In re Sydnei V. ( 2016 )

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IN RE SYDNEI V.*
(AC 38627)
Lavine, Mullins and Harper, Js.
Argued April 5—officially released September 15, 2016**
(Appeal from Superior Court, judicial district of
Middlesex, Child Protection Session at Middletown,
Hon. Barbara M. Quinn, judge trial referee.)
David J. Reich, for the appellant (respondent).
Benjamin M. Wattenmaker, assigned counsel, for the
appellee (petitioner).
George Jepsen, attorney general, Gregory T. D’Auria,
solicitor general, and Benjamin Zivyon and Carolyn
Signoralli, assistant attorneys general, filed a brief for
the Commissioner of Children and Families as ami-
cus curiae.
Opinion
LAVINE, J. The respondent mother appeals from the
judgment of the trial court terminating her parental
rights in her daughter (child) pursuant to General Stat-
utes § 45a-717 (g) (2) (A), abandonment, and § 45a-717
(g) (2) (C), no ongoing parent-child relationship.1 On
appeal, the respondent claims that the court (1) violated
her right to due process by failing to determine, during
the dispositional phase of the termination of parental
rights proceeding, that there would be some adverse
effect to the child by failing to terminate her parental
rights in the child, (2) erred in finding that it was in
the child’s best interests to terminate the respondent’s
parental rights as to the child, and (3) committed plain
error by failing to canvass her prior to trial as required
by In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015)
(Yasiel canvass), and In re Daniel N., 163 Conn. App.
322, 135 A.3d 1260, cert. granted, Conn. , A.3d
2
(2016). We disagree and, therefore, affirm the judg-
ment of the trial court.
In its memorandum of decision, the court, Hon. Bar-
bara M. Quinn, judge trial referee, made the following
findings of fact. J.V. and his wife, K.V., are the child’s
legal guardians (guardians).3 In December, 2014, in the
Court of Probate for the District of Danbury, the peti-
tioner, J.V., filed an application to terminate the respon-
dent’s parental rights, pursuant to General Statutes
§ 45a-717. The application alleged that the respondent’s
parental rights should be terminated on the ground of
abandonment; General Statutes § 45a-717 (g) (2) (A);
and no ongoing parent-child relationship; General Stat-
utes § 45a-717 (g) (2) (C).4 Pursuant to a motion filed
by counsel for the child, the matter was transferred to
the Superior Court for Juvenile Matters. See General
Statutes § 45a-715. The trial was conducted between
October 5 and October 8, 2015.
The respondent and the child’s father had dated one
another while they were in high school. They later mar-
ried and had one child who is the subject of the present
termination proceeding. The child was born in 2005. The
couple’s relationship was marked by domestic violence
and alcohol abuse. In 2006, they were living apart from
one another. Despite their differences, the couple tried
to ‘‘patch things up.’’ One evening they went out to
dinner and were involved in a serious motor vehicle
crash. The child’s father was killed at the scene, and
the respondent suffered serious injuries. The accident
investigation concluded that the respondent and the
child’s father were intoxicated with blood alcohol levels
in excess of the legal limit.
The respondent subsequently married G.U. with
whom she has a son, Z. The respondent’s relationship
with G.U. also was characterized by domestic violence,
and drug and alcohol abuse. The child and Z were
exposed to a great deal of turbulence. As a consequence
of their domestic violence, the respondent and G.U.
were arrested on numerous occasions. Although the
respondent reported that G.U. instigated the violence,
the court found that the respondent was the primary
aggressor. In January, 2010, the respondent was so
angry that she attacked G.U. with a knife and tried to
cut his face. The child, who was five years old at the
time, was awakened from sleep by the fracas. She still
recalled the incident at the time of trial.
On January 17, 2010, the Department of Children and
Families (department) obtained an order of temporary
custody and removed both children from the care of
respondent and G.U. and placed them with the guard-
ians. The child was adjudicated neglected on November
22, 2010, and placed in the guardians’ care.5 When the
child entered the guardians’ home, she was terrified of
knives, including the mere mention of them. She was
shy, withdrawn, anxious, and suffered night terrors.
When she was traveling in a motor vehicle, the child
became nervous and fearful that the respondent was
following and would take her away. The guardians
placed her in therapy, which was of some benefit to her.
At the time of the neglect proceedings, the court,
Sommer, J., ordered once-a-week visitation between
the respondent and the child and joint counseling for
them. The therapist was to work with the respondent
and the child to improve their relationship and expand
visitation and was authorized to make recommenda-
tions regarding the progress, duration, and frequency,
as well as the supervision, of the visits between the
respondent and the child. The hoped-for normalization
of the parent-child relationship between the respondent
and the child did not take place due to the trauma the
child had suffered as a result of the constant violence
in her parental home. The child did not want to talk
about her life with the respondent, even five years later
at the time of the termination of parental rights trial.
The respondent and the child had scheduled visita-
tion during the first year and one-half following the
transfer of guardianship. The child was anxious, how-
ever, and her symptoms increased prior to each visit.
It was difficult to schedule the time and location of the
visits. The guardians asked the respondent to provide
adequate notice so that they could prepare the child
emotionally to be ready for the visit. The respondent
often gave notice at the last minute, after the child had
gone to bed for the night, which made it difficult for
the guardians to prepare her for the visit, which took
place at restaurants, in the community, and in parks.
Sometimes Z or the court appointed guardian ad litem
attended the visits. On the way to the visits, the child
complained of having a stomach ache and that she
needed to throw up. The visits lasted for approximately
one hour, sometimes longer. Often the child wished the
visits to be shortened. Occasionally, the respondent
brought the child a gift. Once, the respondent took the
child to a ‘‘Build-a-Bear’’ store, where she purchased a
teddy bear for the child. When the child returned to
the guardians’ home, she wanted to throw out the bear.
By early 2012, the visits between the respondent and
the child were sporadic and far between. The two were
no longer were engaged in joint therapy, and the thera-
pist did not recommend increasing the amount of time
the respondent spent with the child.
In March, 2012, the respondent filed a motion for
increased visitation. The parties reached an agreement
that, after three individual therapy sessions, the respon-
dent could have therapeutic visits with the child. The
respondent, however, failed to attend the three required
therapy sessions, and all visits ceased. The respondent
last visited the child on April 9, 2012. The respondent
and child have had no contact since then.
The respondent claimed that she failed to continue
therapy and engage in therapeutic visits with the child
for financial reasons. She had no insurance and inade-
quate income from her employment. The court found
no evidence that the respondent made any attempt to
seek therapy on a sliding pay scale or to ask for help
from others, such as the guardian ad litem, to find
affordable therapy. She made only a minimal effort to
comply with the court-ordered conditions for increased
access to the child.
In addition to failing to find means by which she
could increase her access to the child, the respondent
did not take advantage of other avenues open to her
that would demonstrate her commitment to the child.
The respondent provided no financial support for the
child nor did she send the child letters or gifts. She failed
to inquire about the child’s school progress, medical
appointments, or her life in general. The court found
that whatever her level of concern may have been, the
respondent failed to manifest it in a concrete manner to
inform herself about the child’s daily life and progress.
The respondent filed another motion for visitation in
December, 2013. The department investigated and filed
a visitation report dated July 7, 2014. After reviewing the
history and the child’s relationship with the respondent,
the department did not recommend visitation.
Court-ordered psychological evaluations of both the
respondent and the child were performed in October,
2014, by Deborah Gruen, a clinical and forensic psychol-
ogist. The guardians also were interviewed. On the basis
of Gruen’s testimony at trial, the court found that the
respondent was an emotionally sensitive person who
has a propensity for unstable relationships. She can be
irritable, demanding, and charming at the same time,
is manipulative in her relationships, and exercises poor
judgment. Although Gruen did not provide a diagnosis,
she found that the respondent exhibits antisocial behav-
ior and borderline personality traits. She recommended
that the respondent receive intensive psychotherapy
with a seasoned clinician to deal with the trauma the
respondent herself has experienced, both as a child and
in her adult relationships.6 Without intensive treatment,
Gruen’s prognosis for the respondent is guarded.
Because the respondent was pregnant in November,
2014, Gruen recommended that the respondent wait at
least six months before entering therapeutic interven-
tion. This period of time was needed to give the respon-
dent time to adjust to all of the significant changes that
were coming to her life.
The court asked Gruen to answer additional ques-
tions, which she did in August, 2015. Gruen summarized
the treatment the respondent had received and results
of the conversation she had with the respondent’s clini-
cian. By the end of July, 2015, the respondent had had
twenty-two sessions of therapy and had made substan-
tial strides to address her long-standing trauma-related
issues. The respondent has stable employment with
considerable management responsibilities and has cus-
tody of her youngest child. Z is in her care several times
a week, but his father is his primary caretaker. The
respondent is beginning the difficult introspection and
emotional work that she needs to improve herself for
the sake of her children as well as herself. The court
found that the respondent’s changes came about after
the child had been out of the respondent’s primary care
for five years.
According to Gruen, the child has only bad memories
of life with the respondent, and she does not wish to
see or interact with her. The child suffers underlying
anxiety and needs to strengthen her ability to acknowl-
edge her anxieties and address her fears on a more
realistic basis. The therapist did not recommend that
the child visit with the respondent until the respondent
had undertaken intensive therapy. In the spring of 2015,
the child was in therapy, having been diagnosed with
posttraumatic stress, as a result of the trauma she has
witnessed. The child’s therapist echoed Gruen’s con-
cern about the child’s building a relationship with the
respondent. Children in her situation are very cautious,
hostile, and estranged. The therapist could not predict
what would happen if the child and respondent met,
as there could be widely different outcomes. As the
child grows, however, the therapist opined that she will
need some access to the respondent; children who are
in the child’s situation grow-up ‘‘missing a part of them-
selves,’’ which is necessary for their stable, balanced,
and mature adult development.7
The court found, according to the guardian ad litem,
that in 2011, the child was very anxious and uncomfort-
able whenever the respondent was mentioned. The
child wanted to remain with the guardians, and her
attitude was unchanged in 2015. She is settled in the
guardians’ home where she is a happy and loving ten
year old, who is enthusiastic about school and the things
that she does with her family. In the opinion of the
guardian ad litem, termination of the respondent’s
parental rights is in the best interest of the child.
The court analyzed the facts and the grounds alleged
for termination of the respondent’s parental rights in
the child in the adjudicatory phase of the proceedings.
As to the ground of abandonment alleged pursuant to
§ 45a-717 (g) (2) (A),8 the court noted that the appellate
courts of this state have held that ‘‘[t]he commonly
understood general obligations of parenthood entail
these minimum attributes: (1) [the expression of] love
and affection for the child; (2) [the expression of] per-
sonal concern over the health, education and general
well-being of the child; (3) the duty to supply the neces-
sary food, clothing, and medical care; (4) the duty to
provide an adequate domicile; and (5) the duty to fur-
nish social and religious guidance.’’ (Internal quotation
marks omitted.) In re Kezia M., 33 Conn. App. 12, 18,
632 A.2d 112, cert. denied, 228 Conn. 915, 636 A.2d
847 (1993).
Abandonment has been defined as a parent’s failure
to maintain a reasonable degree of interest, concern or
responsibility as to the welfare of the child, and main-
tain implies a continuing, reasonable degree of interest,
concern, or responsibility and not merely a sporadic
showing thereof. See In re Paul M., 148 Conn. App.
654, 664, 85 A.3d 1263, cert. denied, 311 Conn. 938, 88
A.3d 550 (2014).
On the basis of the clear and convincing evidence
before the court, it found that the respondent had not
demonstrated the minimum attributes of parenthood
as they are understood in the law. She has not expressed
love and affection toward the child in any meaningful
way and has failed to inquire about the child’s health,
education, and general well-being, and has not made
any effort to provide financial support for the child.
Although the court did not doubt that in her heart, the
respondent loves the child and wishes that she could
visit with her, the respondent is aware that the child
does not wish to have contact with her. The court found
that the respondent is wise enough not to force contact
with the child.
The court credited the respondent with good inten-
tions, but noted that thoughts and wishes are insuffi-
cient to sustain a child. The court found that the
respondent had choices to make in the five years since
the child left her care. On three separate occasions, in
2010, 2012, and 2014, the respondent was offered visits
with the child if she entered therapy. It was not until
2014 that the respondent began the arduous process
of making positive changes in her life. Although the
respondent has made sufficient progress to enable her
to have her two younger children9 in her care on a
regular basis, that progress has been too little and too
late for the child who is the subject of the present
termination of parental rights petition.
The respondent failed to write to the child or to send
her gifts. She failed to communicate with the guardians
as to the child’s well-being. Although the respondent
believes that the guardians prevented her from doing
so, she failed to reach out to take advantage of the
resources available to her, such as the child’s guardian
ad litem and attorney. The court concluded that the
clear and convincing evidence of respondent’s failures
constitutes legal abandonment.
Although a court need find only one statutory ground
to terminate parental rights in a child; see In re Alexan-
der C., 67 Conn. App. 417, 427, 787 A.2d 608 (2001),
aff’d, 262 Conn. 308, 813 A.2d 87 (2003); the court adjudi-
cated the second reason alleged by the petitioner. To
grant a termination of parental rights petition on the
ground that there is no ongoing parent-child relation-
ship pursuant to § 45-717 (g) (2) (C),10 the court must
find that no parent-child relationship exists and that
looking prospectively, it would be detrimental to the
child’s best interest to allow time for such a relationship
to develop. See In re Christian P., 98 Conn. App. 264,
269, 907 A.2d 1261 (2006). In the present case, the court
found that there is no remaining parent-child relation-
ship between the respondent and the child; it evapo-
rated in the long period of time in which the respondent
had no contact with the child. The critical issue, the
court found, was whether it is detrimental to the child’s
best interest to permit more time for such a relationship
to develop.
The court found that the child is happy and secure
in the guardians’ home and her school. The mere men-
tion of the respondent upsets the child. The child has no
positive memories of the respondent. Permitting more
time in the child’s young life for such a relationship to
develop is detrimental to the child’s best interest when
the child has been out of the respondent’s care for more
than one half of her life. The court concluded from the
clear and convincing evidence that the petitioner had
proven that there was no ongoing parent child relation-
ship and that it was not in the child’s best interest to
permit more time for such a relationship to develop.
The court then made the statutory findings required in
the dispositional phase of the proceedings. See General
Statutes § 45a-717 (h). The court found that the disposi-
tional factors all pointed toward a finding that termina-
tion of parental rights was in the child’s best interest.
The child is in crucial need of safety, stability, and
permanency, which the respondent is not in a position
to provide. The court concluded on the basis of the
clear and convincing evidence that termination of the
respondent’s parental rights is in the child’s best inter-
est. Additional facts will be set out as necessary.
Before addressing the respondent’s claims on appeal,
we set forth ‘‘the well established legal framework for
deciding termination of parental rights petitions. [A]
hearing on a petition to terminate parental rights con-
sists of two phases: the adjudicatory phase and the
dispositional phase. During the adjudicatory phase, the
trial court must determine whether one or more of the
. . . grounds for termination of parental rights set forth
in [§ 45-717 (g)] exists by clear and convincing evidence.
. . . If the trial court determines that a statutory
ground for termination exists, then it proceeds to the
dispositional phase. During the dispositional phase, the
trial court must determine whether termination is in the
best interests of the child.’’ (Internal quotation marks
omitted.) In re Elijah G.-R., 167 Conn. App. 1, 18–19,
A.3d (2016).
I
The respondent’s first claim is that ‘‘procedural due
process requires the court to determine in the disposi-
tional phase that there are adverse effects on the child
that outweigh the mother’s constitutionally protected
parental rights before those rights can be terminated.’’11
This claim, which is in derogation of § 45a-717 (h), is
made up of whole cloth, and we reject it.
Our legislature has created a constitutionally viable
statutory scheme to be followed by our courts when
adjudicating petitions to terminate the parental rights
of parents in their children. General Statutes §§ 45a-
717 and 17a-212,12 which are applicable in the Probate
Court and Superior Court respectively, consist of ‘‘two
phases, adjudication and disposition. . . . In the adju-
dicatory phase, the trial court determines whether one
of the statutory grounds for termination of parental
rights . . . exists by clear and convincing evidence. If
the trial court determines that a statutory ground for
termination exists, it proceeds to the dispositional
phase. In the dispositional phase, the trial court deter-
mines whether termination is in the best interests of
the child.’’ (Internal quotation marks omitted.) In re
Trevon G., 109 Conn. App. 782, 788, 952 A.2d 1280
(2008). In the present case, the court found that the
petitioner had proved by clear and convincing evidence
the grounds alleged for termination of the respondent’s
parental rights in the child. On appeal, the respondent
does not challenge the court’s findings and conclusions
in the adjudicatory stage of the termination proceeding.
Rather, the respondent claims that her right to proce-
dural due process was violated because the court failed
to perform a balancing test pursuant to Mathews v.
Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d
18 (1976), to determine the adverse effects of the failure
to terminate her parental rights on the child against her
constitutionally protected right to raise her child. Such
an analysis in this case is unwarranted as the statutory
scheme passes constitutional muster. See In re Nevaeh
W., 317 Conn. 723, 740, 120 A.3d 1177 (2015); In re Eden
F., 250 Conn. 674, 690–91, 741 A.2d 873 (1999).
Section § 45a-717 (h) sets forth six guidelines that
the court must consider and on which it must make
written findings, and our Supreme Court has deter-
mined that this statutory provision is the guide to
determining the best interest of the child. The statutory
scheme ‘‘carefully sets out . . . [the] situations that,
in the judgment of the legislature, constitute counter-
vailing interests sufficiently powerful to justify the ter-
mination of parental rights in the absence of consent.’’
(Internal quotation marks omitted.) In re Eden F.,
supra, 250 Conn. 689. Nothing in § 45a-717 (h), which
relates to the best interest of the child in the disposi-
tional phase of the termination proceeding, requires the
court to engage in a Mathews balancing analysis or to
find a detriment to the child if termination of parental
rights is not granted.
The respondent relies on Santosky v. Kramer, 455
U.S. 745, 754, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
Santosky does not support her position. ‘‘After the State
has established parental unfitness at the intital proceed-
ing, the court may assume at the dispositional stage
that the interests of the child and the natural parents
do diverge.’’ (Emphasis omitted.) Id., 760. In the disposi-
tional phase of a termination proceeding, the emphasis
shifts ‘‘from the conduct of the parent to the best inter-
est of the child.’’ In re Romance M., 229 Conn. 345,
356–57, 641 A.2d 378 (1994). As the commissioner has
pointed out in her brief, the respondent’s claim, in actu-
ality, is not related to procedural due process. Rather,
the respondent seeks to add a substantive requirement
to the statutory scheme enacted by our legislature. In
other words, the respondent’s claim is related to sub-
stantive, not procedural, due process. See In re Azareon
Y., 309 Conn. 626, 640, 72 A.3d 1074 (2013) (our Supreme
Court observed that similar claim was one of substan-
tive, not procedural, due process). For the foregoing
reasons, the respondent’s claim fails.
II
The respondent’s second claim is that the trial court
erred by finding that there was clear and convincing
evidence that it was in the child’s best interest to termi-
nate the respondent’s parental rights in her.13 We do
not agree.
The substance of the respondent’s claim is that the
evidence presented as to the dispositional phase of
the termination proceeding was marginal. She correctly
notes that the child has been in a safe and stable home
since 2010, and that the respondent has done nothing
to jeopardize the placement and is not seeking reunifica-
tion. She argues, therefore, that because the child is in
a stable, permanent placement and the respondent is
not negatively affecting that placement, there is no clear
and convincing evidence that her parental rights should
be terminated because it is in the best interest of the
child. To support her claim, the respondent points to
Gruen’s testimony that the child, at some time in the
future, may benefit from contact with the respondent.
The respondent’s argument is unavailing.
‘‘The best interests of the child include the child’s
interests in sustained growth, development, well-being,
and continuity and stability of its environment.’’ (Inter-
nal quotation marks omitted.) In re Shyina B., 58 Conn.
App. 159, 167, 752 A.2d 1139 (2000). ‘‘In the dispositional
phase of a termination of parental rights hearing, the
trial court must determine whether it is established by
clear and convincing evidence that the continuation of
the respondent’s parental rights is not in the best inter-
est of the child.’’ (Internal quotation marks omitted.)
In re Jermaine S., 86 Conn. App. 819, 835, 863 A.2d
720, cert. denied, 273 Conn. 938, 875 A.2d 43 (2005). In
making that determination, the court must consider the
factors delineated in § 45a-717 (h).14
The court made the following findings of fact with
respect to the dispositional phase of the proceedings.
The department was involved with the respondent, the
child, and Z at the time the children were removed from
her care. The department’s involvement terminated
when the child’s guardianship was transferred to the
guardians. The department saw no child protection
issues following the transfer of guardianship. There-
after, the department had no obligation to offer the
respondent services.
At the time the child’s guardianship was transferred,
the court ordered visits between the respondent and
the child, but the respondent did not comply with the
order. The guardians did comply by offering the respon-
dent visits with the child.
At the time of the termination hearing, the child was
ten years old and had no relationship with the respon-
dent. She is an anxious child and becomes concerned
whenever the respondent is mentioned. The child has
no fond memories of the respondent and wishes to
remain permanently in the guardians’ home and to be
adopted by them.
The respondent failed to make adequate efforts to
have the child returned to her home. She abandoned
the child and failed to communicate with the guardians
in any meaningful way. At the time of the termination
of parental rights proceeding, the respondent was
engaged in therapy and had made significant strides,
but those strides were too late for the child, who had
grown deeply attached to others. A child’s sense of
time is not the same as an adult’s. Most of the child’s
conscious life has been spent with her guardians, not
the respondent.
The court found that, although the respondent
believes that the guardians have prevented her from
having reasonable visits with the child, the evidence
demonstrates that the respondent failed to take the
steps she should have taken to maintain access to the
child. Although the respondent’s past economic circum-
stances have made her life more challenging, those cir-
cumstances, in and of themselves, did not prevent her
from maintaining a reasonable relationship with the
child.
‘‘It is axiomatic that a trial court’s factual findings
are accorded great deference. Accordingly, an appellate
tribunal will not disturb a trial court’s finding that termi-
nation of parental rights is in a child’s best interest
unless that finding is clearly erroneous. . . . A finding
is clearly erroneous when either there is no evidence
in the record to support it, or the reviewing court is
left with the definite and firm conviction that a mistake
has been made. . . . [E]very reasonable presumption
is made in favor of the trial court’s ruling. . . . Addi-
tionally, in reviewing the court’s findings under the dis-
positional phase of the proceedings, it is appropriate
to read the trial court’s opinion as a whole, including its
findings in the adjudicatory phase.’’ (Citations omitted;
footnote omitted; internal quotation marks omitted.) In
re Elijah G.-R., supra, 167 Conn. App. 29–30.
We carefully have reviewed the court’s memorandum
of decision, including its factual findings in the adjudica-
tory phase of the proceedings, and reviewed the record.
We conclude that the court’s finding that termination
of the respondent’s parental rights is in the best interest
of the child is not clearly erroneous. At the time of trial,
the child had resided with her guardians for approxi-
mately five years, she is anxious and fearful of the
respondent, and she does not want to visit with her. In
fact, there have been no visits between the respondent
and the child for an extended period of time. The under-
lying facts support the court’s conclusion that the anx-
ious child who is the subject of the termination petition
is in need of stability and permanency and that termina-
tion of the respondent’s parental rights is in her best
interest. The respondent’s claim therefore fails.
III
The respondent’s third claim, which she raised for
the first time during oral argument in this court, is that
the court committed plain error by failing to canvass
her prior to trial as required by In re Yasiel R., supra,
317 Conn. 773. She argues that we should reverse the
judgment of the trial court pursuant to In re Daniel N.,
supra, 163 Conn. App. 322.15 We decline to grant the
relief requested because this case is procedurally distin-
guishable from In re Daniel N.,16 and on appeal, the
respondent has not demonstrated that failure to reverse
the court’s judgment terminating her parental rights in
the child will result in manifest injustice and erode
the public’s confidence in the integrity of the judicial
system. The record demonstrates that at trial, the
respondent exercised all of the rights of which the
Yasiel canvass was intended to inform her.
We briefly review the history of the pretrial canvass
of respondent parents in termination of parental rights
cases as established in In re Yasiel R., supra, 317 Conn.
773. In that case, the respondent mother waived her
right to a trial and did not contest the allegations of the
petition to terminate her parental rights in her children,
challenge the evidence presented against her, or present
evidence of her own.17 Id., 775–76. After the trial court
terminated the mother’s parental rights in her children,
she appealed to this court, which affirmed the judg-
ments of the trial court. In re Yasiel R., 151 Conn. App.
710, 721, 94 A.3d 1278 (2014), rev’d, 317 Conn. 773,
120 A.3d 1168 (2015). Our Supreme Court granted her
petition for certification to appeal from the judgment
of this court. In re Yasiel R., 314 Conn. 907, 99 A.3d 1169
(2014).18 In resolving the appeal, our Supreme Court
concluded pursuant to its analysis under Mathews v.
Eldridge, supra, 424 U.S. 335, that due process ‘‘does
not require that a trial court canvass a respondent who
is represented by counsel when the respondent does
not testify or present witnesses and the respondent’s
attorney does not object to exhibits or cross-examine
witnesses.’’ In re Yasiel R., supra, 317 Conn. 787–88.
The court, however, considered whether it should
exercise its supervisory authority to require a canvass
prior to a termination of parental rights trial. Id., 788.
The court concluded that ‘‘the lack of a canvass of all
parents in a parental rights termination trial may give
the appearance of unfairness insofar as it may indicate
a lack of concern over a parent’s rights and understand-
ing of the consequences of the proceeding. Therefore,
[it] conclude[d] that public confidence in the integrity
of the judicial system would be enhanced by a rule
requiring a brief canvass of all parents immediately
before a parental rights termination trial so as to ensure
that the parents understand the trial process, their
rights during the trial and the potential consequences.’’
Id., 793–94. The court, therefore, invoked its ‘‘supervi-
sory powers to enunciate a rule that is not constitution-
ally required but that [it thought] is preferable as a
matter of policy.’’ (Internal quotation marks omitted.)
Id., 793.
The court outlined the following canvass of a respon-
dent in a termination of parental rights proceeding to
be undertaken prior to a termination of parental rights
trial. ‘‘In the canvass, the respondent should be advised
of: (1) the nature of the termination of parental rights
proceeding and the legal effect thereof if a judgment
is entered terminating parental rights; (2) the respon-
dent’s right to defend against the accusations; (3) the
respondent’s right to confront and cross-examine wit-
nesses; (4) the respondent’s right to object to the admis-
sion of exhibits; (5) the respondent’s right to present
evidence opposing the allegations; (6) the respondent’s
right to representation by counsel; (7) the respondent’s
right to testify on his or her own behalf; and (8) if the
respondent does not intend to testify, he or she should
also be advised that if requested by the petitioner, or
the court is so inclined, the court may take an adverse
inference from his or her failure to testify, and explain
the significance of that inference. Finally, the respon-
dent should be advised that if he or she does not present
any witnesses on his or her behalf, object to exhibits,
or cross-examine witnesses, the court will decide the
matter based upon evidence presented during trial. The
court should then inquire whether the respondent
understands his or her rights and whether there are
any questions.’’ Id., 795.
Our Supreme Court issued its decision in In re Yasiel
R. on August 18, 2015. Trial in the present termination
of parental rights case was held on October 5, 6, and
8, 2015, a bit more than a month after In re Yasiel R.
was decided. The court in the present case, therefore,
should have canvassed the respondent before the com-
mencement of trial, but did not. Neither of the parties
brought the omission to the attention of the court,19
and the respondent did not file a motion for nonsuit or
a motion to open the judgment. The respondent also
did not raise a claim concerning a Yasiel canvass in
her appeal or initial brief in this court. Rather she waited
until the time of oral argument before this court to
request supplemental briefing on the issue. See footnote
2 of this opinion.
In her supplemental brief, the respondent tacitly
acknowledged that her claim regarding the lack of a
Yasiel canvass was unpreserved by requesting that the
termination judgment be reversed pursuant to the plain
error doctrine and In re Daniel N., supra, 163 Conn.
App. 322. In re Daniel N., however, is distinguishable
in that the trial court in that case terminated the respon-
dent’s parental rights prior to our Supreme Court’s deci-
sion in In re Yasiel R.20 This court decided the In re
Daniel N. appeal on which the respondent relies after
our Supreme Court issued its decision In re Yasiel R.
The question in the In re Daniel N. appeal in this court
was whether In re Yasiel R. should be applied retroac-
tively to reverse the termination of parental rights of
the respondent in that case.21 That is not the situation
in the present case in which trial took place after In
re Yasiel R. was decided. The question before us is not
whether In re Yasiel R. should be applied retroactively,
but whether the judgment terminating the respondent’s
parental rights should be reversed on the basis of plain
error. This court did no harmful error analysis in In re
Daniel N. See footnote 20 of this opinion. We conclude
that the judgment terminating the respondent’s parental
rights should not be reversed because the respondent
has failed to demonstrate that a failure to do so would
result in manifest injustice.
We begin with the well established legal framework
for claims of plain error. ‘‘[The plain error] doctrine,
codified at Practice Book § 60-5, is an extraordinary
remedy used by appellate courts to rectify errors com-
mitted at trial that, although unpreserved, are of such
monumental proportion that they threaten to erode our
system of justice and work a serious and manifest injus-
tice on the aggrieved party. [T]he plain error doctrine
. . . is not . . . a rule of reviewability. It is a rule of
reversibility. That is, it is a doctrine that this court
invokes in order to rectify a trial court ruling that,
although either not properly preserved or never raised
at all in the trial court, nonetheless requires reversal
of the trial court’s judgment, for reasons of policy. . . .
In addition, the plain error doctrine is reserved for truly
extraordinary situation [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked
sparingly. . . . Implicit in this very demanding stan-
dard is the notion . . . that invocation of the plain
error doctrine is reserved for occasions requiring the
reversal of the judgment under review. . . . [Thus, an
appellant] cannot prevail under [the plain error doc-
trine] . . . unless he demonstrates that the claimed
error is both so clear and so harmful that a failure to
reverse the judgment would result in manifest injus-
tice. . . .
‘‘[Our Supreme Court has] clarified the two step
framework under which we review claims of plain error.
First, we must determine whether the trial court in fact
committed an error and, if it did, whether that error
was indeed plain in the sense that it is patent [or] readily
discernible on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.
. . . [T]his inquiry entails a relatively high standard,
under which it is not enough for the [respondent] simply
to demonstrate that his position is correct. Rather, [to
prevail] the party [claiming] plain error [reversal] must
demonstrate that the claimed impropriety was so clear,
obvious and indisputable as to warrant the extraordi-
nary remedy of reversal. . . .
‘‘In addition, although a clear and obvious mistake
on the part of the trial court is a prerequisite for reversal
under the plain error doctrine, such a finding is not,
without more, sufficient to warrant the application of
the doctrine. Because [a] party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice . . .
under the second prong of the analysis we must deter-
mine whether the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust. . . . Only if both prongs of the analysis are
satisfied can the appealing party obtain relief.’’ (Internal
quotation marks omitted.) Zuberi v. Commissioner of
Correction, 140 Conn. App. 839, 843–44, 60 A.3d 337,
cert. denied, 308 Conn. 931, 64 A.3d 330 (2013).
The substance of the respondent’s claim on appeal
is that because the court failed to canvass her prior
to the termination of parental rights trial, a manifest
injustice occurred; but she has failed to demonstrate
that such an injustice occurred. Although it was error
for the court to fail to conduct a Yasiel canvass of the
respondent prior to trial, the respondent has provided
no analysis as to how that failure deprived her of the
trial rights to which she was entitled. ‘‘[M]erely demon-
strating that a trial court has violated a supervisory
mandate is not alone enough to warrant a reversal.’’ In
re Leilah W., 166 Conn. App. 48, 63, A.3d (2016);
see State v. Sanchez, 308 Conn. 64, 77–78, 60 A.3d 271
(2013); see also State v. Smith, 275 Conn. 205, 237, 881
A.2d 160 (2005) (whether trial court’s failure to obey
supervisory authority of Supreme Court results in mani-
fest injustice must be considered on case specific, fact-
based inquiry).
State v. Smith, supra, 275 Conn. 205, is instructive
‘‘because it demonstrates that a trial court’s failure to
comply with a supervisory rule does not automatically
require reversal and a new trial in all cases. In Smith,
the defendant raised an unpreserved claim that he was
entitled to a new criminal trial because the trial court
utilized language in its instructions to the jury that our
Supreme Court, pursuant to its supervisory powers,
previously had instructed courts to refrain from using.
. . . The Supreme Court determined, consistent with
its decision in [State v. Aponte, 259 Conn. 512, 522,
790 A.2d 457 (2002)], that the trial court’s use of the
prohibited language did not implicate the defendant’s
constitutional rights, and, thus, he was not entitled to
[review under State v. Golding, 213 Conn. 233, 239–40,
567 A.2d 823 (1989)]. . . . Further, despite the trial
court having clearly violated a supervisory rule, the
Supreme Court concluded that the defendant was not
entitled to a reversal either under the plain error doc-
trine . . . or pursuant to the court’s supervisory
authority. . . .
‘‘With respect to whether the trial court’s action
amounted to plain error, the Supreme Court explained
that although it had directed trial courts to discontinue
use of the challenged jury instruction language because
it was concerned about the danger of misleading the
jury, it was unconvinced in the case before it that any
such danger actually existed or that the trial court’s
error in using the language was so significant as to affect
the fairness and integrity of or the public confidence in
the proceeding. . . . Similarly, the Supreme Court
declined to reverse the judgment on the basis of its
supervisory authority, stating: The trial court’s failure
to heed our direction to discontinue the use of the
challenged jury instruction was not such an extraordi-
nary violation that it threatened the integrity of the trial,
and it certainly did not rise to the level of implicating
the perceived fairness of the judicial system as a whole.
The defendant does not suggest that the trial court
deliberately disregarded this court’s mandate. Nor do
we consider a new trial necessary to emphasize the
importance of our direction in Aponte to the trial courts
of this state. . . . In other words, merely demonstra-
ting that a trial court has violated a supervisory mandate
is not alone enough to warrant a reversal. The party
raising the issue of noncompliance also must demon-
strate actual harm.’’ (Citations omitted; footnote omit-
ted; internal quotation marks omitted.) In re Leilah W.,
supra, 166 Conn. App. 62–63.
The undisputed fact is that the respondent was repre-
sented by counsel at the termination of parental rights
trial. Our Supreme Court recognized that, prior to In
re Yasiel R., ‘‘[w]hen the respondent is represented by
counsel, the current procedures in place adequately
protect the respondent from any claimed constitutional
deficiencies.’’ In re Yasiel R., supra, 317 Conn. 785. ‘‘It
has frequently been recognized, albeit in other contexts,
that we strongly presume that counsel’s professional
assistance was reasonable, and the [respondent] has
the burden to overcome the presumption that [her]
attorney was employing sound trial strategy. . . We
evaluate the conduct from trial counsel’s perspective at
the time. . . . [C]ounsel is strongly presumed to have
rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional
judgment.’’ (Internal quotation marks omitted.) Id. In
the present appeal, the respondent does not claim error
on the part of her counsel.
Quite recently, this court has had occasion to address
claims that the judgments terminating the appellants’
parental rights should be reversed because the trial
courts canvassed them after, rather than prior to, the
presentation of evidence but prior to the courts issuing
their decisions. See In re Elijah G.-R., supra, 167 Conn.
App. 1; In re Leilah W., supra, 166 Conn. App. 48. In
both In re Elijah G.-R. and In re Leilah the respondents
were represented by counsel. Although there were
some differences in the way in which the canvasses
were conducted in those cases, this court concluded
that the stated purpose underlying the Yasiel canvass
was met even though the respondents were not can-
vassed prior to the termination trial. In coming to that
conclusion in each case, this court considered the fac-
tors the Yasiel canvass was intended to address and
the actual trials of the subject cases.22 This court found
in both of those cases that on appeal, the respondents
failed to explain how they were harmed by the timing
of the Yasiel canvass, whether they would have moved
for a new trial or asked that the evidence be opened
and what additional evidence they might offer that
would have made a difference in the trial. The respon-
dents in each case argued only that the timing of the
canvass itself was harmful. See In re Elijah G.-R., supra,
167 Conn. App. 18 (noting that claim had been expressly
rejected in In re Leilah W.). Although the trial court in
the present case did not canvass the respondent, she
has failed to explain what she did not know or under-
stand about the termination of her parental rights with-
out the court’s canvass. She has not explained what
she would have done differently if the court had can-
vassed her and how the outcome of the case would be
different. In other words, the respondent has failed
to explain how the court’s failure to canvass her was
harmful per se.
Moreover, the respondent has failed to meet her bur-
den as to the second prong of the plain error doctrine:
that a failure to reverse the trial court’s judgment will
result in manifest injustice. The record discloses that
the respondent was represented by counsel, who cross-
examined the petitioner’s witnesses, and objected to
evidence. She presented her own witnesses and evi-
dence and argued in opposition to the termination of
her parental rights. The respondent testified on her own
behalf. It appears, as our Supreme Court has said, that
the ‘‘[w]hen the respondent is represented by counsel,
the current procedures in place adequately protect the
respondent from any claimed constitutional deficienc-
ies.’’ In re Yasiel R., supra, 317 Conn. 785. The question
we must therefore address is whether the absence of
a canvass in the present case is likely to cause the
public to lose faith in the integrity of our judicial system.
On the basis of our review of the proceedings in the
trial court, we conclude that such an outcome would
surely not occur. Although the court’s failure to give a
Yasiel canvass is clear, obvious and indisputable, the
respondent has failed to demonstrate that the failure
has resulted in a fundamentally unfair termination pro-
ceeding that would cause the public to lose faith in the
judicial system.23 She therefore cannot prevail on her
plain error claim that the judgment terminating her
parental rights in the child should be reversed.
In concluding that the judgment terminating the
respondent’s parental rights in the child should not
be reversed, we are mindful that our Supreme Court
repeatedly has addressed the need for permanency in
the life of a child. See, e.g., In re Nevaeh W., supra, 317
Conn. 732 (‘‘[v]irtually all experts, from many different
professional disciplines, agree that children need and
benefit from continuous, stable home environments’’
[internal quotation marks omitted]). The child at issue
here has been living with her guardians since 2010;
she is eleven years old, has no relationship with the
respondent, and wishes to be adopted by her guardians.
It is now 2016. To reverse the judgment at this point
in the child’s life, we believe, would in and of itself
undermine the public’s confidence in the integrity of
our judicial system in that the child would be left in
limbo for an indeterminate period of time until a new
trial can be held. We conclude that the respondent has
not carried her burden to demonstrate that the judg-
ment should be reversed to avoid a manifest injustice.
The judgment is 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 the Appellate Court.
** September 15, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
The Commissioner of Children and Families (commissioner) filed a
motion for permission to file a brief as amicus curiae in the present matter.
This court granted the commissioner’s motion.
2
In re Yasiel R., supra, 317 Conn. 773, was decided our Supreme Court
in August, 2015. The respondent filed her initial brief in this court in January,
2016, but did not raise a claim concerning the lack of a Yasiel canvass.
Subsequent to oral argument in this court, however, the respondent filed a
motion requesting permission to file a supplemental brief to address
‘‘Whether the termination of [her] parental rights should be reversed because
[this court] in In re Daniel N., 163 Conn. App. 322, [135 A.3d 1260, cert.
granted, Conn. , A.3d ] (2016), [held] that the canvass requirement
in In re Yasiel R., [supra, 317 Conn. 773], must be applied retroactively,
and the trial court in this case did not canvass [the respondent] as required.’’
We granted the motion permitting supplemental briefing. As we explain in
part III of this opinion, however, In re Daniel N. does not control the
respondent’s claim.
3
The child’s father, J.V.’s brother, is deceased.
4
The petitioner also alleged that the respondent had failed to achieve a
sufficient degree of rehabilitation; General Statutes § 45a-717 (g) (2) (D);
but subsequently withdrew that allegation.
5
Z also was adjudicated neglected and was placed with his father, G.U.
6
Gruen recommended intensive therapy twice a week for at least six
consecutive months and ongoing individual treatment if reunification ses-
sions with the child begin.
7
On January 14, 2015, the court, Randolph, J., ordered the department
to complete a termination of parental rights study. The study, which is dated
April 6, 2015, states in relevant part: ‘‘[The child] stated that she is doing
well with her uncle, aunt and cousins. She stated she wants to be adopted
because this [is] her permanent home and she feels ‘safe here.’ This social
worker explained that in order for her to be adopted her mother’s parental
rights will have to be terminated; explaining what this means. She stated
she is in agreement with her mother’s parental rights being terminated. This
social worker told [the child] that since she knows her mother, when she
gets older she could still visit her if she wanted to. [The child] shook her
head no and said she will not want to visit. This social worker asked her
why and she stated ‘because it brings back bad memories.’ [The child]
became tearful as she talked about this.’’
8
General Statutes § 45a-717 (g) provides in relevant part: ‘‘[T]he court
may approve a petition terminating the parental rights and may appoint a
guardian of the person of the child . . . if it finds, upon clear and convincing
evidence, that (1) termination is in the best interest of the child, and (2)
(A) the child has been abandoned by the parent in the sense that the
parent has failed to maintain a reasonable degree of interest, concern or
responsibility as to the welfare of the child . . . .’’
9
The respondent has had a third child.
10
General Statutes § 45-717 (g) provides in relevant part: ‘‘[T]he court may
approve a petition terminating the parental rights and may appoint a guardian
of the person of the child . . . if it finds, upon clear and convincing evidence,
that (1) the termination is in the best interest of the child, and (2) . . .
(C) there is no ongoing parent-child relationship which is defined as the
relationship that ordinarily develops as a result of a parent having met on
a continuing, day-to-day basis the physical, emotional, moral and educational
needs of the child and to allow further time for the establishment or reestab-
lishment of the parent-child relationship would be detrimental to the best
interests of the child . . . .’’
11
The respondent does not dispute the court’s findings made during the
adjudicatory stage of the proceedings that the respondent abandoned the
child and that there is no ongoing parent-child relationship.
12
The best interest factors to be considered in the probate statute; General
Statutes § 45a-717 (h); and the juvenile statute; General Statutes § 17a-112
(k); are substantially similar.
13
The respondent raised this second claim as an alternative argument, if
we determined that her constitutional right to due process was not violated.
See part I of this opinion.
14
General Statutes § 45a-717 (h) provides: ‘‘Except in the case where
termination is based on consent, in determining whether to terminate paren-
tal rights under this section, the court shall consider and shall make written
findings regarding: (1) The timeliness, nature and extent of services offered,
provided and made available to the parent and the child by a child-placing
agency to facilitate the reunion of the child with the parent; (2) the terms
of any applicable court order entered into and agreed upon by any individual
or child-placing agency and the parent, and the extent to which all parties
have fulfilled their obligations under such order; (3) the feelings and emo-
tional ties of the child with respect to the child’s parents, any guardian of
the child’s person and any person who has exercised physical care, custody
or control of the child for at least one year and with whom the child has
developed significant emotional ties; (4) the age of the child; (5) the efforts
the parent has made to adjust such parent’s circumstances, conduct or
conditions to make it in the best interest of the child to return the child to
the parent’s home in the foreseeable future, including, but not limited to,
(A) the extent to which the parent has maintained contact with the child
as part of an effort to reunite the child with the parent, provided the court
may give weight to incidental visitations, communications or contributions
and (B) the maintenance of regular contact or communication with the
guardian or other custodian of the child; and (6) the extent to which a
parent has been prevented from maintaining a meaningful relationship with
the child by the unreasonable act or conduct of the other parent of the
child, or the unreasonable act of any other person or by the economic
circumstances of the parent.’’
15
Our Supreme Court certified the following issue in In re Daniel N.,
Conn. , A.3d (2016): ‘‘Did the Appellate Court correctly reverse the
trial court’s judgment ordering termination of parental rights by concluding
that this court’s decision in In re Yasiel R., 317 Conn. 773 (2015), controlled
the result of this case?’’
16
The termination of parental rights trial in In re Daniel N., supra, 163
Conn. App. 322, took place prior to our Supreme Court’s issuing its decision
in In re Yasiel R. The issue in this court, therefore, was whether In re Yasiel
R. applied retroactively. Moreover, on appeal, the respondent in In re Daniel
N. did not seek reversal of the judgment terminating his parental rights
pursuant to the plain error doctrine, as the respondent in the present
case does.
17
The relevant procedural history of In re Yasiel R. follows. ‘‘Due to the
respondent’s various arrests and her mental health and substance abuse
issues, the petitioner [the commissioner] filed petitions to terminate [the
respondent’s] parental rights in November, 2012. According to the petitioner,
the court, on December 11, 2012, advised the respondent of her trial rights,
entered denials to the petitions on her behalf, and appointed her an attorney.
A contested hearing then was scheduled for November 12, 2013. At that
hearing, the respondent’s counsel stated that although [the respondent is]
not in agreement with the [termination of parental rights], she cannot bring
herself to consent today. That being said, she’s in agreement with the court
taking the case on the papers. She’s in agreement to the exhibits that . . .
have been entered. Her counsel then stated that the respondent wants the
court to be aware that things have significantly changed for her over the
last two years and continued to explain those changes. At no time did the
court canvass the respondent personally to question her decisions not to
contest the petitioner’s exhibits and to waive her right to a full trial. It stated
only that I think I understand your position, and I will certainly consider
that [you’ve made great progress] when I’m reviewing all the material . . . .’’
(Footnotes omitted; internal quotation marks omitted.) In re Yasiel R.,
supra, 317 Conn. 777.
18
Our Supreme Court granted certification as to the following relevant
issue: ‘‘Does the due process clause of the fourteenth amendment to the
United States constitution require that a trial court canvass a parent person-
ally about his or her decision not to contest the exhibits presented to the
court against him or her in a parental termination proceeding?’’ (Internal
quotation marks omitted.) In re Yasiel R., supra, 314 Conn. 907. Our Supreme
Court determined that due process does not require a Yasiel canvass. See
In re Yasiel R. supra, 317 Conn. 787–88.
19
The parties are presumed to know the law; Provident Bank v. Lewitt,
84 Conn. App. 204, 209, 852 A.2d 852, cert. denied, 271 Conn. 924, 859 A.2d
580 (2004); and could have brought the matter to the attention of the trial
court. See JPMorgan Chase Bank, N.A. v. Georgitseas, 149 Conn. App. 796,
798, 89 A.3d 992 (2014) (‘‘[w]e have repeatedly indicated our disfavor with
the failure, whether because of mistake of law, inattention or design, to
object to errors occurring the course of a trial until it is too late for them
to be corrected, and thereafter, if the outcome of the trial proves unsatisfac-
tory, with the assignment of such errors as grounds of appeal’’ [internal
quotation marks omitted]); cf. In re Leilah W., 166 Conn. App. 48, 53,
A.3d (2016) (after close of evidence assistant attorney general informed
court it omitted canvass of respondent; court asked parties to return to
court and canvassed respondent prior to issuing its decision).
20
In re Daniel N., supra, 163 Conn. App. 322, is further distinguishable
from the present case because the issues claimed on appeal are different
and this court decided the cases on different legal theories. In re Daniel
N. was decided on the basis of retroactivity and also our Supreme Court’s
supervisory authority. The respondent in In re Daniel N., did not seek
reversal pursuant to the plain error doctrine and therefore this court per-
formed no analysis of the harm caused by the failure to give the Yasiel
canvass. In the present case, the respondent claims that the judgment termi-
nating her parental rights in the child should be reversed pursuant to the
plain error doctrine, which requires us to perform a harm analysis.
The present case is not the first time this court has considered a claim
of plain error with respect to the Yasiel canvass. See In re Raymond B.,
166 Conn. App. 856, A.3d (2016). In that case, the respondent claimed
that the termination of her parental rights should be reversed because the
trial court failed to conduct the canvass ‘‘at the very start of the termination
trial.’’ (Internal quotation marks omitted.) Id., 865. Rather, trial commenced
without the court canvassing the respondent, but on the second day of trial
before the commissioner rested her case, the court, Hon. Francis J. Foley
III, judge trial referee, sua sponte canvassed the respondent. Id., 860. The
respondent acknowledged that she understood her rights, did not object to
the timing of the canvass or file a posttrial motion for a mistrial or to open
the evidence or seek any additional relief. Id., 861. In resolving the claim
of the respondent in In re Raymond B., the court looked to the recent
decision of In re Leilah W., 166 Conn. App. 48, A.3d (2016), for guidance.
In In re Leilah W., this court concluded ‘‘that canvassing a respondent
at the conclusion of the termination of parental rights trial was harmless
error. In doing so, this court addressed the contours of what constitutes
compliance with the canvass rule: Although this was not the procedure
envisioned by our Supreme Court, and, accordingly should be avoided, if
any concerns arose regarding the respondent’s understanding of his trial
rights, the trial court could have reopened the evidence to allow for addi-
tional proceedings if necessary. . . . This court also stated that the burden
is on the respondent to show the harm of a noncompliant canvass.’’ (Citation
omitted; emphasis added; internal quotation marks omitted.) In re Raymond
B., supra, 166 Conn. App. 867.
In applying the second prong of the plain error doctrine to the facts of
In re Raymond B., this court concluded that failing to conduct the Yasiel
canvass prior to the commencement of trial was not ‘‘so significant as to
effect the fairness and integrity of the public confidence in the judicial
proceedings’’ to require reversal. (Internal quotation marks omitted.) Id., 868.
In the present circumstance, we have performed a harm analysis pursuant to
the plain error doctrine, and therefore, this case is further distinguishable
from In re Daniel N.
21
We note that the question of whether the supervisory rule announced
in In re Yasiel R. should be applied to other, then pending cases was before
our Supreme Court in In re Egypt E., SC 19643 and SC 19644. The court,
however, declined to answer that question, and thereby declined to provide
guidance for other pending appeals, when it remanded that case to the trial
court. See In re Egypt E., 322 Conn. 231, 233 n.1, A.3d (2016).
22
‘‘On the basis of our review of the trial court’s canvass, we conclude
that the court reasonably could have concluded that the respondent fully
understood the trial process, the rights he had during the trial, and the
potential consequences of the termination of his parental rights. The stated
purpose underlying our Supreme Court’s supervisory rule appears to have
been effectuated in the present case. The respondent has failed to demon-
strate that he was harmed by the trial court’s failure to canvass him prior
to the start of trial, and we do not believe that it is necessary to reverse
the judgment simply to emphasize the importance of compliance with our
Supreme Court’s holding in In re Yasiel R.’’ In re Leilah W., supra, 166
Conn. App. 65–66.
‘‘[T]he respondent argues only that the time of the In re Yasiel R. canvass
after the end of trial, but prior to the court deciding the case, amounts to
structural error, and, thus, if the canvass is not conducted prior to the start
of trial, a new trial always is required. This contention, however, expressly
was rejected by this court in In re Leilah W.’’ In re Elijah G.-R., supra, 167
Conn. App. 18.
23
In the recent case of State v. Gould, 322 Conn. 519, 534–35, A.3d
(2016), our Supreme Court reasoned that the ‘‘defendant’s argument that
the improper exclusion of a prospective juror even without a showing of
prejudice to avoid undermining public confidence in the fairness and integ-
rity of our judicial system, is effectively an argument for structural error.
See Arizona v. Fulminante, 499 U.S. 279, 309–10, 111 S. Ct. 1246, 113 L.
Ed. 2d 302 (1991). We have observed, however that there is a very limited
class of cases involving error that is structural, that is to say, error that
transcends the criminal process. Johnson v. United States, 520 U.S. 461,
468, 117 S. Ct. 1544, 137 L. Ed. 2d 718 (1997).’’ (Internal quotation marks
omitted.) ‘‘Structural errors have not been recognized outside the realm of
constitutional violations except in extraordinary circumstances. See, e.g.,
Nguyen v. United States, 539 U.S. 69, 79–83, 123 S. Ct. 2130, 156 L. Ed. 2d
64 (2003) (structural error when appeals panel was improperly constituted
in violation of statutory requirement and thus did not have authority to
decide appeal).’’ State v. Gould, supra, 535.