In re Daniel N. , 323 Conn. 640 ( 2016 )

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IN RE DANIEL N.*
(SC 19731)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald, Espinosa and
Robinson, Js.*
Argued September 23—officially released December 6, 2016
Gregory T. D’Auria, solicitor general, with whom
were Renee Bollier, assistant attorney general, and, on
the brief, George Jepsen, attorney general, and Benja-
min Zivyon and Michael J. Besso, assistant attorneys
general, for the appellant (petitioner).
Michael D. Day, for the appellee (respondent father).
David J. Reich filed a brief for the respondent
mother.
Opinion
EVELEIGH, J. In this certified appeal,1 the petitioner,
the Commissioner of Children and Families,2 appeals
from the judgment of the Appellate Court reversing the
judgment of the trial court terminating the parental
rights of the respondent father, Jose N., to the minor
child, Daniel N.3 Specifically, the petitioner claims4 that
the Appellate Court improperly concluded that the fail-
ure to canvass the respondent prior to the commence-
ment of the termination of parental rights trial in
accordance with the rule promulgated pursuant to the
exercise of our supervisory authority in In re Yasiel
R., 317 Conn. 773, 120 A.3d 1188 (2015), applies retroac-
tively to the present case and requires reversal. See In
re Daniel N., 163 Conn. App. 322, 333, 135 A.3d 1260
(2016). Because we conclude that application of the
canvass rule announced in In re Yasiel R. to the present
case would exceed the scope of the exercise of our
supervisory authority in that case, we reverse the judg-
ment of the Appellate Court.
The following facts and procedural history are rele-
vant to our disposition of this appeal: ‘‘Daniel was born
in 2006. He has two half siblings, born in 2012, who
have a different father. Shortly after Daniel’s birth, the
Department of Children and Families (department)
became involved with the family, and the department
continued to be involved throughout a period of time
extending to and after the birth of Daniel’s half siblings,
because of substance abuse, domestic violence, and
mental health issues. On September 27, 2012, the court
granted the petitioner’s motion for an order of tempo-
rary custody for all three children, which led to an
adjudication of neglect and Daniel’s commitment to the
care and custody of the petitioner. Daniel was returned
to his mother’s care on January 24, 2013, under an order
of protective supervision. On September 17, 2013, the
petitioner invoked a ninety-six hour hold on Daniel after
being informed by a representative of the Family Based
Recovery program that Daniel’s mother was in a drug
induced condition. The ninety-six hour hold was fol-
lowed by a court order of temporary custody. The
respondent was incarcerated at this time, and thus was
not a potential resource for Daniel’s care. The petitioner
moved that the order of protective custody be modified
to an order of commitment, which the court granted
on October 8, 2013. Daniel has remained in the care and
custody of the petitioner since that date.’’ Id., 324–25.
‘‘On December 26, 2013, the petitioner filed a petition
to terminate the parental rights of Daniel’s mother and
the respondent, as well as the parental rights of the
father of the half siblings. The termination of parental
rights trial was held on February 3, 4 and 5, and June
24 and 25, 2015. The respondent was represented by
counsel throughout the entire trial, and the respondent
testified at trial. Several witnesses testified at trial, and
multiple exhibits were admitted into evidence in this
fully contested case.’’ Id., 325. The trial court did not
canvass the respondent prior to trial or at any time
prior to the rendering of judgment.
The trial court filed the memorandum of decision
terminating the respondent’s parental rights approxi-
mately two weeks after publication of our decision in
In re Yasiel R. The respondent then appealed to the
Appellate Court claiming that In re Yasiel R. required
reversal of the trial court’s judgment because he did
not receive a canvass before trial. Id., 333. The Appellate
Court agreed, reversed the judgment of the trial court,
and remanded the case for a new trial. Id., 337. This
certified appeal followed.
The petitioner claims that the Appellate Court
improperly concluded that this court’s holding in In
re Yasiel R. mandated reversal in the present case.
Specifically, the petitioner claims that our holding in
In re Yasiel R. was limited and that nothing this court
said in that case requires a reversal in cases in which
the trial concluded prior to the announcement of the
canvass rule. The petitioner also claims that, even if
the canvass rule applies in the present case, automatic
reversal would be inappropriate and reversal should be
considered on a case-by-case basis. On the other hand,
the respondent claims that the Appellate Court properly
reversed the trial court’s judgment because the canvass
rule applies retroactively to trials concluded after In
re Yasiel R. and the failure to provide the canvass in
the present case required automatic reversal. In support
of this conclusion, the respondent claims that the gen-
eral rule is that judicial decisions apply retroactively
and our decision to reverse the judgment in In re Yasiel
R. is a retroactive application of the canvass rule. Addi-
tionally, the respondent claims that the failure to pro-
vide the canvass requires reversal because the basis for
reversal is the failure to provide the canvass, not ‘‘the
way in which the case is ultimately tried.’’ Because we
conclude that the exercise of our supervisory authority
in In re Yasiel R. is not applicable to the present case,
we reverse the judgment of the Appellate Court.
We begin with a review of the principles regarding our
supervisory authority. ‘‘It is well settled that [a]ppellate
courts possess an inherent supervisory authority over
the administration of justice. . . . Supervisory powers
are exercised to direct trial courts to adopt judicial
procedures that will address matters that are 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. . . . Under our supervisory author-
ity, we have adopted rules intended to guide the lower
courts in the administration of justice . . . .’’ (Internal
quotation marks omitted.) State v. Elson, 311 Conn.
726, 764–65, 91 A.3d 862 (2014). Our ‘‘supervisory
authority is not a form of free-floating justice, unteth-
ered to legal principle. . . . 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 [adjudicatory] process. . . . Indeed,
the integrity of the judicial system serves as a unifying
principle behind the seemingly disparate use of [this
court’s] supervisory powers.’’ (Citations omitted; inter-
nal quotation marks omitted.) In re Yasiel R., supra,
317 Conn. 790.
Generally, cases in which we have invoked our super-
visory authority for rule making have fallen into two
categories.5 See State v. Carrion, 313 Conn. 823, 850,
100 A.3d 361 (2014); State v. Elson, supra, 311 Conn.
768 n.30. ‘‘In the first category are cases wherein we
have utilized our supervisory power to articulate a pro-
cedural rule as a matter of policy, either as [a] holding
or dictum, but without reversing [the underlying judg-
ment] or portions thereof.’’ State v. Elson, supra, 768
n.30. ‘‘We invoke our supervisory authority in such a
case . . . not because the use of that authority is nec-
essary to ensure that justice is achieved in the particular
case. Rather, we have determined that the [appellant]
received a fair trial and therefore is not entitled to the
extraordinary remedy of a new trial. Nevertheless, it
may be appropriate, in such circumstances, to direct
our trial courts to conduct themselves in a particular
manner so as to promote fairness, both perceived and
actual, in future cases.’’ (Emphasis in original.) State
v. Carrion, supra, 851–52. ‘‘In the second category are
cases wherein we have utilized our supervisory powers
to articulate a rule or otherwise take measures neces-
sary to remedy a perceived injustice with respect to a
preserved or unpreserved claim on appeal.’’ State v.
Elson, supra, 768 n.30. In other words, in the first cate-
gory of cases we employ only the rule-making power
of our supervisory authority; in the second category
we employ our rule-making power and our power to
reverse a judgment. State v. Carrion, supra, 851–52.
In light of our observation that ‘‘[o]ur cases have not
always been clear as to the reason for [the] distinction’’
between the two categories of cases; State v. Diaz, 302
Conn. 93, 107 n.11, 25 A.3d 594 (2011); we recently
clarified the distinction between the two categories.
See State v. Carrion, supra, 313 Conn. 849–53. In Car-
rion, we observed that the salient distinction between
these two categories of cases is that in one category
we afford a remedy and in the other we do not. Id.,
851–52. In the second category of cases, where we exer-
cise both powers under our supervisory authority, the
party ‘‘must establish that the invocation of our supervi-
sory authority is truly necessary because [o]ur supervi-
sory powers are not a last bastion of hope for every
untenable appeal.’’ (Internal quotation marks omitted.)
Id., 851. In almost all cases, ‘‘[c]onstitutional, statutory
and procedural limitations are generally adequate to
protect the rights of the [appellant] and the integrity of
the judicial system.’’ (Internal quotation marks omit-
ted.) State v. Coward, 292 Conn. 296, 315, 972 A.2d 691
(2009). ‘‘[O]nly in the rare circumstance [in which] these
traditional protections are inadequate to ensure the fair
and just administration of the courts’’ will we exercise
our supervisory authority to reverse a judgment. (Inter-
nal quotation marks omitted.) State v. Carrion, supra,
851. In such a circumstance, ‘‘the issue at hand, while
not rising to the level of a constitutional violation, is
nonetheless of [the] utmost seriousness, not only for the
integrity of a particular trial but also for the perceived
fairness of the judicial system as a whole.’’ (Internal
quotation marks omitted.) Id. Although these standards
are demanding, they are also ‘‘flexible and are to be
determined in the interests of justice.’’ (Internal quota-
tion marks omitted.) State v. Connor, 292 Conn. 483,
518 n.23, 973 A.2d 627 (2009).
In contrast, in cases in which we invoke our supervi-
sory authority for rule making only, the case need not
present extraordinary circumstances to justify the invo-
cation of our supervisory authority to announce the
rule. State v. Carrion, supra, 313 Conn. 852. Rather,
‘‘we are free to invoke our supervisory authority pro-
spectively when prudence and good sense so dictate.’’
Id. ‘‘[B]ecause we are not imposing any remedy in the
case—let alone the extraordinary remedy of a new
trial—there is no need for this court to justify the use
of extraordinary measures prior to exercising its super-
visory authority.’’ (Emphasis in original.) Id. Implicit in
this rationale for applying a lower standard in cases in
which we exercise our supervisory authority to engage
in rule making alone is that such an action will not
disturb any countervailing interests, whether in the case
at hand or in any other case in which the trial has
concluded. The bench, the bar, and the public at large
will receive notice of the new procedural rule with the
release of the decision and will have the opportunity
to conform their conduct accordingly.
When we exercise our supervisory authority to
reverse a judgment, we are mindful of the interests
of the opposing party in the case. In these cases, the
opposing party substantially complied with the law.
See, e.g., In re Yasiel R., supra, 317 Conn. 787–88 (find-
ing failure to canvass respondent did not violate proce-
dural due process rights). Indeed, in our earliest
supervisory authority case, we recognized that a rever-
sal ‘‘in the exercise of a court’s supervisory authority
must not be undertaken without balancing other inter-
ests which may be involved.’’ State v. Ubaldi, 190 Conn.
559, 572, 462 A.2d 1001, cert. denied, 464 U.S. 916, 104
S. Ct. 280, 78 L. Ed. 2d 259 (1983). When we reverse a
judgment, the opposing party must retry the case and
contend with the ‘‘practical problems of memory loss
and unavailability of witnesses after much time has
elapsed . . . .’’ (Internal quotation marks omitted.)
State v. Payne, 260 Conn. 446, 464, 797 A.2d 1088 (2002).
In criminal cases, victims will have to endure another
trial. State v. Ubaldi, supra, 572. In termination of paren-
tal rights cases, permanence for the minor child is fur-
ther delayed. See In re Davonta V., 285 Conn. 483,
495, 940 A.2d 733 (2008) (‘‘[t]ermination of a biological
parent’s rights, by preventing further litigation with that
parent, can preserve the stability a child has acquired
in a successful foster placement and, furthermore, move
the child closer toward securing permanence by remov-
ing barriers to adoption’’). These consequences are real-
ized despite the fact that the opposing party rightfully
relied upon then prevailing law. See In re Yasiel R.,
supra, 317 Conn. 801–802 (Zarella, J., concurring and
dissenting). There are indeed ‘‘fairness and due process
concerns that are raised when a party is subjected to
a rule of which it had no prior notice.’’ Id. (Zarella, J.,
concurring and dissenting). It is only after weighing the
countervailing interests of the parties against whom the
new rule is applied and the interests of the party seeking
relief that we apply the rule in a particular case and
grant relief to the party seeking it.
With these principles in mind, we review the exercise
of our supervisory authority in In re Yasiel R. In that
case, after rejecting the respondent’s claim that the trial
court’s failure to provide a canvass prior to submitting
her case on the papers violated her procedural due
process rights, this court concluded that such a canvass
would enhance the ‘‘confidence in the integrity of the
judicial system.’’ Id., 794. In considering the contours of
the canvass requirement, we recognized the petitioner’s
concerns that such a canvass could impact trial strategy
and the attorney-client relationship. Id., 793–94. As a
result, we utilized our rule-making power under our
supervisory authority to articulate a rule that would
apply in every case, not just cases in which the parent
submits to a trial on the papers in the manner that the
respondent had in that case. Id., 794. If this rule making
alone had been the extent of the exercise of our supervi-
sory authority in In re Yasiel R., it would not have
required a finding of extraordinary circumstances
because the rule applies prospectively. See State v. Car-
rion, supra, 313 Conn. 852. We did, however, find excep-
tional circumstances in In re Yasiel R., namely, the
fact the respondent submitted herself to a summary
procedure without any assurance that she understood
the risks of such a course of action. In re Yasiel R.,
supra, 317 Conn. 772–74. Consequently, we expanded
the scope of the exercise of our supervisory authority
enough to apply the canvass rule in that case and grant
relief to the respondent in that case. Our application
of the canvass rule to the facts of In re Yasiel R. was
based on a careful evaluation of the particular facts
and balancing of equities in that case.
Having considered the holding and the rationale of
In re Yasiel R., we conclude that the rule is not applica-
ble in the present case. Our decision to expand the
scope of our supervisory authority in In re Yasiel R.
to apply the canvass rule and grant relief was predicated
upon the extraordinary circumstances in that case and
should not be construed to reach all other termination
of parental rights cases in which the trial has concluded.
Such an automatic expansion of the scope of the exer-
cise of our rule-making power to reach all other cases
in which the trial has already concluded would disturb
the countervailing interests of the party or parties
against whom the rule would be imposed without
proper consideration of the countervailing interests of
those parties.
This is not to say that there are no circumstances in
which we would apply the canvass rule to a case in
which the trial has concluded. Indeed, in view of our
analysis in In re Yasiel R., if there is a case that presents
the same essential procedural history—namely, a case
where the respondent submitted himself or herself to
a summary procedure without any assurance that he
or she understood the risks of such a course of action,
the trial concluded before we announced our decision
in In re Yasiel R., and the respondent timely appealed—
we would apply the canvass rule to that case in order
to grant relief on the basis of the precedential value of
In re Yasiel R. This, however, would apply only to cases
in which the trial has concluded and the respondent’s
right of appeal has not been exhausted or waived. In
such a case, the rationale and holding of In re Yasiel R.,
consistent with the principles underlying the exercise of
our supervisory authority, would require reversal.
The conclusion reached by the Appellate Court illus-
trates the flaw in the respondent’s claim that the can-
vass rule should apply in the present case because we
granted relief in In re Yasiel R. This was a fully con-
tested trial. The respondent, through counsel, cross-
examined each of the five witnesses presented by the
petitioner.6 In addition, the respondent’s counsel cross-
examined one of the mother’s witnesses and the mother
herself. The testimony of the respondent himself reveals
that he fully grasped the nature and consequence of
the proceedings. The respondent testified that he knew
that the petitioner was asking the court to terminate
his parental rights. The respondent testified that he
‘‘would do anything in [his] power’’ to maintain his
relationship with Daniel. The respondent explained that
he rescheduled his cancer surgery because he ‘‘thought
[testifying] was a lot more important.’’ Although it
would have been preferable as a matter of policy for
the respondent in the present case to have received a
canvass before trial, the fact that he did not receive it
in the present case is not the kind of extraordinary
circumstance that would have warranted relief. See In
re Yasiel R., supra, 317 Conn. 793. Consequently, the
interpretation of the exercise of supervisory authority
in In re Yasiel R. urged by the respondent and adopted
by the Appellate Court does not remedy any apparent
injustice for the respondent but rather works an injus-
tice upon the petitioner and Daniel in the form of unnec-
essary delay and wasted resources. Such a result is
flatly inconsistent with the principles that underlie the
exercise of supervisory authority.
The respondent claims, and the Appellate Court con-
cluded, that application of the three part test for nonret-
roactive application of judicial decisions discussed in
Neyland v. Board of Education, 195 Conn. 174, 179,
487 A.2d 181 (1985),7 compels retroactive application
of the canvass rule to the present case. In re Daniel
N., supra, 163 Conn. App. 335.8 Because, however, we
are delineating the scope of the exercise of our supervi-
sory authority, which by its very nature is prerogative,
we are not bound by the usual test for retroactivity.
Rather, the precise scope of the exercise of our supervi-
sory authority is guided by the ‘‘unifying principle’’ of
the ‘‘integrity of the judicial system . . . .’’ (Internal
quotation marks omitted.) In re Yasiel R., supra, 317
Conn. 790. On the basis of the foregoing, we conclude
that our holding in In re Yasiel R. does not mandate
reversal in the present case.
The judgment of the Appellate Court is reversed and
the case is remanded to that court with direction to
render judgment affirming the judgment of the trial
court.
In this opinion ROGERS, C. J., and PALMER, McDON-
ALD, ESPINOSA and ROBINSON, 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.
* This case originally was scheduled to be argued before a panel of this
court consisting of Chief Justice Rogers and Justices Palmer, Zarella, Eve-
leigh, McDonald, Espinosa and Robinson. Although Justice Espinosa was
not present when the case was argued before the court, she has read the
briefs and appendices, and listened to a recording of the oral argument
prior to participating in this decision.
1
We granted the petition by the Department of Children and Families for
certification to appeal limited to the following question: ‘‘Did the Appellate
Court correctly reverse the trial court’s judgment ordering the termination
of parental rights by concluding that this court’s decision in In re Yasiel
R., 317 Conn. 773, 120 A.3d 1188 (2015), controlled the result of [the present]
case?’’ In re Daniel N., 323 Conn. 928, A.3d (2016).
2
Because the Commissioner of Children and Families acts on behalf of
the Department of Children and Families, references to the petitioner include
both the Department of Children and Families and the Commissioner of
Children and Families.
3
The trial court also terminated the parental rights of the respondent
mother, Nadine D. Her separate petition for certification to appeal was
denied. In re Daniel N., 321 Conn. 908, 135 A.3d 280 (2016). The respondent
mother is, however, a party to the present appeal and has filed a brief.
Nevertheless, the present appeal pertains only to the parental rights of the
respondent father. For the sake of simplicity, we refer to the respondent
father as the respondent throughout this opinion.
4
We note that the counsel for the minor child has adopted the brief of
the petitioner.
5
We note that supervisory authority has been invoked for purposes other
than rule making. See, e.g., Blumberg Associates Worldwide, Inc. v. Brown &
Brown of Connecticut, Inc., 311 Conn. 123, 155, 84 A.3d 840 (2014) (supervi-
sory authority permits reviewing court to raise unpreserved issue on appeal
sua sponte); State v. Reid, 277 Conn. 764, 778, 894 A.2d 963 (2006) (invoking
supervisory authority to hear untimely appeal); State v. Payne, 260 Conn.
446, 451–52, 797 A.2d 1088 (2002) (invoking supervisory authority in order
‘‘to redress repeated and deliberate misconduct by a prosecutor seeking to
increase the likelihood of conviction even though that conduct does not
necessarily require reversal as a due process violation’’).
6
The petitioner presented one witness, a social worker, on two separate
occasions, once on February 3, 2015, and once more over the course of
June 24 and 25, 2015. While the respondent’s counsel declined to cross-
examine the witness on February 3, he did cross-examine the witness on
June 25.
7
‘‘In Neyland v. Board of Education, [supra, 195 Conn. 179], we discussed
the [three part] test set out in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.
Ct. 349, 30 L. Ed. 2d 296 (1971), for determining whether a decision must
be applied prospectively only. A common-law decision will be applied nonret-
roactively only if: (1) it establishes a new principle of law, either by overruling
past precedent on which litigants have relied . . . or by deciding an issue
of first impression whose resolution was not clearly foreshadowed . . . (2)
given its prior history, purpose and effect, retrospective application of the
rule would retard its operation; and (3) retroactive application would pro-
duce substantial inequitable results, injustice or hardship.’’ (Citation omitted;
internal quotation marks omitted.) Ostrowski v. Avery, 243 Conn. 355, 378
n.18, 703 A.2d 117 (1997).
8
The respondent also asserts that the fact that the canvass rule we
announced in In re Yasiel R. is to apply to all parents before trial in a
termination of parental rights case demonstrates that it should be applied
in the present case. To the extent that this claim forms a basis for retroactive
application, we reject it. We require the canvass rule to apply to all parents,
not regardless of whether the termination trial concluded prior to the release
of our decision in that case, but rather regardless of whether the parent is
represented by counsel or whether evidence presented is contested. In re
Yasiel R., supra, 317 Conn. 794.