In re Yasiel R. ( 2015 )

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IN RE YASIEL R. ET AL.*
(SC 19372)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Vertefeuille, Js.
Argued February 11—officially released August 18, 2015
James P. Sexton, assigned counsel, with whom was
Michael S. Taylor, for the appellant (respondent).
Stephen G. Vitelli, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Karen Oliver Damboise, for the minor children.
Christine Perra Rapillo, director of delinquency
defense and child protection, filed a brief for the Office
of the Chief Public Defender as amicus curiae.
Opinion
EVELEIGH, J. This certified appeal raises important
issues concerning the review of unpreserved claims
under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d
823 (1989), and our supervisory authority over the
administration of justice in connection with the need
to canvass a parent in a termination of parental rights
proceeding. The present case arises from the trial
court’s judgments terminating the parental rights of the
respondent mother, Ashley P., to her two minor chil-
dren.1 On appeal, the Appellate Court concluded that, in
order to prevail on an unpreserved claim under Golding,
which requires that a party establish that an alleged
constitutional violation ‘‘clearly exists,’’ a party must
point to binding Connecticut precedent. In re Yasiel
R., 151 Conn. App. 710, 721, 94 A.3d 1278 (2014). The
respondent appeals, upon our grant of certification,2
claiming that: (1) the Appellate Court improperly con-
strued the third prong of Golding; (2) because her right
to due process was violated, she can prevail under Gold-
ing; and (3) even if her right to due process was not
violated, this court should nonetheless reverse the
Appellate Court’s judgment under our supervisory
authority because the trial court failed to canvass her
regarding her decision to waive her right to a trial and
to not contest the allegations of the petitioner, the Com-
missioner of Children and Families.3 We conclude, con-
trary to the Appellate Court, that the absence of existing
Connecticut precedent does not preclude consideration
of a claim under Golding, but we are not convinced
that the trial court’s failure to canvass the respondent
constituted a denial of her right to due process under
the fourteenth amendment to the United States consti-
tution. We are, however, convinced that we are war-
ranted in using our supervisory authority over the
administration of justice to require that a trial court
canvass a parent who does not consent to the termina-
tion prior to the start of a termination of parental rights
trial, in order to ensure the overall fairness of the termi-
nation of parental rights process. See part III of this
opinion. Accordingly, we reverse the judgment of the
Appellate Court.
The Appellate Court opinion sets forth the following
relevant facts and procedural history. ‘‘The respon-
dent’s ‘fourth child, Yasiel, was born to [the respondent]
when she was twenty-two years old. The father . . .
was fifteen years old when he impregnated [the respon-
dent]. [The respondent] was subsequently arrested for
statutory rape. [The father] moved in with [the respon-
dent] while she was pregnant. After the child was born,
[the respondent] reported that [the father] became
increasingly violent. She said she did not want to remain
in the relationship and wished to leave, but she became
pregnant with Sky, her fifth child, in July, 2009, only
four months after Yasiel was born.’ The two children
were removed from the respondent’s care on September
21, 2011. The respondent was thereafter provided with
supervised visitation and transportation.
‘‘Due to the respondent’s various arrests and her men-
tal health and substance abuse issues, the petitioner
filed petitions to terminate [the respondent’s] parental
rights in November, 2012. According to the petitioner,
the court, on December 11, 2012, advised the respon-
dent of her trial rights, entered denials to the petitions
on her behalf, and appointed her an attorney.4 A con-
tested hearing then was scheduled for November 12,
2013. At that hearing, the respondent’s counsel stated
that ‘although [the respondent is] not in agreement with
the [termination of parental rights], she cannot bring
herself to consent today. That being said, she’s in
agreement with the court taking the case on the papers.
She’s in agreement to the exhibits that . . . have been
entered.’ Her counsel then stated that the respondent
‘wants the court to be aware that things have signifi-
cantly changed for her over the last two years’ and
continued to explain those changes.5 At no time did the
court canvass the respondent personally to question
her decisions not to contest the petitioner’s exhibits
and to waive her right to a full trial. It stated only that
‘I think I understand your position, and I will certainly
consider that [you’ve made great progress] when I’m
reviewing all the material . . . .’
‘‘[The trial] court terminated the parental rights of
the respondent [as to both Yasiel and Sky on November
13, 2013]. In so doing, the court held that the petitioner
had proved, by clear and convincing evidence, that (1)
the children were neglected or uncared for in a prior
proceeding, (2) the respondent was provided specific
steps to take to facilitate the return of the children, and
(3) 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 the children, such parent could assume a
responsible position in the lives of the children. The
court also held that, in considering all the statutory
criteria set forth in General Statutes § 17a-112 (k), termi-
nation was in the best interests of the children.’’ (Foot-
notes altered.) In re Yasiel R., supra, 151 Conn. App.
712–14. On appeal to the Appellate Court, the respon-
dent argued that the trial court violated her right to due
process when it failed to canvass her about her decision
to waive her right to a full trial and to not contest the
exhibits presented to the court by the petitioner. Id.,
712. The Appellate Court affirmed the judgments of the
trial court, concluding that the respondent failed to
demonstrate that the failure to canvass her was plain
error and that her constitutional claim failed under the
third prong of Golding. Id., 721–22. Specifically, with
regard to review under Golding, the Appellate Court
concluded that the respondent’s claim failed because
she failed to ‘‘cite to any precedent from Connecticut
for the proposition that a parent has a constitutional
right to be personally canvassed at the trial stage of a
termination proceeding.’’ Id., 721. The respondent then
filed a petition for certification to appeal which we
granted. See footnote 2 of this opinion.
After oral argument in this court, we ordered the
parties to submit supplemental briefs to answer the
following questions: ‘‘If this court were to conclude that
the respondent . . . cannot prevail on her claim that
the due process clause of the fourteenth amendment
. . . required the trial court to canvass her personally
regarding her decision not to challenge the evidence
introduced by the petitioner . . . and not to adduce
any evidence of her own, should this court nevertheless
consider whether to require the canvass under our
inherent supervisory authority over the administration
of justice? If so, should this court exercise its supervi-
sory authority to require such a canvass?’’ The parties
submitted supplemental briefs answering these
questions.
I
We first consider whether the Appellate Court prop-
erly construed the third prong of Golding so as to
require that there be directly applicable binding Con-
necticut precedent for a constitutional violation clearly
to exist such that relief can be afforded to the
respondent.
It is not disputed that the respondent did not preserve
her constitutional claim before the trial court. There-
fore, she seeks our review pursuant to Golding. In State
v. Golding, supra, 213 Conn. 239–40, we held that an
appellant ‘‘can prevail on a claim of constitutional error
not preserved at trial only if all of the following condi-
tions are met: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists
and clearly deprived the [respondent] of a fair trial; and
(4) if subject to harmless error analysis, the state has
failed to demonstrate harmlessness of the alleged con-
stitutional violation beyond a reasonable doubt. In the
absence of any one of these conditions, the [respon-
dent’s] claim will fail.’’ (Emphasis omitted; footnote
omitted.) The Appellate Court held that ‘‘[i]n [the pres-
ent] case, the first two prongs of Golding are satisfied.6
First, the record is adequate to review the respondent’s
claim. Second, ‘a claim concerning the termination of
a respondent’s parental rights is of constitutional magni-
tude in that [t]he right to the integrity of the family is
among the most fundamental rights guaranteed by the
fourteenth amendment.’ ’’ (Footnote altered.) In re
Yasiel R., supra, 151 Conn. App. 721. The court con-
cluded, however, that the respondent’s claim faltered
on the third prong of Golding because she failed to show
that a constitutional violation clearly existed where,
although the respondent pointed to cases from other
jurisdictions in support of her due process claim, she
failed to ‘‘cite to any precedent from Connecticut for
the proposition that a parent has a constitutional right
to be personally canvassed at the trial stage of a termina-
tion proceeding.’’ Id.On appeal to this court, the respondent claims that
the text of the third prong of Golding does not support
the Appellate Court’s conclusion that the respondent
was required to rely on ‘‘binding precedent to support
[her] proposition.’’ Id. Further, the respondent contends
that the Appellate Court’s conclusion represents a stark
departure from this court’s jurisprudence over the last
twenty-five years. The petitioner, however, contends
that the respondent’s counsel mischaracterizes the
Appellate Court’s decision. The petitioner asserts that
the Appellate Court did not find that the respondent
had failed to satisfy the third prong of Golding merely
because it believed binding precedent was required to
do so, but rather it did so after finding no supporting
precedent and properly performing the due process
analysis required by Mathews v. Eldridge, 424 U.S. 319,
96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). We agree with the
respondent. Although not dispositive of our analysis,
we wish to clarify that the third prong of Golding does
not require that there be existing Connecticut precedent
already recognizing a constitutional right. Instead, a
party satisfies the third prong of Golding if he or she
makes a showing sufficient to establish a constitutional
violation. Requiring anything more would defeat the
purpose of Golding, which, of course, is to permit a
party to prevail on an unpreserved constitutional claim
when, on appeal, the party can demonstrate a harmful
constitutional deprivation. Construing Golding in this
manner, we conclude that our use of the word ‘‘clearly’’
in describing the requirements under that prong of the
test is unnecessary and misleading. See State v. Gold-
ing, supra, 213 Conn. 239–40. Accordingly, we conclude
that the third prong of Golding should read: ‘‘the alleged
constitutional violation . . . exists and . . . deprived
the [respondent] of a fair trial.’’ Id., 240.
Indeed, our holding regarding the third prong of Gold-
ing is consistent with our prior case law, in which we
have previously employed Golding to decide constitu-
tional questions of first impression. See, e.g., State v.
Montanez, 277 Conn. 735, 751, 894 A.2d 928 (2006) (uti-
lizing Golding to decide for first time that ‘‘principal’s
use of self-defense properly may be considered in the
prosecution of his accessory’’); State v. Joyner, 225
Conn. 450, 457, 625 A.2d 791 (1993) (reviewing unpre-
served claim under Golding ‘‘because it raises an
important and unresolved question of state constitu-
tional law’’ [emphasis added]). Therefore, to the extent
that the Appellate Court required that the respondent
reference prior Connecticut precedent to be successful
under the third prong of Golding, we disagree.
II
Having determined that the Appellate Court improp-
erly construed the third prong of Golding, we must
next consider whether the due process clause of the
fourteenth amendment to the United States constitution
requires that a trial court canvass a parent about his
or her decision not to contest the exhibits presented
against him or her in a parental termination proceeding
and to waive his or her right to present a case at trial.
The right of a parent to raise his or her children has
been recognized as a basic constitutional right. Stanley
v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed.
2d 551 (1972). Accordingly, a parent has a right to due
process under the fourteenth amendment to the United
States constitution7 when a state seeks to terminate the
relationship between parent and child. See Lassiter v.
Dept. of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153,
68 L. Ed. 2d 640 (1981).
In determining what procedural safeguards are
required by the federal due process clause when the
state seeks to terminate the parent-child relationship,
the United States Supreme Court has utilized the balanc-
ing test set forth in Mathews v. Eldridge, supra, 424
U.S. 335. To determine whether due process requires
a canvass in this context, Mathews directs us to con-
sider and weigh three factors: ‘‘[f]irst, the private inter-
est that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards;
and finally, the [g]overnment’s interest, including the
function involved and the fiscal and administrative bur-
dens that the additional or substitute requirement
would entail.’’ Id.We first consider the importance of the private inter-
est that is jeopardized by the termination proceeding.
The petitioner does not dispute that the respondent’s
interest in retaining her parental rights as to her children
is constitutionally protected. Indeed, this court has rec-
ognized that ‘‘[t]he rights to conceive and to raise one’s
children have been deemed essential, basic civil rights
of man, and [r]ights far more precious . . . than prop-
erty rights.’’ (Internal quotation marks omitted.) In re
Juvenile Appeal (83-CD), 189 Conn. 276, 284, 455 A.2d
1313 (1983). ‘‘Unquestionably, these important rights
are severely threatened by the state’s initiation of termi-
nation proceedings. Such proceedings may result not
only in the modification or limitation of parental rights,
but may irrevocably sever the relationship between par-
ent and child. . . . This deprivation is unique and com-
plete. . . . Consequently, under the first prong of the
[Mathews] test, the private interest of a parent in a
termination proceeding is considerable.’’ (Citations
omitted.) In re Alexander V., 223 Conn. 557, 561, 613
A.2d 780 (1992). We agree with the respondent that the
fundamental liberty interest of a parent that is placed
in jeopardy by a trial to terminate that parent’s parental
rights, standing alone, has been sufficient to warrant
heightened procedural safeguards.
The respondent contends that the second Mathews
factor militates in her favor. She argues that the twin
perils of conducting a termination trial in summary
fashion and the risk of inadvertently foreclosing a par-
ent from receiving a full trial on the merits must both
be considered. There is a need, she suggests, to subject
social workers, who author the social studies that
courts rely on, to cross-examination. There is also a
need to cross-examine expert witnesses. The respon-
dent also points to the fact that in a summary proceed-
ing, without the court first canvassing the parent, there
is the potential that crucial rights will be inadvertently
waived. These rights can only be waived, she claims,
if they are made knowingly, intelligently and voluntarily.
The petitioner, however, claims that the second factor
of Mathews weighs heavily in favor of herself. The peti-
tioner asserts that the respondent’s intention to forgo
testimonial evidence and the trial court’s failure to can-
vass her regarding that decision did not erroneously
deprive her of any right. In support of her position,
the petitioner contends that, despite the fact that the
respondent’s brief is an apparent wholesale attack on
her trial attorney’s strategy, the respondent is not claim-
ing that she received ineffective assistance of counsel.
In addition, the petitioner asserts that it would be
impracticable to canvass the respondent on every issue
because the trial court would be required to ask whether
the respondent agrees with every objection or every
exhibit that is admitted without any objection. Finally,
the petitioner claims that the respondent’s due process
rights were protected because she was present and
represented by an attorney and she was fully able to
participate in the proceedings if she had so desired.
The second factor set forth in Mathews requires that
we examine the extent to which current procedures
create a risk of an erroneous deprivation of parental
rights and also that we weigh the likelihood that a
canvass would reduce that risk. We begin by noting
that there currently is no statute or court rule requiring
a trial court in a termination proceeding to conduct a
canvass prior to the initiation of the trial. However,
‘‘[t]he essence of due process is the requirement that
a person in jeopardy of a serious loss [be given] notice
of the case against him and [an] opportunity to meet
it.’’ (Internal quotation marks omitted.) State v. Lopez,
235 Conn. 487, 493, 668 A.2d 360 (1995). As one of
our sister states has stated: ‘‘Procedural due process
includes notice to the person whose right is affected
by the proceeding; reasonable opportunity to refute or
defend against the charge or accusation; reasonable
opportunity to confront and cross-examine adverse
witnesses and present evidence on the charge or accu-
sation; representation by counsel, when such represen-
tation is required by the [c]onstitution or statutes; and
a hearing before an impartial decisionmaker.’’ (Internal
quotation marks omitted.) In re Interest of Mainor T.,
267 Neb. 232, 247–48, 674 N.W.2d 442 (2004).
We agree with the petitioner that the added proce-
dural safeguard requiring that a trial court canvass a
parent prior to a termination of parental rights trial
does not substantially decrease any risk of erroneous
deprivation of her right to family integrity. When the
respondent is represented by counsel, the current pro-
cedures in place adequately protect the respondent
from any claimed constitutional deficiencies. We note
that the respondent was previously advised of her rights
approximately one year before the start of trial and
she was represented by an attorney throughout the
proceedings. It has frequently been recognized, albeit
in other contexts, that ‘‘we strongly presume that coun-
sel’s professional assistance was reasonable, and the
[respondent] has the burden to overcome the presump-
tion that [her] attorney was employing sound trial strat-
egy. . . . We evaluate the conduct from trial counsel’s
perspective at the time. . . . [C]ounsel is strongly pre-
sumed to have rendered adequate assistance and made
all significant decisions in the exercise of reasonable
professional judgment.’’ (Internal quotation marks
omitted.) Bova v. Commissioner of Correction, 95
Conn. App. 129, 137–38, 894 A.2d 1067, cert. denied,
278 Conn. 920, 901 A.2d 43 (2006); see also footnote 5
of this opinion. On appeal, the respondent’s claims
relate to failures of her attorney during the trial on
the termination of parental rights. A canvass of the
respondent would, however, do nothing to enhance the
performance of her attorney during the trial. The
respondent certainly had adequate notice of the pro-
ceedings and was present with her counsel at the time
of the trial. She had the opportunity to participate in a
contested hearing, present evidence on her own behalf,
testify on her own behalf, and object to any exhibits
and cross-examine witnesses, but she declined to do
so. In the present case, the respondent does not claim
that she attempted to participate and was prevented
from doing so by her attorney or that she asked her
attorney to participate and he refused. Therefore, we
conclude that the second Mathews factor weighs heav-
ily in favor of the petitioner.8
The third factor in the Mathews balancing test con-
cerns the government’s interest in the proceeding and
the fiscal and administrative burdens attendant to
increasing procedural requirements. The respondent
contends that the state has two interests that are impli-
cated by requiring trial courts to canvass parents in
termination of parental rights trials. The first is its ‘‘fis-
cal and administrative interest in lessening the cost
involved in termination proceedings’’; the second is its
parens patriae interest ‘‘in the accurate and speedy reso-
lution of termination litigation in order to promote the
welfare of the affected child.’’ In re Alexander V., supra,
223 Conn. 565. The respondent claims that the fiscal
and administrative costs of a short canvass would be
minimal. Further, she argues, a canvass would ensure
the accuracy of the termination proceeding.
The petitioner asserts that the state’s primary interest
in terminating parental rights is to free the child for
adoption or to free the child of uncertainty. The peti-
tioner also asserts that it has an interest in expediting
cases involving abused and neglected children, and the
speedy resolution of trials involving the termination of
parental rights in order to protect the welfare of the
affected children. The petitioner further claims that the
respondent’s proposed canvass would necessitate the
trial court to extensively educate the parent on multiple
substantive and procedural legal principles in order to
ensure this ‘‘ ‘waiver’ ’’ of objections to exhibits was
knowingly and voluntarily made. As such, the petitioner
contends that the cost and delay are significant with
little if any potential benefit to the respondent.
While we agree with the respondent that the cost
of a short canvass would be minimal, if any, we also
acknowledge that a lengthy canvass could potentially
affect the accurate and speedy resolution of the termi-
nation proceeding. Therefore, in view of the fact that
the respondent was represented throughout the course
of this proceeding, we view the third Mathews factor
as neutral to both sides and fully dependent on the
length of a proposed canvass, which we do not perceive
as being constitutionally required.
Having considered the three factors set forth in
Mathews, we conclude that due process does not
require that a trial court canvass a respondent who is
represented by counsel when the respondent does not
testify or present witnesses and the respondent’s attor-
ney does not object to exhibits or cross-examine wit-
nesses. Although it is evident that the parent has an
important interest to be protected, the strength of the
second Mathews factor outweighs our conclusions
regarding the first and third factors. We therefore con-
clude that the respondent has failed to sustain her bur-
den of proof as to the third prong of Golding and we
reject her claim on that basis.
III
Having concluded that the respondent’s right to due
process was not violated, we next consider whether
we should nonetheless exercise our supervisory author-
ity to require a canvass prior to a termination of parental
rights trial.
The respondent urges us to use our supervisory
power to require a canvass in a situation, such as the
present case, where there is no testimony offered by
the respondent, no objection to exhibits and no cross-
examination of witnesses. The respondent claims that
using our supervisory power to require a canvass in
such situations is consistent with the ruling in Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 155–61, 84 A.3d 840 (2014),
where this court recently articulated the circumstances
under which it is appropriate for the court to exercise
its supervisory authority. The respondent further claims
that because the present case involves safeguards for
securing a fundamental right, we should use our super-
visory authority to guide the trial courts in the adminis-
tration of justice.
In response, the petitioner asserts that using our
supervisory authority to require a canvass would inject
a trial court into the relationship between counsel and
the parent by requiring courts to canvass a respondent,
directly, about her counsel’s trial strategy. The peti-
tioner further contends that the very reasons that con-
stitutional due process does not require a canvass in
this situation also counsels against the adoption of a
rule that would entail the same sort of intrusion. The
petitioner also suggests that it would be very difficult
to craft a rule applicable to all situations. Here, in partic-
ular, the petitioner argues that the record is not clear
that the respondent’s counsel totally abandoned the
case. She points to the fact that counsel argued to the
court, based upon one of the exhibits, that the respon-
dent ‘‘has had clean drug screens over the course of
the last two years.’’ The petitioner further expresses a
concern that a canvass could be required every time
counsel agreed to the admission of a piece of evidence,
perhaps contrary to trial counsel’s strategic choice to
do so. Also, the petitioner contends that such a rule is
not prudent at this time since the Rules Committee of
the Superior Court and other attorneys experienced in
the area have not had the opportunity to voice their
opinion on the matter. We disagree with these conten-
tions and, rather, agree with the respondent that, in
the interest of the fair administration of justice, it is
appropriate that we exercise our supervisory authority
to require that a trial court canvass the respondent
parent before the start of any trial on the termination
of parental rights.
It is well settled that ‘‘[a]ppellate courts possess an
inherent supervisory authority over the administration
of justice. . . . The exercise of our supervisory powers
is an extraordinary remedy to be invoked only when
circumstances are such that the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) State v. Lockhart, 298 Conn. 537, 576, 4 A.3d
1176 (2010); see also State v. Rose, 305 Conn. 594, 607,
46 A.3d 146 (2012).
We recognize that this court’s ‘‘supervisory authority
is not a form of free-floating justice, untethered to legal
principle.’’ (Internal quotation marks omitted.) State v.
Pouncey, 241 Conn. 802, 813, 699 A.2d 901 (1997).
Rather, the rule invoking our use of supervisory power
is ‘‘one that, as a matter of policy, is relevant to the
perceived fairness of the judicial system as a whole,
most typically in that it lends itself to the adoption of
a procedural rule that will guide lower courts in the
administration of justice in all aspects of the [adjudica-
tory] process.’’ (Internal quotation marks omitted.)
State v. Elson, 311 Conn. 726, 768, 91 A.3d 862 (2014).
Indeed, ‘‘the integrity of the judicial system serves as
a unifying principle behind the seemingly disparate use
of [this court’s] supervisory powers.’’ (Internal quota-
tion marks omitted.) State v. Edwards, 314 Conn. 465,
498, 102 A.3d 52 (2014).
We recently reemphasized the fact that three criteria
must be met before we will consider invoking our super-
visory authority. Blumberg Associates Worldwide, Inc.
v. Brown & Brown of Connecticut, Inc., supra, 311
Conn. 155–61. First, the record must be adequate for
review. Id., 155. Second, all parties must be afforded
an opportunity to be heard on the issue. Id., 156. Third,
an unpreserved issue will not be considered where its
review would prejudice a party. Id. If these three thresh-
old considerations are satisfied, the reviewing court
next considers whether one of the following three cir-
cumstances exists: (1) the parties do not object; (2) the
party that would benefit from the application of this
court’s supervisory powers cannot prevail; or (3) a
claim of exceptional circumstances is presented that
justifies deviation from the general rule that unpre-
served claims will not be reviewed. Id., 158–61.
It is clear that the three threshold requirements have
been satisfied in the present case. Just as the record
was adequate to consider the respondent’s due process
claim, it is also adequate to consider whether this court
should adopt a rule requiring a canvass in trials for
termination of parental rights pursuant to its supervi-
sory power. Specifically, the issues regarding whether
the respondent chose to waive her right to offer her
own testimony or that of other witnesses on her behalf,
challenge any evidence, or cross-examine witnesses is
evident from the transcript of the trial. Further, the
second predicate requirement is satisfied because the
parties have been afforded the opportunity to brief the
issue. Finally, the petitioner will not be prejudiced if
this court were to rely on its supervisory power to
adopt the suggested canvass rule. If such canvasses
are required, there would have been nothing that the
petitioner could have done to prevent such a canvass,
even if she had known about the rule at the time that
trial counsel agreed on the summary proceeding. This
proposed canvass rule does not present a situation
where the parties are prejudiced because, had they been
aware of a new rule, they would have presented addi-
tional evidence or prepared their case in a different
manner. Thus, the three predicate requirements are met
for the invocation of the rule.
We next consider whether there are exceptional cir-
cumstances that would justify review of this unpre-
served claim. In this regard, we note that delineating
the circumstances in which a trial court is obligated
to canvass a parent personally regarding her right to
contest the petitioner’s allegations against her at trial, as
well as determining what the scope that such a canvass
must be, are the type of ‘‘exceptional circumstances’’ in
which this court has previously invoked its supervisory
authority. For instance, in State v. Connor, 292 Conn.
483, 518–19, 973 A.2d 627 (2009), this court employed its
supervisory authority to require a trial court to canvass
defendants who have been found competent to stand
trial to assess whether they also were competent to
conduct the trial proceedings without counsel. Further,
in State v. Gore, 288 Conn. 770, 778, 955 A.2d 1 (2008),
we invoked our supervisory power to require, in the
absence of a written waiver, a canvass of the defendant
briefly to ensure that his or her personal waiver of a
jury trial is made knowingly, intelligently, and volunta-
rily. Also, in Duperry v. Solnit, 261 Conn. 309, 329, 803
A.2d 287 (2002), we exercised our supervisory authority
to require that in all future cases in which a defendant
pleads not guilty by reason of mental disease or defect,
the trial court must canvass the defendant to ensure
that his plea is made voluntarily and with a full under-
standing of the consequences. We exercised our super-
visory authority in the aforementioned cases to ensure
‘‘ ‘the fair and just administration of [justice]’ ’’; State
v. Connor, supra, 518–19 n.23; ‘‘ ‘to guide the [trial]
courts’ ’’; State v. Gore, supra, 787; and ‘‘in light of con-
cerns of fundamental fairness . . . .’’ Duperry v. Sol-
nit, supra, 326–27. In all three of these cases, the
canvass rules were deemed not to be constitutionally
compelled. Like the rights in Connor, Gore, and Dup-
erry, the respondent in the present case was faced with
the loss of core fundamental rights—her fundamental
parental rights and right to family integrity—that were
placed in jeopardy through the use of an adjudicatory
procedure that failed to ensure that she understood the
significant risks of proceeding as she did. Also, like
Gore, which involved the waiver of the jury trial, and
like Duperry, which involved the entry of a plea, the
result in the present case was that the trial was not an
adversary proceeding. Although the petitioner points
to the fact that counsel for the respondent commented
on certain language in an exhibit, those comments of
counsel did not serve as evidence or convert this sum-
mary proceeding into an adversarial one.
It is significant that Connecticut requires its trial
courts to canvass, inter alia, parents pleading nolo con-
tendere in a neglect or termination proceeding; Practice
Book § 35a-1; criminal defendants waiving their right
to a jury trial; see State v. Gore, supra, 288 Conn. 786–87;
criminal defendants who have been found competent
to stand trial but wish to represent themselves at that
trial; see State v. Connor, supra, 292 Conn. 518–19; and
criminal defendants regarding their plea of not guilty
by reason of mental defect where the state does not
challenge that claim; see Duperry v. Solnit, supra, 261
Conn. 329; all circumstances that lead to the loss of
significant personal rights. We conclude, therefore, that
this case involves exceptional circumstances requiring
that we employ our supervisory power.
‘‘In utilizing our supervisory powers, we [have]
emphasized that [a]n important function of this court
is to ensure public confidence in the integrity of the
judicial system. This confidence is enhanced through
the enactment of rules that safeguard the fairness of our
system of justice.’’ (Internal quotation marks omitted.)
State v. Elson, supra, 311 Conn. 773. Furthermore, ‘‘[w]e
are aware of no principle that would bar us from exer-
cising our supervisory authority to craft a remedy that
might extend beyond the constitutional minimum
. . . .’’ State v. Rose, supra, 305 Conn. 607. ‘‘[T]his court
ordinarily [invokes its] supervisory powers to enunciate
a rule that is not constitutionally required but that [it
thinks] is preferable as a matter of policy.’’ (Emphasis
omitted; internal quotation marks omitted.) Id., 608.
In the present case we have concluded that the
respondent, who was represented by counsel, was not
constitutionally entitled to a canvass regarding her trial
counsel’s strategy and the decision not to contest evi-
dence presented by the petitioner. Nevertheless, we
recognize that the lack of a canvass of all parents in a
parental rights termination trial may give the appear-
ance of unfairness insofar as it may indicate a lack of
concern over a parent’s rights and understanding of the
consequences of the proceeding. Therefore, we con-
clude that public confidence in the integrity of the judi-
cial system would be enhanced by a rule requiring a
brief canvass of all parents immediately before a paren-
tal rights termination trial so as to ensure that the par-
ents understand the trial process, their rights during
the trial and the potential consequences.
We also note that the canvass that we require differs
from that the respondent claims is constitutionally man-
dated. The canvass we require today will be given to
all parents involved in a termination trial, not just those
whose attorneys choose not to contest evidence.
Indeed, we require that the canvass be performed at
the very start of the termination trial, before a decision
as to whether to challenge evidence has been communi-
cated to the court. In so doing, the canvass we require
does not single out those parents whose attorneys have
made a tactical decision not to contest the evidence
presented. As a result, the canvass we require does not
interfere with the attorney-client relationship but serves
to inform and protect all parents.
Indeed, the provision of our rules of practice which
requires a trial court to canvass a parent pleading nolo
contendere in a neglect or termination proceeding is
instructive here. See Practice Book § 35a-1 (b). The
existence of such a requirement demonstrates that the
judges of the Superior Court thought it was important
that ‘‘[t]he judicial authority shall determine whether a
noncustodial parent or guardian standing silent under-
stands the consequences of standing silent.’’ Practice
Book § 35a-1 (b). Similarly, by exercising our supervi-
sory authority in the present case, we are promoting
public confidence in the process by ensuring that all
parents involved in parental termination proceedings
fully understand their right to participate and the conse-
quences of the proceeding. We conclude, therefore, that
it is proper to exercise our supervisory power in the
present case and require that, in all termination pro-
ceedings, the trial court must canvass the respondent
prior to the start of the trial. The canvass need not
be lengthy as long as the court is convinced that the
respondent fully understands his or her rights. In the
canvass, the respondent should be advised of: (1) the
nature of the termination of parental rights proceeding
and the legal effect thereof if a judgment is entered
terminating parental rights; (2) the respondent’s right
to defend against the accusations; (3) the respondent’s
right to confront and cross-examine witnesses; (4) the
respondent’s right to object to the admission of exhibits;
(5) the respondent’s right to present evidence opposing
the allegations; (6) the respondent’s right to representa-
tion by counsel; (7) the respondent’s right to testify on
his or her own behalf; and (8) if the respondent does
not intend to testify, he or she should also be advised
that if requested by the petitioner, or the court is so
inclined, the court may take an adverse inference from
his or her failure to testify, and explain the significance
of that inference. Finally, the respondent should be
advised that if he or she does not present any witnesses
on his or her behalf, object to exhibits, or cross-examine
witnesses, the court will decide the matter based upon
the evidence presented during trial. The court should
then inquire whether the respondent understands his
or her rights and whether there are any questions. This
canvass will ensure that the respondent is fully aware
of his or her rights at the commencement of the trial. It
will neither materially delay the termination proceeding
nor unduly burden the state.
We reject the petitioner’s argument that this canvass
will involve the court in counsel’s trial strategy because
the canvass merely constitutes an advisement to the
respondent of his or her rights regarding the trial. In
fact, as explained previously in this opinion, trial courts
frequently canvass parties in other circumstances, such
as when a parent pleads nolo contendere in a neglect
or termination proceeding, a criminal defendant waives
his or her right to a jury trial, a criminal defendant
wishes to represent himself or herself, or when a crimi-
nal defendant pleads not guilty by reason of mental
defect. Therefore, the claim that a canvass unduly inter-
feres with trial strategy is unavailing. We recognize that
there may be rare instances wherein counsel may not
actively participate in the trial because the petitioner
has no or insufficient evidence to support the grounds
claimed. Further, there may be substantial reasons why
counsel does not wish to call his or her client to testify.
We do not agree, however, that the advisement which
we impose today will interfere with trial strategy, nor
do we contemplate a situation where a respondent will
be able to interrupt the trial if his or her counsel does
not object to a certain exhibit or piece of testimony.
Further, although we appreciate the petitioner’s con-
cern that the Rules Committee of the Superior Court and
other parties experienced in termination proceedings
were not consulted before implementing this rule, we
are mindful that proceedings before the Rules Commit-
tee of the Superior Court take time. Because the paren-
tal rights involved in such a canvass are so important
in ensuring the fairness of the process, we do not believe
it would be prudent to require that the public wait for
the adoption of a new rule of practice. We conclude,
therefore, that imposing the canvass rule announced
today is an appropriate exercise of our supervisory
authority.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
reverse the judgments of the trial court and to remand
the case to the trial court for further proceedings consis-
tent with this opinion.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD and VERTEFEUILLE, Js., concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
1
We note that the trial court also terminated the parental rights of the
respondent father. He did not, however, appeal from those judgments. See
In re Yasiel R., 151 Conn. App. 710, 712 n.1, 94 A.3d 1278 (2014). For
the sake of simplicity, we hereinafter refer to the respondent mother as
the respondent.
2
We granted certification as to the following two issues: (1) ‘‘Did the
Appellate Court properly construe the third prong of State v. Golding, [supra,
213 Conn. 239–40], to require that there be binding precedent that is directly
on point for a constitutional violation clearly to exist such that relief can
be afforded to the [respondent]?’’; and (2) ‘‘Does the due process clause of
the fourteenth amendment to the United States constitution require that a
trial court canvass a parent personally about his or her decision not to
contest the exhibits presented to the court against him or her in a parental
termination proceeding?’’ In re Yasiel R., 314 Conn. 907, 99 A.3d 1169 (2014).
3
As we explain later in this opinion, although the issue regarding the
exercise of our supervisory authority was not certified for appeal, after oral
argument, the court requested that the parties submit supplemental briefing
on this question.
4
‘‘The petitioner does not cite to the record or append any relevant tran-
script to her appellate brief to support the aforementioned statement. The
respondent does not, however, dispute that this [advisement] occurred.’’ In
re Yasiel R., supra, 151 Conn. App. 713 n.3.
5
‘‘According to the [trial] court’s November 13, 2012 memorandum of
decision, the respondent had a history of mental health issues, addiction
problems, educational deficits, and a dysfunctional family origin. Her counsel
thus wanted to emphasize that the respondent had stabilized her life by
securing employment and housing.’’ In re Yasiel R., supra, 151 Conn. App.
713 n.4.
6
‘‘The first two [prongs of Golding] involve a determination of whether
the claim is reviewable; the second two . . . involve a determination of
whether the defendant may prevail. . . . State v. Lavigne, 307 Conn. 592,
599, 57 A.3d 332 (2012).’’ (Internal quotation marks omitted.) In re Yasiel
R., supra, 151 Conn. App. 721 n.7.
7
Section 1 of the fourteenth amendment to the United States constitution
provides in relevant part: ‘‘No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty or property, without
the process of law; nor deny to any person within its jurisdiction the equal
protection of the laws.’’
8
The cases from other jurisdictions cited by the respondent in support
of her position are easily distinguishable from the case at bar. See Thompson
v. Clark County Division of Family & Children, 791 N.E.2d 792 (Ind.
App.) (reversing judgment terminating parental rights where trial court had
performed truncated hearing in which summaries of testimony were offered
in lieu of testimony), transfer denied, 804 N.E.2d 755 (Ind. 2003); State ex
rel. Children, Youth & Families Dept. v. Stella P., 127 N.M. 699, 986 P.2d
495 (1999) (reversing judgment terminating parental rights where respondent
mother did not attend her termination of parental rights trial and her attorney
and guardian ad litem both neglected to inform court that respondent mother
objected to termination of her parental rights); In re Etter, 134 Ohio App.
3d 484, 731 N.E.2d 694 (1998) (reversing judgment terminating parental
rights where mother’s attorney and guardian ad litem admitted to permanent
custody petition and trial court did not personally canvass mother concern-
ing this admission in violation of Ohio law); State ex rel. Dept. of Human
Services v. Sumpter, 201 Or. App. 79, 83, 116 P.3d 942 (2005) (reversing
judgment terminating mother’s parental rights where trial court entered
stipulated judgment ‘‘ ‘voluntarily’ ’’ terminating mother’s parental rights,
but did not canvass mother or her guardian ad litem at subsequent hearing);
In re Termination of Parental Rights to Idella W., 288 Wis. 2d 504, 708
N.W.2d 698 (2005) (vacating order terminating parental rights where father
was federal prisoner in witness protection program and was not brought
by federal authorities to court for his termination trial and only participated
by telephone).