In re Joheli V.

194 A.3d 357, 184 Conn. App. 259

• Court: Connecticut Appellate Court
• Decided: August 6, 2018
• Docket: AC41349
• Status: Published

Opinion

SHELDON, J.

The respondent father, Luis V., appeals from the judgment of the trial court terminating his parental rights with respect to his minor child, Joheli V. 1 On appeal, the respondent claims that the court erred when it determined, pursuant to General Statutes § 17a-112 (j) (3) (B), that he had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life, based solely upon the fact that he is currently incarcerated and awaiting trial for allegedly sexually assaulting Joheli. 2 We affirm the judgment of the trial court.

On August 6, 2015, the petitioner, the Commissioner of Children and Families, filed a neglect petition in the interest of Joheli, who has cerebral palsy and is confined to a wheelchair, alleging that she was neglected in that she was being permitted to live under conditions injurious to her well-being. On September 21, 2015, Joheli was adjudicated neglected and a six month period of protective supervision with the respondent was ordered. The court further ordered the respondent to comply with several specific steps to safely retain custody of Joheli. Those steps directed the respondent, among other things, to: develop stronger parenting skills in the areas of supervision, hygiene, educational support and medical care; increase his understanding of Joheli's developmental issues; develop a support system to assist with childcare responsibilities; maintain a safe, nurturing and sober environment for Joheli; provide consistently for Joheli's specialized medical needs; attend recommended treatment consistently and comply with all aspects of his treatment plans; and develop strategies to maintain sobriety and establish sober supports.

On November 9, 2015, Joheli reported to her school tutor that she had been sexually assaulted by the respondent. The tutor reported the incident to Joheli's teacher, who reported it to the police, who, in turn, contacted the petitioner. Joheli was temporarily placed in the custody of her maternal cousin, Rebecca Soto. The court again ordered the respondent to comply with several specific steps to regain custody of Joheli.

On January 28, 2016, Joheli was committed to the care and custody of the petitioner until further order of the court. The court again issued specific steps to the respondent.

On April 6, 2016, the respondent was arrested on charges of sexual assault in the first degree in violation of General Statutes § 53a-70 (a) (2) and risk of injury to a child in violation of General Statutes § 53-21 (a) (2). He has been incarcerated, awaiting trial, since that date.

On March 15, 2017, the petitioner filed a petition to terminate the respondent's parental rights. The petitioner alleged that the Department of Children and Families (department) had made reasonable efforts to reunify Joheli with the respondent, but that the respondent was unable or unwilling to benefit from those reunification efforts. The petitioner further alleged, in accordance with § 17a-112 (j) (3) (B), that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. The petitioner set forth the following facts in support of that allegation. 3 "At the time of Joheli's removal the presenting problems were [the respondent's] unaddressed mental health and substance abuse issues, allegations of sexual abuse by him and his inability to demonstrate an ability to protect and meet Joheli's needs on a daily basis.

"[The respondent] has a history of mental health and substance abuse issues. These concerns appeared to have intensified around the death of his children's mother .... [The respondent] has a historic inability to provide for the physical and emotional needs of his children evidenced by leaving them unsupervised on several occasions while under the influence. [The respondent's] substance abuse is evidenced by reports to the department of him being under the influence. [The respondent] has had criminal charges, which included breach of peace, stemming from his substance abuse issue. Based on the department's records, [the respondent] has participated in a variety of treatment programs including individual and group therapy with little benefit or change achieved. A significant barrier to his ability to make progress toward rehabilitation is his incarceration based on the allegations of sexual abuse. [The respondent] has failed to benefit, gain knowledge, and make positive changes from these services as evidenced by continuing to abuse substances and failing to address his mental health. [The respondent] continues to fail to meet the demands of adulthood, let alone the demands of parenthood. Additionally, he has failed to appropriately and genuinely address his mental health [or] substance use despite access to services to assist him in doing so." The petitioner noted that Joheli, then eight years old, has "medically complex issues and requires an adequate caregiver in order for her to appropriately grow emotionally, developmentally, medically and physically and who must meet every aspect of her basic needs."

The petitioner concluded: "[The respondent] is unable to meet his own basic needs at this time and therefore unable to properly care for Joheli, who has severe medical needs. [The respondent] has been observed to minimize his substance use and the severity of his mental health concerns. [The respondent] will not be able to fully resume [the role of] a responsible party in the life of his child within a reasonable time period."

On July 25, 2017, the petitioner moved to amend the termination petition to include an allegation, pursuant to § 17a-112 (j) (3) (D), that there was no ongoing parent-child relationship between the respondent and Joheli, which motion was granted on August 22, 2017.

On November 9, 2017, after a trial, the court orally granted the termination petition. The court found that the department made reasonable efforts to reunify the respondent with Joheli, but that the respondent "did not really seize upon these opportunities and improve his situation." The court further found, by clear and convincing evidence: "[The respondent] had unaddressed mental health and substance abuse issues. There was an allegation, not proved yet, of sexual abuse by him of the child, [he] has a history of mental health and substance abuse issues and these concerns appear to have intensified around the death of the child's mother, [he] has a ... historic inability to provide for the physical and emotional needs of his children.

"And ... [the respondent] turned down in-home care services. He also neglected various health issues of the child. She's got cerebral palsy. She's clearly got to have medical attention periodically, dental attention, and that was not shown to have happened.

"And the idea is that even if he somewhat engaged in these, he did go to a therapist and he had some sessions with a therapist and was trying to work on these problems, the statute requires that ... there be a second portion of it, that even if this is going on, that there be a reasonable time under which this reunification and resolution, rehabilitation could-the child would and the father would resolve his problems and take into account the needs of the child. We don't see that happening here.

"At the time, he was-at the time of the filing of the termination petition, he was just not meeting the standards. The child was reporting trauma due to drinking. The poor kid was trying to pick up her father [from the floor] and couldn't do it with her ... cerebral palsy...." The court further found that the respondent was not in compliance with the specific steps that had been issued, and there was no evidence that "the [respondent has] made realistic and sustained efforts to conform ... his conduct to even a minimally accepted parental [standard]. Giving him additional time will not likely bring his performance ... within acceptable standards." On the basis of the foregoing, the court concluded, in accordance with § 17a-112 (j) (3) (B), that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. 4 The court further concluded that termination was in Joheli's best interest and, accordingly, terminated the respondent's parental rights.

On March 19, 2018, the trial court issued an articulation of its decision, reiterating that it "made no adjudicative finding on ground D, [that there was no ongoing relationship between the respondent and Joheli].... The finding on ground B by clear and convincing evidence that father had unaddressed mental health and substance abuse issues, that he ignored his daughter's health issues, that he had declined in-house services and had an alcoholic incident involving the daughter. It further found that the father could not address these issues in a reasonable time period given the age and needs of the child. He is presently incarcerated. The child was experiencing trauma due to her relationship with her father." The court declined to "further articulate on ground D." 5

The respondent claims on appeal that the trial court erred in terminating his parental rights on the ground that he had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life, pursuant to § 17a-112 (j) (3) (B). Specifically, he claims that the court erred in basing that determination solely upon his current incarceration for allegedly sexually assaulting Joheli. We are not persuaded.

"Our Supreme Court has clarified that [a] conclusion of failure to rehabilitate is drawn from both the trial court's factual findings and from its weighing of the facts in assessing whether those findings satisfy the failure to rehabilitate ground set forth in § 17a-112 (j) (3) (B). Accordingly ... the appropriate standard of review is one of evidentiary sufficiency, that is, whether the trial court could have reasonably concluded, upon the facts established and the reasonable inferences drawn therefrom, that the cumulative effect of the evidence was sufficient to justify its [ultimate conclusion].... When applying this standard, we construe the evidence in a manner most favorable to sustaining the judgment of the trial court.... We will not disturb the court's subordinate factual findings unless they are clearly erroneous....

"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.... [The statute] requires the court to find, by clear and convincing evidence, that the level of rehabilitation [that the parent has] achieved, if any, falls short of that which would reasonably encourage a belief that at some future date [he] can assume a responsible position in [his] child's life.... [I]n assessing rehabilitation, the critical issue is not whether the parent has improved [his] ability to manage [his] own life, but rather whether [he] has gained the ability to care for the particular needs of the child at issue.... As part of the analysis, the trial court must obtain a historical perspective of the respondent's child caring and parenting abilities, which includes prior adjudications of neglect, substance abuse and criminal activity....

"The statute does not require [a parent] to prove precisely when [he] will be able to assume a responsible position in [his] child's life. Nor does it require [him] to prove that [he] will be able to assume full responsibility for [his] child, unaided by available support systems.... 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.... In the adjudicatory phase, the court may rely on events occurring after the date of the filing of the petition to terminate parental rights when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child's life within a reasonable time." (Citations omitted; internal quotation marks omitted.) In re Damian G. , 178 Conn.App. 220 , 237-39, 174 A.3d 232 (2017), cert. denied, 328 Conn. 902 , 177 A.3d 563 (2018).

In challenging the court's finding that he failed to rehabilitate, the respondent argues that the court failed "to consider [his] incarceration status and the potential [that] he could be found innocent ... [and that his] rights were terminated based on an allegation for which he maintains his innocence and has yet to face trial ...." (Citation omitted.) In so arguing, the respondent misconstrues the trial court's decision. Although the court considered the respondent's incarceration, which it is entitled to do, as acknowledged by the respondent himself; see, e.g., In re Katia M., 124 Conn. App. 650 , 661, 6 A.3d 86 (2010) (parent's unavailability, due to incarceration, properly considered "an obstacle to reunification"), cert. denied, 299 Conn. 920 , 10 A.3d 1051 (2010) ; it did not base its determination that the respondent failed to rehabilitate solely on the ground that he was incarcerated. The court determined that the respondent's efforts to rehabilitate were scant even before his arrest. The court noted that the respondent had unresolved mental health and substance abuse issues, and a demonstrated inability to provide for the physical and emotional needs of Joheli. The court found that the respondent had neglected Joheli's medical and dental needs and failed to comply with the specific steps previously ordered by the court. The respondent does not dispute these findings, which, we note, are amply supported in the record. It is clear from the record that the respondent's incarceration was only one factor of many upon which the court based its determination that he had failed to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering the age and needs of Joheli, he could assume a responsible position in her life. The respondent's claim is therefore without merit. 6

The judgment is affirmed.

In this opinion ALVORD, J. concurred.

Although I find it a much closer question, I agree with the majority that the respondent has appealed from a final judgment 1 and that we, therefore, have jurisdiction over this appeal. I also fully agree with and join in the majority opinion's analysis and resolution of the merits of the respondent's claim on appeal.

I write separately in order to explain why I think the final judgment question presented here is a close one and to express my concerns regarding developments in our final judgment jurisprudence, particularly in light of our Supreme Court's recent decision in Meribear Productions, Inc. v. Frank , 328 Conn. 709 , 183 A.3d 1164 (2018) ( Meribear ). Indeed, the decision in Meribear and its potential application to this case is the most recent iteration of our long struggle "for a predictable and efficacious final judgment standard." E. Prescott, Connecticut Appellate Practice & Procedure (5th Ed. 2016) § 3-1:1.1, p. 85.

In the present case, the petitioner, the Commissioner of Children and Families, initiated this proceeding seeking the termination of the parental rights of the respondent, Luis V., and filed Judicial Branch Form JD-JM-40 (Rev. 6-16) (form JD-JM-40). On that form, the petitioner alleged two statutory grounds for termination of the respondent's parental rights. First, she checked box B 1, which alleges that the "child ... has been found in a prior proceeding to have been neglected, abused or uncared for and the father [has] failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable period of time, considering the age and needs of the child ... [he] could assume a responsible position in the life of the child ...." Second, the petitioner checked box C, which alleges that the "child ... has been denied, by reason of an act or acts by the ... father of commission or omission; including but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for [her] physical, educational, moral or emotional well-being." Attached to this pleading is a summary of facts, as required by Practice Book § 33a-1, that alleges, in separately numbered paragraphs, the facts that specifically relate to each of the adjudicatory grounds alleged on the form.

The petitioner was subsequently granted permission to amend the petition to add an additional adjudicatory ground on which the petition could be granted. Specifically, the petitioner alleged, as an alternative, "ground D" 2 : "[T]here is no ongoing parent-child relationship with respect to the father ... that ordinarily develops as a result of a parent having met on a continuous, day-to-day basis, the physical, emotional, moral or educational need of the child and to allow further time for the establishment or reestablishment of the parent-child relationship would be detrimental to the best interest of the child ...."

At the beginning of the trial, the petitioner withdrew ground C, that is, the claim that the respondent's parental rights should be terminated because of a parental act of omission or commission. As a result, the petitioner at trial expended resources litigating and presented evidence on ground B 1 (failure to rehabilitate) and ground D (no ongoing parent-child relationship).

On November 9, 2017, in a brief oral decision from the bench, the court granted the petition and terminated the respondent's parental rights. In doing so, the court addressed only the petitioner's entitlement to relief on ground B 1, stating, "I'm just going to go with ground B because I think it is the simplest and clearest here." The court did not state that the petitioner failed to establish her entitlement to relief on ground D.

On November 17, 2017, and December 21, 2017, the respondent filed motions for extension of time to file an appeal so that he could obtain and review the trial transcripts and seek the appointment of appellate counsel. These motions for extension of time were granted and the respondent subsequently was appointed appellate counsel by the court. On February 9, 2018, the respondent's counsel filed this appeal.

On March 8, 2018, the petitioner filed a motion to articulate, pursuant to Practice Book § 66-5, requesting, among other things, that the trial court make specific findings as to ground D. The petitioner essentially argued that she had presented witnesses and exhibits with respect to ground D and that she was entitled to a decision by the court on that adjudicatory ground.

On March 19, 2018, the court, Hon. Henry S. Cohn , judge trial referee, issued an articulation stating that when it rendered its judgment on November 9, 2017, it "made no adjudicative findings on 'ground D' " and that because "the court has addressed ground B [1], the court declined to discuss ground D with its attendant legal and proof requirements. It continues to adhere to that position and declines to further articulate on ground D."

With this procedural history in mind, a brief discussion of Meribear is warranted. In that case, our Supreme Court recognized that, as general rule, "a judgment that disposes of only part of a complaint is not final, unless it disposes of all causes of action against the appellant." Meribear , supra, 328 Conn. at 717, 183 A.3d 1164 . The court then sought to clarify "the circumstances under which there [is] an appealable final judgment [if] the trial court's decision does not dispose of counts advancing alternative theories of relief." Id. at 711 , 183 A.3d 1164 .

In resolving this question, the court distinguished between two possible scenarios in which a trial court has not adjudicated all of the theories of recovery advanced by a plaintiff. The first category of cases "involves counts alleging claims that are legally inconsistent ... such that establishing the elements of one precludes liability on the other ...." Id. at 721 , 183 A.3d 1164 . "The second category involves claims that present alternative theories of recovery for the same injury, but are not legally inconsistent." Id. at 722 , 183 A.3d 1164 .

The court in Meribear then concluded that judgments in the first category of cases should be treated as final for purposes of appeal, but decisions in the second category should not be so treated. The court reasoned as follows: "Because of the different effect of the rulings in these categories, drawing a distinction between them for purposes of the final judgment rule advances the policies underlying that rule, namely, the prevention of piecemeal appeals and the conservation of judicial resources.

Niro v. Niro , 314 Conn. 62 , 78, 100 A.3d 801 (2014) ; see also Canty v. Otto , 304 Conn. 546 , 554, 41 A.3d 280 (2012) (citing policy to facilitate the speedy and orderly disposition of cases at the trial court level). At trial, the parties have expended resources to fully litigate all of the claims advanced. A rule that would allow the trial court not to dispose of counts that present alternative, legally consistent theories of recovery could lead to multiple unnecessary appeals and retrials. In exceptional circumstances in which the trial court and the parties agree that litigating only some of the alternative claims for relief and proceeding to appeal on those issues before litigating alternative claims would constitute the greater efficiency, our rules provide a mechanism to address those circumstances. See Practice Book § 61-4 (a)....

"In sum, we conclude that when the trial court disposes of one count in the plaintiff's favor, such a determination implicitly disposes of legally inconsistent, but not legally consistent, alternative theories. When a legally consistent theory of recovery has been litigated and has not been ruled on, there is no final judgment." (Internal quotation marks omitted.) Meribear , supra, 328 Conn. at 723-24, 183 A.3d 1164 .

I turn then to the question of whether the decision in Meribear compels a conclusion in this termination of parental rights case that no final judgment yet exists. Certainly, the sound policy that Meribear seeks to advance, that is, the prevention of "multiple unnecessary appeals and retrials"; id. at 723 , 183 A.3d 1164 ; would be promoted by a conclusion that, in order to render a final judgment, the trial court here was obligated to decide both of the adjudicatory grounds upon which the petitioner proceeded to trial. If this court had concluded on appeal that the trial court improperly concluded that the petitioner established adjudicatory ground B, then this case arguably would need to be remanded for a new trial on adjudicatory ground D, thereby fostering the possibility of multiple appeals, and the attendant delay in securing permanency for Joheli.

Second, there is no question that, in the broad phraseology of Meribear , the two adjudicatory grounds are legally consistent, but alternative theories of relief (or recovery). A conclusion that no ongoing parent-child relationship exists between the respondent and Joheli would not be legally inconsistent with a concomitant conclusion that the respondent had "failed to achieve such degree of personal rehabilitation as would encourage the belief that, considering the age and needs of the child, he could assume a responsible position in her life." Proving either or both adjudicatory grounds would entitle the petitioner to a judgment terminating the respondent's parental rights, provided that the petitioner also established that termination was in Joheli's best interest.

Thus, the primary distinction between this case and Meribear is that the legally consistent but alternative theories of recovery in Meribear were alleged in separate counts of the plaintiff's complaint, whereas in this case, the alleged adjudicatory grounds are not contained in separate counts, but instead are alleged on a judicially authorized form that is expressly designed for this unique statutory action and is not divided into counts in the traditional sense.

I agree with the majority that this distinction is significant in light of the repeated references in Meribear to the fact that the legally consistent but alternative theories of recovery were contained in separate counts of the plaintiffs' complaint. Thus, in my view, the Supreme Court's broad statement that "[w]hen a legally consistent theory of recovery has been litigated and has not been ruled on, there is no final judgment"; Meribear , supra, 328 Conn. at 724, 183 A.3d 1164 ; should be limited to the specific procedural context in which the final judgment question arose in Meribear . Accordingly, Meribear does not require a conclusion that there is a lack of a final judgment in this case because the alternative theories of liability alleged by the petitioner were not pleaded in separate counts. 3

My conclusion that Meribear does not control the final judgment issue does not mean, however, that its rule should not be extended to the present case. Certainly, the policy reasons underlying Meribear are salutary, and arguably warrant application in a termination of parental rights case where concerns for piecemeal appeals and the attendant delays are seemingly paramount. On the other hand, the trial court's choice to refrain from deciding the question of whether the petitioner had established by clear and convincing evidence that there was no ongoing parent-child relationship between the respondent and Joheli is, perhaps, not without some justification. In the trial court's view, the closeness of the factual and legal questions related to this adjudicatory ground, and the overall strength of the petitioner's case with respect to the adjudicatory ground it did decide, may well have created in Judge Cohn's mind a disinclination to tread where it seemed unnecessary to go. Reaching adjudicatory ground D may also have delayed the trial court's resolution of adjudicatory ground B 1. Ultimately, in light of Meribear 's lack of vintage, and the uniqueness of the petitioner's statutory action, I am reluctant to extend Meribear to this case without further guidance from our Supreme Court.

I turn then to an explanation regarding why I believe a final judgment exists in this case, despite a colorable argument to be made that the petitioner's claim with respect to adjudicatory ground D remains pending in the trial court. 4 In my view, the trial court's repeated refusal to decide adjudicatory ground D constitutes the functional denial of that claim.

In a related context, our Supreme Court in Ahneman v. Ahneman , 243 Conn. 471 , 480, 706 A.2d 960 (1998), recognized that in certain circumstances a "trial court's decision not to consider the defendant's [postdissolution] motions was the functional equivalent of a denial of those motions. Like a formal denial, the effect of the court's decision refusing to consider the defendant's motions ... was to foreclose the possibility of relief from the court on those issues ...."

In the present case, the trial court's refusal to decide adjudicatory ground D foreclosed the petitioner from obtaining a judgment terminating the respondent's parental rights on the ground that there is no ongoing parent-child relationship between the respondent and Joheli. Accordingly, in combination with the court's conclusion that the petitioner was entitled to a judgment terminating the respondent's parental rights on the adjudicatory ground of failure to rehabilitate, the effective denial of adjudicatory ground D means that there were no further claims left to be adjudicated by the trial court at the time this appeal was filed. Accordingly, there is a final judgment from which the respondent was entitled to appeal. 5

In sum, I concur with the majority that the respondent has appealed from a final judgment in this case, and, with respect to the merits of the appeal, I agree that the judgment of the court should be affirmed for the reasons stated by the majority.

1 Joheli's mother passed away unexpectedly in January, 2015, due to a medical condition.

2 Section 17a-112 (j) provides in relevant part: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition [terminating parental rights] if it finds by clear and convincing evidence that ... (3) ... (B) the child ... has been found by the Superior Court or the Probate Court to have been neglected, abused or uncared for in a prior proceeding ... and the parent of such child 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 ...."

3 The petitioner also alleged, pursuant to § 17a-112 (j) (3) (C), that Joheli had been denied, by reason of an act or acts of parental commission or omission including, but not limited to, sexual molestation or exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for her physical, educational, moral or emotional well-being. The petitioner withdrew that allegation prior to trial.

4 The court indicated that it would was "going to go with ground B because I think it's the simplest and clearest here."

5 Because the trial court addressed only the petitioner's claim that the respondent failed to rehabilitate, and declined to adjudicate the petitioner's claim that the respondent's parental rights should be terminated because he had no ongoing relationship with Joheli, this court issued an order, sua sponte, instructing the parties to be prepared to address at oral argument the issue of whether there is an appealable final judgment in this case pursuant to Meribear Productions., Inc. v. Frank , 328 Conn. 709 , 183 A.3d 1164 (2018), in which our Supreme Court held: "[W]hen the trial court disposes of one count in the plaintiff's favor, such a determination implicitly disposes of legally inconsistent, but not legally consistent, alternative theories. When a legally consistent theory of recovery has been litigated and has not been ruled on, there is no final judgment." Id. at 723-24 , 183 A.3d 1164 . Because the two statutory grounds alleged by the petitioner in this case, grounds B and D, are not different theories of recovery, as contemplated in Meribear , but, rather, are simply two alternative bases upon which the court could have based its adjudication of a single cause of action, termination of the respondent's parental rights, we conclude that Meribear does not apply to this case, and thus that the respondent has properly appealed from a final judgment over which we have subject matter jurisdiction.

6 The respondent also claims that the court's determination that the termination of his parental rights was in Joheli's best interest should be reversed if we determine that the court erred in finding that he failed to rehabilitate. Because we affirm the court's determination that the respondent failed to rehabilitate, and his claim to the contrary was the sole basis for his challenge to the best interest finding, his claim that the court erred in concluding that termination was in Joheli's best interest also fails.

1 "Because our jurisdiction over appeals, both criminal and civil, is prescribed by statute, we must always determine the threshold question of whether the appeal is taken from a final judgment before considering the merits of the claim.... Additionally, with the exception of certain statutory rights of appeal not relevant here, our jurisdiction is restricted to appeals from final judgments." (Citation omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford , 262 Conn. 240 , 245, 811 A.2d 1272 (2002).

2 The petitioner appears to have used this nomenclature because it corresponds to box D on form JD-JM-40. See also General Statutes § 17a-112 (j) (3) (D).

3 If the petitioner had chosen to initiate this action by filing a traditional complaint and divided the adjudicatory grounds into different counts rather than using form JD-JM-40, the resolution of the final judgment issue in this case might be different under the holding in Meribear because there would be an undecided count that alleges an alternative but not inconsistent theory of recovery. I point this out only to suggest that the policies that motivated our Supreme Court in Meribear would militate in favor of a conclusion that there is not a final judgment regardless of whether the different adjudicatory grounds had been brought in a single count or in different counts. Nevertheless, pursuant to our reading of Meribear , there is a final judgment if the adjudicatory grounds are brought in a single count but no final judgment if the adjudicatory grounds are separated into different counts. Such fine distinctions in our final judgment jurisprudence simply create a trap for the unwary.

4 Certainly, there is no dispute that the petitioner took steps, without success, to secure a decision by the trial court on that adjudicatory ground.

5 If my analysis is correct and a final judgment exists in this case, then the petitioner was under some obligation to take procedural steps necessary to obtain an adjudication by the trial court of ground D in the event that the respondent was successful in obtaining a reversal of the judgment terminating his parental rights, which was predicated on adjudicatory ground B. Arguably, the petitioner could have attempted to file a cross appeal from the court's judgment rendered on November 9, 2017. Such an appeal, however, would itself be on shaky jurisdictional footing because the petitioner arguably would not be aggrieved by the court's decision refusing to adjudicate ground D because the court ultimately granted the only relief the petitioner sought by terminating the respondent's parental rights.

Under these circumstances, the respondent could have sought to protect her rights pursuant to Practice Book § 63-4 (a) (1), which provides in relevant part that an appellee shall file a preliminary statement of issues if the appellee "wishes to: (A) present for review alternative grounds upon which the judgment may be affirmed; (B) present for review adverse rulings or decisions of the court which should be considered on appeal in the event the appellant is awarded a new trial; or (C) claim that a new trial rather than a directed judgment should be ordered if the appellant is successful on appeal ...."

Presumably, subparagraph (A) of § 63-4 (a) (1) would not apply in these circumstances because the trial court made no factual findings with respect to the existence of an ongoing parent-child relationship. In the absence of such findings, and, because this court is not in the business of finding facts, we would not have a basis for concluding whether the judgment should be affirmed because the petition should have been granted on this adjudicatory ground. Pursuant to subparagraph (B), however, the petitioner could assert that the effective denial of adjudicatory ground D constituted an adverse ruling or decision of the court that should be reversed in the event that the respondent was awarded an new trial, or, pursuant to subparagraph (C), the petitioner could assert that she was entitled to a new trial on adjudicatory ground D if this court on appeal had concluded that the respondent was entitled to a directed judgment on adjudicatory ground B.

My attempt to delineate what I believe the petitioner should have done to preserve her right to obtain a decision on adjudicatory ground D if additional proceedings were necessitated by a successful appeal by the respondent should not be construed as a criticism of the counsel for the petitioner who, in my view, diligently attempted to navigate the murky waters of our final judgment jurisprudence. In the end, Meribear adds an additional layer of complexity and questions regarding the finality of judgments in circumstances where not all theories of recovery or liability are adjudicated on their merits by a trial court.