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*********************************************** 
IN RE KYLLAN V.*

(AC 40437)

DiPentima, C. J., and Prescott and Norcott, Js.

Syllabus

The respondent father appealed to this court from the judgment of the trial

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

K. The petitioner, K’s mother, sought to terminate the father’s parental

rights, pursuant to statute (§ 45a-717 [g] [2] [B]), on the ground that K

had been denied, by reason of an act or acts of parental commission

or omission, the care, guidance or control necessary for K’s physical,

educational, moral or emotional well-being. K was present in the home

when the father had assaulted one of his other children, M, although K

was in another room with her half-sister, P, at the time. This court

previously upheld the trial court’s decision to terminate the father’s

parental rights as to P and M. The trial court in the present case determined that K’s exposure to the incident with M was the same as P’s,

concluded that the adjudicatory issues were therefore the same and

had been fully and fairly litigated in P’s case, and applied the doctrine

of collateral estoppel in determining that the petitioner had proven the

adjudicatory ground by clear and convincing evidence. The court then

determined that terminating the father’s parental rights was in K’s best

interest and rendered judgment terminating his parental rights, from

which he appealed to this court. Held that the trial court improperly

applied the doctrine of collateral estoppel in determining that the petitioner had proven the adjudicatory ground by clear and convincing

evidence and, thus, a new trial was warranted: although a child’s status

as a bystander to an act of abuse of a sibling can be sufficient for the

termination of parental rights as an act of commission or omission under

§ 45a-717 (g) (2) (B), the only basis for the trial court’s finding in the

present case that K had been denied the care, guidance or control

necessary for K’s physical, educational, moral or emotional well-being

as a result of the abuse of M was through collateral estoppel, but because

the issue of whether the father’s abuse of M resulted in a denial to K

of care, guidance or control necessary for her physical, educational,

moral or emotional well-being was neither actually litigated nor necessarily determined in the prior proceeding, and because the circumstances of the termination of the father’s parental rights as to M and P

were separate and distinct from those as to K, collateral estoppel could

not apply to preclude the father from litigating whether his abuse of M

resulted in the denial of care, guidance or control necessary for K’s

physical, educational, moral or emotional well-being; moreover, the petitioner’s attempt to marshal the facts found by the trial court in support

of her argument that the adjudicatory ground was proven without resort

to collateral estoppel was unavailing, as the trial court did not state a

basis for its finding that the denial of care, guidance or control was

established by clear and convincing evidence other than through collateral estoppel, and it was not for this court to find facts.

Argued January 11—officially released February 27, 2018**

Procedural History

Petition by the mother of the minor child to terminate

the respondent father’s parental rights with respect to

the child, brought to the Regional Probate Court for the

district of New London and transferred to the Superior

Court in the judicial district of New London, Juvenile

Matters at Waterford, and tried to the court, Driscoll, J.;

judgment terminating the respondent’s parental rights,

from which the respondent appealed to this court.

Reversed; new trial.

David J. Reich, for the appellant (respondent).
James P. Sexton, with whom were Megan L. Wade

and, on the brief, Michael S. Taylor, for the appellee

(petitioner).
Opinion

NORCOTT, J. The respondent father appeals from

the judgment of the trial court terminating his parental

rights with respect to his biological daughter, K, pursuant to General Statutes § 45a-717 (g).1 The respondent

claims on appeal that the trial court improperly relied

on the adjudicatory findings from a prior proceeding

involving two of his other children to support the adjudicatory ground in the present case, namely, that because

of a parental act of commission or omission, K was

denied care, guidance, or control necessary for her

physical, educational, moral, or emotional well-being

as required by the statute. We agree with the respondent

that the trial court improperly applied collateral estoppel in determining that K was denied the care, guidance,

or control necessary for her physical, educational,

moral, or emotional well-being as a result of the respondent’s act of commission or omission. Accordingly, we

reverse the judgment and remand the case for a new

trial.

The following facts, which were found by the trial

court in its memorandum of decision or are otherwise

undisputed, and procedural history are pertinent to our

decision. K was born to the petitioner mother and the

respondent in 2001. Since shortly after K’s birth, the

petitioner and the respondent have been in almost constant litigation regarding custody, visitation, and support of K. During this time, the respondent has sought

to exercise his parental rights, but the petitioner has

opposed any contact between him and K.

On March 24, 2012, K was visiting the respondent

along with two of her half-siblings, M and P.2 On that

day, the respondent assaulted M while P and K were

in another room. On the basis of this assault, the respondent was arrested, convicted, and incarcerated. M and

P’s mother then filed petitions to terminate the respondent’s parental rights as to the two children. In re Payton V., 158 Conn. App. 154, 158, 118 A.3d 166, cert.

denied, 317 Conn. 924, 118 A.3d 549 (2015). The court

granted the petitions, concluding as to P that the adjudicatory ground of § 45a-717 (g) (2) (B) had been met

because, as a result of the respondent’s assault of M,

which P heard, the respondent was arrested, convicted,

and incarcerated, which resulted in the denial to the

children of the respondent’s financial and emotional

support and guidance. Id. This court affirmed the termination of the respondent’s parental rights as to M and

P. Id., 167.

On June 16, 2015, six days after this court released

its decision in In re Payton V., the petitioner filed a

petition in the Probate Court seeking to terminate the

respondent’s parental rights as to K pursuant to, inter

alia, § 45a-717 (g) (2) (B). The case was then transferred

to the Superior Court for Juvenile Matters. See General
Statutes § 45a-715 (g).

Before trial, the petitioner’s counsel moved the court,

in essence, to apply the doctrine of collateral estoppel

to the adjudicative facts underlying In re Payton V.,

specifically, that the respondent had committed an

assault through a deliberate and nonaccidental act that

resulted in serious bodily injury to another child of the

respondent. See General Statutes § 45a-717 (g) (2) (F).

The respondent’s counsel objected on the basis that

the prior proceeding was not applicable to K. The court

then stated: ‘‘[T]o the extent that [the petitioner] has

filed a claim that [K] has been denied care, guidance,

control necessary, et cetera, by reason of acts of parental commission or omission by [the respondent], that

issue was . . . fully litigated.’’ The court clarified that

the finding in In re Payton V. that M had been abused

was limited to whether M or P had been denied care,

guidance, or control by reason of an act of commission

or omission by the respondent; see In re Payton V.,

supra, 158 Conn. App. 158; not whether M suffered

serious bodily injury. See id., 158 n.3. After that clarification, the court granted the motion. The trial then

ensued.

In its memorandum of decision terminating the

respondent’s parental rights, the court noted: ‘‘[K] also

was present at [the respondent’s] home at the time of

[the respondent’s] assault of the child’s half-brother,

[M], and her exposure to the incident was the same as

her half-sister, [P].’’ The court then found by clear and

convincing evidence that the criteria for § 45a-717 (g)

(2) (B) had been met because ‘‘[K] is in privity with [P],

so the adjudicatory issues are the same,’’ and applied

collateral estoppel as to the entire adjudicatory ground.

After then finding that termination of parental rights

was in the best interests of K, the court terminated the

respondent’s parental rights. This appeal followed.

On appeal, the respondent claims that the trial court

improperly relied on the adjudicatory findings from a

prior proceeding involving two of his other children to

support the same adjudicatory ground in the present

case, namely, that because of a parental act of commission or omission, K was denied care, guidance, or control necessary for her physical, educational, moral, or

emotional well-being as required by statute. Specifically, the respondent argues that collateral estoppel

would be appropriate only to determine whether the act

of commission or omission had occurred, not whether

K was denied care, guidance, or control necessary for

her physical, educational, moral, or emotional wellbeing. We agree with the respondent.

We begin with the applicable legal principles. 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

the child’s parent . . . .’’ General Statutes § 45a-707
(8). ‘‘It is, accordingly, a most serious and sensitive

judicial action.’’ (Internal quotation marks omitted.) In

re Jessica M., 217 Conn. 459, 464, 586 A.2d 597 (1991).

General Statutes § 45a-715 (a) (1) permits a child’s

parent to petition the Probate Court to terminate the

parental rights of that child’s other parent. In order to

terminate a parent’s parental rights under § 45a-717, the

petitioner must prove by clear and convincing evidence

at least one of the seven grounds for termination delineated in § 45a-717 (g) (2) and that termination is in the

best interest of the child. General Statutes § 45a-717

(g) (1).

‘‘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

grounds for termination of parental rights set forth in

. . . § 45a-717 (g) (2) has been proven by clear and

convincing evidence. If the trial court determines that

at least one of the statutory grounds for termination

has been proved, then it proceeds to the dispositional

phase. . . . In the dispositional phase, there must be

a showing by clear and convincing evidence whether

termination is in the best interests of the child.’’ (Internal quotation marks omitted.) In re Baciany R., 169

Conn. App. 212, 225–26, 150 A.3d 744 (2016).

‘‘Clear and convincing proof is a demanding standard

denot[ing] a degree of belief that lies between the belief

that is required to find the truth or existence of the

[fact in issue] in an ordinary civil action and the belief

that is required to find guilt in a criminal prosecution.

. . . [The burden] is sustained if evidence induces in

the mind of the trier a reasonable belief that the facts

asserted are highly probably true, that the probability

that they are true or exist is substantially greater than

the probability that they are false or do not exist.’’

(Internal quotation marks omitted.) Chief Disciplinary

Counsel v. Rozbicki, 326 Conn. 686, 701, 167 A.3d

351 (2017).

Ordinarily, we review the trial court’s subordinate

factual findings for clear error and its determination

that a ground for termination of parental rights has

been proven for evidentiary sufficiency; In re Egypt E.,

327 Conn. 506, 525–26, 175 A.3d 21 (2018); however,

‘‘[a]pplication of the doctrine of collateral estoppel is a

question of law over which we exercise plenary review.’’

Lighthouse Landings, Inc., v. Connecticut Light &

Power Co., 300 Conn. 325, 345, 15 A.3d 601 (2011).

‘‘[C]ollateral estoppel precludes a party from relitigating issues and facts actually and necessarily determined

in an earlier proceeding between the same parties or

those in privity with them upon a different claim. . . .

Furthermore, [t]o invoke collateral estoppel the issues

sought to be litigated in the new proceeding must be
identical to those considered in the prior proceeding.’’

(Citations omitted; internal quotation marks omitted.)

Mazziotti v. Allstate Ins. Co., 240 Conn. 799, 812, 695

A.2d 1010 (1997).

‘‘The common-law doctrine of collateral estoppel, or

issue preclusion, embodies a judicial policy in favor of

judicial economy, the stability of former judgments and

finality. . . . Collateral estoppel means simply that

when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future

lawsuit. . . . Issue preclusion arises when an issue is

actually litigated and determined by a valid and final

judgment, and that determination is essential to the

judgment. . . . Collateral estoppel express[es] no

more than the fundamental principle that once a matter

has been fully and fairly litigated, and finally decided,

it comes to rest.’’ (Emphasis added; internal quotation

marks omitted.) In re Jah’za G., 141 Conn. App. 15, 26,

60 A.3d 392, cert. denied 308 Conn. 926, 64 A.3d 329

(2013). ‘‘An issue is actually litigated if it is properly

raised in the pleadings or otherwise, submitted for

determination, and in fact determined. . . . An issue

is necessarily determined if, in the absence of a determination of the issue, the judgment could not have been

validly rendered.’’ (Citations omitted; emphasis omitted; internal quotation marks omitted.) Cadle Co. v.

Gabel, 69 Conn. App. 279, 294, 794 A.2d 1029 (2002).

Section 45a-717 (g) (2) (B) specifies certain actions

that constitute prima facie evidence of an act of commission or omission, including sexual molestation and

exploitation, severe physical abuse, or a pattern of

abuse. The statute, however, does not limit acts of commission or omission to just these three types of acts.

Recently, our Supreme Court noted the variety of cases

in which this court has affirmed the termination of

parental rights based on either § 45a-717 (g) (2) (B) or

the corresponding statute for proceedings initiated by

the Commissioner of Children and Families, General

Statutes § 17a-112 (j) (3) (C). In re Egypt E., supra, 327

Conn. 529–30. In listing cases that ‘‘demonstrate the

statute’s wide applicability’’; id., 529; our Supreme Court

cited specifically to In re Payton V., as support that

‘‘abusing a sibling in a child’s presence or within earshot’’ can constitute an act of commission or omission

under either of the applicable statutes. Id., 530. The

court then noted that ‘‘[i]n all of the foregoing cases

[including In re Payton V.], the children at issue suffered physical, emotional, and/or psychological harm

as a result of their parents’ various acts of commission

or omission.’’ Id.

Thus, it is beyond dispute that status as a bystander

to an act of abuse of a sibling is grounds for termination

as an act of commission or omission under § 45a-717

(g) (2) (B). The respondent does not dispute this notion
nor that his abuse of M while K was in the same room

as P could meet this criteria; he argues, however, that

for the adjudicatory ground to be met, the petitioner

must also ‘‘show that, as a result of the parental acts of

commission or omission, the care, guidance, or control

necessary for the child’s well-being has been denied.’’

(Emphasis altered; internal quotation marks omitted.)

In re Egypt E., supra, 327 Conn. 527.

In the present case, the only basis from which the

trial court found the denial of the care, guidance, or

control necessary for K’s physical, educational, moral,

or emotional well-being as a result of the abuse of M

was through collateral estoppel. For collateral estoppel

to apply to this finding via In re Payton V., however, the

issue must have been actually litigated and necessarily

determined as it pertains to K. Neither happened here.

When the trial court rendered judgment terminating the

respondent’s parental rights as to M and P, it was neither

determined nor necessary to determine whether the

respondent’s abuse of M resulted in the denial to K of

care, guidance, or control necessary for her physical,

educational, moral, or emotional well-being. Because

the circumstances of the termination of the respondent’s parental rights as to M and P are separate and

distinct from those as to K, collateral estoppel cannot

apply to preclude the respondent from litigating

whether his abuse of M resulted in the denial of care,

guidance, or control necessary for K’s physical, educational, moral, or emotional well-being.3

In the alternative, the petitioner attempts to marshal

the facts as found by the trial court to argue that the

denial of care, guidance, or control necessary for K’s

physical, educational, moral, or emotional well-being

is apparent without resort to collateral estoppel. The

trial court, however, did not state a basis for its finding

that the denial of care, guidance, or control was established by clear and convincing evidence other than

through collateral estoppel. To determine whether

there is sufficient evidence to terminate the respondent’s parental rights as to K, there must be subordinate

factual findings.In re Egypt E., supra, 327 Conn. 525–26.

‘‘It is well settled that we do not find facts.’’ (Internal

quotation marks omitted.) Kearse v. Taylor, 165 Conn.

App. 780, 791, 140 A.3d 389 (2016). Because we will not

usurp the role of the fact finder, we leave it to the

trial court to determine on remand if there is sufficient

evidence to prove the adjudicatory ground.

Likewise, we find the petitioner’s argument that In

re Payton V. is binding on this court in determining

whether the adjudicatory ground in this case has been

met unpersuasive. We apply precedent to facts. See,

e.g., Green v. Commissioner of Correction, 172 Conn.

App. 585, 599, 160 A.3d 1068, cert. denied, 326 Conn.

907, 163 A.3d 1206 (2017). There was no finding as to

whether K has been denied the care, guidance, or con-
trol necessary for her physical, educational, moral, or

emotional well-being other than through collateral

estoppel, and that finding is not in accord with the law.

We will not use precedent to make findings that the

trial court did not. Such a holding would undermine

and circumvent our collateral estoppel jurisprudence.

Because we hold that collateral estoppel was improperly applied and there were no other factual findings

to support that the respondent denied K the care, guidance, or control necessary for her physical, educational,

moral, or emotional well-being as required by § 45a-717

(g) (2) (B), the court improperly reached the dispositional phase to determine the best interests of the child.

In re Valerie D., 223 Conn. 492, 511, 613 A.2d 748 (1992)

(‘‘[o]ur statutes and case law make it crystal clear that

the determination of the child’s best interests comes

into play only after statutory grounds for termination

of parental rights have been established by clear and

convincing evidence’’ [emphasis in original]).4

The judgment is reversed and the case is remanded

for a new trial.

In this opinion the other judges 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.

** February 27, 2018, the date that this decision was released as a slip

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

1 General Statutes § 45a-717 (g) provides in relevant part: ‘‘At the adjourned

hearing or at the initial hearing where no investigation and report has been

requested, the court may approve a petition terminating the parental rights

. . . if it finds, upon clear and convincing evidence, that (1) the termination

is in the best interest of the child, and (2) . . . (B) the child has been

denied, by reason of an act or acts of parental commission or omission . . .

the care, guidance or control necessary for the child’s physical, educational,

moral or emotional well-being. . . .’’

2 M and P share the same mother, who is different from K’s mother, the

petitioner in this case. The respondent is the father of all three children.

3 Although the trial court found that K and P are ‘‘in privity’’ with each

other, we note that the use of this term in this context is inapposite because

privity only concerns the party against whom collateral estoppel is claimed

and because the respondent’s parental rights as to K and P are separate

and distinct. ‘‘While it is commonly recognized that privity is difficult to

define, the concept exists to ensure that the interests of the party against

whom collateral estoppel . . . is being asserted have been adequately represented because of his purported privity with a party at the initial proceeding.’’

(Emphasis added; internal quotation marks omitted.) Mazzioti v. Allstate

Ins. Co., supra, 240 Conn. 813. Likewise, ‘‘[a] key consideration in determining the existence of privity is the sharing of the same legal right by the parties

allegedly in privity.’’ (Internal quotation marks omitted.) Aetna Casualty &

Surety Co. v. Jones, 220 Conn. 285, 304, 596 A.2d 414 (1991).

4 Because we determine that a new trial is necessary, we do not address

whether this court’s holding in In re Carla C., 167 Conn. App. 248, 262, 143

A.3d 677 (2016), which pertained to the ground of no ongoing parent-child

relationship pursuant to § 45a-717 (g) (2) (C), should be extended to include

whether a parent who may be partially responsible for the denial of care,

guidance, or control necessary for the child’s physical, educational, moral,

or emotional well-being by the other parent can then seek termination of

parental rights on that ground.