§ 45a-717 — (Formerly Sec. 45-61f). Termination of parental rights. Conduct of hearing. Investigation and report. Grounds for termination.

Connecticut § 45a-717

• Jurisdiction: Connecticut
• Title 45a: Probate Courts and Procedure
• Ch. 803: Termination of Parental Rights and Adoption

Text

(a) At the hearing held on any petition for the termination of parental rights filed in the Probate Court under section 45a-715, or filed in the Superior Court under section 17a-112, or transferred to the Superior Court from the Probate Court under section 45a-715, any party to whom notice was given shall have the right to appear and be heard with respect to the petition. If a parent who is consenting to the termination of such parent's parental rights appears at the hearing on the petition for termination of parental rights, the court shall explain to the parent the meaning and consequences of termination of parental rights. Nothing in this subsection shall be construed to require the appearance of a consenting parent at the hearing regarding the termination of such parent's parental rights except as otherwise provided by court order. (b) If a respondent parent appears without counsel, the court shall inform such respondent parent of his or her right to counsel and upon request, if he or she is unable to pay for counsel, shall appoint counsel to represent such respondent parent. No respondent parent may waive counsel unless the court has first explained the nature and meaning of a petition for the termination of parental rights. Unless the appointment of counsel is required under section 46b-136 , the court may appoint counsel to represent or appear on behalf of any child in a hearing held under this section to speak on behalf of the best interests of the child. If the respondent parent is unable to pay for his or her own counsel or if the child is unable to pay for the child's counsel, in the case of a Superior Court matter, the reasonable compensation of counsel appointed for the respondent parent or the child shall be established by, and paid from funds appropriated to, the Judicial Department and, in the case of a Probate Court matter, the reasonable compensation of counsel appointed for the respondent parent or the child shall be established by, and paid from funds appropriated to, the Judicial Department, however, in the case of a Probate Court matter, if funds have not been included in the budget of the Judicial Department for such purposes, such compensation shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. (c) The court shall, if a claim for parentage has been filed by an alleged genetic parent in accordance with section 46b-571 , continue the hearing under the provisions of this section until the claim for parentage is adjudicated, provided the court may combine the hearing on the claim for parentage with the hearing on the termination of parental rights petition. (d) Upon finding at the hearing or at any time during the pendency of the petition that reasonable cause exists to warrant an examination, the court, on its own motion or on motion by any party, may order the child to be examined at a suitable place by a physician, psychiatrist or licensed clinical psychologist appointed by the court. The court may also order examination of a parent or custodian whose competency or ability to care for a child before the court is at issue. The expense of any examination shall be paid for by the petitioner, respondent or the party who requested the examination in such proportion as the court determines. If a party responsible for payment is indigent, such party's share of the expense shall be paid for by funds appropriated to the Judicial Department, however, in the case of a Probate Court matter, if funds have not been included in the budget of the Judicial Department for such purposes, the compensation of the physician, psychiatrist or psychologist shall be established by the Probate Court Administrator and paid from the Probate Court Administration Fund. The court may consider the results of the examinations in ruling on the merits of the petition. (e) (1) The court may, and in any contested case shall, request the Commissioner of Children and Families or any child-placing agency licensed by the commissioner to make an investigation and written report to it, within ninety days from the receipt of such request. The report shall indicate the physical, mental and emotional status of the child and shall contain such facts as may be relevant to the court's determination of whether the proposed termination of parental rights will be in the best interests of the child, including the physical, mental, social and financial condition of the biological parents, and any other factors which the commissioner or such child-placing agency finds relevant to the court's determination of whether the proposed termination will be in the best interests of the child. (2) If such a report has been requested, upon the expiration of such ninety-day period or upon receipt of the report, whichever is earlier, the court shall set a day for a hearing not more than thirty days thereafter. The court shall give reasonable notice of such adjourned hearing to all parties to the first hearing, and to such other persons as the court shall deem appropriate. (3) The report shall be admissible in evidence, subject to the right of a party to require that the person making it appear as a witness and be subject to examination. (f) At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve a petition for termination of parental rights based on consent filed pursuant to this section terminating the parental rights and may appoint a guardian of the person of the child, or if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence that (1) the termination is in the best interest of the child, and (2) such parent has voluntarily and knowingly consented to termination of the parent's parental rights with respect to such child. If the court denies a petition for termination of parental rights based on consent, it may refer the matter to an agency to assess the needs of the child, the care the child is receiving and the plan of the parent for the child. Consent for the termination of the parental right of one parent does not diminish the parental rights of the other parent of the child nor does it relieve the other parent of the duty to support the child. (g) At the adjourned hearing or at the initial hearing where no investigation and report has been requested, the court may approve a petition terminating the parental rights and may appoint a guardian of the person of the child, or, if the petitioner requests, the court may appoint a statutory parent, if it finds, upon clear and convincing evidence, that (1) the termination is in the best interest of the child, and (2) (A) the child has been abandoned by the parent 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; (B) the child has been denied, by reason of an act or acts of parental commission or omission, including, but not limited to, sexual molestation and exploitation, severe physical abuse or a pattern of abuse, the care, guidance or control necessary for the child's physical, educational, moral or emotional well-being. Nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights; (C) 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; (D) a child of the parent (i) was found by the Superior Court or the Probate Court to have been neglected, abused or uncared for, as those terms are defined in section 46b-120 , in a prior proceeding, or (ii) is found to be neglected, abused 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; (E) a child of the parent, who is under the age of seven years is found to be neglected, abused or uncared for, and the parent has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable amount of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families; (F) the parent has killed through deliberate, nonaccidental act another child of the parent or has requested, commanded, importuned, attempted, conspired or solicited such killing or has committed an assault, through deliberate, nonaccidental act that resulted in serious bodily injury of another child of the parent; (G) except as provided in subsection (h) of this section, the parent committed an act that constitutes sexual assault as described in section 53a-70 , 53a-70a , 53a-70c , 53a-71 , 53a-72a , 53a-72b or 53a-73a or compelling a spouse or cohabitor to engage in sexual intercourse by the use of force or by the threat of the use of force as described in section 53a-70b of the general statutes, revision of 1958, revised to January 1, 2019, if such act resulted in the conception of the child; or (H) the parent was finally adjudged guilty of sexual assault under section 53a-70 , 53a-70a , 53a-70c , 53a-71 , 53a-72a , 53a-72b or 53a-73a or of compelling a spouse or cohabitor to engage in sexual intercourse by the use of force or by the threat of the use of force under section 53a-70b of the general statutes, revision of 1958, revised to January 1, 2019, if such act resulted in the conception of the child. (h) If the petition alleges an act described in subparagraph (G) of subdivision (2) of subsection (g) of this section that resulted in the conception of the child as a basis for termination of parental rights and the court determines that the respondent parent was finally adjudged not guilty of such act of sexual assault under section 53a-70 , 53a-70a , 53a-70c , 53a-71 , 53a-72a , 53a-72b or 53a-73 or of compelling a spouse or cohabitor to engage in sexual intercourse by the use of force or by the threat of the use of force under section 53a-70b of the general statutes, revision of 1958, revised to January 1, 2019, the court shall transfer the case to the Superior Court and the clerk of the Probate Court shall transmit to the clerk of the Superior Court to which the case was transferred, the original files and papers in the case. The Superior Court, upon hearing after notice as provided in this section and section 45a-716 , may grant the petition as provided in this section. (i) Except in the case where termination is based on consent, in determining whether to terminate parental rights under this section, the court shall consider and shall make written findings regarding: (1) The timeliness, nature and extent of services offered, provided and made available to the parent and the child by a child-placing agency to facilitate the reunion of the child with the parent; (2) the terms of any applicable court order entered into and agreed upon by any individual or child-placing agency and the parent, and the extent to which all parties have fulfilled their obligations under such order; (3) the feelings and emotional ties of the child with respect to the child's parents, any guardian of the child's person and any person who has exercised physical care, custody or control of the child for at least one year and with whom the child has developed significant emotional ties; (4) the age of the child; (5) the efforts the parent has made to adjust such parent's circumstances, conduct or conditions to make it in the best interest of the child to return the child to the parent's home in the foreseeable future, including, but not limited to, (A) the extent to which the parent has maintained contact with the child as part of an effort to reunite the child with the parent, provided the court may give weight to incidental visitations, communications or contributions and (B) the maintenance of regular contact or communication with the guardian or other custodian of the child; and (6) the extent to which a parent has been prevented from maintaining a meaningful relationship with the child by the unreasonable act or conduct of the other parent of the child, or the unreasonable act of any other person or by the economic circumstances of the parent. (j) If the parental rights of only one parent are terminated, the remaining parent shall be sole parent and, unless otherwise provided by law, guardian of the person. (k) In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall report to the court within thirty days of the date judgment is entered on a case plan, as defined by the federal Adoption and Safe Families Act of 1997, as amended from time to time, for the child. At least every three months thereafter, such guardian or statutory parent shall make a report to the court on the implementation of the plan. The court may convene a hearing upon the filing of a report and shall convene a hearing for the purpose of reviewing the plan no more than twelve months from the date judgment is entered or from the date of the last permanency hearing held pursuant to subsection (k) of section 46b-129 if the child or youth is in the care and custody of the Commissioner of Children and Families, whichever is earlier, and at least once a year thereafter until such time as any proposed adoption plan has become finalized. If the Commissioner of Children and Families is the statutory parent for the child, at such a hearing the court shall determine whether the department has made reasonable efforts to achieve the permanency plan. In the case where termination of parental rights is granted, the guardian of the person or statutory parent shall obtain the approval of the court prior to placing the child or youth for adoption outside the state. Before ordering or approving such placement, the court shall make findings concerning compliance with the provisions of section 17a-175 . Such findings shall include, but not be limited to: (1) A finding that the state has received notice in writing from the receiving state, in accordance with subsection (d) of Article III of section 17a-175 , indicating that the proposed placement does not appear contrary to the interests of the child, (2) the court has reviewed such notice, (3) whether or not an interstate compact study or other home study has been completed by the receiving state, and (4) if such a study has been completed, whether the conclusions reached by the receiving state as a result of such study support the placement. See Sec. 17a-112 re termination of parental rights of child committed to Commissioner of Children and Families.

Legislative History

(P.A. 73-156, S. 7; P.A. 74-164, S. 6, 20; P.A. 75-420, S. 4, 6; P.A. 76-436, S. 644, 681; P.A. 77-614, S. 521, 610; P.A. 79-592, S. 3; 79-631, S. 79, 111; P.A. 80-476, S. 146; P.A. 82-202, S. 2; P.A. 83-387, S. 2; 83-478, S. 2; June Sp. Sess. P.A. 83-11, S. 2, 4; P.A. 84-171, S. 6, 7; 84-449, S. 4, 7; P.A. 90-31, S. 5, 9; P.A. 93-91, S. 1, 2; 93-193, S. 2; P.A. 94-81, S. 2; P.A. 95-238, S. 5; 95-316, S. 8; P.A. 96-130, S. 7; 96-170, S. 7, 23; 96-246, S. 19; P.A. 97-90, S. 5, 6; P.A. 98-241, S. 9, 18; P.A. 00-75, S. 2; 00-137, S. 12; P.A. 01-159, S. 6; P.A. 11-180, S. 2; P.A. 15-159, S. 2, 3; P.A. 16-70, S. 2; 16-105, S. 3; P.A. 17-48, S. 13; P.A. 19-47, S. 8; 19-189, S. 10; P.A. 21-15, S. 108.) History: P.A. 74-164 specified applicability of provisions to hearings for termination of parental rights filed in probate court, brought to juvenile court or transferred to juvenile court, specified that hearing be not more than 30 days after receipt of report or expiration of 90-day period, added proviso re waiver of requirement that one year of abandonment has expired in Subdiv. (1), deleted similar proviso in Subdiv. (2) where court could waive one-year requirement if it found that child under age of 3 because of his age “has a greater vulnerability to damage from the circumstances of his present situation”, added Subdiv. (3) where there are no identifiable acts of parental commission or omission but court sees no ongoing parent-child relationship and to continue the situation to allow for establishment or reestablishment of such relationship would be detrimental to child, deleted provision whereby court could approve termination where parent without custody unreasonably withholds consent “contrary to the best interest of the child”, and added provisions specifying that when one parent's rights are terminated, the remaining parent is sole parent and natural guardian and specifying court's power to terminate rights of parent or putative father if such person consents to the termination and waives notice; P.A. 75-420 replaced welfare commissioner with commissioner of social services; P.A. 76-436 replaced juvenile court with superior court, effective July 1, 1978; P.A. 77-614 replaced social services commissioner with commissioner of human resources, effective January 1, 1979; P.A. 79-592 added provisions re effect of claim for paternity on proceedings and, with P.A. 79-631, replaced human resources commissioner with commissioner of children and youth services; P.A. 80-476 divided section into Subsecs. and rephrased and reordered provisions; P.A. 82-202 amended Subsec. (d) by requiring finding upon standard of “clear and convincing evidence”; P.A. 83-387 inserted a new Subsec. (e) to require the court to consider and make written findings concerning certain factors in its determination of whether to terminate parental rights, and relettered the remaining subsection accordingly; P.A. 83-478 amended Subsec. (d) to rephrase the grounds for termination, to provide that “nonaccidental or inadequately explained serious physical injury to a child shall constitute prima facie evidence of acts of parental commission or omission sufficient for the termination of parental rights”, to require the court to find in connection with any of the grounds, rather than just the abandonment ground, that the termination is in the best interests of the child and that the condition causing termination has existed for not less than one year, and to authorize the court to waive the requirement that one year expire prior to the termination of parental rights, but because of omission from June special session act, was effective only from October 1, 1983, through March 31, 1984, that is, until June act's effective date of April 1, 1984; June Sp. Sess. P.A. 83-11 inserted a new Subsec. (b) re the appointment and payment of counsel, inserted a new Subsec. (d) re an examination of the child, parent or custodian and the payment for such examination, and relettered the intervening and remaining subsections accordingly, effective April 1, 1984; P.A. 84-171 amended Subsec. (f) to restore amendment made by P.A. 83-478; P.A. 84-449 substantially revised and rephrased section adding provisions re the procedure for termination of parental rights based on consent and revising provisions for the appointment and payment of counsel and the ordering of and payment for an examination of the child; P.A. 90-31 amended Subsec. (b) by adding provision that in the case of a probate court matter, reasonable compensation of counsel appointed for the parent or child shall be established by the probate court administrator and paid from the probate court administration fund and amended Subsec. (d) by adding provision that expenses in a probate court matter shall be paid from the probate court administration fund; Sec. 45-61f transferred to Sec. 45a-717 in 1991; P.A. 93-91 substituted commissioner and department of children and families for commissioner and department of children and youth services, effective July 1, 1993; P.A. 93-193 amended Subsec. (g) by adding provision re abandonment of a child under the age of 6 months as evidence that waiver necessary to promote best interest of child and requiring department to file affidavit indicating efforts used to locate parent; P.A. 94-81 amended Subsec. (k) by specifying that 90-day deadline for initial reports begins on date judgment is entered, by specifying that guardian or statutory parent to make subsequent report and requiring the court to convene hearing for review of plan no more than 15 months from date judgment is entered and at least once a year thereafter; P.A. 95-238 added Subsec. (f)(4) re unregenerate parents and Subsec. (g)(2) re children under age 7 and made technical changes; P.A. 95-316 amended Subsec. (k) by deleting reference to applicability in cases where termination of parental rights is “based on consent”; P.A. 96-130 made technical changes to Subsecs. (a), (b), (e), (f), (h) and (k); P.A. 96-170 amended Subsecs. (b) and (d) by changing funding of compensation of counsel and examination from Probate Court Administration Fund to funds appropriated to Judicial Department, unless funds not included in budget of Judicial Department for such purpose, effective July 1, 1998; P.A. 96-246 revised section, amending Subsec. (f) to include granting of petitions based on consent and procedure when denial of petition based on consent, amending Subsec. (g) re grounds for granting termination petition, appointment of guardian or statutory parent and amending Subsec. (i) by adding “and made available” after “provided.” (Revisor's note: In Subsec. (g) the word “which” was inserted editorially by the Revisors in the phrase “... and (2) over an extended period of time, except as provided in subsection (h) of this section, which shall not be less than one year ...”); P.A. 97-90 revised effective date of P.A. 96-170 but without affecting this section; P.A. 98-241 amended Subsec. (g) by adding “including, but not limited to sexual molestation and exploitation, severe physical abuse or a pattern of abuse”, amended Subpara. (D)(ii) re finding of neglect of child in custody for at least 15 months and parent has been provided specific steps to facilitate return of child, added Subparas. (F) and (G) re serious bodily harm or death of sibling or conviction of parent of sexual assault resulting in conception of child, and deleted Subsec. (h) re conditions for waiving time limit in Subsec. (g), effective July 1, 1998; P.A. 00-75 amended Subsec. (g)(2)(D)(i) by adding “or the Probate Court”; P.A. 00-137 amended Subsec. (g)(2) by making technical changes in Subpara. (D) and by adding “as an adult or a delinquent” and proviso that court may terminate parent's parental rights at any time after conviction in Subpara. (G); P.A. 01-159 amended Subsec. (j) by requiring report 30 days after judgment re case plan and at least every 3 months thereafter re progress made on implementation of plan, adding provision that court may convene hearing on filing of report, requiring hearing for purpose of reviewing plan to convene not more than 12 months from judgment or date of last permanency hearing, and adding provision that at the hearing, the court shall determine whether department has made reasonable efforts to achieve permanency plan; P.A. 11-180 amended Subsec. (j) by adding provisions requiring court to approve placement of child or youth outside the state; P.A. 15-159 amended Subsec. (b) by replacing “party” with “respondent parent” and making technical changes, and amended Subsec. (g) by adding “, abused” and reference to Sec. 46b-120 in Subdiv. (2)(D), adding “, abused” in Subdiv. (2)(E), and making technical changes, effective July 2, 2015; P.A. 16-70 amended Subsec. (g)(2) by adding new Subpara. (G) re commission of act constituting sexual assault or compelling spouse or cohabitor to engage in sexual intercourse resulting in conception of the child, redesignating existing Subpara. (G) as Subpara. (H) and replacing provision re conviction with provision re finally adjudged guilty of sexual assault or compelling spouse or cohabitor to engage in sexual intercourse, added new Subsec. (h) re transfer of case to Superior Court after respondent parent finally adjudged not guilty of sexual assault or compelling spouse or cohabitor to engage in sexual intercourse, redesignated existing Subsecs. (h) to (j) as Subsecs. (i) to (k) and made technical and conforming changes, effective July 1, 2016; P.A. 16-105 amended Subsec. (j) by substituting “Adoption and Safe Families Act of 1997” for “Adoption Assistance and Child Welfare Act of 1980”, effective June 3, 2016; P.A. 17-48 made a technical change in Subsec. (g)(2)(B); P.A. 19-47 amended Subsec. (b) by deleting “or the parent or guardian of the child” re payment for child's counsel, amended Subsec. (d) by replacing provisions re payment of expense of examination with new provisions re same and replacing “such expenses” with “the compensation of the physician, psychiatrist or psychologist”, amended Subsec. (e)(2) by deleting “including the child, if over fourteen years of age,”, amended Subsec. (e)(3) by replacing “any interested party” with “a party”, and replacing “, if available and subject himself” with “and be subject”, and made technical changes; P.A. 19-189 amended Subsec. (g)(2) and Subsec. (h) by adding “of the general statutes, revision of 1958, revised to January 1, 2019” re Sec. 53a-70b; P.A. 21-15 amended Subsec. (c) by replacing “paternity” with “parentage” and “filed in accordance with” with “filed by an alleged genetic parent in accordance with”, effective January 1, 2022. Annotations to former section 45-61f: Cited. 175 C. 527. Held not to be unconstitutionally vague and not an impermissible delegation of unfettered discretion. 179 C. 155. Cited. 182 C. 545; 187 C. 431; 188 C. 259; 192 C. 254; 196 C. 18; 198 C. 138; 215 C. 277; 217 C. 459. Cited. 3 CA 184; Id., 194; 6 CA 360; 8 CA 92; 9 CA 490; Id., 598; Id., 813; 11 CA 507; 13 CA 23; 14 CA 805; 21 CA 226; 29 CA 112. Cited. 36 CS 94; 40 CS 316. Annotations to present section: Cited. 234 C. 194. Respondent father's due process rights were not violated in termination of parental rights proceeding where he participated by telephone due to his incarceration and where his request for a trial transcript and a continuance were denied, because respondent did not identify on appeal any evidence or argument that he could have presented if trial court had granted his request for a transcript and a continuance. 300 C. 463. Cited. 24 CA 135; 25 CA 586; judgment reversed, see 223 C. 492; 29 CA 176; Id., 600; 34 CA 176; 35 CA 490; 39 CA 353; 40 CA 675. Cited. 44 CS 169; Id., 551. Subsec. (a): In action for the termination of parental rights, the court did not deny respondent her procedural due process rights when conducting a trial on the merits with only her counsel present as the court still required petitioner to prove by clear and convincing evidence not only the grounds for termination, but that it was in the child's best interest for respondent's parental rights to be terminated. 111 CA 210. Subsec. (b): Requirement that the court advise a party that appears without counsel of such party's right to counsel and right to have counsel appointed “at the hearing” during parental rights termination proceeding is not limited to the actual trial, but rather requires the court to advise such party when the party first appears without counsel after being served with a termination petition. 135 CA 470. Parent's right to effective assistance of counsel in parental rights termination proceeding is statutory and not rooted in federal or state constitutions. 140 CA 626. A court must determine whether a parent's waiver of the statutory right to counsel is intelligent and voluntary, but such a waiver does not trigger a specifically formulated canvass by the court. 150 CA 78. Subsec. (e): Precluding social studies merely because trial court did not first request their production would have elevated form over substance and served only to delay proceedings where petitioner submitted social studies to trial court as proactive measure to comply with Sec. 17a-112(j) and Subdiv. (1). 196 CA 333. Subsec. (f): Subdiv. (3): Cannot be read together with Sec. 46b-129 so as to permit custody determinations made under that statute to lead directly to the termination determination made under this section; judgment of Appellate Court in 25 CA 586 reversed. 223 C. 492. Trial court determination to terminate parental rights upheld. 49 CA 541. Subsec. (g): Subdiv. (2)(C): Inquiry requires two step test, first petitioner must prove lack of ongoing parent-child relationship and only if proven proceed to second step where petitioner must prove that to allow for further time to establish or reestablish relationship would be contrary to the best interests of the child. 330 C. 744. Subdiv. (2): While a respondent's imprisonment alone does not constitute abandonment under Subpara. (A), it does not excuse his failure to attempt either to contact or to visit with his children; court properly terminated parental rights of respondent on basis of no ongoing parent-child relationship under Subpara. (C) because child had no emotional bond with respondent whom he had never seen and about whom he was not aware and it would be detrimental to child's best interests to allow time for such a relationship to develop since child perceives his mother, stepfather and half-sisters as his family and respondent is likely to be incarcerated for several additional years. 120 CA 465. Subdiv. (2)(A) does not contemplate a sporadic showing of the indicia of interest, concern or responsibility for the welfare of a child, and a parent must maintain a reasonable degree of interest in the welfare of his or her child; the term “maintain” implies a continuing, reasonable degree of concern. Id., 712. Because the language in Subdiv. (2)(D) is virtually identical to that in Sec. 17a-112(j)(3)(B), the meaning and analytical framework applicable to that section applies to Subdiv. (2)(D). 134 CA 1. A parent who fails to provide the care, guidance or control necessary for child's well-being as contemplated under Subdiv. (2)(B) is not exempt from the provisions of Subsec. simply because some other person provides such care, guidance or control during parent's absence. 158 CA 154. Subdiv. (2): State's interest in preserving family integrity is the same regardless of whether party seeking termination of an individual's parental rights is the commissioner or the custodial parent; parent petitioning for termination of respondent parent's parental rights cannot establish lack of ongoing parent-child relationship on basis of petitioning parent's own interference with respondent parent's efforts to maintain contact with child. 167 CA 248. Subdiv. (2): A court cannot find both than an ongoing parent-child relationship exists and that a custodial parent prevented one from existing. 178 CA 215. Subdiv. (2): The initial test for determining whether an ongoing parent-child relationship exists is whether the child has any present positive feelings for the parent; a trial court may consider the question of interference only if the child does not have such feelings. Id. Subdiv. (2)(B): Circumstances of the termination of respondent's parental rights to other children in other actions are separate and distinct from those as to the child in current action and collateral estoppel cannot apply to preclude respondent from litigating whether his abuse of other children resulted in the denial of care, guidance, or control necessary for the physical, educational, moral, or emotional well-being of child in current action. 180 CA 132. Subsec. (h): A court need not perform a balancing test under Mathews v. Eldridge , 424 U.S. 319, to determine the adverse effects of the failure to terminate defendant's parental rights on her child against defendant's constitutionally protected right to raise her child because section passes constitutional muster. 168 CA 538. Father did not abandon children and mother resisted any meaningful, cooperative visitation relationship between father and children; mother cannot be permitted to prevent visitation and then allege father's parental rights should be terminated for failure to maintain a relationship. 53 CS 329.