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IN RE KYARA H. ET AL.*

(AC 35573)

Beach, Keller and Pellegrino, Js.

Argued October 21, 2013—officially released January 16, 2014**

(Appeal from Superior Court, judicial district of

Windham, Juvenile Matters at Willimantic, Hon. Francis

J. Foley III, judge trial referee.)

James P. Sexton, assigned counsel, for the appellant

(respondent mother).

Susan T. Pearlman, assistant attorney general, with

whom were Benjamin Zivyon, assistant attorney general, and, on the brief, George Jepsen, attorney general,

and Michael J. Besso, assistant attorney general, for

the appellee (petitioner).

Raymond F. Parlato, for the minor children.
Opinion

KELLER, J. The respondent mother, Andrea K., has

appealed to this court from the judgments of the trial

court, Hon. Francis J. Foley III, judge trial referee,

terminating her parental rights in her minor children,

Kyara H., born in 2004, Jahein H., born in 2004, Trevon

M., born in 2009, and Kahlil M., born in 2011. The respondent claims that, in light of the fact that the children

have obvious and complex psychological issues, the

court committed reversible error by failing, sua sponte,

to order a psychological evaluation of the children for

purposes of determining whether termination of the

respondent’s parentalrights was in theirrespective best

interests. We affirm the judgments of the trial court.

On July 25, 2012, the petitioner, the Commissioner

of Children and Families (commissioner) filed petitions

to terminate the parental rights of the respondent and

Tyrone H. in their children, Kyara and Jahein.1 On that

same date, the commissioner filed petitions to terminate the parental rights of the respondent and Jose M.

in their children Trevon and Kahlil.2

In each petition,

the commissioner asserted that ‘‘[t]he child has been

found in a prior proceeding to have been neglected and

uncared for and [the respondent and the male biological

parent of the child] has . . . failed to achieve the

degree of personal rehabilitation that would encourage

the belief that within a reasonable time, considering

the age and needs of the child . . . they . . . could

assume a responsible position in the life of the child

. . . .’’ See General Statutes § 17a-112 (j) (3) (B) (i).

The court conducted a trial on the petitions, after

which it rendered a thorough memorandum of decision

that set forth its findings and conclusions. In the adjudicative phase of the proceeding, the court found in relevant part: ‘‘[The respondent] is presently twenty-eight

years old. She was raised in Hartford and moved to

Eastern Connecticut after she dropped out of school

in the ninth grade. Her father was an active alcoholic;

her mother was addicted to cocaine. She was sexually

abused by her brother when she was twelve. She reports

a strong relationship with her father who remains an

active alcoholic. [The respondent] frequently left her

children in the care of her father throughout the years.

‘‘At eighteen years old, [the respondent] was arrested

by the Putnam police for resisting arrest. She was convicted and received a nine month suspended sentence

and [one] year probation. . . .

‘‘[The respondent] met Tyrone when she was nineteen and soon got pregnant. Kyara was born on January

22, 2004. The child tested positive for the presence of

marijuana; [the respondent] admitted usage throughout

her pregnancy. A continuing theme. [The respondent]

transferred guardianship of Kyara to herfather, Leander

[K.], where the child remained for the first three years
of her life.

‘‘[The respondent] gave birth to her second child,

Jahein, on November 13, of the same year, 2004. Jahein

also tested positive for marijuana. Two months later,

on January 26, 2005, Tyrone was arrested for assault

upon [the respondent] and was later convicted and sentenced to one year in jail, suspended with three years

probation. He later violated the probation and was

incarcerated. [The respondent] said that Tyrone left her

shortly after this episode and since then he does not

acknowledge his children in any way . . . ‘he ignores

his children.’

‘‘From May 6, 2005, until the spring of 2006, neither

of the children were with [the respondent]. Kyara was

with [Leander K.] and Jahein was removed from [the

respondent’s] care by [the commissioner] after [the

respondent] was found several miles from her home

extremely intoxicated by alcohol while Jahein was with

her. She lost her balance and fell while holding him

and he hit his head. She was arrested and charged with

risk of injury to a minor and disorderly conduct. [The

Department of Children and Families (department)]

offered services and [the respondent] was also required

to [complete] court ordered treatment programs. Upon

successful completion, the charges were reduced to

disorderly conduct and she received an unconditional

discharge from the criminal court on October 6, 2005,

and Jahein was returned to her care.

‘‘In the summer of 2008, [the respondent] met an

undocumented man from Brazil, who was fifteen years

her senior, Jose. Jose was, and remains, a functionally

illiterate person in that he can neither read nor write

in any language. Thus began a four year domestically

violent, substance abusing relationship that produced

three more children.

‘‘On March 26, 2009, [the commissioner] sought and

obtained temporary custody of Kyara and Jahein due

again to [their] exposure to illegal substances, domestic

violence and inadequate supervision. This was the second removal by [the commissioner]. Again, [the department] offered services to [the respondent] and also

to Jose to address these issues. [The respondent] was

pregnant again. Both [the respondent] and Jose participated in services resulting in the return of the two

children, Kyara and Jahein, in October, 2009, under an

order of protective supervision effective until April,

2010.

‘‘In November, 2009, [the respondent] was again

arrested, her third arrest, for disorderly conduct. She

was fined $200. Apparently this arrest escaped the

notice of [the department]. The following month,

December 31, 2009, Trevon was born.

‘‘On April 11, 2011, Kahlil was born. The child tested

positive for marijuana. [The respondent] acknowledged
to [the department] that she used marijuana and alcohol

throughout her pregnancy. She admitted mutual domestic violence with Jose. She said she uses marijuana daily

and that she drinks two or three times per week and

will drink two or three forty ounce bottles of beer and

a few shots.

‘‘[The respondent] reports that she and Jose also

smoked K-2, a synthetic drug chemically similarto marijuana. This drug can be four to a hundred times more

potent than marijuana and is popular with marijuana

users since it does not show up on drug screens unless

used within the preceding two hours of testing. It can

produce hallucinations, severe agitation, panic attacks,

dangerously elevated heartrate and blood pressure and,

seizures . . . .’’ (Citations omitted.)

In describing the circumstances surrounding the

removal of the children from the care of the respondent,

the court found in relevant part as follows: ‘‘Petitioner’s

Exhibit B, an affidavit of a [department] social worker,

describes an horrific and chaotic home life for [the

respondent], Jose, the children and [the respondent’s]

alcoholic father, Leander. The picture described is the

daily use of marijuana by both parents, [the respondent]

frequently drinking alcohol to the point of intoxication;

her father drinking daily with his friends to intoxication

and occasional domestic violence between Jose and

[the respondent]. The [affidavit] describes events

between August, 2010, and October 13, 2011, when [the

commissioner] finally obtained an order of temporary

custody.’’

The court referred to a police report that described

an incident that occurred on August 26, 2010, in which

Jose struck the respondent in the kitchen of their residence, in the presence ofKyara, Jahein, and Trevon. The

respondent told one of the police officers responding to

this domestic disturbance that she was having difficulty

coping with the recent suicide of her brother. She stated

that, upon her return from a package store, she got into

a disagreement with Jose and that he struck her using

his hand as well as a roll of masking tape, and then

dragged her down onto the floor. Subsequently, Jose

was arrested and charged with disorderly conduct,

assault in the third degree, and risk of injury to minor

children. The criminal charges were dismissed following Jose’s completion of a family violence education

program.

The court found: ‘‘In April, 2011, upon the birth of

Kahlil, born positive for marijuana, [the commissioner]

filed a petition alleging neglect but did not seek removal

of the children. [The department] again offered services

to both parents through [the] Stonington Institute, Community Prevention and Addiction substance abuse evaluation and treatment, New Perceptions counseling,

individual counseling for [the respondent] with [counselor] Cam Morin-Bounds and others. . . .
‘‘[O]n September 6, 2011, after Jose was arrested and

held in jail [on] motor vehicle charges, [a department]

social worker learned that [the respondent] had

reported that seven year old Kyara was [engaging in

inappropriate sexual conduct with her] then six year

old brother, Jahein. [The respondent] was receiving

services from a Community Resources, Inc. (CRI)

behaviorist and clinician. The clinician told [the department] that [the respondent] says that Kyara roams the

house in the middle of the night, urinating in her room

and that [the respondent] fears leaving Kyara and Jahein

alone together.’’

The court went on to discuss a police report concerning an incident on October 1, 2011. During the incident,

the respondent was taken into custody incident to a

traffic stop. The respondent acted in a physically and

verbally combative mannertoward the police. Additionally, she vomited in a police cruiser and shouted profanity at the police. Upon her arrival at the police station,

the respondent continued to act in a combative manner

and disregarded police commands that she undergo

processing calmly. The respondent was charged with

violations of motor vehicle laws, interfering with an

officer, and breach of peace.

The court went on to find: ‘‘On October 12, 2011,

a [department] social worker observed [twenty-two]

month old Trevon with two black eyes. According to

[the respondent] and her father, Leander, Trevon fell

on a piece of furniture. The next day, Jose and a friend

went to [the respondent’s] home. They report that [the

respondent] had been drinking beer when they arrived.

They said that [the respondent] continued to drink

throughout the afternoon and evening, [having stolen

vodka and wine from another person]. The report [submitted as an exhibit] indicates that Jose and [the respondent] then went to [a motel] with [twenty-two] month

old Trevon and [six] month old Kahlil. During the time

at the motel, Jose reports that [the respondent] was so

drunk that she dropped Kahlil twice, [and] left the hotel

to start walking on Route 6 wearing no shoes and having

unzipped pants. Jose called the police and [the respondent] was subsequently arrested for breach of peace

and resisting arrest.

‘‘Both Jose and [the respondent] reported to the

social worker that Jose had been unfaithful to [the

respondent] with a neighbor and that this infidelity had

caused further strife in their relationship. Jose admitted

it was poorjudgment to go to the hotel with [the respondent] while she was intoxicated and angry over his

infidelity. Two days later, [the commissioner] sought

and obtained an order of temporary custody of the

children.’’3

The court observed that specific steps were entered

for all parties on October 14, 2011, at the time of the
initial order of temporary custody, and later, on February 1, 2012. With regard to the respondent, the court

found: ‘‘It must be recalled that [the department] began

offering services to [the respondent] in 2004. The children had been previously removed on two occasions.

Within the past two years and prior to the most recent

third removal of the children, [the department] had

engaged CRI for intensive family preservation services

for [the respondent] and the children. This was a program designed to keep the family together and provided

needed services forthe family. In May, 2011, [the department] engaged a Family Based Recovery program for

[the respondent] and the children. [The respondent]

met with these providers nine times while they were

attempting to help her. [The respondent] consistently

tested positive for marijuana during those services. She

quit the program [on] June 24, 2011, and began a day

treatment program for substance abuse. She did not

complete the program.

‘‘After her arrest on October 1, 2011, and after the

children were removed on October 14, 2011, she entered

Stonington Institute Partial [H]ospitalization and Intensive Outpatienttreatment on October 25. She completed

the program for the second or third time and was

released on December 6, 2011. Jose was there to pick

her up. Jose and [the respondent] said they were going

to resume living together at [the respondent’s] apartment . . . . [The respondent] was supposed to attend

[Alcoholics Anonymous (AA)] meetings. She did not.

There is evidence that she and Jose were using illegal

drugs, marijuana and K-2, and/or drinking alcohol at

least through the end of April and into the beginning

of May, 2012, more than six months after the children

were removed.

‘‘In February, 2012, she resumed her individual counseling with Cam Morin-Bounds, a licensed alcohol and

drug counselor. This counselor testified that she has

been treating [the respondent] off and on for more than

[seven] years. She knows that [the respondent] is an

alcoholic. She describes alcoholism as a disease with

strong genetic predisposition. She appears very forgiving of [the respondent], describing many episodes of

relapse over the years. She said that [the respondent]

began AA meetings in 2011, but that is inconsistent with

other evidence including self-reports. She testified that

[the respondent] has been making improvements. She

seemed pleased with [the respondent’s] progress in her

personal rehabilitation. She testified that she last saw

[the respondent] in March, 2012. [The respondent]

stopped attending counseling with her after one month

of visits; she began in February and ended in March.

‘‘[The respondent] entered a residential substance

abuse program known as New Life on March 20, 2012.

She told the intake worker that she had been using

drugs while in her last program, she reported drinking
alcohol every three days. Cam Morin-Bounds did not

report that [the respondent] was drinking in February.

[The respondent] stayed in this program until she was

discharged on April 30, 2012, after she was found to

have K-2 in her room.

‘‘[The department] found another program for her.

On May 1, 2012, [the respondent] was scheduled to

enter Mother’s Retreat in Groton, a program that works

with [a] substance abusing [woman] and if successful

allows [her] children to be reunited with her in treatment. [The respondent] failed to attend the intake session. On May 22, 2012, [the respondent] entered yet

another program known as Fresh Start in Hartford.

‘‘[The respondent] had failed to remain sober even

after a multitude of detoxification and impatient programs through eight years of various programs. Her

children have been removed three times from her care.4

(Footnotes altered.) On July 25, 2012, [the commissioner] filed [petitions] to terminate her parental

rights.’’ The court went on to find that the children had

been found in a prior proceeding to have been neglected

and that the respondent had failed to achieve such

degree of personal rehabilitation that would encourage

the belief that within a reasonable time, considering

the ages and needs of the children, she could assume

a responsible position in the life of the children. In this

appeal, the respondent does not challenge the court’s

finding that she has failed to achieve personal rehabilitation.

In the dispositional phase of the proceeding, the court

addressed and considered the seven factors specified

in § 17a-112 (k). Additionally, the court considered the

best interests of the children, concluding: ‘‘Clear and

convincing evidence establishes that it is in the children’s best interest to grant the petition and terminate

the parental rights of the biological parents. Thus, in

consideration of all the factors relevant here to the

children’s needs and best interest[s], it was proven by

clear and convincing evidence that terminating the

parental rights is in the children’s best interests.’’5 See

General Statutes § 17a-112 (j) (2). This appeal followed.

The respondent claims that the guarantee of procedural due process under the United States constitution

required the court, sua sponte, to order a psychological

evaluation of the children for the purpose of determining whether termination of the respondent’s parental

rights was in their best interests. The respondent asserts

that ‘‘this case presents the type of complex psychological issues that required the trial court to order psychological evaluations prior to making any determination

as to the children’s best interests.’’ The respondent

argues in relevant part: ‘‘[D]espite the obvious potential

for these issues to impact the dispositional outcomes

that might best advance their respective needs, the trial

court, [Hon. Francis J. Foley III, judge trial referee],
never ordered a psychological evaluation before concluding that terminating the respondent’s parental

rights was uniformly in the best interest of all four

children. . . . [B]ecause the failure to order a psychological evaluation in this case created an unacceptably

high risk of the court unnecessarily terminating the

fundamental liberty interests of both the respondent

and her children when it may well not be necessary to do

so, the court ran afoul of the respondent’s due process

rights.’’ Underlying the respondent’s novel claim is her

supposition that trial courts lack formal training in medicine and psychology and, in cases such as the present,

are not competent to engage in a best interest analysis

without relying on expert opinion concerning multiple

child attachment theories and their application in

each case.6

Our review of the record reflects, and the respondent

acknowledges, that this issue of procedural due process

was not raised before the trial court. Although deeming

it necessary to a proper resolution of the case, the

respondent did not ask the court to order a psychological evaluation of her children.7

In her principal appellate

brief, the respondent affirmatively requests extraordinary review pursuant to State v. Golding, 213 Conn.

233, 239–40, 567 A.2d 823 (1989). Under Golding, ‘‘a

defendant can prevail on a claim of constitutional error

not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the

alleged claim of error; (2) the claim is of constitutional

magnitude alleging the violation of a fundamental right;

(3) the alleged constitutional violation clearly exists

and clearly deprived the defendant of a fair trial; and

(4) if subject to harmless error analysis, the state has

failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the

absence of any one of these conditions, the defendant’s

claim will fail. The appellate tribunal is free, therefore,

to respond to the defendant’s claim by focusing on

whichever condition is most relevant in the particular

circumstances.’’ (Emphasis in original; footnote omitted.) Id. ‘‘The first two prongs of Golding address the

reviewability of the claim, and the last two involve the

merits of the claim.’’ State v. Brown, 56 Conn. App. 26,

31, 741 A.2d 321 (1999), cert. denied, 252 Conn. 927,

746 A.2d 790 (2000).

I

As a preliminary matter, the respondent’s resort to

Golding review is unavailing because the record belies

the factual premise of the claim. In Golding, our

Supreme Court stated that ‘‘[t]he defendant bears the

responsibility for providing a record that is adequate

for review of his claim of constitutional error. If the

facts revealed by the record are insufficient, unclear or

ambiguous as to whether a constitutional violation has

occurred, we will not attempt to supplement or recon-
struct the record, or to make factual determinations, in

orderto decide the defendant’s claim.’’ State v. Golding,

supra, 213 Conn. 240.

The respondent has premised her invocation of Golding on the existence of ‘‘complex’’ and ‘‘obvious’’ psychological issues related to Kyara, Jahein, Trevon, and

Kahlil. To prevail under Golding, therefore, the record

must reflect that such issues exist with respect to each

of the respondent’s children. In support of her claim

that the ‘‘psychological issues’’ of the children required

that the court, sua sponte, order a psychological evaluation, the respondent refers to several matters in evidence. First, she refers to ‘‘inappropriate sexual acts’’

between Kyara and Jahein. In its decision, the court

referred to a department social worker’s report, which

included the respondent’s observation that, while living

with the respondent, Kyara was engaging in inappropriate sexual behavior with Jahein. The court observed, as

well, the respondent’s representation that Kyara ‘‘roams

the house in the middle of the night’’ and ‘‘urinates in

her room.’’ This behavior was not corroborated by any

other source. A July 24, 2012 social study prepared by

a department social worker,8

submitted in support of

the petitions, states that, since her placement in a foster

home, Kyara ‘‘has not displayed any sexualized behaviors’’ and has adjusted well in her foster home. At

school, she performs at grade level and does not have

any behavioral problems.

Second, the respondent refers to ‘‘Attention Deficit

Hyperactivity Disorder.’’ In the department social worker’s report, it states that an ‘‘art therapist’’ who has

been working with Kyara reported that she was ‘‘very

loud’’ and ‘‘clumsy.’’ The therapist reported that ‘‘she

could have Attention Deficient Hyperactive Disorder or

these could be symptoms of other things.’’ There is no

evidence that any diagnosis by a medical professional

was made in this regard. Additionally, in the department

social worker’s report, it refers to Jahein’s history of

‘‘Attention Deficient Hyperactive Disorder.’’ The report

goes on to state that, at this time, the group of evaluators9

that had studied his case determined that this

issue need not be addressed. Although the respondent

reported difficulties with Jahein’s behaviorin the home,

including his tendency to spend time alone, the report

states that Jahein ‘‘has made a lot of progress since

being placed in the foster home,’’ he ‘‘has been doing

excellent in school,’’ his teacher ‘‘is very happy with

him and his progress . . . and enjoys having him in

his class,’’ and that he has been ‘‘doing better with his

hygiene . . . showering . . . and brushing his teeth.’’

Third, with regard to the other two children, Trevon

and Kahlil, the respondent acknowledges in her brief

that ‘‘[they] do not appear to have the same psychological issues at this time, but both are deemed ‘medically

complex’ by the [commissioner].’’ In this regard, the
respondent goes on to state that ‘‘[b]oth children have

asthma, requiring nebulizer treatments, and Kahlil has

Hepatitis C, which can be a life-threatening disease.’’

Additionally, the respondent relies on evidence that

Trevon experienced some regression in his potty training after being placed in foster care.

The department social worker’s report submitted in

evidence states that ‘‘Trevon presents as a happy and

easy going toddler. Once he warms up he is easily

engaged and smiles often.’’ Initially after being placed

with his foster family, Trevon had a ‘‘flat affect’’ and

had difficulty sleeping through the night. Those problems have disappeared and he is engaging in activities

that are developmentally appropriate for his age. Further, ‘‘Birth to Three made an assessment of Trevon

and deemed that he did not qualify for their services.’’10

The department social worker’s report states that upon

joining his foster home Kahlil ‘‘is a happy baby who

smiles and babbles often. There are not any concerns

regarding Kahlil’s developmental milestones. He is

crawling and almost walking by himself. [He] was evaluated by Birth to Three services and they reported that

he does not meet the qualifications for services.’’

In a purely subjective manner, the respondent has

labeled certain conduct, medical conditions and diagnoses as ‘‘complex’’ and ‘‘obvious psychological issues.’’

She has not demonstrated, by reference to findings of

fact or competent evidence, that any of these things

constitute obvious psychological issues that were of

such a complex nature that they should have triggered

the court, sua sponte, to order a psychological evaluation. The respondent has not established a necessary

factual predicate in support of her claimed entitlement

to review under Golding because there is no finding or

evidence that at the time that the court rendered its

decision, any of the four children at issue suffered from

obvious and complex psychological issues.11 The

respondent effectively conceded that there are medical

issues involving Trevon and Kahlil; she has failed to

demonstrate by reference to competent evidence that

they are psychological issues that should affect a best

interest analysis. With respect to Kyara, the respondent

relies on her own observation of sexual conduct and

other activities, yet there is no evidence of any diagnosis

of any psychological disorder by a medical professional,

let alone findings by the court that such issues existed.

To the contrary, the evidence demonstrates that Kyara

was performing well apart from the respondent. Finally,

with respect to Jahein, the respondent points to his

historical diagnosis with a psychological issue, namely,

Attention Deficient Hyperactive Disorder. The evidence, which was credited by the court, unambiguously

reflects that this disorder was not an area of concern

at this time for the department social workers who

studied Jahein. Rather, he, like all of his siblings, had

been making excellent progress in almost all areas after
being distanced from the respondent and entering foster

care. Absent a sufficient showing in the record that

obvious and complex psychological issues existed, the

factual predicate for the respondent’s claim is lacking.

See In re Amanda A., 58 Conn. App. 451, 458, 755 A.2d

243 (2000) (claim of constitutional error not reviewable

where record insufficient to substantiate factual basis

of claim).

II

In part I of this opinion, we concluded that the factual

predicate underlying the respondent’s claim, which is

of constitutional magnitude, was not apparent in the

record. Even were we to conclude that the record supported the factual premise of the claim—or the claim

was based on the facts apparent in the record—the

respondent’s Golding claim is unavailing because she

is unable to demonstrate that due process required the

court, sua sponte, to order a psychological evaluation

of the children for purposes of determining whether

termination of her parentalrights was in theirrespective

best interests.

‘‘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.’’ (Internal quotation marks omitted.) In re Tayler F., 296 Conn.

524, 553, 995 A.2d 611 (2010). The present appeal arises

from the termination of the respondent’s parental rights

and, as this court has recognized, ‘‘[t]he right of a parent

to raise his or her children has been recognized as a

basic constitutional right.’’ (Internal quotation marks

omitted.) In re Tremaine C., 117 Conn. App. 521, 529,

980 A.2d 317, cert. denied, 294 Conn. 920, 984 A.2d

69 (2009).12

Whether the process due the respondent required the

court, sua sponte, to order a psychological evaluation

of her children, is governed by the balancing test set

forth by the United States Supreme Court in Mathews

v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed.

2d 18 (1976). See In re Alison M., 127 Conn. App. 197,

219–20, 15 A.3d 194 (2011) (Mathews balancing test

applies in context of proceeding to terminate parental

rights). ‘‘Underthis test, [t]he three factors to be considered are (1) the private interest that will be affected

by the state action, (2) the risk of an erroneous deprivation of such interest, given the existing procedures,

and the value of any additional or alternate procedural

safeguards, and (3) the government’s interest, including

the fiscal and administrative burdens attendant to

increased or substitute procedural requirements. . . .

Due process analysis requires balancing the government’s interest in existing procedures against the risk

of erroneous deprivation of a private interest inherent in

those procedures.’’ (Internal quotation marks omitted.)

Barros v. Barros, 309 Conn. 499, 509, 72 A.3d 367 (2013).
The first factor of the Mathews balancing test, concerning the private interest at stake, weighs in the

respondent’s favor. ‘‘A petition to terminate parental

rights threatens the respondent’s constitutionally protected interest [in retaining her parental rights in her

children].’’ In re Tremaine C., supra, 117 Conn. App.

530.

The second factor, consideration of the efficacy of

current procedural safeguards and the efficacy of any

additional or alternate procedural safeguards, does not

weigh in the respondent’s factor. As discussed previously in this opinion, the respondent argues, essentially, that courts commonly do not rely on appropriate

psychological theories when undertaking best interest

analyses, that courts are ill-equipped to evaluate the

myriad of proper considerations that are relevant to

a best interest analysis, and that proper best interest

analyses should be influenced by child psychology that

favors continued contact between children and biological parents. The respondent argues that, given the facts

of the present case, the court was obligated sua sponte

to order a psychological evaluation of the children

because ‘‘the trial court [had] no reliable assessment

of how well bonded the children were to their foster

parents or what type of damage would be occasioned

by terminating parental rights at this time. . . . Absent

that type of information, there is a significant risk that

the trial court rendered a decision that unnecessarily

destroyed this family or was affirmatively detrimental

to the children, and that is a risk that due process

forbids in light ofthe easy access to psychological evaluations that are so commonly used in these types of

cases.’’

An evaluation of current procedural safeguards

reflects that the respondent’s parental rights were terminated following numerous court proceedings and a

lengthy trial, during which the respondent was represented by counsel. Current procedural safeguards

include the court’s statutory authority, exercised

whether on motion by a party or on its own initiative,

to order a psychological evaluation of a child that is the

subject of a termination of parental rights proceeding.

General Statutes § 45a-717.13 The record reflects that the

respondent did not raise such a motion in the present

proceeding and the respondent has not suggested that

the court precluded her from doing so.14 The respondent’s argument is premised on an assumption, the support for which is uncertain, that the outcome of a

psychological examination in the present case would

have weighed in her favor. That is, the respondent

merely speculates that an expert would have formulated

an opinion that did not weigh in favor of the termination

of her parentalrights. In no manner does the respondent

address the issue of why she failed to attempt to present

such a favorable alternative theory before the trial
court. In argument, she alludes to evidence of an ongoing bond with hertwo oldest children, Kyara and Jahein,

and suggests that the court was unaware of contemporary research noting ‘‘the importance of continued contact between children and their biological parents

. . . .’’15 Yet, ‘‘[o]ur courts consistently have held that

even when there is a finding of a bond between parent

and a child, it still may be in the child’s best interest

to terminate parental rights.’’ In re Rachel J., 97 Conn.

App. 748, 761, 905 A.2d 1271, cert. denied, 280 Conn.

941, 912 A.2d 476 (2006). Certainly, apart from any

issues related to the existence of a bond between the

respondent and any or all of her biological offspring,

the court was free to rely instead on the evidence that

it amply discussed in its thorough memorandum of decision regarding the many ways in which the respondent

has failed to behave as a responsible parent or to provide any semblance of a stable and safe home environment for the children at issue. See, e.g., In re Devon

W., 124 Conn. App. 631, 649, 6 A.3d 100 (2010).

Furthermore, our courts have consistently eschewed

the notion that judges lack the ability to weigh the

evidence and make correct best interests determinations in termination of parental rights cases. As our

state’s highest court has observed: ‘‘Although we often

consider the testimony of mental health experts . . .

such expert testimony is not a precondition of the

court’s own factual judgment as to the child’s best interest.’’ (Citations omitted; internal quotation marks omitted.) In re Jeisean M., 270 Conn. 382, 398, 852 A.2d 643

(2004); see also In re Teshea D., 9 Conn. App. 490, 493,

519 A.2d 1232 (1987) (same). Thus, the respondent’s

claim, itself, is based on an assessment of the capability

of the trial court that is without support in our case law.

Here, the respondent urges us to conclude that an

added procedural safeguard, namely, a psychological

evaluation of the children ordered, sua sponte, by the

court, was part of the process that was due in the

present case. The respondent had the right to move the

court to order such an evaluation but did not exercise

such right. Moreover, the respondent, in a purely speculative manner, suggests that such an evaluation would

have yielded expert opinion, based on psychological

theories of which, she supposes, the court was unaware,

that would have stressed the importance of maintaining

a bond between the respondent and, perhaps, some

of her children. The court, however, in undertaking a

proper analysis that focused on the totality of the material considerations relevant to a best interest analysis,

would not be bound by such expert opinion or by the

nature of the bond between the respondent and any of

her children.16 After considering the existing procedures, we are not persuaded by any of the respondent’s

arguments that they are not adequate or that alternate

procedural safeguards would have eliminated the risk

of an erroneous deprivation of the respondent’s private
interest in parenting her children.

Finally, we consider the state’s interest in the procedures used, including the fiscal and administrative burdens attendant to any additional or substitute

procedures advocated by the respondent. There can

be no dispute that the type of expert psychological

evaluation advocated by the respondent entails a significant financial cost, one that would be borne by the

petitioner. See General Statutes § 45a-717 (d), set forth

in footnote 15 of this opinion. As our Supreme Court

has observed, ‘‘the state has a fiscal and administrative

interest in lessening the cost involved in termination

proceedings.’’ (Emphasis added.) In re Alexander V.,

223 Conn. 557, 565, 613 A.2d 780 (1992). The respondent

posits that ‘‘such due process concerns would not be

implicated in every termination case’’ and that ‘‘it is

unlikely there would be many cases where due process

required an evaluation where the court did not use its

discretion to order such an evaluation.’’ Although the

respondent urges us to recognize that such a constitutionally warranted procedural safeguard applies to

cases, similar to the present cases, in which the court

is presented with evidence that one or more children

have obvious and complex psychological issues, this

class of cases is ill-defined and, thus, potentially large.

Indeed, were we to accept as accurate the respondent’s

central premise, that a psychological evaluation is a

precondition to the court undertaking a best interest

analysis in the present cases, which do not present

obvious or complex psychological issues, it certainly

would not be hard to envision that such an evaluation

would be necessary in the vast majority of termination cases.

Apart from the financial burden attendant to the

added procedural safeguard at issue comes the delay

that would be occasioned by such a safeguard. The

respondent argues that ‘‘there is no indication that

requiring courts to use psychological evaluations would

delay permanency for children.’’ Our Supreme Court

has observed: ‘‘[A]s parens patriae, the state is . . .

interested in the accurate and speedy resolution of termination litigation in order to promote the welfare of

the affected child. . . . [B]ecause of the psychological

effects of prolonged termination proceedings on young

children, time is of the essence . . . . Any significant

delay would undermine the state’s important interest

in protecting the welfare of children. This cost, and the

state’s interest in avoiding it, would rise as the delay

increased.’’ (Citation omitted; internal quotation marks

omitted.) In re Alexander V., supra, 223 Conn. 565. The

state’s interest in expediting termination proceedings

would be adversely affected by any delay necessitated

by the ordering of psychological evaluations of children

in termination of parental rights cases, especially after

the trial has commenced.
Having considered the Mathews factors, we are not

persuaded that due process required the court, sua

sponte, to order a psychological evaluation in the present cases. The respondent’s interest in parenting her

biological offspring is significant, yet she has not demonstrated that the process afforded her in the present

case risked an erroneous deprivation of that interest.

Current procedural safeguards afford the respondent a

mechanism to seek a psychological evaluation and

afford the court, in its discretion, a means of obtaining

such an evaluation. Furthermore, the respondent has

not demonstrated that, even if she presented the results

of such an evaluation in the present cases, it likely

would have affected the outcome of the trial and, thus,

that it would have eliminated the risk of an erroneous

deprivation of the right at issue. Finally, both in terms

of cost and delay, the consequences of the added safeguard weigh against its recognition.

In light of the foregoing analysis, we conclude that

the respondent is unable to demonstrate that a constitutional violation clearly exists and clearly deprived her

of a fair trial. See State v. Golding, supra, 213 Conn.

240. Accordingly, we cannot conclude that the court

erred in terminating the respondent’s parental rights

with respect to her minor children.

The judgments are affirmed.

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.

** January 16, 2014, the date that this decision was released as a slip

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

1 The respondent father, Tyrone H., has brought a separate appeal from

the trial court’s judgment terminating his parental rights in Kyara and Jahein.

See In re Kyara H., 147 Conn. App. , A.3d (2013). We refer in

this opinion to the respondent mother as the respondent.

2 The court terminated Jose’s parental rights in Trevon and Kahlil. Jose

is not a party to this appeal. The court found that the respondent and Jose

also had another child in 2012, who, as of the time of trial, was in the care

of one of the respondent’s relatives. That child is not a subject of the

present appeal.

3 There was evidence that, in addition to being removed from the respondent’s home on two separate occasions pursuant to the commissioner’s

motions for orders of temporary custody, Kyara and Jahein, with the acquiescence of the department, were voluntarily placed with a paternal uncle after

the department reopened their cases due to domestic violence occurring

between the respondent and Jose in February, 2009. This arrangement only

lasted about one month and the uncle returned the children to the respondent

without notifying the department. The department learned that the children

were back in the respondent’s care when Jahein told school staff that he

played with a gun and bullets at her home.

4 Despite these findings and the additional finding that eight year old

Kyara spent the first three years of her life in the care of her grandfather,

none of which are in dispute, the respondent incredibly asserts in argument

before this court that she has been ‘‘[the] only constant in [Kyara’s] life.’’

5

‘‘This court has noted consistently the importance of permanency in

children’s lives. . . . Virtually all experts, from many different professional

disciplines, agree that children need and benefit from continuous, stable

home environments. . . .

‘‘[S]table and continuous care givers are important to normal child devel-
opment. Children need secure and uninterrupted emotional relationships

with the adults who are responsible for their care.’’ (Citations omitted;

internal quotation marks omitted.) In re Davonta V., 285 Conn. 483, 494–95,

940 A.2d 733 (2008).

6 The respondent does not merely assert that the court was obligated to

order a psychological evaluation, but that in a case involving ‘‘complex

psychological issues,’’ such as the present case, it is necessary that the court

consider ‘‘multiple psychological theories’’ and not merely the ‘‘the very

psychological theories most commonly relied upon by trial courts’’ in undertaking a best interest analysis. Presumably, this then would require multiple

evaluations from a variety of experts espousing competing theories. In the

case of indigent parents, as here, the state would bear this cost. See Practice

Book § 34a-21 (f). Absent from the respondent’s brief is any explanation as

to how the judicial authority, which the respondent believes to be untrained

and incompetent in evaluating such matters in the field of psychology, would

resolve the issue of which theory is correct.

7 The record reflects that, before the trial court, the respondent argued

that the evidence was insufficient to demonstrate that termination was

in the children’s best interest because the court did not have before it a

psychological evaluation of the children in support of such a conclusion.

The commissioner argues that because the respondent’s litigation strategy

before the trial court was to rely on the lack of a psychological evaluation

as a means of challenging the sufficiency of the evidence, she is precluded

on appeal from seeking review under State v. Golding, supra, 213 Conn.

239–40, on the ground that it was the responsibility of the trial court to

order such an evaluation. The commissioner’s argument is based on the

principle that to permit review would sanction an ambush of the trial court

and is based on the principle of appellate review that ‘‘a party cannot submit

a case to the trial court on one theory and then seek a reversal in the

reviewing court on another.’’ In re James L., 55 Conn. App. 336, 348, 738

A.2d 749, cert. denied, 252 Conn. 907, 743 A.2d 618 (1999).

Although the respondent did not request that the court order a psychological evaluation of the children, we are not persuaded that her arguments

before the court related to the lack of a psychological report necessarily

are inconsistent with her appellate claim that it was the obligation of the

court to ensure that such an evaluation was part of the evidence before it.

Contrary to the commissioner’s arguments, this is not a situation in which

the respondent took a position at trial that was contrary to the claim raised

on appeal, such as by indicating before the trial court that a psychological

evaluation was unnecessary in this case or that it would have been inappropriate for the court sua sponte to order one.

8 The report was prepared by department social worker Shannon Bienkowski, who the court found ‘‘has had sufficient formal education and experience

in the behavioral sciences to express an expert opinion as a social worker

on such matters.’’ At trial, Bienkowski testified that she held a bachelor’s

degree in human development as well as a master’s degree in social work.

Bienkowski testified that, at the time of trial, she had eleven years of professional experience in social work, which encompassed five years as a department employee, and six years as an employee of a psychiatric hospital,

where, among other things, she was a clinician for their pediatric intensive

outpatient and partial hospitalization programs.

9 The report states that the respondent was referred to CRI, which worked

with Jahein on a biweekly basis and continues to work with Jahein and his

foster family to assist with behavioral issues.

10 ‘‘The Birth to Three program offers early childhood intervention services

for children under three years of age that show significant delays in development.’’ In re Keyashia C., 120 Conn. App. 452, 456 n.10, 991 A.2d 1113, cert.

denied, 297 Conn. 909, 995 A.2d 637 (2010).

11 Thus, the present case is somewhat analogous to In re Azareon Y., 309

Conn. 626, 636–39, 72 A.3d 1074 (2013) (concluding that review under Golding inappropriate where factual predicate underlying substantive due process claim not supported by record). We note that the respondent’s

procedural due process claim is not merely grounded in a certain process

applicable in all cases, in which case the proof of its application would

establish the alleged constitutional violation, but in the application of a

process that was defective given the circumstances of the present case

in which, she alleges, the respondent’s children were affected by obvious

psychological issues that were relevant to the trial court’s best interest

analysis.

12 The commissioner argues that the respondent’s claim does not satisfy
Golding’s second prong because, following the outcome of the adjudicatory

phase of the proceeding, the respondent did not have a fundamental interest

in the dispositional phase of the proceeding, the subject of which was the

best interest of her children. In support of this proposition, the commissioner

relies primarily on the analysis of the United States Supreme Court in

Santosky v. Kramer, 455 U.S. 745, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).

The language relied on by the commissioner states: ‘‘At the factfinding, the

State cannot presume that a child and his parents are adversaries. After

the State has established parental unfitness at that initial [adjudicative]

proceeding, the court may assume at the dispositional stage that the interests of the child and the natural parents do diverge. See Fam. Ct. Act § 631

(judge shall make his order ‘solely on the basis of the best interests of the

child,’ and thus has no obligation to consider the natural parents’ rights

in selecting dispositional alternatives). But until the State proves parental

unfitness, the child and his parents share a vital interest in preventing

erroneous termination of their natural relationship.’’ (Emphasis in original.)

Id., 760.

We do not share the commissioner’s interpretation of Santosky, which

does not find support in our case law. In our view, the subject language

does not stand for the proposition that, following an adverse determination

in the adjudicative phase, a biological parent lacks a fundamental interest

in the outcome of the dispositional phase of the proceeding. Rather, the

language at issue appears to emphasize that the sole consideration in the

dispositional phase of the proceeding is the best interest of the child and

not the natural rights of the biological parent. As our Supreme Court has

observed: ‘‘Under § 17a-112, a hearing on a petition to terminate parental

rights consists of two phases: the adjudicatory phase and the dispositional

phase. During the adjudicatory phase, the trial court must determine whether

one or more of the . . . grounds for termination of parental rights set

forth in § 17a-112 [(j) (3)] exists by clear and convincing evidence. The

commissioner . . . in petitioning to terminate those rights, must allege and

prove one or more of the statutory grounds. In contrast to custody proceedings, in which the best interests of the child are always the paramount

consideration and in fact usually dictate the outcome, in termination proceedings the statutory criteria must be met before termination can be accomplished and adoption proceedings begun. . . . Section [17a-112 (j) (3)]

carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the

termination of parental rights in the absence of consent. . . . Because a

respondent’s fundamental right to parent his or her child is at stake, [t]he

statutory criteria must be strictly complied with before termination can be

accomplished and adoption proceedings begun.’’ (Citation omitted; footnote

omitted; internal quotation marks omitted.) In re Elvin G., 310 Conn. 485,

500–501, 78 A.3d 797 (2013).

13 General Statutes § 45a-717 (d) provides in relevant part: ‘‘Upon finding

at the hearing or any any time during the pendency of the petition that

reasonable cause exists to warrant an examination, the court, on its own

motion or on motion by any party, may order the child to be examined at

a suitable place by a physician, psychiatrist or licensed clinical psychologist

appointed by the court. The court may also order examination of a parent

or custodian whose competency or ability to care for a child before the

court is at issue. The expenses of any examination if ordered by the court

on its own motion shall be paid for by the petitioner or, if ordered on motion

by a party, shall be paid for by the party moving for such an examination

unless such party or petitioner is unable to pay such expenses in which

case, they shall be paid for by funds appropriated to the Judicial Department

. . . . The court may consider the results of the examination in ruling on

the merits of the petition.’’

14 The language of § 45a-717 (d), specifically the legislature’s use of the

word ‘‘may,’’ reflects that the statute calls on the court to exercise its sound

discretion in ordering examination on its own initiative or on motion by a

party. See In re Cynthia A., 8 Conn. App. 656, 663, 514 A.2d 360 (1986)

(interpreting legislature’s use of ‘‘may’’ in General Statutes § 17-38a). In

an analogous context, related to the denial of a request for independent

psychiatric evaluations of respondents, this court observed, ‘‘[t]he trial

court’s decision whetherto order a psychological evaluation in a termination

of parentalrights proceeding will not be disturbed unless that judicial discretion was clearly abused.’’ In re Daniel C., 63 Conn. App. 339, 365, 776 A.2d

487 (2001); see also In re David E., 4 Conn. App. 653, 658, 496 A.2d 229

(1985) (same).
15 As discussed previously in this opinion; see footnote 8 of this opinion;

the respondent emphasizes a reliance not merely on psychological evaluation, but psychological evaluation of a type favored by her, namely, that

which focuses on and relies heavily on certain relevant psychological theories related to continued contact, bonding and attachment between parent

and child.

16 A careful review of the court’s thorough memorandum of decision belies

any argument that the court was unconcerned with the children’s connection

to the respondent or to the feelings of attachment experienced by the

children. In evaluating § 17a-112 (k) (4), the court noted the fact that the

guardian ad litem reported that Kyara and Jahein expressed ‘‘[an] understandable wish to be reunited with their mother.’’ The court went on to

observe that the respondent’s younger children were bonded with their

foster parents. Further, in discussing the best interests of the children, the

court stated: ‘‘The court has also balanced the children’s intrinsic need for

stability and permanency against the potential benefit of maintaining a

connection with the biological parents, especially the mother.’’ The court

found that none of the children had expressed an interest in living with Jose.