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*********************************************** 
IN RE TRESIN J.—CONCURRENCE

ECKER, J., with whom PALMER and McDONALD,

Js., join, concurring. I agree with and join Chief Justice

Robinson’s opinion holding that neither the virtual

infancy nor the interference exception to the statutory

lack of an ongoing parent-child relationship ground for

the termination of parental rights is applicable to the

facts of this case, and, therefore, I am compelled to

conclude that the parental rights of the respondent

father, Aceion B., properly were terminated, even

though he was incarcerated for most of his young child’s

life. I write separately to describe very briefly the social

reality operating beneath the surface of this and many

other such cases involving incarcerated parents who

lose their children as a collateral consequence of the

separation that incarceration entails. The problem I

describe is not, in my opinion, well suited for judicial

resolution on a case-by-case basis in the first instance,

at least in the absence of more particularized legislative

guidance regarding the proper legal considerations and

standards that judges should take into account when

deciding these cases. A legislative solution also offers

the advantage of including nonjudicial remedial components that the legislature may deem necessary and

appropriate on the basis of the many policy considerations that presumably would inform any such initiative.

There are approximately 2.2 million people incarcerated in the United States, and more than half of them

have children under the age of eighteen. E. Hager & A.

Flagg, The Marshall Project, ‘‘How Incarcerated Parents

Are Losing Their Children Forever,’’ (December 2, 2018),

available at http://www.themarshallproject.org/2018/12/

03/how-incarcerated-parents-are-losing-their-children

-forever (last visited December 30, 2019); see also 3 M.

Mushlin, Rights of Prisoners (4th Ed. 2009) § 16:4, pp.

488–90. Of the estimated 74 million children in the

United States in 2007, 2.3 percent, or approximately 1.7

million children, had an incarcerated parent. L. Glaze &

L. Maruschak, Office of Justice Programs, United States

Department of Justice, ‘‘Parents in Prison and Their

Minor Children,’’ Bureau Just. Stat. Spec. Rep. (Rev.

March 30, 2010) p. 2, available at http://www.bjs.gov/

content/pub/pdf/pptmc.pdf (last visited December 30,

2019). These statistics are even bleaker in minority communities; ‘‘[one] in [ten] black children have a parent

behind bars, compared with about [one] in [sixty] white

youth . . . .’’ E. Hager & A. Flagg, supra.1

The rise in incarceration rates over the past fifty years

has been the subject of much attention and controversy.

See, e.g., National Research Council et al., ‘‘The Growth

of Incarceration in the United States: Exploring Causes

and Consequences’’ (J. Travis et al. eds. 2014) p. 260

(reporting on recent study showing that number of chil-
dren with father in prison rose from 350,000 in 1980 to

2.1 million in 2000, or ‘‘about 3 percent of all U.S. children in 2000’’). Whatever its causes, the rise in the

United States prison population has coincided with

changes in child welfare policy, which are intended

‘‘to reduce children’s stay in foster care in favor of a

permanent home . . . .’’ A. Iskikian, Note, ‘‘The Sentencing Judge’s Role in Safeguarding the Parental Rights

of Incarcerated Individuals,’’ 53 Colum. J.L. & Soc.

Probs. 133, 135 (2019). Under the Adoption and Safe

Families Act, for example, ‘‘the State shall file a petition

to terminate the parental rights of’’ a parent whose child

‘‘has been in foster care under the responsibility of the

State for 15 of the most recent 22 months . . . .’’2 42

U.S.C. § 675 (5) (E) (2012). Because the average sentence of incarceration exceeds fifteen months,3

incarcerated parents whose children are placed in foster

care have their parental rights terminated at a ‘‘disproportionate rate . . . .’’ A. Iskikian, supra, 135. Indeed,

‘‘[o]ne in eight children placed into foster care due

to a parent’s incarceration alone will lose that parent

forever.’’ E. Hager & A. Flagg, supra. ‘‘Female prisoners,

whose children are five times more likely than those

of male inmates to end up in foster care, have their

rights taken away most often.’’ Id.

Part of the problem fueling this ‘‘family separation

crisis’’; (internal quotation marks omitted) id.; is the

fact that many termination of parental rights statutes,

like General Statutes § 17a-112 (j) (3) (D), focus on the

existence of an ‘‘ongoing parent-child relationship.’’ See

generally G. Sarno, Annot., ‘‘Parent’s Involuntary Confinement, or Failure to Care for Child As Result Thereof,

As Evincing Neglect, Unfitness, or the Like in Dependency or Divestiture Proceeding,’’ 79 A.L.R.3d 417

(1977). In Connecticut, an ‘‘ongoing parent-child relationship’’ is statutorily defined as ‘‘the relationship that

ordinarily develops as a result of a parent having met

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

and educational needs of the child . . . .’’ General Statutes § 17a-112 (j) (3) (D). A parent who is separated

from his or her child by a sentence of incarceration

cannot develop and/or maintain the type of parent-child

relationship that ordinarily results from day-to-day contact. Although this court has been careful to ‘‘avoid

placing insurmountable burden[s] on noncustodial parents’’ by ‘‘explicitly reject[ing] a literal interpretation

of the statute,’’ we nonetheless find ourselves constrained by the language of the statute to require, at the

very least, a showing that ‘‘the child has some present

memories or feelings for the natural parent that are

positive in nature.’’ (Internal quotation marks omitted.)

In re Jacob W., 330 Conn. 744, 757, 200 A.3d 1091 (2019).

I am inclined to believe that many incarcerated parents—including loving and devoted parents—could

have tremendous difficulty making the required showing under some circumstances. As this court has
acknowledged, ‘‘when a parent has been incarcerated

for much or all of his or her child’s life . . . the normal

parent-child bond that develops from regular contact

. . . is weak or absent.’’ (Internal quotation marks omitted.) Id., 756–57. The fact of incarceration also interferes with ‘‘the parent’s ability to make and demonstrate

the changes that would enable reunification of the family’’; (internal quotation marks omitted) id., 756; because

incarcerated parents cannot attend juvenile court hearings, visit the child, attend parenting classes, or provide

financial support. A. Iskikian, supra, 53 Colum. J.L. &

Soc. Probs. 158–59. ‘‘Parents in prison thus face a high

likelihood of incurring the double punishment of both

incarceration and the permanent deprivation of their

relationship[s] with their children.’’ Id., 165–66.

Depending on the age of the child, the financial

resources of the family, the willingness of the custodial

parent or guardian to facilitate contact, and the

resourcefulness of the incarcerated parent and his or

her ability to navigate the maze of logistical impediments that accompany the loss of liberty in prison, it

may be difficult or impossible for the incarcerated parent to meet the existing statutory standard.

Several states have responded to this increasingly

serious problem by enacting legislation to protect the

fundamental rights of incarcerated parents and to preserve the parent-child bond. For example, California

and New York have enacted legislation requiring that

incarcerated parents be provided with reunification services, such as parenting classes and visitation with their

minor children. See Cal. Welf. & Inst. Code § 361.5 (e)

(1) and (2) (Deering Supp. 2018);4 N.Y. Soc. Serv. Law

§ 384-b (7) (f) (McKinney Cum. Supp. 2019).5 Nebraska

and New Mexico have gone even further by enacting

legislation prohibiting the state from terminating parental rights if the sole basis for the termination is parental

incarceration. See Neb. Rev. Stat. § 43-292.02 (2) (b)

(Cum. Supp. 2018);6 N.M. Stat. Ann. § 32A-4-28 (D)

(2010).7

Within constitutional limits, it is a question of public

policy how best to strike the appropriate balance

between and among the competing values and interests

at stake, and, ‘‘[i]n areas where the legislature has spoken . . . the primary responsibility for formulating

public policy must remain with the legislature.’’ State

v. Whiteman, 204 Conn. 98, 103, 526 A.2d 869 (1987).

As I previously explained, § 17a-112 (j) (3) (D) in its

present form plainly provides for the termination of

parental rights if, among other things, the child has no

positive memories or feelings for the natural parent.

Despite the nearly insurmountable hurdles posed by

incarceration to many inmates who find themselves

unable in the prison setting to develop and maintain the

parental relationship necessary to satisfy the statutory

standard, I agree with Chief Justice Robinson’s opinion

holding that the trial court did not commit error
applying the statutory standard on this record. Accordingly, I concur in Chief Justice Robinson’s opinion.

1 The statistics recited in this concurring opinion reflect national data and

are not specific to Connecticut. I would be surprised if the relevant statistics

in Connecticut differed materially from the national numbers, but I cannot

be certain because the local information is not readily available. The need

for more empirical information of this kind is another reason why the

legislature is far better equipped in the first instance to consider the matter

and devise proper legal standards for case-by-case application.

2 Connecticut has codified this federal statutory requirement at General

Statutes § 17a-111a (a), which provides in relevant part that ‘‘[t]he Commissioner of Children and Families shall file a petition to terminate parental

rights pursuant to section 17a-112 if (1) the child has been in the custody

of the commissioner for at least fifteen consecutive months, or at least

fifteen months during the twenty-two months, immediately preceding the

filing of such petition . . . .’’

3

‘‘The average time served by state prisoners released in 2016, from their

date of initial admission to their date of initial release, was 2.6 years. The

median amount of time served (the middle value in the range of time served,

with 50 [percent] of offenders serving more and 50 [percent] serving less)

was 1.3 years . . . .’’ D. Kaeble, Bureau of Justice Statistics, Office of Justice

Programs, ‘‘Time Served in State Prison, 2016,’’ U.S. Dept. Just. Bull., November, 2018, p. 1, available at http://www.bjs.gov/content/pub/pdf/tssp16.pdf

(last visited December 30, 2019).

4 Section 361.5 (e) of the California Welfare and Institutions Code provides

in relevant part: ‘‘(1) If the parent or guardian is incarcerated, institutionalized, or detained by the United States Department of Homeland Security,

or has been deported to his or her country of origin, the court shall order

reasonable services unless the court determines, by clear and convincing

evidence, those services would be detrimental to the child. In determining

detriment, the court shall consider the age of the child, the degree of parentchild bonding, the length of the sentence, the length and nature of the

treatment, the nature of the crime or illness, the degree of detriment to the

child if services are not offered and, for children 10 years of age or older,

the child’s attitude toward the implementation of family reunification services, the likelihood of the parent’s discharge from incarceration, institutionalization, or detention within the reunification time limitations described in

subdivision (a), and any other appropriate factors. In determining the content

of reasonable services, the court shall consider the particular barriers to

an incarcerated, institutionalized, detained, or deported parent’s access to

those court-mandated services and ability to maintain contact with his or

her child, and shall document this information in the child’s case plan.

Reunification services are subject to the applicable time limitations imposed

in subdivision (a). Services may include, but shall not be limited to, all of

the following:

‘‘(A) Maintaining contact between the parent and child through collect

telephone calls.

‘‘(B) Transportation services, when appropriate.

‘‘(C) Visitation services, when appropriate.

‘‘(D) (i) Reasonable services to extended family members or foster parents

providing care for the child if the services are not detrimental to the child.

‘‘(ii) An incarcerated or detained parent may be required to attend counseling, parenting classes, or vocational training programs as part of the reunification service plan if actual access to these services is provided. The social

worker shall document in the child’s case plan the particular barriers to an

incarcerated, institutionalized, or detained parent’s access to those courtmandated services and ability to maintain contact with his or her child.

‘‘(E) Reasonable efforts to assist parents who have been deported to

contact child welfare authorities in their country of origin, to identify any

available services that would substantially comply with case plan requirements, to document the parents’ participation in those services, and to

accept reports from local child welfare authorities as to the parents’ living

situation, progress, and participation in services.

‘‘(2) The presiding judge of the juvenile court of each county may convene

representatives of the county welfare department, the sheriff’s department,

and other appropriate entities for the purpose of developing and entering

into protocols for ensuring the notification, transportation, and presence of

an incarcerated or institutionalized parent at all court hearings involving

proceedings affecting the child pursuant to Section 2625 of the Penal Code.

The county welfare department shall utilize the prisoner locator system
developed by the Department of Corrections and Rehabilitation to facilitate

timely and effective notice of hearings for incarcerated parents.’’

5 Section 384-b (7) (f) of the New York Social Services Law requires an

‘‘authorized agency’’ of the state to make ‘‘ ‘diligent efforts’ . . . to assist,

develop and encourage a meaningful relationship between the parent and

child’’ by ‘‘(5) making suitable arrangements with a correctional facility and

other appropriate persons for an incarcerated parent to visit the child within

the correctional facility, if such visiting is in the best interests of the child.

When no visitation between child and incarcerated parent has been arranged

for or permitted by the authorized agency because such visitation is determined not to be in the best interest of the child, then no permanent neglect

proceeding under this subdivision shall be initiated on the basis of the lack

of such visitation. Such arrangements shall include, but shall not be limited

to, the transportation of the child to the correctional facility, and providing or

suggesting social or rehabilitative services to resolve or correct the problems

other than incarceration itself which impair the incarcerated parent’s ability

to maintain contact with the child. When the parent is incarcerated in a

correctional facility located outside the state, the provisions of this subparagraph shall be construed to require that an authorized agency make such

arrangements with the correctional facility only if reasonably feasible and

permissible in accordance with the laws and regulations applicable to such

facility; and

‘‘(6) providing information which the authorized agency shall obtain from

the office of children and family services, outlining the legal rights and

obligations of a parent who is incarcerated or in a residential substance

abuse treatment program whose child is in custody of an authorized agency,

and on social or rehabilitative services available in the community, including

family visiting services, to aid in the development of a meaningful relationship between the parent and child. Wherever possible, such information shall

include transitional and family support services located in the community

to which an incarcerated parent or parent participating in a residential

substance abuse treatment program shall return.’’

6 Section 43-292.02 (2) (b) of the Nebraska Revised Statutes provides in

relevant part that ‘‘[a] petition shall not be filed on behalf of the state to

terminate the parental rights of the juvenile’s parents or, if such petition

has been filed by another party, the state shall not join as a party to the

petition if the sole factual basis for the petition is that . . . the parent or

parents of the juvenile are incarcerated. . . .’’

7 Section 32A-4-28 (D) of the New Mexico Statutes Annotated provides

that ‘‘[t]he department shall not file a motion, and shall not join a motion

filed by another party, to terminate parental rights when the sole factual

basis for the motion is that a child’s parent is incarcerated.’’