claim that there is insufficient evidence to support that finding.

Instead, she argues that, because at one pointin the memorandum of decision

the trial court stated that the department was not statutorily required to

make reasonable efforts toward reunification pursuant to § 17a-112 (j) (3)

(E), the court’s determination that the department’s efforts were nonetheless

reasonable was improper. The respondent’s argument is meritless. The

court’s isolated statement does not invalidate its careful and thorough summary and analysis of the efforts made by the department and its finding

that those efforts were reasonable.

6 The respondent also claims that the petitioner’s failure to present evi-
dence regarding the services that were offered to her in connection with

the prior termination is somehow relevant to the sufficiency of the evidence

to support the trial court’s determination that, with respect to the present

termination, the respondent has failed to rehabilitate. She also claims that

the petitioner failed to present evidence of any efforts she may have made

to rehabilitate herself between the prior termination and the filing of the

conterminous petition in the present case. Neither the services that were

offered to the respondent during the proceedings in the prior termination,

nor any efforts that she made in the time period between the two termination

proceedings is relevant to the issue of whether the respondent failed to

rehabilitate sufficiently and in time to be able to parent Jayce.