In re Glerisbeth C. ( 2016 )

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IN RE GLERISBETH C. ET AL.*
(AC 37846)
Sheldon, Prescott and Flynn, Js.
Argued September 9—officially released December 22, 2015**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown, C.
Taylor, J.)
Benjamin M. Wattenmaker, assigned counsel, for the
appellant (respondent mother).
Tammy Nguyen-O’Dowd, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, Gregory T. D’Auria, solicitor general, and Ben-
jamin Zivyon, assistant attorney general, for the appel-
lee (petitioner).
Deetta C. Roncone, for the minor children.
Opinion
SHELDON, J. In this appeal from the trial court’s
judgment terminating her parental rights to her two
youngest children, Glerisbeth and Jesus, the respondent
mother1 claims that the trial court violated her due
process rights under the United States constitution by
failing, sua sponte, to conduct a hearing as to her com-
petency to stand trial.2 We affirm the judgments of the
trial court.
The trial court set forth the following relevant facts
and procedural history in its memorandum of decision.
The Department of Children and Families (department)
first became involved with the respondent’s family in
October, 2004, when it was notified by Hartford Hospital
that the respondent and her newborn son, Jesus, had
both tested positive for cocaine. The matter was
referred to the department’s ongoing services unit.
On August 30, 2010, the department received another
referral about the respondent’s family from the Con-
necticut Children’s Medical Center, which reported that
Jesus had disclosed to the respondent that his father
had sexually abused him. Upon substantiating the alle-
gation of sexual abuse, the department referred this
matter to its ongoing services unit as well and imple-
mented a safety plan to ensure that the father would
have no further contact with either Jesus or Glerisbeth.
In November, 2010, the department was informed
by one of the respondent’s adult daughters that the
respondent was allowing the minor children’s father to
have contact with them. On the basis of that report, the
petitioner, the Commissioner of Children and Families
(commissioner), took custody of the children pursuant
to a ninety-six hour hold.3 Thereafter, the commissioner
filed parallel neglect petitions with respect to the two
children. The proceedings so initiated resulted in the
issuance of an order of six months’ protective supervi-
sion with respect to both children.
On October 18, 2012, the department received
another referral regarding the respondent’s family from
the Village for Children and Families, which reported
that there had been a physical altercation between the
respondent and her pregnant adult daughter4 in the
presence of Jesus, who had attempted to break it up.
On the basis of that report, the commissioner once
again took custody of Jesus and Glerisbeth pursuant
to a ninety-six hour hold.
On October 23, 2012, the commissioner filed separate
neglect petitions as to the two children, alleging that
they had been denied proper care, treatment and atten-
tion, physically, educationally or morally, or that they
were being permitted to live under conditions injurious
to their well-being. That same day, the commissioner
sought and obtained an order of temporary custody
(OTC) with respect to the two children. Pursuant to
the OTC, the trial court issued preliminary specific steps
for both parents and found that the department had
made reasonable efforts to avoid the need to remove
the children from their home.
On November 2, 2012, the respondent and the chil-
dren’s father appeared before the trial court, which
advised them of their rights, confirmed that proper ser-
vice of process had been made upon them, and
appointed counsel to represent them. Both parents
agreed that the OTC should be sustained, but entered
pro forma denials to the neglect petitions as to Jesus
and Glerisbeth. After issuing specific steps for both
parents, the court continued both neglect matters for
further proceedings.
On November 29, 2012, the commissioner filed a
motion for psychological examination of both parents
pursuant to General Statutes §§ 45a-717 (d), 46b-129a
(1) and 46b-121 (b). The motion was based upon the
following allegations: ‘‘[t]he history of sexual abuse,
the exposure of the children to violence, the previous
involvement of the court, the mental health issues of
the respondent mother, the bizarre behaviors of the
respondent mother and the lack of progress in
addressing those issues, despite the provision of ser-
vices, raises questions about the competency or ability
of the respondent parents to care for the[ir] . . . chil-
dren.’’ The court granted the motion for psychological
examination by agreement of the parties.
On October 29, 2013, approximately one year after
the commissioner filed neglect petitions as to Jesus and
Glerisbeth, separate petitions were filed to terminate
the parental rights of the respondent and the children’s
father on the ground of failure to rehabilitate. The com-
missioner based the claim of failure to rehabilitate as
to the respondent on what was alleged to be her ‘‘signifi-
cant mental health issues, substance abuse issues and
history of domestic violence.’’ On November 26, 2013,
the trial court confirmed service of the termination
petitions upon the respondent and advised her of her
rights in connection with the termination proceedings.
Eleven months later, on November 19, 20, and 21, 2014,
the termination trial was conducted before Judge Carl
Taylor in the Superior Court at Middletown. By memo-
randum of decision filed March 5, 2015, the court
granted both termination petitions. It thereby termi-
nated the parental rights of both parents as to the two
minor children and appointed the commissioner to
serve as their statutory parent for the purpose of secur-
ing an adoptive family or other permanent placement
for them. This appeal followed.
The respondent claims on appeal that the trial court
violated her due process rights under the United States
constitution by failing, sua sponte, to conduct a hearing
as to her competency to stand trial on the termination
petitions. Conceding that she did not preserve this claim
before the trial court, the respondent seeks review of
the claim and reversal of the judgments terminating her
parental rights as to Jesus and Glerisbeth under State
v. Golding, 213 Conn. 233, 239–240, 567 A.2d 823 (1989).
The respondent can prevail under Golding only if ‘‘all
of the following conditions are met: (1) the record is
adequate to review the alleged claim of error; (2) the
claim is of constitutional magnitude alleging the viola-
tion of a fundamental right; (3) the alleged constitu-
tional violation . . . exists and . . . deprived the
[respondent] of a fair trial; and (4) if subject to harmless
error analysis, the state has failed to demonstrate harm-
lessness of the alleged constitutional violation beyond
a reasonable doubt.’’ (Emphasis in original; footnote
omitted.) Id., 239–40; see In re Yasiel R., 317 Conn.
773, 781, 120 A.3d 1188 (2015) (modifying third prong
of Golding).
Here, the respondent plainly satisfies the first and
second prongs of Golding as to her claim that the trial
court erred by failing, sua sponte, to conduct a hearing
as to her competency to stand trial on the termination
petitions. She satisfies the first prong of Golding
because the record before us is adequate to review
her claim. She satisfies the second prong of Golding,
moreover, because, as our Supreme Court held in In
re Alexander V., 223 Conn. 557, 560, 613 A.2d 780 (1992),
her claim is based upon the alleged violation of her
fundamental constitutional right not to be deprived of
her liberty—specifically, her basic constitutional right
to raise and remain together with her children free from
interference by the state—without due process of law.
We must therefore go on to determine if the respondent
can also satisfy the third and fourth prongs of Golding
by showing that the alleged constitutional violation both
occurred and deprived her of a fair trial, and, if so, that
the state cannot prove that that violation was harmless
beyond a reasonable doubt.
In Alexander V., our Supreme Court did not hold
that due process invariably requires a hearing as to the
competency of a respondent parent in a termination
proceeding to stand trial. Nor did it hold that a termina-
tion trial, like a criminal trial, can never lawfully be
conducted when a respondent parent is incompetent to
stand trial. The court declined to impose such absolute
requirements in the termination context because there,
unlike in the criminal context, the legitimate interest
of the party whose competency is at issue must be
balanced against the vital interests of other parties,
particularly the children whose welfare is the central
focus of the proceeding. See id., 564–65. Children
involved in termination proceedings have a strong inter-
est in the speedy resolution of such proceedings, for
regardless of their outcome, their final resolution pro-
motes permanency in the children’s family relationships
and stability in their lives. Id., 565. The promotion of
those objectives may be put at risk, if not fatally com-
promised, by injecting undue delay for any purpose into
a termination proceeding. Id.
One obvious consequence of requiring a hearing as
to the competency of a respondent parent to stand trial
in a termination proceeding would be delaying the final
resolution of that proceeding until the competency
hearing was concluded. Further delay would inevitably
arise, moreover, from any further requirement that a
parent found incompetent to stand trial on a termination
petition be restored to competency before further pro-
ceedings in the case can be held. See Practice Book
§ 32a-9 (b) (‘‘[i]f competency may be restored within a
reasonable period of time, the judicial authority shall
stay proceedings and shall issue specific steps the par-
ent shall take to have competency restored’’). With
these considerations in mind, our Supreme Court
decided in Alexander V. that, to strike a proper balance
between the legitimate interests of respondent parents
not to have their parental rights terminated while they
are incompetent to stand trial and the legitimate inter-
ests of their children to have termination proceedings
brought to an expeditious conclusion, due process
requires that competency hearings be conducted as to
respondent parents in termination proceedings in two
specific situations: ‘‘when (1) the parent’s attorney
requests such a hearing, or (2) in the absence of such
a request, the conduct of the parent reasonably suggests
to the court, in the exercise of its discretion, the desir-
ability of ordering such a hearing sua sponte. In either
case, the standard for the court to employ is whether
the record before the court contains specific factual
allegations that, if true, would constitute substantial
evidence of mental impairment. . . . Evidence is sub-
stantial if it raises a reasonable doubt about the [par-
ent’s] competency . . . .’’ (Citations omitted; internal
quotation marks omitted.) In re Alexander V., supra,
223 Conn. 566.5
To perform its constitutional duty of protecting the
due process rights of respondent parents in termination
proceedings, as prescribed in Alexander V., the trial
court must be attuned to the potential of any evidence
in the case before it to raise doubt as to the parents’
competency to stand trial. ‘‘Evidence,’’ for this purpose,
includes ‘‘all information properly before the court,
whether it is in the form of testimony or exhibits for-
mally admitted or it is in the form of medical reports
or other kinds of reports that have been filed with the
court.’’ (Internal quotation marks omitted.) In re Kaleb
H., 306 Conn. 22, 31, 48 A.3d 631 (2012).
Whether evidence of record raises a reasonable doubt
as to a parent’s competency to stand trial depends, in
the first instance, upon its generic potential, if credited,
to raise doubt about the parent’s mental competency.
‘‘By definition, a mentally incompetent person is one
who is unable to understand the nature of the termina-
tion proceeding and unable to assist in the presentation
of his or her case.’’ In re Alexander V., supra, 223 Conn.
563. If, then, any evidence of record is found to have
the potential to raise doubt as to a respondent parent’s
ability to understand the proceedings against her and
to assist her counsel in the presentation of her case,
the court must determine, in the exercise of its sound
discretion, whether such evidence actually raises a rea-
sonable doubt about the parent’s present competency
to stand trial in the context of the entire case. See id.,
566. This second, discretionary step is essential because
the true focus of a competency inquiry is not the long-
term mental health history of the respondent parent,
but her ‘‘present ability to consult with h[er] lawyer
with a reasonable degree of rational understanding—
and whether [s]he has a rational as well as factual
understanding of the proceedings against h[er].’’
(Emphasis omitted; internal quotation marks omitted.)
State v. Mordasky, 84 Conn. App. 436, 446, 853 A.2d
626 (2004); see also In re Kaleb H., supra, 306 Conn. 22.
Because the true focus of the competency inquiry is
the parent’s present ability to assist her counsel with
a rational and factual understanding of the proceedings
against her at the time of trial, ‘‘[t]he trial judge is in a
particularly advantageous position to observe a
[respondent’s] conduct . . . and has a unique opportu-
nity to assess a [respondent’s] competency. A trial
court’s opinion, therefore, of the competency of a
[respondent] is highly significant.’’ (Internal quotation
marks omitted.) In re Zowie N., 135 Conn. App. 470,
495, 41 A.3d 1056, cert. denied, 305 Conn. 916, 46 A.3d
170 (2012) ‘‘[W]e [thus] give deference to the trial court’s
[competency determination] because the trial court has
the benefit of firsthand review of the [respondent’s]
demeanor and responses during the [proceeding].’’
State v. Johnson, 253 Conn. 1, 27 n.26, 751 A.2d 298(2000).
‘‘In determining whether a trial court has abused its
discretion, an appellate court must make every reason-
able presumption in favor of upholding the trial court’s
ruling, and only upset it for a manifest abuse of discre-
tion. . . . Accordingly, review of [discretionary] rul-
ings is limited to questions of whether the trial court
correctly applied the law and reasonably could have
reached the conclusion that it did.’’ (Citation omitted;
internal quotation marks omitted.) In re Kaleb H.,
supra, 306 Conn. 32. ‘‘In determining whether the trial
court [has] abused its discretion, this court must make
every reasonable presumption in favor of [the correct-
ness of] its action.’’ (Internal quotation marks omitted.)
State v. Hernandez, 254 Conn. 659, 665, 759 A.2d 79(2000). This standard of review applies no less to a
discretionary determination not to act sua sponte when
to do so is required by law in particular circumstances
than to a discretionary ruling expressly granting or
denying a request by counsel that the court so act.
Presuming, as we must in the absence of clear evidence
to the contrary, that the court was well aware of its legal
duty to conduct a hearing to determine the respondent’s
competency to stand trial if the evidence before it raised
a reasonable doubt as to her present ability to under-
stand the proceedings against her and to assist counsel
in the presentation of her case; see Havis-Carbone v.
Carbone, 155 Conn. App. 848, 867, 112 A.3d 779 (2015);
we treat its failure to order such a hearing as the result
of its discretionary determination that no such action
was called for in the circumstances before it. See, e.g.,
State v. Paulino, 127 Conn. App. 51, 70, 12 A.3d 628(2011).
The respondent’s mental health was a focal point of
these proceedings on the commissioner’s petitions to
terminate her parental rights to her two minor children.
In its thorough, seventy-eight page memorandum of
decision, the trial court discussed the respondent’s
mental health issues at length. The court noted that the
respondent had a ‘‘significant mental health history,’’
which began when she was a child. She had been diag-
nosed with bipolar and schizoaffective disorders, which
had sometimes manifested themselves in severe symp-
toms, including command hallucinations to harm her-
self or others, and had sometimes required her
hospitalization. The common effect of the respondent’s
mental health problems upon her, as described by the
trial court, was to render her incapable of focusing on
the interests of others, including her children, and thus
of understanding the impact of those problems upon
them. At no time, however, did the trial court find that
the effects of such problems upon on the respondent’s
ability to function as a competent parent had any corres-
pondingly adverse impact on her competency to
stand trial.
In support of the respondent’s claim that the record
before the trial court contained specific factual allega-
tions that, if true, should have caused the trial court to
entertain a reasonable doubt about her competency to
stand trial, and thus to conduct a competency hearing,
the respondent relies upon evidence of two sorts. First,
she relies upon reports and testimony from certain of
the respondent’s caregivers and evaluators as to the
effects of her mental health problems upon her day-to-
day functioning. On the basis of their observations—
including that, despite her twice daily receipt of medica-
tion for her disorders, she still experienced command
hallucinations and had difficulty distinguishing fantasy
from reality—she argues that the evidence before the
court necessarily raised a reasonable doubt as to
whether she had a rational understanding of the pro-
ceedings against her, which is one essential component
of competency to stand trial. Secondly, she relies upon
portions of her own trial testimony, which she claims
to demonstrate she lacked a factual understanding of
the proceedings against her, a second essential compo-
nent of competency to stand trial. We are not persuaded
by either of these claims.
In support of her first claim, the respondent relies
initially upon the report and trial testimony of Dr. Ines
Schroeder, which was based principally upon her psy-
chological evaluation of the respondent in March, 2013.
According to Schroeder’s report, the respondent ‘‘pre-
sented as a person who struggles to understand her
environment well. She has difficulty assessing informa-
tion accurately and developing sound interpretations.
She has reported hallucination[s] and a struggle to rec-
ognize fantasy from fiction.’’ In her testimony, more-
over, Schroeder stated that the respondent ‘‘has great
difficulty understanding the impact of things around
her’’ and has difficulty ‘‘understanding reality versus
fantasy.’’
Taken out of context, these excerpts from Schroed-
er’s report and testimony might be read to suggest rea-
son for doubting the respondent’s mental competency,
at least when she is having hallucinations or experienc-
ing difficulty in distinguishing fantasy from reality. The
trial court had before it, however, the entirety of
Schroeder’s report and testimony, as well as the records
and testimony of other medical professionals who moni-
tored and evaluated the respondent, in addition to its
own extended opportunity to observe the respondent’s
conduct in the courtroom and to hear her testimony
at trial. When considered in this broader context, the
respondent’s claim fails.
To begin with, Schroeder’s report and testimony con-
tained no expression of opinion that the respondent
was experiencing the most severe symptoms sometimes
associated with her mental disorders either at the time
of her evaluation or, more importantly, at the time of
trial. As for the respondent’s reported struggle with
schizoaffective disorder and her ‘‘inability to distinguish
between reality and fantasy,’’ Schroeder explained,
‘‘That is episodic and during times of significant difficul-
ties for her. There are times that she will perceive things
in the environment that are not real or not true and
assume that they are true and have difficulty believing
anyone telling her different.’’ When she had such prob-
lems in the past, moreover, their effects were immediate
and obvious, sometimes resulting in her hospitalization.
In fact, the record revealed that the respondent had not
had any hallucinations since July, 2013, more than one
year before the start of trial.6
The more common effect of the respondent’s mental
problems upon her, moreover, was not to cause her to
lose all touch with reality, but rather to cause her to
react to her problems in such a way as to minimize her
immediate stress, and, as Schroeder noted in her report,
sometimes without ‘‘understand[ing] the impact of her
actions on others or the situation. She absorbs very
few cues from the environment before making a deter-
mination about her setting. Then, she will react with
this information with little thought or consideration
regarding the consequences of her actions.’’ She thus
‘‘attempts to reduce her difficulties by having very few
demands on her time or expectations outside of the
home. . . . Instead, she works diligently to address
problems quickly to avoid the stress that may come
from waiting. She will employ whichever strategy she
has thought of first with little contemplation to its effec-
tiveness for the situation or the ramifications of her
actions.’’
At trial, Schroeder thus testified that when she inter-
viewed the respondent in March, 2013, the respondent
was oriented to the time, place and purpose of their
interaction. Schroeder reported, more particularly, that
the respondent ‘‘was able to tell me how she arrived
[at the interview]. She was able to tell me, as we talked
about in the beginning, [about] the release and all the
issues with regards to the court. She indicated that she
understood that this [interview] was for court and the
evaluation materials would be sent to the court.’’
Schroeder’s report and testimony, when examined in
their entirety, thus bely the respondent’s conclusion,
which she draws from excerpts of Schroeder’s report
and testimony, that: ‘‘It is certainly difficult to under-
stand how the respondent could assist her counsel in
preparation for trial, or aid in her own defense, when
she has oral and visual hallucinations, struggles to
understand her environment, experiences difficulty
with assessing information accurately and developing
sound interpretations, experiences great difficulty
understanding the impact of things around her, strug-
gles to relay historical information coherently, and can-
not distinguish between fact and fiction.’’ (Internal
quotation marks omitted.)
The respondent also argues that her ‘‘schizoaffective
disorder has not been alleviated by any of the medica-
tion or services she has received.’’ In support of this
argument, the respondent cites to a social study pre-
pared by Lorin Pasternak, a department social worker,
which was completed on October 29, 2013. In that social
study, Pasternak noted, inter alia, that ‘‘[the respon-
dent’s] mental health continues to be unstable and
erratic at times despite being engaged in therapy twice
weekly and receiving twice daily psychotropic medica-
tion.’’ At trial, Pasternak testified that ‘‘even on medica-
tion, [the respondent] was still having command
hallucinations, and it was concerning to the department
that twice a day she had to be assessed for her—to
see whether mentally she was stable.’’ Pasternak also
reiterated at trial her earlier statement from the Octo-
ber, 2013 social study, elaborating, ‘‘But even on medi-
cation, she still had to be assessed twice a day for her
mental health. She still had command hallucinations.
And that’s what the concern was. That, even on medica-
tions, her mental health wasn’t really under control.’’
Although the respondent has quoted accurately from
Pasternak’s report and testimony, which were based
upon the respondent’s self-reports as to prior hallucina-
tions and the records before her as to the respondent’s
ongoing treatment one full year before trial, the testi-
mony at trial clearly indicated that the respondent had
not suffered a hallucination since July, 2013. Although
the respondent had previously suffered from hallucina-
tions, and had at times experienced difficulty in distin-
guishing fantasy from reality, the testimony at trial
revealed that those particular symptoms had abated by
the time of trial. The respondent’s visiting nurse, Agata
Pawlowski, testified that in the months leading up to
trial, she had visited the respondent twice each day to
administer medication to her. On each of those visits,
Pawlowski had conducted a mental health assessment
of the respondent. On the basis of her observations of
the respondent during these visits, Pawlowski con-
cluded that by the time of the termination trial, the
respondent’s mental health had stabilized with the aid
of her medications. She thus reported that the only
exception she observed in that time frame to the general
improvement of the respondent’s mental health was
some understandable anxiety she was then experienc-
ing due to the pendency of these termination proceed-
ings, the pendency and significance of which with
respect to the potential termination of her parental
rights she well understood.
Consistent with Pawlowski’s daily observations of
the respondent, department social worker Francine
Hall testified that the last time the respondent had
reported having any hallucinations was in July, 2012.
Hall reported that changes in the respondent’s medica-
tion had assisted her in resolving that issue.
In addition to the foregoing reports and testimony,
the court file reveals that the respondent was present
in court in this matter on several occasions prior to the
termination trial. Those occasions included the initial
OTC hearing on November 2, 2012; the neglect adjudica-
tion and disposition commitment on December 13, 2012;
the in-court review on January 10, 2013; a hearing on
the commissioner’s motion to suspend visitation on
June 27, 2013; an in-court review regarding the suspen-
sion of visitation on July 16, 2013; a hearing on a motion
to review a permanency plan on September 3, 2013; the
plea hearing on the termination petitions on November
26, 2013; a hearing on a motion to review permanency
plan on July 15, 2014; and a hearing on a motion for a
finding of paternity on August 6, 2014. On no such
occasion did the trial court, the respondent’s counsel,
or anyone else involved in this case raise any concern
about the respondent’s competency to stand trial.7
Furthermore, the respondent herself testified at the
termination trial. Prior to the commencement of her
testimony, the court canvassed her about her decision
to testify. The court asked the respondent if she under-
stood that she had a right not to testify, if she under-
stood that she could not be forced to testify and if her
decision to testify was free and voluntary. The court
also asked whether the respondent had had the opportu-
nity to discuss her decision to testify with her attorney
and whether she was satisfied with his advice and assis-
tance. The respondent answered in the affirmative to
all of those inquiries and affirmed as well her under-
standing that she would be subject to cross-examination
by all of the other lawyers in the case.
The respondent’s ensuing testimony revealed not
only that she had a rational and a factual understanding
of the termination proceedings, but that she was an
accurate historian as to the events that had given rise
to those proceedings.8 She thus responded to her attor-
ney’s questions in a manner that was at all times consis-
tent with her stated desire to retain her parental rights.
Notwithstanding the respondent’s responses to the
court’s canvass, the respondent claims that her ensuing
testimony revealed that she was unable to understand
the nature of the proceedings against her. On this score,
she argues: ‘‘[E]ven after the respondent had observed
three days of trial testimony, in which the petitioner
put on seven witnesses and introduced eighteen full
exhibits, she testified that she did not understand any
of the reasons why [the commissioner] sought to termi-
nate her parental rights. Nor could she formulate a
coherent, rational response to any of the [commission-
er’s] accusations.’’ The respondent contends, more par-
ticularly, that her failure to understand the proceedings
against her was clearly demonstrated by the following
exchange between her and her counsel on direct exami-
nation:
‘‘[The Respondent’s Attorney]: Do you understand
the reasons that [the commissioner] is providing to
justify the termination of your parental rights?
‘‘[The Respondent]: No.
‘‘[The Respondent’s Attorney]: Did you hear the testi-
mony at trial, in this trial?
‘‘[The Respondent]: Yes.
‘‘[The Respondent’s Attorney]: Do you agree with
what [the commissioner] is saying?
‘‘[The Respondent]: No.
‘‘[The Respondent’s Attorney]: Why not?
‘‘[The Respondent]: Because [the department],
they’re abusers.’’
In making this argument, however, the respondent
has omitted her telling response to her attorney’s fol-
low-up question asking her to explain her accusation
against the department. The respondent cogently
explained her answer: ‘‘Once I went for a visit [to the
department office] and Chris [Padilla, a department
social worker] came to the visit . . . . He sat down,
and he said to my son, my son was anxious, he was
not sitting still and said ‘baby Jesus’ with the telephone
cable ‘do you want to do like this,’ insinuating that my
son wanted to commit suicide. And he went like that
to him, he shook him.’’ The respondent’s answer demon-
strated not only an understanding of the proceedings
against her, but knowledge of the full name of one of
the social workers involved in the case and an under-
standing that, if that social worker engaged in the con-
duct she described with her child, such conduct was
completely inappropriate.
The respondent’s attorney then examined the respon-
dent as to the commissioner’s claims against her, asking
her first if she agreed with the commissioner’s position
that her mental health difficulties affected her ability
to parent her children. She responded to this question
in the negative, explaining: ‘‘I’m a good mother and I
know how to raise children. . . . I take them to the
park. I cook what they want. I buy them everything
they want. I give them a lot of love.’’ She then restated
that she could take care of her children and pleaded
that they be returned to her.
In sum, the record before the trial court undermines
the respondent’s claim that she did not understand the
proceedings against her or that she was unable to assist
her lawyer in the defense of her case. In her testimony,
the respondent offered explanations for and disputed
the validity of several of the allegations made against
her by the commissioner in support of the termination
petitions.9 There was nothing in the respondent’s testi-
mony or her other behavior in court that should have
prompted the court, sua sponte, to order an investiga-
tion or conduct a hearing as to her competency to stand
trial. The respondent answered all of the questions put
to her appropriately, and in a manner consistent with
her position at trial. The record is replete with notations
by various individuals involved in the care and treat-
ment of the respondent that she had expressed depres-
sion and anxiety as to the commissioner’s efforts to
take custody of her children and put them up for adop-
tion. The few instances documented in her appellate
brief, in which she testified that she did not understand
the commissioner’s actions against her, evidenced not
a lack of understanding of the nature of the termination
proceedings, but a fundamental disagreement with the
commissioner as to her ability to be an effective parent
for her children.
On the basis of the foregoing, we conclude that the
court’s failure, sua sponte, to order a competency evalu-
ation of the respondent did not constitute an abuse of
its discretion or a violation of the respondent’s due
process rights under the United States constitution.
Accordingly, the respondent’s claim fails under the third
prong of Golding.
The judgments are affirmed.
In this opinion the other judges 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 this court.
** December 22, 2015, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The parental rights of the father of the minor children were also termi-
nated, but he has not challenged that judgment. In this opinion we refer to
the respondent mother as the respondent.
2
The attorney for the minor children has filed a position statement in
connection with this appeal, adopting as her own the brief of the petitioner.
3
General Statutes § 17a-101g provides in relevant part: ‘‘(e) If the Commis-
sioner of Children and Families, or the commissioner’s designee, has proba-
ble cause to believe that the child or any other child in the household is in
imminent risk of physical harm from the child’s surroundings and that
immediate removal from such surroundings is necessary to ensure the child’s
safety, the commissioner, or the commissioner’s designee, shall authorize
any employee of the department or any law enforcement officer to remove
the child and any other child similarly situated from such surroundings
without the consent of the child’s parent or guardian. The commissioner
shall record in writing the reasons for such removal and include such record
with the report of the investigation conducted under subsection (b) of
this section.
‘‘(f) The removal of a child pursuant to subsection (e) of this section
shall not exceed ninety-six hours. During the period of such removal, the
commissioner, or the commissioner’s designee, shall provide the child with
all necessary care, including medical care, which may include an examina-
tion by a physician or mental health professional with or without the consent
of the child’s parents, guardian or other person responsible for the child’s
care, provided reasonable attempts have been made to obtain consent of
the child’s parents or guardian or other person responsible for the care of
such child. During the course of a medical examination, a physician may
perform diagnostic tests and procedures necessary for the detection of child
abuse or neglect. If the child is not returned home within such ninety-
six-hour period, with or without protective services, the department shall
proceed in accordance with section 46b-129. . . .’’
4
In addition to the two children who are at issue in this case, the respon-
dent has five adult children.
5
Our Supreme Court’s holding in Alexander V. has been incorporated
into the rules of practice. See Practice Book § 32a-9 (a) (‘‘[i]n any proceeding
for the termination of parental rights, either upon its own motion or a motion
of any party alleging specific factual allegations of mental impairment that
raise a reasonable doubt about the parent’s competency, the judicial author-
ity shall appoint an evaluator who is an expert in mental illness to assess
such parent’s competency; the judicial authority shall thereafter conduct a
competency hearing within ten days of receipt of the evaluator’s report’’).
6
The respondent claims in her reply brief to this court that the commis-
sioner should be judicially estopped from arguing that she had not experi-
enced any hallucinations for over one year before the start of trial based
upon counsel’s argument to the trial court that she was still experiencing
such hallucinations at the time of trial. Because the respondent has raised
this claim for the first time in her reply brief, we are disinclined to address
it. See State v. Houghtaling, 155 Conn. App. 794, 797 n.2, 111 A.3d 931(2015). We note, however, that even if counsel’s argument could have been
so understood, the argument itself was not evidence in the case—a fact that
the trial court doubtlessly understood—and was completely unsupported by
the evidence. See In re Shanaira C., 297 Conn. 737, 761, 1 A.3d 5 (2010).
7
We note that, in addition to presiding over the three day termination
trial, Judge Taylor also presided over one of the pretrial hearings. Judge
Dannehy presided over six of the pretrial hearings and Judge Burgdorff
presided over two of them. Like Judge Taylor, neither Judge Dannehy nor
Judge Burgdorff raised the issue of the respondent’s competency to stand
trial.
8
Following the court’s canvass, the respondent’s attorney began his direct
examination. To begin, he asked the respondent: ‘‘Do you understand why
you’re here today? . . . . [C]an you explain what this proceeding is about?’’
The respondent answered, ‘‘It’s about the custody of my babies.’’ When
asked, ‘‘[d]o you understand who the gentleman is to your right,’’ the respon-
dent correctly stated, ‘‘This gentleman is the judge.’’ The respondent’s attor-
ney then guided the respondent through her acknowledged history of mental
illness. The respondent explained that her mental health issues began when
she was nine years old and she witnessed her father slaughter a goat, which
she had considered a pet. She accurately stated that she has been diagnosed
as schizophrenic and bipolar and that she has suffered from hallucinations.
She explained that she has been on several medications throughout her life
and that they are always being changed due to various side effects. Her
attorney asked her about the medications she is ‘‘taking now’’ and she
explained that she is taking seven different medications and feels ‘‘really
good.’’ The respondent discussed her relationship with the respondent father
and their care of the children.
9
When asked about the respondent’s prior allegation that the father had
sexually abused their son, she explained that she had been hallucinating at
that time and that it did not, in fact, occur. The respondent testified regarding
the October, 2012 incident with her adult daughter that resulted in the
neglect petitions underlying this termination proceeding. She testified that
her daughter is a drug addict who demanded money from her and, when
the respondent refused to give it to her, both her daughter and her daughter’s
husband hit her. After the police were called in response to that altercation,
the respondent explained that ‘‘[the department] got there and they took
my, they took my children away. . . . And [the department] took my chil-
dren away without asking questions or anything.’’ The respondent also
explained that she had brought a knife with her to one of her supervised
visits with the children so she could cut her daughter’s birthday cake.
On cross-examination by the commissioner, the respondent testified that
she knew that the department did not want her older daughter living with
her due to her daughter’s drug use, but defended her willingness to allow
her to stay by explaining that her daughter wasn’t using drugs at the time
because she was pregnant.