Date: 06-01-2016

Case Style: In re Oreoluwa O.

Case Number: SC19501

Judge: Dennis G. Eveleigh

Court: Connecticut Supreme Court

Plaintiff's Attorney: MichaelS.Taylor, James P. Sexton, Matthew C. Eagan

Defendant's Attorney: Michael Besso, assistant attorney general, Jessica B. Gauvin, assistant attorney general, George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, and Benjamin Zivyon, assistant attorney general

Description: In this certified appeal,1 we must decide whether the Appellate Court properly affirmed the judgment of the trial court terminating the parental rights of the respondent father, Olusegun O., as to his minor son, Oreoluwa O.2 See In re Oreoluwa O., 157 Conn. App. 490, 116 A.3d 400 (2015). On appeal, the respondent asserts, inter alia, that the Appellate Court improperlyaffirmedthejudgmentofthetrialcourtconcluding that the Department of Children and Families (department) had made reasonable efforts to reunify OreoluwawiththerespondentinaccordancewithGeneral Statutes (Supp. 2016) § 17a-112 (j) (1).3 We agree with the respondent and, accordingly, reverse the judgment of the Appellate Court. The opinion of the Appellate Court sets forth the following relevant facts and procedural history. ‘‘The respondent,togetherwithhiswife,Oreoluwa’smother,4 live in Nigeria. Oreoluwa’s mother traveled to the United States while pregnant [and gave birth to him in the United States]. Prior to his birth, it was determined that he suffered significant congenital heart defects, andhewasdiagnosedwithseveralcomplexheartconditions after he was born. Initially, he was released from thehospitaltohismother’scare,andthetwolivedwith afamilyinMilfordforashorttimeafterhisbirthbefore moving into a hotel. In mid-April, 2013, when he was approximately three months old, Oreoluwa was readmitted to the hospital, where medical personnel observed his mother behaving erratically and having difficulty administering his medications. ‘‘On May 3, 2013, the petitioner, the Commissioner of Children and Families (commissioner), sought from the court an order of temporary custody and filed a neglect petition as to Oreoluwa. The commissioner alleged that Oreoluwa was neglected in that he was being denied proper care and was being permitted to live under conditions injurious to his [well-being], and that he was uncared for in that his home could not providethespecializedcarethatherequired.Oreoluwa was adjudicated neglected and committed to the custody of the commissioner. The court approved specific stepsfortherespondenttotakesohecouldbereunited with Oreoluwa. On December 23, 2013, the commissioner fileda petition forthe termination ofthe respondent’s parental rights regarding Oreoluwa on the grounds that (1) Oreoluwa had been abandoned by the respondent in the sense that he failed to maintain a reasonabledegreeofinterest,concern,orresponsibility asto[Oreoluwa’swelfare],and(2)therewasnoongoing parent-childrelationshipwiththerespondent‘thatordinarily develops as a result of a parent having met on a day-to-day basis the physical, emotional, moral, and educational needs of [Oreoluwa] . . . and [that] to allow further time for the establishment or reestablish
ment of the parent-child . . . relationship would be detrimental to [Oreoluwa’s] best interests . . . .’ On February 27, 2014, the court entered a default as to the respondent because of his failure to appear at the plea hearing. . . . ‘‘The hearing on the termination of parental rights petitionwasheldonMarch12,2014.OnMarch20,2014, the court rendered an oral decision terminating the parental rights of the respondent. The respondent subsequentlyfiledamotionforreargumentandreconsideration, which was denied. On June 14, 2014, the respondent [appealed]. The respondent also filed a motion for articulation of the decision to terminate parentalrights,whichwasdenied.Therespondentfiled a motion for review with [the Appellate Court], which grantedthe motion.OnOctober 10,2014,the trialcourt issued its articulation. ‘‘The court found by clear and convincing evidence pursuant to . . . § 17a-112 (j) (1) that the department made reasonable efforts to reunify Oreoluwa with the respondent given the circumstances. The court noted that ‘the [respondent’s] absence from the state, and indeedfromthiscountry,haslimitedthetypeandnumber of services that the department has been able to providetohim.Whenaparentisnotavailabletoparticipateinservices,thereasonablenessofthedepartment’s efforts must be judged in that context.’ The court explained that although the department was not able to provide [the respondent with] services, it had provided him with contact information for the Nigerian consulate in New York, maintained communication with him, investigated a possible placement resource for Oreoluwa suggested by the respondent, and attempted, although unsuccessfully, to set up visitation via [an Internet based video conference system known as] Skype. . . . ‘‘Afterfindingthattheallegationsofthepetitionwere provenbyclearandconvincingevidence,thecourtthen determinedwhetherterminationwasinthebestinterest of Oreoluwa. The court considered the seven statutory factors and [in its articulation] made written findings as to each factor pursuant to § 17a-112 (k). The court ultimately concluded that there was clear and convincing evidence that it was in Oreoluwa’s best interest to terminatetherespondent’sparentalrights.’’(Footnotes altered.) In re Oreoluwa O., supra, 157 Conn. App. 493–96. The respondent appealed from the judgment of the trialcourttotheAppellateCourt.Onappeal,therespondentclaimedthatthetrialcourtimproperlydetermined that ‘‘(1) the [department] made reasonable efforts to reunify him with Oreoluwa, (2) the respondent abandoned Oreoluwa, and (3) the respondent had no ongoing parent-child relationship with Oreoluwa. He also claim[ed], on behalf of Oreoluwa, that the guarantee of
due process under the fourteenth amendment to the United States constitution required the trial court to providetherespondentwithnoticeofalternativemeans of participation in the termination trial and required the court to undertake reasonable efforts to use those alternative means.’’ Id., 492–93. The Appellate Court affirmed the judgment of the trial court. In regard to the reunification efforts, the Appellate Court recognized as follows: ‘‘The department maintained communication with the respondent via e-mail and telephone calls, and, when the respondent indicated a possible placement resource for Oreoluwa with an attorney in Philadelphia, the department contacted the potential resource. The department was later informed by the [respondent], however, that he no longer wished for the potential placement resource to be involved. Although the respondent argues that these efforts by the department did not actually relate to reunification, we conclude that under the circumstances of the present case, the actions taken by the department were reasonable and related to reunification.’’ Id., 501. The Appellate Court further concluded that the trial court’s findings as to reasonable efforts had adequate evidentiary support. Id. In regard to the trial court’s finding‘‘thattherespondent’sabsencefromthecountry prevented the department from being able to provide him withany services,’’the AppellateCourt agreedthat ‘‘the reasonableness of the department’s efforts must be assessed in light of this key finding.’’ Id. In view of the foregoing, the Appellate Court concluded that ‘‘the trial court’s finding that the department made reasonable efforts to reunify Oreoluwa with the respondent was not clearly erroneous.’’ Id., 502. This appeal followed. Althoughthe respondenthasraisedseveral issueson appealtothiscourt,5weneedaddressonlyone,because our resolution of that claim is dispositive of the appeal. TherespondentclaimsthattheAppellateCourtimproperlyaffirmedthejudgmentofthetrialcourtbecausethe department failed to undertake the reasonable efforts required by § 17a-112 (j) (1) to reunite him with Oreoluwabeforeitfiledthepetitiontoterminatehisparental rights.Weconcludethatthedepartmentfailedtoundertake such efforts and,accordingly, we reverse the judgment of the Appellate Court on that basis. Pursuant to § 17a-112 (j),6 the trial court must make certain required findings after a hearing before it may terminateaparty’sparentalrights.Itiswellestablished that,‘‘[u]nder§ 17a-112,ahearingonapetitiontoterminate 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. . . . In contrasttocustodyproceedings,inwhichthebestinterests 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 thelegislature,constitutecountervailinginterestssufficiently powerful to justify the termination of parental rights in the absence of consent.’’ (Citation omitted; footnoteomitted;internalquotationmarksomitted.)In re Eden F., 250 Conn. 674, 688–89, 741 A.2d 873 (1999). ‘‘Ifthetrialcourtdeterminesthatastatutorygroundfor termination exists,then it proceeds tothe dispositional phase. During the dispositional phase, the trial court mustdeterminewhetherterminationisinthebestinterests of the child.’’ Id., 689. Also as part of the adjudicatory phase, ‘‘the department is required to prove, by clear and convincing evidence, that it has made reasonable efforts . . . to reunify the child with the parent, unless the court finds . . . that the parent is unable or unwilling to benefit from reunification . . . . Turning to the statutory scheme encompassing the termination of the parental rights of a child committed to the [custody of the commissioner], [§ 17a-112] imposes on the department the duty, inter alia, to make reasonable efforts to reunite thechildorchildrenwiththeparents.Thewordreasonable is the linchpin on which the department’s efforts in a particular set of circumstances are to be adjudged, using the clear and convincing standard of proof. Neither the word reasonable nor the word efforts is, however, defined by our legislature or by the federal act from which the requirement was drawn. . . . [R]easonable efforts means doing everything reasonable, not everything possible.’’ (Citation omitted; internal quotationmarksomitted.)Inre SamanthaC.,268Conn.614, 632, 847 A.2d 883 (2004). Subsequent to the Appellate Court’s decision in the presentcase,thiscourtclarifiedtheapplicablestandard of review of an appeal from a judgment of the trial court pursuant to § 17a-112 (j). See In re Shane M., 318 Conn. 568, 587, 122 A.3d 1247 (2015); see also In re GabriellaA.,319Conn.775,789–90,127A.3d948(2015). In those cases, this court clarified that ‘‘[w]e review the trial court’s subordinate factual findings for clear error. . . . We review the trial court’s ultimate determination that a parent has failed to achieve sufficient rehabilitation[orthataparentisunabletobenefitfrom reunification services] for evidentiary sufficiency . . . .’’ In re Gabriella A., supra, 789–90. We conclude that it is appropriate to apply the same standard of reviewofatrialcourt’sdecisionwithrespecttowhether the department made reasonable efforts at reunification. See id.; see also In re Jorden R., 293 Conn. 539,
558–59, 979 A.2d 469 (2009). Accordingly, we conclude that we must review the trial court’s decision in the present case with respect to whether the department made reasonable efforts at reunification for evidentiary sufficiency. In the present case, the trial court determined that ‘‘the department has made reasonable efforts to locate and reunify Oreoluwa with the [respondent] given the circumstances.’’ In making this finding, the trial court first recognized that the respondent’s presence in Nigeria limited the type and number of services that the departmentcouldprovidetohim.Thetrialcourtfurther relied on the fact that the department maintained communication with the respondent, contacted the resource named by him who resided in the United States, attempted unsuccessfully to provide electronic visitation and communication with Oreoluwa through Skype,and providedthe respondentwith contactinformation for the Nigerian consulate in New York. The Appellate Court affirmed the decision of the trial court, concluding that, under the circumstances of this case, ‘‘the trial court’s finding that the department made reasonableeffortstoreunifyOreoluwawiththerespondent was not clearly erroneous.’’ In re Oreoluwa O., supra, 157 Conn. App. 502. In the present case, the department filed the petition for termination of the respondent’s parental rights on December23,2013.Atthattime,Oreoluwawasapproximately eleven months old. At the time that the commissioner filed the petition for termination of the respondent’s parental rights, the respondent had taken significant steps to remain involved in Oreoluwa’s life. The respondent paid for the hotel where Oreoluwa and his mother initially had resided. The respondent also repeatedly attempted to contact the cardiologists who were caring for Oreoluwa, but did not receive any communication from them. The respondent also was in ‘‘constant contact’’ with the department, calling once a week and e-mailing morefrequentlytoreceiveupdatesregardingOreoluwa. The respondent also identified possible placement resources for Oreoluwa in the United States, which were ultimately unsuccessful. Furthermore, the respondent repeatedly requested that he be allowed to communicate with Oreoluwa through Skype. Although the department’s employees repeatedly requested that the department obtain the necessaryequipment toenablethis videoconference— namely, a tablet—the department never approved the request and the respondent was never allowed to video conference with Oreoluwa. Priortothecommissionerfilingthepetitionfortermination of the respondent’s parental rights, the respondent filed two applications for visas to travel to the
UnitedStates.Bothoftherespondent’sapplicationsfor visas were denied. At the time that the commissioner filed the petition for termination of the respondent’s parental rights, Oreoluwa had undergone multiple cardiac procedures, which had been successful. Nevertheless, a December, 2013socialstudypreparedbythedepartmentindicated that Oreoluwa would ‘‘require several cardiac procedures and surgeries throughouthis life according to his cardiologist . . . .’’ It further indicated that Oreoluwa ‘‘isnotabletotraveltoNigeriaduetohismedicalstatus and it is unclear at this time when he would be cleared to travel.’’ The medical information presented at the trial in this matterinMarch,2014,containednofurtherinformation about Oreoluwa’s medical condition either at the time the commissioner filed the petition for termination of parental rights or up to the time of trial. Indeed, the medicalinformationintheformofaffidavitsfromOreoluwa’s physicians dated back to April, 2013.7 Furthermore, the only evidence presented at trial that related to when Oreoluwa would be cleared to travel indicated that, before he was born, physicians expected that he would be unable to travel for at least one year from his birth. At the time of the trial, the department entered into evidenceastudyinsupportofapermanencyplandated January14,2014.Inthatstudy,thedepartmentreported thatOreoluwahadundergoneanothercardiaccatheterization on December 3, 2013, which ‘‘went well.’’ The reportalsoindicatedthatOreoluwahadanappointment with his pediatric cardiologist on January 6, 2014, and that he is ‘‘doing well and can start on whole milk and moresolidfoods.’’Thestudyfurtherstatedthatanother appointment with his pediatric cardiologist would be scheduled in two months and that ‘‘[t]he cardiac and surgical teams will meet prior to this appointment to discuss how they are going to proceed.’’ This study repeatedthesamelinesfromtheDecember,2013social study as follows: ‘‘[Oreoluwa] will require several cardiac procedures and surgeries throughout his life according to [his cardiologist]. Oreoluwa is not able to travel to Nigeria due to his medical status and it is unclearatthistimewhenhewouldbeclearedtotravel. There is also uncertainty regarding the medical care he would be able to receive in Nigeria and if his ongoing medical needs would be able to be met.’’ The trial court found that, ‘‘[a]s of December, 2013, [Oreoluwa] was not able to travel to Nigeria due to his medical status, and it was not clear when he could do so.’’ The trial court cited to the department’s study of the permanency plan as the source for the foregoing statement. The trial court further found that Oreoluwa ‘‘was still not cleared to travel as of the date of the trial.’’Thetrialcourtdidnotcitetoanyauthorityforthe
foregoingstatementaboutOreoluwa’smedicalstatusat the time of trial. The trial court made no findings as to when Oreoluwa would be cleared to travel or when his medicalteamwasmeetingtodiscusshisfuturemedical plan, despitethe factthat thedepartment’s ownexhibit revealed that Oreoluwa’s cardiac and surgical team would be meeting prior to his appointment in March, 2014, to develop a plan for his future medical care. Indeed,therewasnoinformationpresentedattrialindicating whether Oreoluwa had any surgeries or cardiac procedures scheduled at that time.8 The trial court then concluded that ‘‘the clear and convincing evidence establishes that the department hasmadereasonableeffortstolocateandreunifyOreoluwa with the [respondent] given the circumstances. . . . [The respondent’s] absence from the state, and indeedfromthiscountry,haslimitedthetypeandnumber of services that the department has been able to provide to him.’’ In considering whether, in the present case, the AppellateCourtproperlyupheldthetrialcourt’sfinding that the department had made reasonable efforts to reunify the respondent with Oreoluwa, we are mindful that‘‘therequirementthatthedepartmentmakereasonable efforts to reunite parent and child affects the substantive rights of the parties to a termination proceeding. The requirement of reunification efforts provides additional substantive protection for any parent who contests a termination action, and places a concomitant burden on the state to take appropriate measures designed to secure reunification of parent andchild.’’InreEdenF.,supra,250Conn.696.Furthermore,wearemindfulthattheburdenisonthecommissioner to demonstrate that the department has made reasonable efforts to locate the parent and to reunify the child with the parent. See, e.g., In re Gabriella A., supra, 319 Conn. 777 n.4 (‘‘[t]he [commissioner] must proveeitherthat[thedepartment]hasmadereasonable efforts to reunify or, alternatively, that the parent is unwilling or unable to benefit from reunification efforts’’[internalquotationmarksomitted]).‘‘[R]easonable efforts means doing everything reasonable . . . .’’ (Emphasis added.) In re Samantha C., supra, 268 Conn. 632.9 In examining the reasonableness of the department’s efforts in the present case, we are guided by the Appellate Court’s decision in In re Shaiesha O., 93 Conn. App. 42, 887 A.2d 415 (2006). In In re Shaiesha O., the commissioner filed a petition to terminate the parental rights of the child’s mother and father, prior to learning the results of a pending paternity test. Id., 46. Once the resultsofthepaternitytestwereknown,thedepartment notified the father and he objected to the petition to terminate his parental rights. Id. In reversing the termination of the parental rights of
the father, the Appellate Court relied on the following facts: ‘‘Despite learning on December 10, 2002, that the [father] might be [the child’s] father, the department did not make any attempt to contact him until March 17, 2003, when [a department social worker] left him a message regarding the taking of a paternity test. For the approximately ten week period from the first contactthedepartmenthadwith the[father]untilthefiling of the petition, [the department social worker] had two brief telephone conversations with the [father] regarding his paternity test. [The department social worker] testified that the first time that she had a discussion with him regarding a possible placement plan for [the child] was during June, 2003, after the filing of the petition to terminate the [father’s] parental rights. She stated that as of June, 2003, the department had not facilitated any visitation between the [father] and [the child]. Significantly, she stated that if the [father] had requested visitation, she would have told him that he [could not] see [the child] until his paternity was confirmed.’’ (Emphasis omitted.) Id., 49. On the basis of the foregoing facts, the Appellate Court in In re Shaiesha O., 93 Conn. App. 50–51, reasoned as follows: ‘‘[I]t is plain that prior to the filing ofthepetitiontoterminatethe[father’s]parentalrights, the department made no efforts to foster a relationship between [the child] and the [father] because his paternityhadnotbeenestablished.Howeverunderstandable that posture might be from a dispositional perspective, thedepartment’sdisinclinationtoencouragearelationship between the [father] and [the child] can hardly be taken as evidence of an effort to reunify the two.’’ Id., 49–50. The Appellate Court continued: ‘‘Given that evidentiaryunderlayment,wearenot,asareviewingcourt, able to find any support in the record for a finding that the department made any efforts, let alone reasonable ones, to reunify [the child] with the [father] before the commissioner sought to terminate his parental rights. . . . Additionally, since the record reflects that the department had not discussedwith the [father] a placement plan for [the child] until after the commissioner had moved to terminate his parental rights, the record is devoid of any support for its contention that he was unableorunwillingtobenefitfromreunificationefforts as of the date the petition was filed. Accordingly, we conclude that there is inadequate evidentiary support in the record for a finding that the department made the statutorily required efforts to reunify [the child] with the [father] or that he was unwilling or unable to benefit from such efforts.’’ In the present case, a review of the department’s effortstoreunifytherespondentwithOreoluwademonstratesthatallofthoseeffortswerebasedonthedepartment’s presumption that the respondent would have to be present in this country to engage in reunification efforts and that Oreoluwa could not travel to Nigeria.
DespiteknowingthatOreoluwahadsuccessfullyundergone repeated cardiac procedures and that his medical team was meeting to discuss future medical plans, the department took no steps to inquire into this medical information or to present it to the trial court. Althoughthedepartment’stwostudiesindicatedthat ‘‘it is unclear at this time when [Oreoluwa] would be cleared to travel,’’ the commissioner presented no evidence regarding any additional steps taken to obtain more specific information about when Oreoluwa may beclearedtotraveloratleastwhenthemedicalauthoritieswouldhavesomeclarityregardinghisfutureability to travel. Because the respondent was having difficulty traveling to this country to be with Oreoluwa, the department’sutterfailuretodeterminewhenOreoluwa would be able to travel to Nigeria can hardly be taken as evidence of an effort to reunify the two. ‘‘In the adjudicatory phase, the judicial authority is limited to evidence of events preceding the filing of the petition or the latest amendment, except where the judicial authority must consider subsequent events as partofitsdeterminationastotheexistenceofaground forterminationofparentalrights.’’PracticeBook§ 35a7 (a). Our rules of practice and the relevant statutory provisions do not, however, address whether the trial court should consider evidence of events following the filing of the petition for termination of parental rights when determining whether the department has made reasonable efforts. In the present case, the trial court did examine the efforts made by the department ‘‘as of the adjudicatorydate.’’ Neitherparty asserts thatit was improper for the trial court to consider events subsequent to the filing of the petition for termination of parental rights in the present case. Under the facts of the present case, however, we conclude that it was not improper for the trial court to consider events subsequent to the filing of the petition for termination of parental rights. At the time of filing the petition for termination of parental rights in the present case, there wasuncertaintyastowhenOreoluwawouldbecleared to travel and his medical status was in a state of flux. Furthermore, the efforts that the department was able to undertake depended on Oreoluwa’s changing medicalstatus.Therefore,weconcludethatitwasnecessary for the trial court to consider events subsequent to the filing of the petition for termination of parental rights inthiscase.Indeed,weconcludethatthecommissioner was unable to meet the burden of demonstrating that the department had made reasonable efforts to reunify Oreoluwa with the respondent without providing updated medical information about Oreoluwa at the time of the trial. Furthermore,thetrialcourtreliedonsummarystatements in the department’s studies that ‘‘[t]here is also uncertainty regarding the medical care [Oreoluwa]
would be able to receive in Nigeria and if his ongoing medical needs would be able to be met.’’ The commissioner presented no evidence that the department had attemptedtoinvestigatewhattypeofmedicalcareOreoluwa would receive in Nigeria. The department’s failure to investigate the type of medical care available to Oreoluwa in Nigeria and its willingness to rely on ‘‘uncertainty’’ about that care is also not evidence of an efforttoreunifytherespondentwithOreoluwa.Indeed, even if the department had legitimate concerns about themedicalcareavailabletoOreoluwainNigeria,those concerns do not relieve the department of its burden ofmakingreasonableeffortstoachievereunificationby engaging the respondent and making available services aimed at instilling in him healthy parental skills. See In re Vincent B., 73 Conn. App. 637, 646–47, 809 A.2d 1119 (2002) (concerns regarding father’s perceived plans after reunification did not relieve department from making reasonable efforts to achieve reunification),cert. denied,262Conn. 934,815A.2d 136(2003).10 In the present case the trial court’s finding that the department made reasonable efforts was based on the followingfacts:(1)thedepartmentmaintainedcommunication with the respondent; (2) the department contacted the resource named by the respondent who resided in the United States; and (3) the department attempted unsuccessfully to provide electronic visitationandcommunicationwithOreoluwathroughSkype. WithoutupdatedmedicalinformationregardingOreoluwa’s ability to travel and medical needs, however, we conclude that the commissioner did not meet the burden of demonstrating that the department did ‘‘everything reasonable’’ under the circumstances to reunite the respondent with Oreoluwa. See In re Samantha C., supra, 268 Conn. 632. Therefore, we conclude that the Appellate Court improperly determined that there was adequateevidentiarysupportforthetrialcourt’sfinding that the department made reasonable efforts to reunify the respondent with Oreoluwa.

Outcome: The judgment of the Appellate Court is reversed and the case is remanded to that court with direction to reversethejudgmentofthetrialcourtonlywithrespect to the termination of the respondent’s parental rights and to remand the case to the trial court for further proceedings consistent with this opinion

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