In re Egypt E. ( 2016 )

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IN RE EGYPT E.—DISSENT
ESPINOSA, J., dissenting. I disagree with the majority
that the clerical errors in the record of the present case
require that we reverse the judgment of the trial court
terminating the parental rights of the respondents,
Morsy E. (father) and Natasha E., with respect to their
minor children, Egypt E. and Mariam E. In my view,
the majority is too quick to assume that the appeal rights
of the respondents were implicated by those clerical
errors. With the information we currently have available
to us, it is not yet clear that the respondents have been
prejudiced. We have the means to attempt to determine
whether their appeal rights were affected, and we
should use those means before reversing the trial
court’s judgment. Clarifying whether the errors affected
the respondents’ rights while retaining jurisdiction over
the appeal accords the proper balance between the
respondents’ right to due process and the children’s
right to have an efficient and timely final judgment in
this matter. Accordingly, I respectfully dissent.
The majority focuses on the absence of answers for
the clerical errors in the record. I choose instead to
focus on what we do know. The father filed with this
court a motion for review of the trial court’s June 9,
2016 articulation. It is undisputed that, in support of
that motion, the father produced a copy of the trial
court’s signed June 1, 2015 order granting the motion
of the petitioner, the Commissioner of Children and
Families, that the petitioner was not required to make
reunification efforts pursuant to General Statutes (Rev.
to 2013) § 17a-111b (a) (1) and (b) (1) (B) on the basis
of ‘‘the aggravated circumstance of severe physical
abuse.’’ It is also undisputed that the father provided
no explanation whatsoever as to how and when he
came to be in possession of this signed and dated order,
which by his own admission was not in the copy of the
trial court file that was certified by the trial court in
this appeal. Finally, it is undisputed that the trial court,
in its June 9, 2016 articulation, stated that it granted the
petitioner’s motion for a finding that no reunification
efforts were required. If the father were not claiming
on appeal that he did not receive notice of this order,
I would conclude that the judgment of the trial court
should be affirmed.
The father, however, does claim that he lacked notice
of the June 1, 2015 order. Accordingly, I would remand
the case to the trial court with direction to clarify
whether it had provided such notice to the parties. See
Practice Book § 60-2.1 If the trial court were to respond
that it had not provided such notice or that it was unable
to confirm whether it had provided such notice, then—
and only then—reversal would be required. If the trial
court, however, were to issue an articulation confirming
that it had provided the parties with such notice, the
record would be adequate for review, because the sole
relevance of the clerical errors to any due process rights
of the respondents is to the extent that notice is not
clear, without an articulation by the trial court.2
This approach would be more consistent with this
state’s policy of resolving in as expeditious a manner
as possible the question of whether a parent’s rights
should be terminated. See General Statutes § 46b-142
(d).3 By reversing the trial court’s judgment and
remanding the case for a new trial, the majority risks
unnecessary delay, inconsistent with this state’s policy
as expressly stated by the legislature in § 46b-142 (d).
I finally observe that the mere fact that the majority
states that the new trial is ‘‘to begin no later than Sep-
tember 15, 2016,’’ does not ensure speedy resolution of
this matter. It is not possible to predict what issues will
arise on remand. For instance, the parties may request
and be granted continuances, or unavoidable schedul-
ing issues may create further delay. And once the trial
court arrives at a final judgment, the appeals process
will begin anew. The majority has prolonged this matter
without first determining whether doing so is necessary.
Accordingly, I respectfully dissent.
1
Practice Book § 60-2 provides in relevant part that with respect to an
appeal before this court, the court may ‘‘on its own motion . . . (1) order
a judge to take any action necessary to complete the trial court record for
the proper presentation of the appeal . . . .’’
2
I also observe that if the court deemed it advisable in order to ensure
that the respondents suffered no prejudice, we could allow the parties to
submit supplemental briefs addressing the effect of the court’s June 1,
2015 order.
3
General Statutes § 46b-142 (d) provides: ‘‘Notwithstanding subsections
(a), (b) and (c) of this section, the Department of Children and Families,
or any party to the action aggrieved by a final judgment in a termination
of parental rights proceeding, shall be entitled to an expedited hearing before
the Appellate Court. A final decision of the Appellate Court shall be issued
as soon as practicable after the date on which the certified copy of the
record of the case is filed with the clerk of the Appellate Court.’’