In re Gabriel S. ( 2023 )

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IN RE GABRIEL S., JR.*
(SC 20788)
Robinson, C. J., and McDonald, D’Auria, Mullins,
Ecker and Alexander, Js.
Syllabus
The respondent father appealed from the trial court’s judgment terminating
his parental rights with respect to his child, G. Shortly after G was
born, the petitioner, the Commissioner of Children and Families, filed
a petition of neglect, was granted temporary custody of G, and placed
G in a foster home. Thereafter, using a preprinted form issued by the
Judicial Branch, the petitioner filed a petition to terminate the respon-
dent’s parental rights pursuant to statute (§ 17a-112 (j) (3) (E)), which
requires the petitioner to prove, inter alia, that the respondent’s parental
rights with respect to another child previously had been terminated
pursuant to a petition filed by the petitioner. At trial, the petitioner’s
counsel presented evidence that the respondent’s parental rights pre-
viously had been terminated in Rhode Island. At the end of the petition-
er’s case, the respondent’s counsel argued that the petitioner had failed,
as a matter of law, to satisfy the requirements for termination set forth
in § 17a-112 (j) (3) (E) because the petitioner did not present any evi-
dence that the respondent’s parental rights previously had been termi-
nated in Connecticut. The petitioner’s counsel indicated his belief that
the termination petition had been amended to include grounds for termi-
nation under § 17a-112 (j) (3) (B) (i), and, in the event it had not been
amended, he moved to do so. The trial court granted counsel’s oral
motion to amend the petition, as well as a six week continuance of the
trial to allow the respondent’s counsel an opportunity to reevaluate the
petitioner’s position. The petitioner then filed a written motion to amend
the petition to terminate the respondent’s parental rights and, pursuant
to the relevant rules of practice (§ 33a-1 (b)), an amended summary of
the facts, both of which identified § 17a-112 (j) (3) (B) (ii) as the basis
for termination. Under that provision, the petitioner was required to
demonstrate, inter alia, that the respondent had failed to rehabilitate
and that G had been in the petitioner’s custody for at least fifteen months.
Although the court granted the petitioner’s written motion to amend,
the petitioner did not amend the preprinted, form petition to reflect that
the petitioner was seeking termination under § 17a-112 (j) (3) (B) (ii).
When trial resumed after the continuance, the only additional evidence
the petitioner presented was the amended summary of the facts, which
repeated the original allegations and alleged that G had been in the
petitioner’s custody for more than fifteen months. The respondent testi-
fied about his attempts to comply with the steps that would facilitate
G’s return to his custody but never claimed that he did not receive
notice that termination was being sought under § 17a-112 (j) (3) (B) (ii).
The trial court granted the petition to terminate the respondent’s parental
rights pursuant to § 17a-112 (j) (3) (B) (ii), finding, inter alia, that the
respondent had failed to rehabilitate and that G had been in the petition-
er’s custody for more than fifteen months. On appeal from the trial
court’s judgment, the respondent claimed that his due process right to
adequate notice of the grounds for terminating his parental rights was
violated insofar as the petitioner was allowed to amend the termination
petition after the close of evidence and insofar as his parental rights
were terminated pursuant to § 17a-112 (j) (3) (B) (ii) when the petitioner
never amended the preprinted, form petition to indicate that the petition
was premised on that particular provision of the statute.
Held that the respondent’s due process right to adequate notice of the
grounds for terminating his parental rights was not violated, as the
petitioner’s amended summary of the facts, along with the trial court’s
granting of a continuance, afforded the respondent constitutionally ade-
quate notice that the petitioner had elected to rely on § 17a-112 (j) (3)
(B) (ii) in seeking to terminate his parental rights as to G:
There was no merit to the respondent’s claim that principles of due
process required strict compliance with certain statutory (§ 45a-715 (b)
(6) and (c)) procedures and rules of practice (§ 33a-1 (a)) governing
petitions to terminate parental rights, as those provisions did not clearly
and unambiguously require the petitioner to amend the grounds for
termination in the preprinted, form petition, rather than in the summary
of the facts, in the event the trial court grants the petitioner permission
to amend the termination petition.
Even if this court assumed that the petitioner violated the statutory
notice provisions and the rules of practice, principles of due process
are not violated when the respondent parent has been provided adequate
notice of the amendment to the termination petition and a reasonable
opportunity to prepare a response, as the price of requiring strict compli-
ance with those provisions in child dependency cases would be unaccept-
ably high in light of the strong public interest in the prompt resolution
of such proceedings, in which the welfare of a child is at issue and delay
is inherently prejudicial.
In the present case, although the petitioner’s counsel initially indicated
that he would be adding § 17a-112 (j) (3) (B) (i) as a ground for termina-
tion when he orally moved to amend the termination petition, he clarified
in both the amended summary of the facts and the written motion to
amend the petition, which superseded the oral motion and was granted
by the trial court, that § 17a-112 (j) (3) (B) (ii) was the specific basis
for termination.
Moreover, in light of the amended summary of the facts and the written
motion to amend, the respondent could not reasonably have believed
that, when the trial resumed after the continuance, the petitioner would
seek to adjudicate the termination petition under either § 17a-112 (j) (3)
(B) (i) or (E), especially when the pursuit of termination under § 17a-
112 (j) (3) (E) already had been shown to be unviable and when the
respondent testified exclusively about his attempts to comply with the
specific steps that would facilitate the return of G to his custody, which
was relevant only to termination under § 17a-112 (j) (3) (B) (ii).
Furthermore, the respondent expressed no surprise or confusion when,
at the recommencement of the trial after the continuance, the petitioner’s
counsel indicated that he was seeking termination pursuant to the
amended summary of the facts, which was premised on § 17a-112 (j) (3)
(B) (ii).
In addition, even if strict compliance with the statutory notice provisions
and rules of practice was required and the petitioner’s failure to strictly
comply violated due process, any such violation was harmless beyond
a reasonable doubt because, to the extent the respondent claimed that
he did not receive adequate notice that the petitioner would proceed
under § 17a-112 (j) (3) (B) (ii), the respondent did not claim that there
was additional evidence on the issue of his rehabilitation that he would
have presented if he had received adequate notice, the uncontroverted
evidence showed that G had been in the petitioner’s custody for at least
fifteen months at the time of trial, and the respondent did not claim that
he could produce evidence to the contrary.
Argued March 29—officially released July 14, 2023**
Procedural History
Petition by the Commissioner of Children and Fami-
lies to terminate the respondents’ parental rights with
respect to their minor child, brought to the Superior
Court in the judicial district of New London, Juvenile
Matters at Waterford, where the court, Hoffman, J.,
granted the petitioner’s motion to amend the petition;
thereafter, the case was tried to the court, Hoffman, J.;
judgment terminating the respondents’ parental rights,
from which the respondent father appealed. Affirmed.
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent father).
Elizabeth Bannon, assistant attorney general, with
whom were Evan O’Roark, assistant attorney general,
and, on the brief, William Tong, attorney general, for
the appellee (petitioner).
Opinion
ROBINSON, C. J. This appeal requires us to determine
whether the trial court violated the constitutional due
process right of the respondent father, Gabriel S., to
adequate notice of the grounds for terminating his
parental rights when, after the close of evidence, it
granted the motion of the petitioner, the Commissioner
of Children and Families, to amend the petition to allege
a different ground for the termination of his parental
rights pursuant to General Statutes § 17a-112 (j) (3).1
The petitioner initially filed a petition to terminate the
parental rights of the respondent with respect to his
minor child, Gabriel S., Jr. (Gabriel), pursuant to § 17a-
112 (j) (3) (E) (ground (E)). After the conclusion of
evidence, the respondent requested that the court deny
the petition on the ground that the petitioner had failed
to present any evidence that would support a finding
that he previously had had his parental rights termi-
nated with respect to another child pursuant to a peti-
tion filed by the petitioner, as is required under ground
(E). The trial court then granted the petitioner’s motion
to amend the petition to allege another ground for termi-
nation pursuant to Practice Book § 34a-1 (d).2 The trial
court also granted a continuance to allow the respon-
dent to prepare a response to the amended petition.
Thereafter, the petitioner filed an amended summary
of the facts in support of the petition, alleging that
grounds for termination of the respondent’s parental
rights existed pursuant to § 17a-112 (j) (3) (B) (ii)
(ground (B) (ii)). The petitioner did not, however,
amend the petition itself to reflect the new ground for
termination alleged in the amended summary of the
facts. At the conclusion of the continued trial, the trial
court granted the petition to terminate the respondent’s
parental rights as to Gabriel on ground (B) (ii). The
respondent now appeals3 from the judgment of the trial
court terminating his parental rights, claiming that the
court violated his due process right to adequate notice
of the grounds for the petition to terminate his parental
rights by (1) allowing the petitioner to amend the peti-
tion after the close of evidence, and (2) terminating the
respondent’s parental rights pursuant to ground (B) (ii)
when the petitioner never filed an amended petition
alleging that ground. We disagree, and, accordingly, we
affirm the trial court’s judgment.
The record reveals the following undisputed facts
and procedural history. Gabriel, the son of Santasia
S. and the respondent, was born in January, 2020, at
Lawrence + Memorial Hospital in New London. Upon
learning of the respondent’s history as a sex offender,
hospital staff reported their concerns about the child’s
safety to the petitioner. On January 17, 2020, the peti-
tioner filed a petition of neglect and an order of tempo-
rary custody on behalf of Gabriel. The trial court,
Driscoll, J., found Gabriel to be in immediate physical
danger from his surroundings and vested temporary
custody of Gabriel in the petitioner. The same day, the
petitioner filed a neglect petition on Gabriel’s behalf
and placed him in a nonrelative foster home, where he
currently remains.
Thereafter, the petitioner filed a petition to terminate
the respondent’s parental rights pursuant to ground
(E).4 Under ground (E), the petitioner was required to
prove that (1) the respondent had failed or was unable
or unwilling to rehabilitate such that he could assume a
responsible position in Gabriel’s life within a reasonably
foreseeable time, and (2) the respondent’s parental
rights to another child previously had been terminated
pursuant to a petition filed by the petitioner. See Gen-
eral Statutes § 17a-112 (j) (3) (E). In support of the
second adjudicatory ground, the petitioner alleged that,
in 2019, the respondent’s parental rights with respect
to two children had been terminated in Rhode Island.
Trial on the petition began on April 25, 2022. The
petitioner presented evidence, as relevant to this
appeal, in the form of an exhibit that the respondent’s
parental rights previously had been terminated in Rhode
Island, which the trial court, Hoffman, J.,5 admitted
without objection by the respondent. The respondent
presented no evidence. At the conclusion of the peti-
tioner’s case, counsel for the respondent argued that
the petitioner had failed, as a matter of law, to establish
under ground (E) that the respondent’s parental rights
previously had been terminated pursuant to a petition
filed by the petitioner because the evidence showed
that his parental rights to two children previously had
been terminated in Rhode Island, not Connecticut.
Counsel for the petitioner did not dispute that the peti-
tioner was required to establish that the previous termi-
nations of parental rights had occurred in Connecticut
but stated that he had been under the impression that
the petition had been ‘‘amended to allege [grounds for
termination of the respondent’s parent rights pursuant
to § 17a-112 (j) (3) (B) (i) (ground (B) (i))]. But, [in]
the event it wasn’t amended, the [petitioner] would
move to amend the petition right now.’’ Counsel for the
petitioner argued that, under Practice Book § 34a-1 (d),
the trial court had the authority to allow an amendment
‘‘up until the point that the adjudication enters.’’
Counsel for the respondent then argued that princi-
ples of due process required the court to deny the peti-
tioner’s eleventh hour motion to amend the petition.
Counsel for the respondent also requested that, if the
trial court were to grant the motion, it also grant a
continuance so that he could reevaluate the respon-
dent’s position. The court granted the petitioner’s motion
to amend and the respondent’s request for a con-
tinuance.
The next day, the petitioner filed an amended sum-
mary of the facts6 that alleged substantially the same
facts that originally had been alleged in support of
ground (E), but also alleging that Gabriel had been
in the custody of the petitioner for more than fifteen
months, as is required under ground (B) (ii). See Gen-
eral Statutes § 17a-112 (j) (3) (B) (ii). On the day after he
filed the amended summary of the facts, the petitioner’s
counsel filed a written motion to amend the petition to
terminate the respondent’s parental rights by removing
ground (E) and adding ground (B) (ii). Ground (B) (ii)
required the petitioner to establish that (1) Gabriel was
neglected, abused or uncared for and had been in the
petitioner’s custody for at least fifteen months, and (2)
the respondent had been provided specific steps to take
to facilitate the return of Gabriel to him and had failed
to achieve such degree of personal rehabilitation as
would encourage the belief that, within a reasonable
time, he could assume a responsible position in Gabri-
el’s life. See General Statutes § 17a-112 (j) (3) (B) (ii).
The trial court granted the written motion. The peti-
tioner never amended the petition itself, which is a
preprinted form promulgated by the Judicial Branch,
to indicate that the petitioner was now seeking an adju-
dication pursuant to ground (B) (ii) instead of ground
(E).
Following the continuance, trial on the petition for
termination of the respondent’s parental rights resumed
on June 6, 2022. The only additional evidence offered
by the petitioner’s counsel was the amended summary
of the facts. The respondent testified on his own behalf
and asked the trial court to deny the petition to termi-
nate his parental rights, but he made no claim that
the petitioner’s counsel had failed to provide adequate
notice that the petitioner was seeking termination of
his parental rights pursuant to ground (B) (ii).
The trial court ultimately found that the petitioner
had proven by clear and convincing evidence the exis-
tence of grounds for termination under ground (B) (ii),
namely, that the respondent had failed to rehabilitate7
and that Gabriel had been in the custody of the peti-
tioner for more than fifteen months. The court also
made the required written findings under § 17a-112 (k).
Finally, the court found by clear and convincing evi-
dence that terminating the respondent’s parental rights
would be in the best interest of Gabriel pursuant to
§ 17a-112 (j) (2). Accordingly, the court granted the
petition for termination of the respondent’s parental
rights. This appeal followed.
On appeal, the respondent claims that the trial court
violated his right to adequate notice under the due pro-
cess clause of the fourteenth amendment to the United
States constitution by (1) allowing the petitioner to
amend the petition to terminate his parental rights after
the close of evidence, and (2) terminating his parental
rights pursuant to ground (B) (ii) when the petitioner
never filed an amended petition alleging that ground.8
Although the respondent has ostensibly presented two
distinct claims in support of his challenge to the trial
court’s ruling, the essence of both claims is that he was
deprived of adequate notice of the grounds for terminat-
ing his parental rights due to the petitioner’s failure to
complete the preprinted petition form in strict compli-
ance with the governing statute and the rules of prac-
tice. See General Statutes § 45a-715 (b) and (c); Practice
Book § 33a-1 (a). We disagree and conclude that the
amended summary of the facts filed by the petitioner’s
counsel in this case, in conjunction with the trial court’s
granting of the respondent’s request for a continuance,
afforded the respondent constitutionally adequate
notice that the petitioner had elected to rely on ground
(B) (ii).
Our resolution of the respondent’s claims is guided
by familiar due process principles. It is well established
that a person in jeopardy of having his or her parental
rights terminated has a constitutional due process right
to adequate notice of the grounds for termination. See,
e.g., In re Baby Girl B., 224 Conn. 263, 295–96, 618 A.2d
1 (1992). ‘‘Notice is not a mere perfunctory act in order
to satisfy the technicalities of a statute, but has, as its
basis, constitutional dimensions. An elementary and
fundamental requirement of due process in any pro-
ceeding [that] is to be accorded finality is notice reason-
ably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and
afford them an opportunity to present their objections.’’
(Internal quotation marks omitted.) Id. ‘‘Notice, to com-
ply with due process requirements, must be given suffi-
ciently in advance of scheduled court proceedings so
that [a] reasonable opportunity to prepare will be
afforded, and it must set forth the alleged misconduct
with particularity.’’ (Internal quotation marks omitted.)
In re Donna M., 33 Conn. App. 632, 638, 637 A.2d 795,
cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994), and
cert. denied, 229 Conn. 912, 642 A.2d 1207 (1994).
‘‘[T]here is no violation of due process when a party in
interest is given the opportunity at a meaningful time
for a court hearing to litigate the question [at issue].’’
Hartford Federal Savings & Loan Assn. v. Tucker, 196
Conn. 172, 176–77, 491 A.2d 1084, cert. denied, 474 U.S.
920, 106 S. Ct. 250, 88 L. Ed. 2d 258 (1985).
In support of his claim that his due process rights
were violated, the respondent claims that the statutory
procedures and rules of practice governing petitions to
terminate parental rights clearly require the petitioner
to amend the grounds elected on the preprinted petition
form, which is promulgated by the Judicial Branch,
when the petitioner has been granted permission to
amend a petition. Specifically, he relies on § 45a-715
(b) (6) (‘‘[the petition to terminate parental rights] shall
set forth with specificity . . . the facts upon which
termination is sought, [and] the legal grounds authoriz-
ing termination’’), § 45a-715 (c) (‘‘[i]f the information
required under subdivisions (2) and (6) of subsection
(b) of this section is not stated, the petition shall be
dismissed’’), and Practice Book § 33a-1 (a) (‘‘[t]he peti-
tioner shall set forth with reasonable particularity,
including statutory references, the specific conditions
which have resulted in the situation which is the subject
of the petition’’). He effectively claims that principles
of due process require strict compliance with these
procedures. We disagree.
First, contrary to the respondent’s contention, these
provisions do not clearly and unambiguously require
the petitioner to amend the preprinted form petition to
terminate parental rights, rather than the summary of
the facts, when the trial court has granted a motion to
amend. We note that Practice Book § 33a-1 (b) provides
in relevant part that the ‘‘summary of the facts substanti-
ating the allegations of the petition . . . shall be
attached thereto and shall be incorporated by refer-
ence.’’ Accordingly, it is arguable that an amendment
to the summary of the facts would be incorporated into,
and thereby amend, the petition itself. See In re T.C.,
307 Mont. 244, 250, 37 P.3d 70 (2001) (in determining
whether petition to terminate parental rights provided
adequate notice of ground for termination, court consid-
ered petitioner’s ‘‘claim as a whole and . . . the reason
and spirit of the allegations’’ (emphasis added; internal
quotation marks omitted)). Although we recognize that
this procedure would result in a potential internal incon-
sistency, with the preprinted form petition indicating
one ground for termination and the amended summary
of the facts another, it would be reasonable to conclude
that the later filing would supersede the earlier one,
particularly when it asserts in detail a specific new
ground for the termination of parental rights.9
Second, even if we were to assume that the petitioner
violated the statutory provisions and rules of practice,
we conclude that principles of due process are not
violated when the record establishes that the parent has
actually been provided adequate notice of an amendment
and a reasonable opportunity to prepare a response.
See In re Baby Girl B., supra, 224 Conn. 295–96; see
also Dennis v. Dejong, 557 Fed. Appx. 112, 118 (3d Cir.
2014) (although dependency petition ‘‘was not filed in
strict compliance with the time required by state law,
the question of what process is due for purposes of the
[d]ue [p]rocess [c]lause is a matter of federal constitu-
tional law, not state law,’’ and due process was satisfied
because parents received adequate, actual notice of
proceeding (internal quotation marks omitted)); Gio-
vanni v. Lynn, 48 F.3d 908, 912 (5th Cir.) (‘‘[When] a
liberty . . . interest is infringed, the process [that] is
due under the United States [c]onstitution is that mea-
sured by the due process clause, not that called for
by state regulations. . . . Mere failure to accord the
procedural protections called for by state law or regula-
tion does not of itself amount to a denial of due pro-
cess.’’ (Citation omitted.)), cert. denied sub nom.
Giovanni v. Stalder, 516 U.S. 860, 116 S. Ct. 167, 133
L. Ed. 2d 109 (1995); In re Petition by Wayne County
Treasurer, 478 Mich. 1, 10 n.19, 732 N.W.2d 458 (2007)
(when government does not strictly comply with statu-
tory notice provision, procedure ‘‘is sound as long as
there is constitutionally adequate notice’’); In re Consol-
idated Reports & Return by Tax Claims Bureau, 132
A.3d 637, 645 (Pa. Commw.) (strict compliance with
statutory notice requirement was not required when
government proved that party received actual notice),
appeal denied, 636 Pa. 653, 141 A.3d 482 (2016). A strict
compliance requirement would be particularly inappro-
priate in this context in light of the significant differ-
ences between child dependency proceedings, in which
the welfare of a child is at issue and delay is inherently
prejudicial, and other judicial proceedings. Cf. In re
Amias I., 343 Conn. 816, 840, 276 A.3d 955 (2022) (‘‘the
significant differences between child dependency pro-
ceedings and other judicial proceedings militate deci-
sively against applying a per se reversible error rule in
dependency cases’’); id. (‘‘[w]e cannot agree . . . that
prejudice is irrelevant in a dependency proceeding
when the welfare of the child is at issue and delay in
resolution of the proceeding is inherently prejudicial to
the child’’ (internal quotation marks omitted)). Indeed,
‘‘[t]he price that would be paid for [requiring strict com-
pliance with statutory notice provisions and the rules
of practice in child dependency cases], in the form of
needless reversals of dependency judgments, is unac-
ceptably high in light of the strong public interest in
prompt resolution of these cases so that the children
may receive loving and secure home environments as
soon as reasonably possible.’’10 (Internal quotation marks
omitted.) Id., 840–41.
We conclude, as a matter of law, that the respondent’s
due process rights were not violated because he received
actual notice of the grounds for the termination provi-
sion. The record reveals that, although counsel for the
petitioner indicated that he would be adding ground
(B) (i) as a ground for termination when he made the
oral motion, he clarified the specific basis for termina-
tion the next day when he filed the amended summary
of the facts, stating that he was relying on ground (B)
(ii). The petitioner’s counsel also expressly stated that
he was adding ground (B) (ii) in his written motion to
amend the petition, which superseded the oral motion,
and which the trial court also granted. In light of these
filings, we conclude that the respondent could not rea-
sonably have believed that, after the trial court granted
the petitioner’s motion to file an amended petition, as
well as granting a six week continuance to allow the
respondent to prepare a response, there was any real
possibility that, when the trial resumed, the petitioner
would again proceed pursuant to ground (E), which
had already been shown to be unviable as a matter of
law. Nor could the respondent reasonably have been
unsure as to whether the petitioner intended to proceed
under ground (B) (i) or (B) (ii) when the petitioner’s
written filings, which followed and superseded the oral
motion, made it clear that the petitioner intended to
proceed under ground (B) (ii). Indeed, the respondent
expressed no surprise or confusion when, at the contin-
uation of the trial on June 6, 2022, counsel for the
petitioner indicated that he was seeking termination of
the respondent’s parental rights pursuant to the amended
summary of the facts, which was premised on ground
(B) (ii). To the contrary, after the petitioner’s counsel
indicated that he did not intend to call any witnesses,
the respondent proceeded to testify on his own behalf
about his attempts to comply with the specific steps
that had been provided to him to facilitate the return
of Gabriel to his custody, which evidence was relevant
only to ground (B) (ii).11
Moreover, even if we were to assume that the statu-
tory and Practice Book provisions governing petitions
to terminate parental rights require the petitioner to
amend the form petition and that the failure to comply
strictly with that requirement violates due process, any
such violation would be harmless beyond a reasonable
doubt in the present case. See, e.g., In re Amias I.,
supra, 343 Conn. 833–34, 840 (when party establishes
constitutional error in dependency proceeding, petitioner
must demonstrate harmlessness beyond reasonable
doubt). To the extent that the respondent claims that
he did not receive adequate notice that his failure to
rehabilitate would be one of the grounds for terminating
his parental rights when the trial continued because it
was possible that the petitioner would proceed under
ground (B) (i), any constitutional violation was harm-
less beyond a reasonable doubt because he makes no
claim that there was additional evidence on that issue
that he would have presented if he had received ade-
quate notice.12 Cf. In re Ivory W., 342 Conn. 692, 732
n.26, 271 A.3d 633 (2022) (suggesting that, even if trial
court improperly denied motion for continuance in ter-
mination of parental rights proceeding, denial was harm-
less because ‘‘the respondent [mother never] explained
how the testimony that she would have given if the trial
court had granted her motion for a continuance would
have affected the outcome of the termination proceed-
ing’’). Similarly, to the extent that the respondent claims
that he was not on notice that the petitioner would
claim under ground (B) (ii) that Gabriel had been in her
custody for at least fifteen months, the uncontroverted
evidence in the record shows that Gabriel had been in
the petitioner’s custody since January 17, 2020, and
the respondent makes no claim that he could produce
evidence to the contrary.13
In support of his claim to the contrary, the respondent
relies on the Appellate Court’s decisions in In re Donna
M., supra, 33 Conn. App. 632, and In re Christian P.,
98 Conn. App. 264, 907 A.2d 1261 (2006). Both of these
cases are distinguishable. In In re Donna M., supra,
634, an attorney for the minor child filed a petition
seeking a determination of neglect premised on an alle-
gation by the child’s mother that the child’s father had
sexually abused her. Thereafter, the Department of Chil-
dren and Youth Services (department) moved to amend
the petition to include allegations of neglect against the
mother. Id., 635. A hearing on the petition commenced
on April 21, 1992, at which the department withdrew its
motion to amend the petition, and the child’s attorney
requested permission to amend the petition, which the
trial court granted. Id. The child’s ‘‘mother objected to
the commencement of evidence prior to the filing of
the amended petition. The trial court overruled the
objection and commenced trial.’’ Id. On July 17, 1992,
while the hearing on the neglect petition was still pend-
ing, the child’s attorney filed an amended petition, alleg-
ing that, ‘‘in the event that the allegations of sexual
abuse by the father were not true . . . the mother was
abusing the child by . . . fabricating false claims of
sexual abuse . . . .’’ Id., 636. The mother again objected
on the ground that the trial was at an advanced stage,
and the trial court again overruled her objection. Id.
Thereafter, the trial court found that the mother had
intentionally made false reports of sexual abuse and
that these actions constituted neglect and abuse. Id.,
637. On the basis of those findings, the court ordered
that the child be committed to the custody of the depart-
ment for a period of eighteen months. Id. On appeal, the
Appellate Court concluded that, because the amended
petition was filed after a significant amount of evidence
had been produced at trial, and because the amendment
changed the basic nature of the alleged misconduct,
allowing the amendment was fundamentally unfair and
violated the mother’s due process right. Id., 639. In
re Donna M. is distinguishable because, unlike in the
present case, the amended petition changed the basic
nature of the alleged misconduct, and the court did not
order a continuance of the neglect proceeding to afford
the mother an opportunity to prepare a response to the
new allegations. Here, the only new allegation con-
tained in the amended petition was that the child had
been in the petitioner’s custody for fifteen months, and
the court allowed a six week continuance so that the
respondent could prepare a response.
In In re Christian P., supra, 98 Conn. App. 266, the
petitioner filed a petition to terminate the respondent
mother’s parental rights with respect to one of her chil-
dren under ground (E) on the basis of the mother’s
failure to rehabilitate. The petitioner did not allege the
lack of an ongoing parent-child relationship pursuant
to § 17a-112 (j) (3) (D). Id. Nevertheless, the trial court
terminated the mother’s parental rights with respect to
the child on the ground that she had no ongoing parental
relationship with the child. Id. On appeal, the Appellate
Court concluded that, because the mother did not have
notice that her parental rights could be terminated on
that ground, termination on that ground was improper.
Id., 268. In re Christian P. is distinguishable because
the petitioner filed nothing in that case that would have
placed the mother on notice that termination of her
parental rights was being sought on the ground that
she had no ongoing parental relationship with the child.
In contrast, in the present case, the petitioner filed a
motion to amend the petition and an amended summary
of the facts, both of which expressly indicated that the
petitioner was seeking termination of the respondent’s
parental rights under ground (B) (ii). We further note
that, unlike both In re Christian P. and In re Donna
M., even if there had been a failure to provide adequate
notice of the ground for the petition in the present case,
any such failure was harmless because the respondent
has made no claim that, if he had received adequate
notice, he could have produced evidence to rebut the
petitioner’s claims under ground (B) (ii) that he had
failed to rehabilitate and that Gabriel had been in the
petitioner’s custody for at least fifteen months.
For the foregoing reasons, we conclude that the trial
court did not violate the respondent’s constitutional
due process right to adequate notice when it granted
the petitioner’s motion to amend the petition to termi-
nate his parental rights after the close of evidence and
terminated the respondent’s parental rights pursuant
to ground (B) (ii) when the petitioner never amended
the preprinted form petition to indicate that the petition
was premised on that ground. We therefore affirm the
judgment of the trial court terminating the respondent’s
parental rights pursuant to § 17a-112 (j) (3) (B) (ii).
The judgment is affirmed.
In this opinion the other justices 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.
** July 14, 2023, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court, upon notice and hearing as provided in sections 45a-716 and 45a-
717, may grant a petition filed pursuant to this section if it finds by clear
and convincing evidence that (1) the Department of Children and Families
has made reasonable efforts to locate the parent and to reunify the child
with the parent in accordance with subsection (a) of section 17a-111b, unless
the court finds in this proceeding that the parent is unable or unwilling to
benefit from reunification efforts, except that such finding is not required
if the court has determined at a hearing pursuant to section 17a-111b, or
determines at trial on the petition, that such efforts are not required, (2)
termination is in the best interest of the child, and (3) . . . (B) the child
(i) has been found by the Superior Court or the Probate Court to have been
neglected, abused or uncared for 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 the parent of such child has
been provided specific steps to take to facilitate the return of the child to
the parent pursuant to section 46b-129 and has failed to achieve such degree
of personal rehabilitation as would encourage the belief that within a reason-
able time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child . . . [or] (E) the parent
of a child under the age of seven years who is neglected, abused or uncared
for, has failed, is unable or is unwilling to achieve such degree of personal
rehabilitation as would encourage the belief that within a reasonable period
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 . . . .’’
2
Practice Book § 34a-1 (d) provides: ‘‘A petition may be amended at any
time by the judicial authority on its own motion or in response to a motion
prior to any final adjudication. When an amendment has been so ordered,
a continuance shall be granted whenever the judicial authority finds that
the new allegations in the petition justify the need for additional time to
permit the parties to respond adequately to the additional or changed facts
and circumstances.’’
3
The respondent appealed from the judgment of the trial court to the
Appellate Court, and we transferred the appeal to this court pursuant to
General Statutes § 51-199 (c) and Practice Book § 65-1.
4
The petitioner also sought termination of the parental rights of Gabriel’s
mother, Santasia S. The trial court ultimately granted that petition on the
ground that she voluntarily and knowingly consented to the termination of
her parental rights. The court’s termination of the parental rights of Santasia
S. is not at issue in this appeal.
5
All subsequent references to the trial court are to Judge Hoffman.
6
Practice Book § 33a-1 (b) provides in relevant part that ‘‘[a] summary
of the facts substantiating the allegations of the petition . . . shall be
attached thereto and shall be incorporated by reference.’’
7
Because the respondent does not challenge on appeal the reasonableness
of the factual findings with respect to ground (B) (ii), we need not recite
the evidence that supported those conclusions.
8
To the extent that these claims were not raised at trial, the petitioner
concedes that they are reviewable under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773,
781, 120 A.3d 1188 (2015).
In addition to these claims, the respondent contends that (1) ‘‘the trial
court’s memorandum of decision does not clarify whether it terminated the
[respondent’s] parental rights based on ground [(B) (i)] or ground [(B) (ii)],’’
and (2) the petitioner never articulated good cause for her motion to amend
the petition. To the extent that the respondent suggests that reversal of the
judgment is warranted on these grounds, we disagree. The trial court noted
in its memorandum of decision that it was required to determine whether
the respondent had failed to rehabilitate pursuant to ‘‘§ 17a-112 (j) (3) (B).’’
(Internal quotation marks omitted.) The failure to rehabilitate language is
found in § 17a-112 (j) (3) (B) (ii), not in § 17a-112 (j) (3) (B) (i). In addition,
the trial court found that the evidence ‘‘clearly and convincingly establishes
that . . . [Gabriel] has been in the custody of [the petitioner] for at least
fifteen months,’’ which is a requirement found only in ground (B) (ii). It is
clear, therefore, that the court’s ruling was premised on ground (B) (ii).
With respect to the respondent’s claim that the petitioner did not show
good cause for the amendment of the petition, we note that, at oral argument
before this court, counsel for the petitioner represented that, if the trial
court had denied the oral motion to amend the petition, he would simply
have withdrawn the petition and filed a new one premised on ground (B)
(ii) the next day. The respondent made no claim that the petitioner would
have been barred from doing so. Accordingly, we find unpersuasive the
respondent’s argument that he was harmed by the trial court’s granting of
the motion to amend in the absence of a showing of good cause because,
if the motion had been denied, he would have prevailed as a matter of law
in his attempt not to have his parental rights terminated.
9
As we discuss more fully subsequently in this opinion, although it is not
entirely clear to us whether the rules of practice required the petitioner to
amend the petition itself, it is indisputable that principles of due process
require the petitioner to provide actual notice that clearly identifies the
ground for the petition.
10
We emphasize that we conclude only that principles of due process do
not require strict adherence with the rules of practice governing notice of
the grounds for a petition to terminate parental rights, but require only that
the petitioner provide actual notice. We express no opinion on the issue of
whether due process requires strict compliance with other procedural rules
and statutes governing termination proceedings.
11
We further note that Gabriel’s attorney stated during closing argument
that ‘‘the [petitioner] has amended the petition to include [ground (B) (i)]
failure to rehabilitate . . . .’’ Counsel for the petitioner stated that Gabriel’s
attorney had ‘‘misspoken’’ and that the petition actually had been amended
to include a claim under ground (B) (ii). Counsel for the respondent did
not respond to this remark.
12
As we previously explained, the respondent testified on his own behalf
on this issue upon continuation of the trial.
13
Indeed, at oral argument before this court, counsel for the respondent
was unable to articulate any prejudice that the respondent had suffered as
a result of the purported lack of adequate notice of ground (B) (ii) as a
basis for the petition to terminate his parental rights. Nevertheless, he
maintained that the respondent’s due process rights were violated, thereby
effectively contending that a failure to provide adequate notice is structural
error. As we already indicated, however, this court previously has held
that ‘‘the significant differences between child dependency proceedings
and other judicial proceedings militate decisively against applying a per se
reversible error rule in dependency cases.’’ In re Amias I., supra, 343 Conn.
840. We see no reason to depart from that rule in the present case.