author: FLYNN, J. LAVINE, J., ROBINSON, J.,

text:
    IN RE BRIAN T., JR.

    (AC 33073)
    Lavine, Robinson and Flynn, Js.

      Argued September 7, 2011
    officially released February 17, 2012

      Doris B. D’Ambrosio, for the appellant (respondent father).

      Brendon P. Levesque, with whom were Dana M. Hrelic and, on the brief, Michael S. Taylor, for the appellees (petitioner Margaret F. et al.).

      Elizabeth K. Adams, for the appellee (respondent mother).

      Michael F. Miller, for the minor child.

      Jean Park, guardian ad litem, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79-3, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       February 17, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

FLYNN, J.

The respondent father, Brian T., Sr., appeals from the judgment of the trial court terminating his parental rights with respect to his minor son, Brian T., Jr. (child). On appeal, the respondent claims that the court improperly (1) determined the respondent abandoned the child, (2) determined the respondent failed to rehabilitate since a 2005 finding that the child had been neglected or uncared for, (3) determined the respondent denied the child the care, guidance and control necessary for the child’s physical, educational, moral and emotional well-being, (4) determined the respondent failed to maintain an ongoing parent-child relationship with the child and (5) considered the best interest of the child prior to making findings that the statutory grounds for termination were proved. We affirm the judgment of the trial court on the basis of its findings that the respondent failed to rehabilitate and denied the child the care, guidance and control necessary for the child’s well-being.

The following facts, as found by the court, and procedural history are relevant to the respondent’s appeal. Pursuant to the authority found in General Statutes § 45a-715 (a) (1) and (2), the mother, Nicole G., and the maternal grandmother, Margaret F., and stepgrand-father, Charles F., by joining in the mother’s petition and as legal guardians of the child, petitioned the court to terminate the parental rights of the respondent. Ultimately the mother withdrew from the termination petition, and the maternal grandmother and stepgrandfather moved to terminate her parental rights as well. The child was bom on July 11, 2002, to the respondent and the mother while the respondent was incarcerated at the Carl Robinson Correctional Institution in Enfield. At the time of the child’s birth, the mother was fifteen years old and the respondent was twenty-two. Almost two years after the child’s birth, his maternal grandmother and stepgrandfather (guardians) obtained formal legal responsibility for his care pursuant to an order of temporary custody entered by the Honorable Thomas P. Brunnock, judge of the Probate Court for the district of Waterbury on March 30, 2004, and were subsequently appointed guardians of the child on January 20, 2005. The respondent served two separate prison sentences during the child’s lifetime prior to the commencement of the trial in this matter. He first was incarcerated from March 4, 2002, until his release on January 2, 2004. He was returned to custody on December 10, 2004, and released more than four years later to supervised parole in July, 2009.

Prior to the commencement of this action for termination of parental rights, the respondent was subject to visitation restrictions with the child. Pursuant to those restrictions, the respondent, during his incarceration, was allowed only monitored telephone contact with the child. On December 15, 2005, Judge Brunnock, in the Probate Court for the district of Waterbury, subsequently denied all of the respondent’s visitation rights.

An application for termination of the respondent’s parental rights first was filed by the child’s guardians on July 26, 2007, in the Probate Court for the district of Waterbury. That proceeding was transferred to the Superior Court in Waterbury and then to the Juvenile Court in Waterbury, where the court dismissed the application due to insufficient service of process on the respondent when the matter was transferred. On January 14, 2008, the guardians filed again, in the Probate Court for the district of Waterbury, an application to terminate the parental rights of both the respondent and the child’s mother, and, on February 5, 2008, Judge Brunnock transferred the matter, pursuant to General Statutes § 45a-623, to the Superior Court at Waterbury. That application, according to the recollection of the respondent’s attorney dining that proceeding, was withdrawn by the guardians because the application did not contain a statement of facts appended to the petition.

On June 1, 2009, the child’s mother filed her own petition in the Probate Court for the district of Old Lyme to terminate the respondent’s parental rights, which subsequently was transferred, pursuant to § 45a-715 (g), to the trial court for Juvenile Matters in Waterford shortly thereafter. The petition contained the following allegations that are relevant to this appeal: the respondent (1) had abandoned the child, (2) failed to achieve a degree of personal rehabilitation sufficient to assume a responsible position in the child’s life, (3) denied the child the care, guidance and control necessary for the child’s well-being and (4) failed to maintain an ongoing parent-child relationship. On October 20, 2009, the guardians filed a motion to substitute themselves as the petitioners in this action, which was granted by the court, Driscoll, J. The newly substituted petitioners then submitted an amended application for termination of parental rights on January 11, 2010, that added a provision indicating the mother’s desire and consent to terminate her own parental rights should the court grant the original petition to terminate the respondent’s parental rights. A trial management conference was scheduled for March 9, 2010, and the matter formally was transferred to the Child Protection Session at Mid-dletown, where the court, Hon. Thayer Baldwin, Jr., judge trial referee, heard the petition to terminate the parental rights of the mother and the respondent on August 4 and 5, 2010. The child was eight years old at the time trial commenced.

After two days of hearing witness testimony and considering the briefs filed by both parties, the court issued its ruling on January 10, 2011. As to the claim of abandonment, the court found that the respondent had abandoned the child “by denying his parenthood for a period of five years and engaging in criminal activity that precluded active parenting . . . .” The court reasoned that the respondent’s prolonged incarceration, initial disavowal of paternity and the little attention he paid to the child were sufficient to constitute abandonment. Accordingly, the court ordered that his parental rights be terminated.

The court next considered the petitioners’ claim that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that he could assume a responsible position in the child’s life. The court observed that the respondent had eight years since the child’s birth to be available to assume a responsible position in the child’s life. The court further determined that the respondent had failed to achieve a sufficient degree of personal rehabilitation during the period since the Probate Court for the district of Waterbury had found, in a January, 2005 proceeding, that the child had been neglected or uncared for by the respondent. The court concluded that, during this time, the respondent failed to make himself available as a resource for the mother or the child and that he did not contribute significantly to the child’s care and maintenance. The court therefore ordered that the respondent’s parental rights be terminated for his failure to achieve sufficient personal rehabilitation as would encourage the belief that, within a reasonable time and considering the age and needs of the child, he could assume a responsible position in the child’s life.

The court then analyzed, in accordance with General Statutes § 45a-717 (g) (2) (B), the petitioners’ claim that the respondent denied the child the parental care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being by reason of acts of parental commission or omission. The court found, by clear and convincing evidence, that the respondent’s criminal acts, incarceration and lack of attention he paid to the child during the child’s infancy was sufficient to satisfy this statutory ground for termination.

Finally, the court considered the petitioners’ claim that no ongoing parent-child relationship, pursuant to § 45a-717 (g) (2) (C), existed between the respondent and the child. The court found that the conditions of the Waterbury Probate Court orders restrained the petitioner’s contact with the child to such a degree that they “limited the possibility of true bonding between [the respondent] and [the] [c]hild.” Although the respondent sustained a relationship, of sorts, with the child through “cards, letters, and telephone contact,” which the court reasoned might have put the respondent in a position to turn his life around and play an important future role in the child’s life, the court ultimately concluded that the respondent had not had the opportunity to form a strong emotional bond with the child. Additionally, the court determined that the ongoing conflict between the two families would preclude the formation of such a relationship and prove detrimental to the child’s best interest. Consequently, the court ordered that the respondent’s parental rights be terminated on the ground that no ongoing parent-child relationship existed and that to allow further time for the establishment of such a relationship would prove detrimental to the best interest of the child. This appeal followed.

Pursuant to Practice Book § 60-5, and Practice Book § 60-2 (1) of the rules of appellate procedure, which provides that a reviewing court may, “on its own motion or upon motion of any party, (1) order a judge to take any action necessary to complete the trial record for the proper presentation of the appeal,” the Appellate Court sua sponte ordered the court to specify and articulate whether all of the factual references in the “testimony” and “discussion” sections of the memorandum of decision were findings of fact. On October 6, 2011, the trial court issued the requested articulation. The following factual findings from that articulation are relevant to our review: (1) after the birth of the child, the respondent came to visit four or five times and spent very little time with the child, (2) the respondent controlled the mother’s key decisions through violence and intimidation, (3) the respondent refused to acknowledge paternity formally for fear of prosecution on charges of statutory rape, (4) the respondent told the mother not to seek court-ordered child support, (5) the guardians agreed to assume full responsibility for care and nurturing of the child, (6) the mother had an uncomfortable and sometimes violent relationship with the respondent, (7) the child’s therapist expressed her opinion that the child needs to be in a secure environment and that removal from the care of the guardians would be detrimental to his best interest, (8) the respondent engaged in criminal activity that kept him in prison for the first seven years of the child’s life and (9) the respondent failed to rehabilitate during the first seven years of the child’s life.

The following legal principles inform our review. Section 45a-715 (a) (2) permits “the guardian of a child” to petition the Probate Court to terminate parental rights. The grounds include abandonment “in the sense that the parent has failed to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child”; General Statutes § 45a-717 (g) (2) (A); or failure to rehabilitate when “the parent of a child, who (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .” General Statutes § 45a-717 (g) (2) (D). An additional ground for termination exists when a parent has denied his child the care, guidance or control necessary for the child’s physical, educational or emotional well-being pursuant to § 45a-717 (g) (2) (B). Termination of parental rights can also be brought on the grounds that “there is no ongoing parent-child relationship which is defined as the relationship that ordinarily develops as a result of a parent having met on a continuing, day-to-day basis the physical, emotional, moral and educational needs of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interests of the child . . . .” General Statutes § 45a-717 (g) (2) (C).

“Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children undeniably warrants deference and, absent a powerful countervailing interest, protection.” (Internal quotation marks omitted.) In re Juvenile Appeal (Anonymous), 181 Conn. 638, 640, 436 A.2d 290 (1980). In order to terminate a parent’s parental rights under § 45a-717, the petitioner is required to prove, by clear and convincing evidence, that any one of the seven grounds for termination delineated in § 45a-717 (g) (2) exists and that termination is in the best interest of the child. General Statutes § 45a-717 (g) (1). Only four of these statutory grounds were found by the court and are pertinent to this appeal. They are (1) abandonment, (2) failure to rehabilitate, (3) denial of the care, guidance and control necessary for the child’s physical, educational, moral and emotional well-being and (4) lack of an ongoing parent-child relationship.

“It is axiomatic that a trial court’s factual findings are accorded great deference. Accordingly, an appellate tribunal will not disturb a trial court’s finding that termination of parental rights is in a child’s best interest unless that finding is clearly erroneous. ... A finding is clearly erroneous when either there is no evidence in the record to support it, or the reviewing court is left with the definite and firm conviction that a mistake has been made.” (Internal quotation marks omitted.) In re S.D., 115 Conn. App. 111, 116, 972 A.2d 258 (2009).

“We defer to the trier of fact’s assessment of the credibility of the witnesses based on its firsthand observation of their conduct, demeanor and attitude. The trier is the judge of the credibility of all the witnesses and the weight to be given their testimony, and may accept part, all or none of the testimony. . . . [G]reat weight is given to the judgment of the trial court because of [the court’s] opportunity to observe the parties and the evidence. . . . We do not examine the record to determine whether the trier of fact could have reached a conclusion other than the one reached. . . . [Rather] every reasonable presumption is made in favor of the trial court’s ruling.” (Citation omitted; internal quotation marks omitted.) In re Kamora W., 132 Conn. App. 179, 186, 31 A.3d 398 (2011).

A hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more grounds for termination of parental rights set forth in General Statutes §§ 17a-112 or 45a-717 (g) (2) has been proven by clear and convincing evidence. If the trial court determines that at least one of the statutory grounds for termination has been proved, then it proceeds to the dispositional phase. In re Melody L., 290 Conn. 131, 163, 962 A.2d 81 (2009). In the dispositional phase, there must be a showing by clear and convincing evidence whether termination is in the best interests of the child. See In re Davonta V., 285 Conn. 483, 487-88, 940 A.2d 733 (2008); In re Lukas K., 120 Conn. App. 465, 484, 992 A.2d 1142 (2010), aff'd, 300 Conn. 463, 14 A.3d 990 (2011).

The court found that four grounds had been proved: abandonment, failure to rehabilitate, denial of the care, guidance and control necessary for the child’s physical, educational, moral and emotional well-being, and lack of an ongoing parent-child relationship. We first address abandonment.

I

The petitioners alleged in their petition for termination of parental rights that the child had been abandoned by the respondent “in the sense that he has failed to maintain a reasonable degree of interest, concern, or responsibility as to the welfare of the child.” The court found that the respondent had abandoned the child. We disagree with the court’s finding.

“General Statutes § 45a-717 (f) [now § 45a-717 (g) (2) (A)] defines abandonment as the fail[ure] to maintain a reasonable degree of interest, concern or responsibility as to the welfare of the child .... Attempts to achieve contact with a child, telephone calls, the sending of cards and gifts, and financial support are indicia of interest, concern or responsibility for the welfare of a child. . . . Abandonment occurs where a parent fails to visit a child, does not display love or affection for the child, does not personally interact with the child, and demonstrates no concern for the child’s welfare.” (Internal quotation marks omitted.) In re Ashley E., 62 Conn. App. 307, 314, 771 A.2d 160, cert. denied, 256 Conn. 910, 772 A.2d 601 (2001).

The court observed that the “facts in this regard are inconsistent.” Specifically, the court found that the respondent was twenty years old when he conceived a child with a girl who was fourteen years old at the time. He told the mother that he would not allow consideration of an abortion, but he disavowed his paternity for five years in order to avoid prosecution for statutory rape. Furthermore, he engaged in criminal activity that resulted in his incarceration for the first seven years of the child’s life. The court acknowledged that the respondent attempted to maintain a relationship with the mother, but all of the evidence indicated that he paid little attention to the care of the child. After the statute of limitations expired, he finally acknowledged paternity and demanded his paternal rights. The court found by clear and convincing evidence that, taken together, the disavowal of paternity and the behavior that resulted in his extended incarceration constituted abandonment.

The respondent claims that the court’s finding is clearly erroneous. We agree that certain aspects of the court’s predicate factual findings are clearly erroneous, namely, the finding that the respondent denied his paternity for the first five years of the child’s life and that he was in prison for the first seven years of the child’s life. According to the dates of birth provided on the June 1, 2009 application for termination of parental rights, the respondent was twenty-one and the mother was fifteen at the time the child was conceived. The mother was also sixteen, not fifteen years old as the court observed, when the child was bom. As the respondent points out, the child was bom on July 11, 2002. Pursuant to his motion for genetic testing, the respondent did not deny formally his paternity until December 5, 2003, almost seventeen months after the child was bom. The results of the genetic testing confirmed, to a 99.9 percent degree of accuracy, that the respondent was the father of the child, and the court, acting by John E. Collela, family support magistrate, rendered a judgment of paternity on February 27, 2004. There is nothing in the record indicating the respondent’s continuing denial of paternity after that testing and judgment. In a letter to Judge Brunnock, received on December 14, 2005, the respondent referred specifically to the child as his son. The trial court’s finding that the respondent denied paternity for the first five years of the child’s life is, therefore, clearly erroneous.

In its orders, the court stated that it was terminating the respondent’s parental rights, “[hjaving found that the [respondent] abandoned [the] [c]hild by denying his parenthood for a period of five years and engaging in criminal activity that precluded active parenting . . . .” Incarceration alone does not suffice to show abandonment. In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982). Further, although the length of time of the denial of paternity found is material, there is no evidence that the respondent denied paternity for five years or until the statute of limitations expired for statutory rape, as found by the court. The length of time of incarceration also is material, and the finding that the respondent was incarcerated for the first seven years of the child’s life is clearly erroneous. The record reveals that the respondent was first incarcerated for almost twenty-two months from March 4, 2002, until his release on January 2, 2004. He was then incarcerated from December, 2004, until July, 2009, for an additional period of approximately fifty-five months. Consequently, his total time of incarceration was approximately six years and five months. Given that the child was not bom until July 11, 2002, the respondent was incarcerated only for a total period of approximately six years and one month during the first seven years of the child’s life. Because the abandonment finding rests on grounds infected by clear error, we look to the other grounds found to determine if they properly support termination.

II

The petitioners also alleged that the respondent’s parental rights should be terminated on the basis that the respondent has failed to rehabilitate since the January, 2005 finding by the Waterbury Probate Court that the child had been neglected and uncared for. Specifically, the petitioners alleged that the respondent “has failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time and considering the age and needs of the child, [the respondent] could assume a responsible position in the life of the child.” We affirm the trial court’s judgment that the respondent has failed to rehabilitate.

The court found that the respondent had failed to rehabilitate pursuant to § 45a-717 (g) (2) (D). Section 45a-717 (g) provides in relevant part: “[T]he court may approve a petition [for termination of parental rights] ... if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child and (2) . . . (D) the parent of a child who (i) has been found by the Superior Court or the Probate Court to have been neglected or uncared for in a prior proceeding . . . has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

The respondent disagrees with the court’s finding that he has failed to rehabilitate. He argues that the court erroneously based its finding of failure to rehabilitate solely on the respondent’s incarceration and attitude toward the child. The respondent further notes that his current employment, release from prison in 2009 and his completion of parenting, drug addiction prevention and anger management classes demonstrate sufficient rehabilitation to justify the preservation of his parental rights, but that the child’s maternal grandmother has prevented him from maintaining a place in the child’s life. We disagree with the respondent.

This court has never considered previously a claim of failure to rehabilitate pursuant to § 45a-717 (g) (2) (D). This court has considered, however, numerous claims of failure to rehabilitate pursuant to § 17a-112 (j) (3) (B). See generally In re Kamora W., supra, 132 Conn. App. 186-87; In re Gianni C., 129 Conn. App. 227, 233-38, 19 A.3d 233 (2011); In re Janazia S., 112 Conn. App. 69, 90-96, 961 A.2d 1036 (2009). Because the statutory language in §§ 45a-717 (g) (2) (D) and 17a-112 (j) (3) (B) virtually is identical, we apply the same meaning and analytical framework from § 17a-112 (j) (3) (B) to our analysis and interpretation of § 45a-717 (g) (2) (D).

“Personal rehabilitation, as used in the statute refers to the restoration of a parent to his or her former constructive and useful role as a parent. . . . [Section 17a-112] requires the trial court to analyze the [parent’s] rehabilitative status as it relates to the needs of the particular child, and further, that such rehabilitation must be foreseeable within a reasonable time. ” (Internal quotation marks omitted.) In re Jordan T., 119 Conn. App. 748, 756, 990 A.2d 346, cert. denied, 296 Conn. 905, 992 A.2d 329 (2010). “[The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation . . . achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [the respondent] can assume a responsible position in [the] child’s life.” (Internal quotation marks omitted.) In re Alejandro L., 91 Conn. App. 248, 259, 881 A.2d 460 (2006).

Pursuant to both the temporary custody decree and the removal of guardianship decree, the child was found to have been neglected because he was “denied the care, guidance or control necessary for the child’s physical, educational, moral or emotional well-being.” The court determined that the respondent had sufficient time over the first eight years of the child’s life to assume a responsible position and that, during those years, he failed to assume such a position by not contributing to the care and maintenance of the child or by making himself available as a resource for the mother or the child. Between March 4, 2002, and the time the petition for termination of parental rights was filed on June 1, 2009, the respondent spent only a minimal amount of time outside of prison. His second prison sentence during that span of time was triggered not by a violation of probation, but by the commission of a separate felony for possession and sale of a controlled substance. When asked on cross-examination as to the level of his responsibility for being sentenced to a six year prison term when the child was just two years old, the respondent admitted: “[A] hundred percent I’m responsible for going to jail and, you know, not being the father I should be. A hundred percent.” This record admission of lack of parental responsibility is telling. While it is commendable that the respondent has undertaken parenting and anger management classes since his release from prison in June, 2009, the respondent’s extensive criminal history and poor judgment over the vast majority of the child’s life does not encourage a belief that he is ready to assume a responsible position in the child’s life either now or at some future point in time.

Ill

The petitioners next assert that the respondent denied the child the care, guidance and control necessary for the child’s physical, educational, moral and emotional well-being.

“The [deprivation of care, guidance or control] statute rests on two distinct and often contradictory interests [of the child]. The first is a basic interest in safety; the second is the important interest ... in having a stable family environment.” (Internal quotation marks omitted.) In re Valerie D., 223 Conn. 492, 512, 613 A.2d 748 (1992). In light of the record before us, the court could have reasonably concluded that the respondent deprived the child the care, guidance and control necessary for the child’s well-being. The court’s conclusion rested, in part, on its express findings that the respondent’s extensive criminal history, prolonged incarceration and the scheduling of only one visitation with the child for a period of fifteen minutes during the respondent’s incarceration were sufficient to demonstrate the respondent’s denial of parental care, guidance or control for the child’s well-being. In his challenge to the court’s conclusion, the respondent merely asserts in a catch-line in the initial summary of his argument that the court committed error in its determination without providing any analysis of the claim in his brief. The respondent does not point us to any claimed clear error in the court’s factual findings relating to the grounds of termination, nor does he point us to any error of law. After having reviewed the court’s findings and the record before us, we conclude that this claim has no merit.

IV

We turn finally to the respondent’s claim that the court improperly considered the best interest of the child before considering whether the statutory grounds for termination had been proven. We disagree and conclude that the court appropriately decided that termination was in the child’s best interest after determining that the statutory grounds for termination existed.

The respondent correctly notes that termination of parental rights cannot be based solely on a finding that such termination is in the child’s best interest. This court recently held that “[i]f the court finds that the petitioner has proven by clear and convincing evidence that one of the statutory grounds for termination of parental rights exists, it must then determine whether termination is in the best interests of the child. . . . The best interests of the child include the child’s interests in sustained growth, development, well-being, and continuity and stability of its environment. ... In the dispositional phase of a termination of parental rights hearing, the trial court must determine whether it is established by clear and convincing evidence that the continuation of the respondent’s parental rights is not in the best interest of the child. In arriving at this decision, the court is mandated to consider and make written findings regarding seven factors delineated in [§ 45a-717 (h)].” (Internal quotation marks omitted.) In re Jaime S., 120 Conn. App. 712, 733-34, 994 A.2d 233 (2010), appeal dismissed, 300 Conn. 294, 12 A.3d 566 (2011). Our Supreme Court has also made clear that determination of the child’s best interests is to be examined “only after statutory grounds for [nonconsensuai] termination of parental rights have been established by clear and convincing evidence.” (Internal quotation marks omitted.) In re Bruce R., 234 Conn. 194, 204, 662 A.2d 107 (1995). The essence of the respondent’s argument is that “the issue of best interest as to termination cannot be argued or addressed unless the [c]ourt finds that [the maternal grandparents] have been successful in proving their case as to the grounds of their [petition.” If one were to look only at the memorandum of decision, concerning the statutory grounds for termination, we might agree. Although the court’s memorandum of decision and subsequent articulation makes findings ad seriatim, and some findings regarding the child’s best interest precede findings that statutory grounds for termination exist, the memorandum of decision must be read in conjunction with the order regarding termination of parental rights. That order, which is separate from the memorandum, clearly addresses, by a finding of clear and convincing evidence, the four grounds it found for termination. Only after setting forth these grounds does it make an express finding, by clear and convincing evidence, that termination of parental rights is in the best interest of the child.

When we look at the separate signed order terminating parental rights, we find that the court’s findings regarding the statutory grounds for termination — that (1) the mother consented to termination, (2) the child has been abandoned by the respondent, (3) the child has been found in a prior proceeding to have been neglected or uncared for and the respondent has failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, considering the age and needs of the child, he could assume a responsible position in the child’s life, (4) the child has been denied, by reason of an act or acts of commission or omission, the care, guidance or control necessary for his physical, educational, moral or emotional well-being and (5) there is no ongoing parent-child relationship — precede the best interest findings. Only after the statutory grounds are set forth does the court enter its dispositional finding that there is “clear and convincing evidence that termination of parental rights is in the best interests of the [child]” and grant the order of termination. The court’s order of termination and disposition clarifies that it had found grounds for statutory termination before finding that termination was in the best interest of the child.

The judgment is affirmed.

In this opinion the other judges concurred, except as noted in their separate concurrences.

LAVINE, J.,

concurring. I agree that the judgment of the trial court terminating the parental rights of the respondent, Brian T., Sr., on the ground of failure to rehabilitate should be affirmed. Proof of one ground is sufficient to terminate parental rights. See In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003). I therefore would not address the respondent’s abandonment claim.

For the foregoing reasons, I respectfully concur.

ROBINSON, J.,

concurring. I agree with the majority that the trial court’s judgment should be affirmed on the basis of its finding that the respondent, Brian T., Sr., denied his minor child, Brian T., Jr., the care, guidance and control necessary for the child’s well-being. I further agree with Judge Lavine’s concurring opinion that proof of one ground is sufficient to terminate parental rights; see In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707 (2003); and, because of that principle, I ordinarily would not address the respondent’s claims regarding abandonment, failure to rehabilitate and the lack of an ongoing parent-child relationship, other statutory grounds on which the trial court terminated his parental rights. Nevertheless, I write separately to express my concerns regarding the use of failure to rehabilitate as a basis to terminate the respondent’s parental rights, as it was done in this matter. Specifically, I believe there should be symmetry between the termination of parental rights procedure that was followed in this matter and the procedure under the provisions of General Statutes § 17a-112 (j) (3) (B). When a child has been adjudicated neglected or uncared for, the court should order specific steps for the parent to take to facilitate the child’s return to the parent. No specific steps were ordered for the respondent in this case. Further, I believe that in determining whether a parent has achieved a degree of personal rehabilitation such that he could assume a responsible position in the child’s life within a reasonable time, a court should focus on the time period subsequent to when a neglect proceeding was conducted.

As I noted in the matter of In re Jason R., 129 Conn. App. 746, 774, 23 A.3d 18 (Robinson, J., dissenting), cert. granted, 302 Conn. 924, 28 A.3d 339 (2011), the termination of an individual’s parental rights is one of the most drastic actions that a state must take against its citizens. “The termination of parental rights is defined as the complete severance by court order of the legal relationship, with all its rights and responsibilities, between the child and his parent .... It is a most serious and sensitive judicial action. . . . Although that ultimate interference by the state in the parent-child relationship may be required under certain circumstances, the natural rights of parents in their children undeniably warrants deference and, absent a powerful countervailing interest, protection.” (Internal quotation marks omitted.) Id. Accordingly, it is through this judicial lens that this court must thoroughly review the termination of an individual’s parental rights.

General Statutes § 46b-129 (a) provides that an interested party may file in the Superior Court a petition stating that a child has been neglected, uncared for or abused. Section 46b-129 (j) provides that upon a finding that a child is uncared for, neglected or abused, a court may commit that child to the custody of the commissioner of children and families, or vest legal guardianship of the child in someone other than the parent. Section 46b-129 (j) also provides that “[t]he court shall order specific steps that the parent must take to facilitate the return of the child or youth to the custody of such parent . . . (Emphasis added.)

Under General Statutes § 45a-717 (g) (2) (D), a Probate Court may approve a petition terminating the parental rights of an individual if it finds upon clear and convincing evidence that “the parent of a child who (i) has been found by the Superior Court or the Probate Com! to have been neglected or uncared for in a prior proceeding, or (ii) is found to be neglected or uncared for and has been in the custody of the commissioner for at least fifteen months and such parent has been provided specific steps to take to facilitate the return of the child to the parent pursuant to section 46b-129 and has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .”

Generally, a Superior Court has sole jurisdiction under § 46b-129 to determine, pursuant to that section, if a child has been neglected, and to order specific steps for the parent to take to facilitate the child’s return to the parent. In re Juvenile Appeal (85-BC), 195 Conn. 344, 366, 488 A.2d 790 (1985). It appears from the record that no petition alleging neglect was filed pursuant to § 46b-129 (a). It appears, rather, that the Probate Court determined that the child had been neglected and uncared for in deciding whether to remove the respondent and the child’s mother, Nicole G., as guardians of the child. The Probate Court, however, did not order specific steps for the respondent to take in order to facilitate the child’s return to the respondent.

This court has concluded that when termination of parental rights is sought under § 17a-112 (j) (3) (B), a failure to order specific steps under § 46b-129 (j) would preclude termination for failure to achieve personal rehabilitation. In re Justice V., 111 Conn. App. 500, 510, 959 A.2d 1063 (2008), cert. denied, 290 Conn. 911, 964 A.2d 545 (2009). In the matter of In re Justice V., after a finding of child neglect, the commissioner of children and families sought to terminate the mother’s parental rights on the basis of abandonment and failure to rehabilitate. Id., 504 n.4. The mother claimed that when the child was adjudicated neglected, the court failed to provide her with specific steps pursuant to § 46b-129 (j). Id., 505. This court noted that § 46b-129 (j) requires specific steps be provided to the parent and that “ [personal rehabilitation, therefore, is to be determined, in part, by compliance with those specific steps, which give the parent fair warning of what is required . . . to be reunited with the child.” (Citation omitted; emphasis added; internal quotation marks omitted.) Id., 507. The court concluded that “given the requirement of § 17a-112 (j) (3) (B), a failure to order specific steps would preclude termination for a failure to achieve sufficient personal rehabilitation” but that because parental rights were properly terminated on the ground of abandonment, the trial court’s error did not result in manifest injustice. Id., 510.

I believe that parental rights should not be terminated under § 45a-717 (g) (2) (D), for failure to rehabilitate, when specific steps were not ordered for the parent. Although the Probate Court did not find that the child was neglected or uncared for under § 46b-129, and, thus, arguably was not required to provide specific steps for the respondent, fairness dictates that in order to terminate parental rights due to a failure to rehabilitate, specific steps should be ordered for a parent whose child has been found neglected or uncared for. The court provides specific steps to a parent to apprise that individual of the steps that will assist the parent to be reunited with the child. If no steps are provided to a parent, that parent will not be aware of the benchmarks he or she should strive to meet. While it is true that a court’s determination regarding whether a parent has achieved personal rehabilitation can take into account more than whether that individual has met the specific steps provided to the individual, the specific steps still act as a guide to parents seeking to reunite their families. See In re Allison G., 276 Conn. 146, 161, 883 A.2d 1226 (2005) (“[a]lthough the specific steps provide a benchmark by which the court measures whether either reunification or termination of parental rights is appropriate, the court necessarily will consider the underlying [neglect] adjudication and the attendant findings”). The specific steps are intricately intertwined with the failure to rehabilitate, as indicated by the statutory language in all three of the relevant statutory provisions. Accordingly, I believe that in order to terminate parental rights on the basis of a failure to rehabilitate, that parent should be provided with specific steps to take to facilitate the return of the child. As the respondent was not provided with specific steps, I find it troubling that his parental rights were terminated on the basis of a failure to rehabilitate.

Furthermore, I believe that in determining whether a parent has failed to rehabilitate, a court should focus on the actions of the parent because the child was found to have been neglected or uncared for. “[T]he adjudicatory determination to be made by the trial court is whether the parent of a child who has been found by the [S]uperior [Cjourt to have been neglected [or] uncared for in a prior proceeding has failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child. ... In conducting this inquiry, the trial court must analyze the respondent’s rehabilitative status as it relates to the needs of the particular child .... The trial court must also determine whether the prospects for rehabilitation can be realized within a reasonable time given the age and needs of the child. . . .

“Although the standard is not full rehabilitation, the parent must show more than any rehabilitation. . . . Successful completion of the petitioner’s expressly articulated expectations is not sufficient to defeat the petitioner’s claim that the parent has not achieved sufficient rehabilitation. . . . [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [her] ability to manage [her] own life, but rather whether [she] has gained the ability to care for the particular needs of the child at issue. . . . Thus, even if a parent has made successful strides in her ability to manage her life and may have achieved a level of stability within her limitations, such improvements, although commendable, are not dispositive on the issue of whether, within a reasonable period of time, she could assume a responsible position in the life of her child. ” (Citations omitted; internal quotation marks omitted.) In re Victoria B., 79 Conn. App. 245, 254-55, 829 A.2d 855 (2003).

The language of § 45a-717 (g) (2) (D) provides that parental rights may be terminated when a child has been adjudged neglected and uncared for and the parent has “failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child . . . .’’On the basis of this language, it appears that the court should examine the actions of the parent since the neglect proceeding in determining whether the parent has failed to rehabilitate. See In re Hector L., 53 Conn. App. 359, 367, 730 A.2d 106 (1999) (“[a]t the adjudicatory phase of the termination hearing, the ultimate issue faced by the trial court was whether the respondent was better able to resume the responsibilities of parenting at the time of filing the termination petition than he had been at the time of the children’s commitment”). Although a court may consider events that preceded the finding of neglect, such consideration should only be in the context of determining whether such individual has taken steps toward rehabilitation. See In re Vincent D., 65 Conn. App. 658, 670, 783 A.2d 534 (2001) (“[i]In determining whether a parent has achieved sufficient personal rehabilitation, a court may consider whether the parent has corrected the factors that led to the initial commitment, regardless of whether those factors were included in specific expectations ordered by the court or imposed by the department”). Termination of parental rights on the ground of failure to rehabilitate essentially means that since the time the child was adjudged neglected or uncared for, the respondent has not demonstrated a change in his or her life that is sufficient to allow him or her to maintain parental rights.

In reaching its conclusion that the respondent’s parental rights should be terminated on the ground of a failure to rehabilitate, the court found that the “[respondent] had eight years dining which he might have been available to assume a ‘responsible position in [the] [c]hild’s life.’ During those years, he neither made himself available as a resource for [the] [m] other or [the] [c]hild [n]or significantly contributed to the care and maintenance of [the] [c]hild. Furthermore, he has demonstrated resentment of the role that [the maternal grandparents] have played in their care and nurture of [the] [c]hild. [The] [c]hild is closely bonded and fully committed to his maternal grandparents, his [m] other and [a]unt. His guardians have supported his relationship with his paternal grandparents but reserve their judgment as to whether [the respondent] is committed to acceptance of the nature of his future role in [the] [c]hild’s life. He carries the heavy burden of proving to [the maternal grandparents] that his life has changed and he can play a positive role in his son’s development. He must recognize that [the maternal grandparents] will be making the decision in [the] [c]hild’s life. The court finds by clear and convincing evidence that [the respondent] has failed to rehabilitate over the first seven years of [the] [c]hild’s life and that the age and needs of [the] [c]hild require that [the maternal grandparents] continue in the parental role in which they have served.” (Emphasis added.)

The court’s primary reason for terminating the respondent’s parental rights on the basis of a failure to rehabilitate was that for the first seven years of the child’s life, the respondent failed to assume a responsible position. The court should have asked whether the respondent had achieved a degree of personal rehabilitation since the finding that the child was neglected and uncared for, as would encourage the belief that in a reasonable amount of time he could assume a responsible position in his son’s life. I am concerned that the court simply grouped the first seven years of the child’s life together in determining that the respondent has failed to rehabilitate. The child was adjudicated neglected or uncared for in January, 2005. I believe that the court should have primarily focused on the years since that proceeding to determine whether the respondent had taken steps toward rehabilitation so that he could assume a responsible position in the child’s life. Accordingly, I respectfully concur.

       The respondent was sentenced to prison after violating the probation conditions resulting from his prior felony convictions of assault in the second degree and the unlawful sale of a controlled substance in violation of General Statutes §§ 53a-60 and 21a-277 (a), respectively.

       We note that this finding by the court is erroneous. The record reveals that the mother was bom on December 5, 1985, and the child was bom on July 11, 2002, making the mother sixteen years of age at the time the child was bom.

       The parties erroneously reference § 17a-112 instead of § 45a-715 in then-respective briefs. Section 17a-112 applies only to petitions for termination of parental rights for children committed to the custody of the Commissioner of Children and Families, while § 45a-715 (a) (2) allows, as in this case, the child’s legal guardians to bring the petition. This error, however, is not fatal to the parties’ arguments. We note that § 17a-112 (j) (3) permits the termination of parental rights based upon the same identical seven grounds for termination authorized under § 45a-717 (g). This court previously has applied the same analytical framework and meaning of abandonment and lack of ongoing parent-child relationship to petitions to terminate parental rights pursuant to either § 17a-112 (j) (3) (A) and (D) or § 45a-717 (g) (2) (A) and (C). See In re Lukas K., 120 Conn. App. 465,483 n. 10, 992 A.2d 1142 (2010), aff d, 300 Conn. 463,14 A.3d 990 (2011). We therefore incorporate our prior interpretations of § 17a-112 (j) (3) (A) and (D) into our analysis of § 45a-717 (g) (2) (A) and (C) accordingly.

       The petitioners also claim that the respondent’s parental rights should be terminated on the ground that there is no ongoing parent-child relationship between the petitioner and the child pursuant to § 45a-717 (g) (2) (C). The respondent claims that the court improperly determined that he failed to maintain an ongoing parent-child relationship. Having determined that the court properly terminated on grounds of failure to rehabilitate and denial of proper care, guidance and control, we need not address this last claim. We may affirm the judgment if we find that the court properly concluded that any one of the statutory circumstances existed. In re Shaun B.t 97 Conn. App. 203, 214, 903 A.2d 246 (2006).

       As the majority noted, the statutory language set in § 45a-717 (g) (2) (D) and § 17a-112 Q) (3) (B) is identical; thus, prior analysis under § 17a-112 (j) (3) (B) will be used to analyze § 45a-717 (g) (2) (D).

       For example, the respondent completed a Tier II Living in Balance class and an eleven week Embracing Fatherhood program in 2006. In addition, the respondent completed an eight week anger management program and a nine week active parenting now program in 2009 after the petition was filed. The court, however, noted none of these accomplishments in its decision to terminate parental rights on the basis of a failure to rehabilitate.


source: Caselaw Access Project

author: LAVERY, J.

license: Public Domain

text:
    IN RE JEFFREY M.

    (AC 33602)
    Bear, Espinosa and Lavery, Js.

      Argued January 4 —
    officially released February 24, 2012

      Michael Besso, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellant (proposed intervenor).

      Naomi Fetterman, special public defender, with whom, on the brief, was Aaron J. Romano, special public defender, for the appellee (respondent).

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 79a-12, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

       February 24, 2012, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.

   Opinion

LAVERY, J.

The proposed intervenor, the department of children and families (department), appeals from the order of the trial court denying its motion to intervene and committing the juvenile respondent, Jeffrey M., to its custody and placing him in an out-of-state facility. The court’s order followed the court’s finding Jeffrey M. delinquent pursuant to a plea agreement that required Jeffrey M. to plead guilty to robbery in the second degree. On appeal, the department claims that it improperly was denied its right to intervene in the underlying matter and that the court’s order was not authorized by statute. We agree with the department and, accordingly, reverse the judgment of the trial court.

The following facts and procedural history are relevant to our review of the department’s appeal. Jeffrey M., a fifteen year old juvenile, was charged with several robberies. On June 29, 2011, the trial court conducted a hearing on the matter. Jeffrey M. entered a plea of guilty to a single count of robbery in the second degree in violation of General Statutes § 53a-135. The court then found Jeffrey M. to be delinquent, according to the plea. The court ordered Jeffrey M. to be committed to the department and to be placed directly at the Glenn Mills School, a residential facility in Pennsylvania.

On July 11, 2011, the department filed a motion to intervene in the matter and to modify or vacate the court’s order. The department argued that the court’s orders may cause Connecticut to violate the Interstate Compact on the Placement of Children and the Interstate Compact for Juveniles, enacted at General Statutes §§ 17a-175 and 46b-151h, respectively, and may exceed the court’s placement authority pursuant to General Statutes § 46b-140 because the orders require placement in a privately run residential facility outside of this state. The court held a hearing on the motion on July 12, 2011. At the hearing, the court denied the department’s motion. The court held further hearings on July 15 and 20, 2011, for the purpose of obtaining reports from the department concerning the execution of the court’s order. On July 15, 2011, the department filed in this court a motion for an immediate interim stay. This court granted the motion on the same day. On July 28, 2011, this court granted the department’s motion for review and requested relief for stay. At no point in the proceedings has the department been a party to this matter.

On appeal, the department argues that the trial court erred for two reasons. First, it argues that the court erred when it denied the department’s motion to intervene because the department was entitled to intervention as of right. Second, it claims that the court erred when it ordered that the department place Jeffrey M. in an out-of-state facility upon a delinquency dispositional order of commitment to the department. Jeffrey M. responds by addressing each of the department’s arguments. First, he argues that the department had been permitted to intervene in this matter. Second, he argues that the court had the authority to order him to be placed in an out-of-state facility. We will consider each claim in turn.

I

First, the department claims that the trial court erred when it denied its motion to intervene. The department argues that it was entitled to intervention as of right. Jeffrey M. responds by arguing that the department was entitled only to be given the opportunity to be heard. He further argues that the department was provided with the opportunity to be heard on three dates, July 12, 15 and 20, 2011. He argues that the department’s presence and participation in those three hearings render this issue moot. However, this court has noted in the past that “[t]he grace of the court is not a substitute for formal intervention with its concomitant rights.” Rosado v. Bridgeport Roman Catholic Diocesan Corp., 60 Conn. App. 134, 148, 758 A.2d 916 (2000). Because we conclude that the department had the right to intervene as a party, we find that its mere presence and participation at the three hearings was insufficient to amount to intervention. Accordingly, we do not agree with Jeffrey M. that this issue is moot.

A trial court’s decision on a motion to intervene as of right is subject to plenary review. See Kerrigan v. Commissioner of Public Health, 279 Conn. 447, 454-55, 904 A.2d 137 (2006). We look at four requirements to determine whether a movant had a right to intervene. Id., 456-57. “Specifically, [t]he motion to intervene must be timely, the movant must have a direct and substantial interest in the subject matter of the litigation, the mov-ant’s interest must be impaired by disposition of the litigation without the movant’s involvement and the movant’s interest must not be represented adequately by any party to the litigation.” (Internal quotation marks omitted.) Id.

“For purposes of judging the satisfaction of [the] conditions [for intervention] we look to the pleadings, that is, to the motion for leave to intervene and to the proposed complaint or defense in intervention, and ... we accept the allegations in those pleadings as true. The question on a petition to intervene is whether a well-pleaded defense or claim is asserted. Its merits are not to be determined. The defense or claim is assumed to be true on motion to intervene, at least in the absence of sham, frivolity, and other similar objections. . . . Thus, neither testimony nor other evidence is required to justify intervention, and [a] proposed intervenor must allege sufficient facts, through the submitted motion and pleadings, if any, in order to make a showing of his or her right to intervene. The inquiry is whether the claims contained in the motion, if true, establish that the proposed intervenor has a direct and immediate interest that will be affected by the judgment.” (Citation omitted; internal quotation marks omitted.) Id., 457.

First, we conclude that the department’s motion to intervene was timely. The court issued its order on June 29, 2011, and the department filed its motion to intervene on July 11, 2011. “The necessity for showing that a would-be intervenor made a timely request for intervention involves a determination of how long the intervenor was aware of an interest before he or she tried to intervene, any prejudicial effect of intervention on the existing parties, any prejudicial effect of a denial on the applicant and consideration of any unusual circumstances either for or against timeliness. . . . There are no absolute ways to measure timeliness. . . . The requirement that the request to intervene be prompt is applied more leniently if intervention as of right is sought, rather than permissively. ... A trial court’s finding that timeliness exists or does not is a question of fact and is described as a discretionary action.” (Citations omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 60 Conn. App. 146-47. Here, the trial court did not make a specific finding as to timeliness when it denied the department’s motion to intervene. It is clear from our review of the record, however, that the department became aware of its interest in the matter only after the court included the department in its June 29, 2011 order; the department filed its motion just twelve days after the court issued its order. The attorney for the department represented to the trial court that he “did not wait,” and contacted the attorney for Jeffrey M. as soon as he became aware that the court had issued its order. Therefore, considering all of the factors Usted by this court m Rosado, we conclude that the department’s motion to intervene was timely.

Second, we conclude that the department clearly had a direct and substantial interest in the subject matter of the Utigation, as the court committed Jeffrey M. to the custody of the department and ordered the department to fund his placement at the Glenn Mills School.

Third, we conclude that the court’s order necessarily impaired the department’s interest because it compelled the department to effectuate an order for which it claims there is no authority. Our Supreme Court has held that a trial court cannot enter an order that binds a nonparty state agency. In re Devon B., 264 Conn. 572, 585, 825 A.2d 127 (2003) (“because [the state agency] is not a party to the proceeding, the court cannot order it to provide such services” [emphasis in original]).

Fourth, we conclude that the department had a unique interest in the matter at trial because it was the sole entity to which Jeffrey M. was committed and was charged with the duty to fund his placement at Glenn Mills. That interest was not represented adequately by any party to the matter. Indeed, all of the parties involved in the matter were in agreement with the court’s order. We conclude that the department met all four requirements for intervention. Therefore, we conclude that the court erred by denying the department’s motion for intervention.

II

Next, the department claims that the court erred by ordering it to place Jeffrey M. in an out-of-state facility. The department argues that there is no statutory authority to support the court’s order. Specifically, the department contends that § 46b-140 (j) does not authorize the court to commit a juvenile to the department and mandate that the department place the juvenile at an out-of-state facility. It also argues that none of the other subsections of § 46b-140 authorizes the court to make such an order. Jeffrey M. responds by arguing that § 46b-140, when read as a whole, authorizes the court to place a juvenile in an out-of-state residential facility. He also argues that the court did not state that the order was issued pursuant to § 46b-140 (j) and that such an order is permitted under several of the other subsections of the statute. We agree with the department.

Because the issue requires statutory interpretation, which is a question of law, our review is plenary. “We begin by setting forth the relevant standard of review. Statutory construction is a question of law and therefore our review is plenary. . . . Grondin v. Curi, 262 Conn. 637, 649, 817 A.2d 61 (2003). We construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation. . . . Moreover, a court must construe a statute as it finds it, without reference to whether it thinks the statute would have been or could be improved by the inclusion of other provisions.” (Internal quotation marks omitted.) In re Steven M., 264 Conn. 747, 757, 826 A.2d 156 (2003).

This court recently has stated, “[b]ecause the legislature must delegate sentencing authority to the courts, we focus upon relevant statutory provisions. Our Supreme Court has acknowledged that although ‘the judicial branch is charged with the responsibility of adjudicating criminal charges and ultimately determining the sentence of incarceration, if any, to be imposed,’ the courts do not have exclusive authority with regard to sentencing. Washington v. Commissioner of Correction, 287 Conn. 792, 828, 950 A.2d 1220 (2008). The Supreme Court has ‘acknowledged the legislature’s authority to define crimes and the appropriate penalties for them. Id.; see also State v. Truppi, 182 Conn. 449, 467, 438 A.2d 712 (1980) (‘[t]he legislature remains free ... to define crimes and fix punishments, but once it has acted courts may not exceed their legislative authorization’ [internal quotation marks omitted]), cert. denied, 451 U.S. 941, 101 S. Ct. 2024, 68 L. Ed. 2d 329 (1981).” State v. Brown, 133 Conn. App. 140, 148-49, 34 A.3d 1007 (2012).

We begin with Jeffrey M.’s argument that a comprehensive reading of § 46b-140 empowers the court to craft individualized dispositions based on the facts of each case and the needs of each child, including the one that was ordered in this case. He begins his argument by noting that § 46b-140 (a) requires the court to consider several factors to determine the appropriate disposition of a child convicted as delinquent. He argues that this shows that the court’s jurisdiction extends beyond the mere conviction of the child as delinquent. Jeffrey M. then directs the court to the language of § 46b-140 (b), which provides in relevant part that “the court ... (1) [m]ay (A) place the child in the care of any institution or agency which is permitted by law to care for children . . . .” Jeffrey M. points out that this provision does not state that a child who is placed in the care of any institution cannot also be committed to the custody of the department. He also notes that the statute does not exclude the possibility that the department may be ordered to pay for the necessary placement without committing the child to the custody of the department. Therefore, he argues, under subsection (b) (1) (A), the court has the unfettered ability to tailor the disposition to the best interest of the child. We disagree.

Although Jeffrey M.’s argument might have some merit if subsection (b) (1) (A) stood alone, it fails when the subsection is read in the context of the entire statute, as is required by General Statutes § l-2z. Our Supreme Court has held that individual subsections should not be interpreted in a vacuum, without reference to the statute’s other provisions. “[0]ur case law and General Statutes § l-2z . . . directs us to construe a statute as a whole and read its subsections concurrently in order to reach a reasonable overall interpretation.” (Emphasis in original; internal quotation marks omitted.) Thomas v. Dept. of Developmental Services, 297 Conn. 391, 408, 999 A.2d 682 (2010). When § 46b-140 is read in its entirety, subsection (b) (1) (A) clearly cannot support Jeffrey M.’s conclusions. Our review of the entire statute reveals that the broad language of subsection (b) (1) (A) is limited by the other subsections within the statute. It would be illogical for. us to conclude that the legislature intended a court to be free under subsection (b) (1) (A) to make any placement it believes is appropriate, and then go on to provide additional subsections allowing the court — with more specificity — to commit the child to the department with placement by the commissioner of children and famines. This determination is consistent with our case law that guides our interpretation of statutes. “It is a well-settled principle of [statutory] construction that specific terms covering [a] given subject matter will prevail over general language of . . . another statute which might otherwise prove controlling. . . . When statutes relate to the same subject matter, they must be read together and specific terms covering the given subject matter will prevail over other general language of the same or another statute which might otherwise prove controlling.” (Citation omitted; internal quotation marks omitted.) Ware v. State, 118 Conn. App. 65, 72, 983 A.2d 853 (2009). It is clear that all of the provisions of § 46b-140 relate to the same subject matter. The more specific subsections, therefore, must prevail over the general language of (b) (1) (A). Although subsection (b) (1) (A) does not state specifically that a child who is placed in the care of any institution cannot also be committed to the custody of the department, as Jeffrey M. argues, other subsections of the statute do specifically pertain to when the court may order a delinquency commitment to the department. Specifically, the statute is arranged such that all subsections including and following (f) inform the court as to when a commitment order to the department is permitted. We conclude that the statute’s specific language regarding commitment to the department contained in subsections (f) through (k) controls here. Therefore, we conclude that the court is not authorized under subsection (b) (1) (A) to order that Jeffrey M. be both committed to the custody of the department and placed in an out-of-state residential facility.

We now consider whether the order was proper under other subsections of the statute. Jeffrey M. argues that the court had authority to make the order pursuant to either the explicit or implicit language of § 46b-140 (f), (g) and Q). Jeffrey M. presents two arguments to support his claim that subsection (f) authorized the court to issue its order. First he argues that the plain language of subsection (f) requires the court only to consult with the department to determine which placement is in the best interest of the juvenile but that the court retains the ultimate authority to assess placement and is not bound by the recommendation of the department. Jeffrey M. insists that the court met the consulting requirement of the subsection when it received the department’s child and adolescent needs and strengths (CANS) evaluation in which it recommended nonresidential treatment, even though the court ultimately disregarded the recommendation. Therefore, Jeffrey M. asserts, the court had the authority to place him at any facility it determined to be in his best interest, including the Glenn Mills School. We disagree with this interpretation of subsection (f).

When § 46b-140 (f) is read in the context of the entire statute, as required by § l-2z, it is clear that Jeffrey M.’s argument is flawed. Subsection (f) explicitly allows the court to commit the child only to the department. Furthermore, the subsection does not contain explicit authority for the court to place the child anywhere but with the department. It provides in relevant part: “If the court further finds that its probation services or other services available to the court are not adequate for such child, the court shall commit such child to the [department] . . . .” General Statutes § 46b-140 (f). Our Supreme Court repeatedly has stated that “[t]he use of different words [or the absence of repeatedly used words in the context of] the same [subject matter] must indicate a difference in legislative intention . . . .” (Internal quotation marks omitted.) Morris v. Congdon, 277 Conn. 565, 572 n.7, 893 A.2d 413 (2006); see also Plourde v. Liburdi, 207 Conn. 412, 416, 540 A.2d 1054 (1988); Fritz v. Madow, 179 Conn. 269, 272, 426 A.2d 268 (1979). Other subsections explicitly authorize the court to place children. Section 46b-140 (b) provides in relevant part: “[T]he court: (1) May (A) place the child in the care of any institution or agency . . . .” Also, § 46b-140 (j) provides in relevant part: “[T]he court may order a child be . . . placed directly in a residential facility within this state . . . .” Because explicit authority for the court to directly place children exists in other subsections, we conclude that the legislature did not give the court that power under subsection (f) intentionally. Accordingly, we conclude that the court’s order could not have been issued under § 46b-140 (f).

Jeffrey M. also makes an argument under § 46b-140 (g). His argument is essentially that, although it does not apply to him, subsection (g) is a clear example of the court’s authority to directly place a child in any institution while simultaneously committing the child to the department. Because we agree with both sides that subsection (g) does not apply to this case because it concerns only children who have been found to be mentally ill, this is an argument that we need not address.

Next, Jeffrey M. makes an argument under § 46b-140 (j). Although he concedes that the court’s order could not have been authorized by this subsection, he essentially argues that subsection (j) did not restrict the court in any way from relying on the other subsections. Specifically, he argues that because subsection (j) begins with the phrase, “[e]xcept as otherwise provided in this section,” the court is not bound by subsection (j), and is free to place children under the other subsections of the statute, including sections (b), (f) and (g). Although we do not disagree with Jeffrey M., we conclude that this argument misses the point. We agree with the department that the order issued by the court in this case is not authorized by any subsection of the statute, including subsection (j). Subsection (j) allows the court to make one of two commitment orders. First, § 46b-140 Q) (1) allows the court to commit a juvenile to the department and order the juvenile’s placement directly in a residential facility if it is within this state and under contract with the department. This is not what the court did because it committed Jeffrey M. to the department and placed him in an out-of-state facility that is not under contract with the department. Therefore, the order is not authorized under § 46b-140 (j) (1). Second, § 46b-140 (j) (2) allows the court to order a child to be “committed to the [commissioner] for placement by the commissioner, in said commissioner’s discretion, (A) with respect to the juvenile offenders determined by the [department] to be the highest risk, in the Connecticut Juvenile Training School, if the juvenile offender is a male, or in another state facility, presumptively for a minimum period of twelve months, or (B) in a private residential or day treatment facility within or outside this state, or (C) on parole. . . .” Because the court ordered that Jeffrey M. be placed in the out-of-state facility, it did not commit him to the department for placement by the commissioner. Therefore, the court’s order is not authorized under § 46b-140 Q) (2). Accordingly, the court’s order is not permitted under § 46b-140 0).

The court, the assistant state’s attorney and the attorneys for Jeffrey M. all made an extraordinary effort to find a solution to which all parties agreed and that they thought was in the best interest of the child. Although their intentions were good, and the solution might be in the best interest of the child, the range of possible solutions is limited by statute. Unfortunately, the solution agreed upon here was beyond the scope of statutory authority.

The judgment is reversed only as to the denial of the department’s motion to intervene and to modify or to vacate the order placing Jeffrey M. in an out-of-state facility and the case is remanded with direction to grant that motion and vacate that order and for further proceedings consistent with this opinion. The judgment is affirmed in all other respects.

In this opinion the other judges concurred.

       Because the commissioner of children and-families acts on behalf of the department of children and families, references in this opinion to the department include the commissioner. See In re Jose B., 125 Conn. App. 572, 574 n.1, 11 A.3d 682 (2010), aff'd, 303 Conn. 569, 34 A.3d 975 (2012).

       Because we conclude that the department had the right to intervene, we also conclude that we have subject matter jurisdiction over this appeal. See Trumbull v. Palmer, 123 Conn. App. 244, 251-52, 1 A.3d 1121, cert. denied, 299 Conn. 907, 10 A.3d 526 (2010).

       Although the parties briefed the issues in the reverse order, we believe that it is necessary to address whether the department had a right to intervene in this matter before addressing whether the court’s order of commitment and placement was improper.

       “It is well established that this court can take judicial notice of facts contained in the files of the Superior Court. See Karp v. Urban Redevelopment Commission, 162 Conn. 525, 527, 294 A.2d 633 (1972) (‘[t]here is no question . . . concerning our power to take judicial notice of flies of the Superior Court, whether the file is from the case at bar or otherwise’)-” Oliphant v. Commissioner of Correction, 274 Conn. 563, 579 n.17, 877 A.2d 761 (2005).

       General Statutes § 46b-140 (a) provides: “In determining the appropriate disposition of a child convicted as delinquent, the court shall consider: (1) The seriousness of the offense, including the existence of any aggravating factors such as the use of a firearm in the commission of the offense and the impact of the offense on any victim; (2) the child’s record of delinquency; (3) the child’s willingness to participate in available programs; (4) the existence of other mitigating factors; and (5) the culpability of the child in committing the offense including the level of the child’s participation in the planning and carrying out of the offense.”

       General Statutes § 46b-140 (b) provides: “Upon conviction of a child as delinquent, the court: (1) May (A) place the child in the care of any institution or agency which is permitted by law to care for children; (B) order the child to participate in an alternative incarceration program; (C) order the child to participate in a wilderness school program operated by the Department of Children and Families; (D) order the child to participate in a youth service bureau program; (E) place the child on probation; (F) order the child or the parents or guardian of the child or both to make restitution to the victim of the offense in accordance with subsection (d) of this section; (G) order the child to participate in a program of community service in accordance with subsection (e) of this section; or (H) withhold or suspend execution of any judgment; and (2) shall impose the penalty established in subsection (b) of section 30-89, for any violation of said subsection (b).”

       General Statutes § 1-2z provides: “The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.”

       See, e.g., General Statutes § 46b-140 (j), which provides in relevant part: “Except as otherwise provided in this section, the court may order a child be . . . (2) committed to the [department] for placement by the commissioner, in said commissioner’s discretion . . . .”

       General Statutes § 46b-140 (f) provides: “If the court further finds that its probation services or other services available to the court are not adequate for such child, the court shall commit such child to the Department of Children and Families in accordance with the provisions of section 46b-141. Prior to making such commitment, the court shall consult with the department to determine the placement which will be in the best interest of such child.”

       Jeffrey M.’s second argument asks us to consider legislative history. We are not permitted to inquire into extratextual evidence unless we find the language of the statute to not be plain and unambiguous. As we noted in footnote 7 of this opinion, § l-2z provides in relevant part that “[i]f . . . the meaning of [the statutory] text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.” We find the text of subsection (f) to be plain and unambiguous. Accordingly, legislative history will not be considered.

       General Statutes § 46b-140 (g) provides: “Any child or youth coming within the jurisdiction of the court, who is found to be mentally ill, may be committed by said court to the Commissioner of Children and Families and, if the court convicts a child as delinquent and finds such child to be mentally deficient, the court may commit such child to an institution for mentally deficient children or youth or delinquents. Whenever it is found that a child convicted as delinquent or acfjudged to be a member of a family with service needs would benefit from a work-study program or employment with or without continued school attendance, the court may, as a condition of probation or supervision, authorize such child to be employed for part or full-time at some useful occupation that would be favorable to such child’s welfare, and the probation officer shall supervise such employment. For the purposes of this section, the limitations of subsection (a) of section 31-23 on the employment of minors under the age of sixteen years shall not apply for the duration of such probation or supervision.”

       Both sides agree that this subsection does not apply to this case and could not form the basis for the court’s order.

       General Statutes § 46b-140 (j) provides: “Except as otherwise provided in this section, the court may order a child be (1) committed to the Department of Children and Families and be placed directly in a residential facility within this state and under contract with said department, or (2) committed to the Commissioner of Children and Families for placement by the commissioner, in said commissioner’s discretion, (A) with respect to the juvenile offenders determined by the Department of Children and Families to be the highest risk, in the Connecticut Juvenile Training School, if the juvenile offender is a male, or in another state facility, presumptively for a minimum period of twelve months, or (B) in a private residential or day treatment facility within or outside this state, or (C) on parole. The commissioner shall use a risk and needs assessment classification system to ensure that male children who are in the highest risk level will be placed in the Connecticut Juvenile Training School.”