In re Larry D. ( 2017 )

******************************************************
The ‘‘officially released’’ date that appears near the
beginning of each opinion is the date the opinion will
be published in the Connecticut Law Journal or the
date it was released as a slip opinion. The operative
date for the beginning of all time periods for filing
postopinion motions and petitions for certification is
the ‘‘officially released’’ date appearing in the opinion.
In no event will any such motions be accepted before
the ‘‘officially released’’ date.
All opinions are subject to modification and technical
correction prior to official publication in the Connecti-
cut Reports and Connecticut Appellate Reports. In the
event of discrepancies between the electronic version
of an opinion and the print version appearing in the
Connecticut Law Journal and subsequently in the Con-
necticut Reports or Connecticut Appellate Reports, the
latest print version is to be considered authoritative.
The syllabus and procedural history accompanying
the opinion as it appears on the Commission on Official
Legal Publications Electronic Bulletin Board Service
and in the Connecticut Law Journal and bound volumes
of official reports are copyrighted by the Secretary of
the State, State of Connecticut, and may not be repro-
duced and distributed without the express written per-
mission of the Commission on Official Legal
Publications, Judicial Branch, State of Connecticut.
******************************************************
IN RE LARRY D.*
(AC 39478)
Sheldon, Mullins and Flynn, Js.
Argued January 3—officially released January 31, 2017**
(Appeal from Superior Court, judicial district of New
Haven, Conway, J.)
David B. Rozwaski, assigned counsel, for the appel-
lant (respondent father).
Daniel M. Salton, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Opinion
FLYNN, J. The respondent father appeals from the
judgment of the trial court, rendered in favor of the
petitioner, the Commissioner of Children and Families,
terminating his parental rights with respect to his minor
son, Larry D.1 On appeal, the respondent claims that
the court violated his due process rights by ordering
him to participate in a psychological evaluation without
first appointing him counsel and advising him of his
rights. We affirm the judgment of the trial court.
The record discloses the following relevant facts,
which are uncontested or were found by the trial court,
and procedural history. Larry was born in November,
2014. On January 8, 2015, after receiving reports sug-
gesting that Larry’s mother, Charla J., was unable to
provide Larry with proper care, the petitioner obtained
an order granting the petitioner temporary custody of
Larry. The petitioner filed a neglect petition that same
day. On January 16, 2015, the petitioner cited the
respondent into the neglect proceedings as a putative
father2 and obtained an order requiring the respondent
to submit to a paternity test.
The respondent was served with the neglect petition
on February 24, 2015, at a residence subsequently deter-
mined to be his usual place of abode. Nevertheless, on
the March 10, 2015 plea date, the respondent failed to
appear and a default was entered against him. That
same day, Larry was adjudicated neglected and commit-
ted to the care and custody of the petitioner. On August
25, 2015, the petitioner filed a petition to, inter alia,
terminate the respondent’s parental rights as to Larry;
see footnote 1 of this opinion; on grounds of abandon-
ment, failure to rehabilitate, and the lack of an ongoing
parent-child relationship.
The respondent, despite having been properly served,
failed to appear at his September 25, 2015 plea hearing
on the termination of parental rights petition, and a
default was entered against him. As a result, the respon-
dent was not appointed counsel to represent him in the
termination proceedings. The respondent again failed
to appear at the October 22, 2015 permanency plan
hearing. At that hearing, the petitioner obtained an
order requiring the respondent to participate in a psy-
chological evaluation. On November 30, 2015, the
respondent was incarcerated. After learning of the
respondent’s incarceration, the court issued a writ of
habeas corpus to secure his participation in the psycho-
logical evaluation, which was conducted at the court-
house on January 8, 2016, by Ines Schroeder, a
forensic psychologist.
The respondent appeared in court for the first time
on February 25, 2016. At that time, the court vacated
the default previously entered against the respondent,
appointed counsel to represent him in the termination
proceedings, and advised him of his rights. Further-
more, the court ordered the defendant to submit to a
paternity test,3 which ultimately established that he was
Larry’s biological father and resulted in a judgment of
paternity being entered on April 7, 2016.
A trial on the termination petition was held on June
7 and 15, 2016. The respondent was represented by
counsel throughout the proceedings. The petitioner pre-
sented several exhibits and called multiple witnesses,
including Dr. Schroeder, who opined, on the basis of
her psychological evaluation of the respondent, that
there were a ‘‘number of things’’ the respondent needed
to address before he could serve as a father figure to
Larry, and that it was not in Larry’s best interests to
wait for the respondent to rehabilitate. The respondent
did not object to any of Dr. Schroeder’s testimony. Dr.
Schroeder’s report of her evaluation of the respondent
was admitted as a full exhibit by the parties’ agreement.
The court issued a memorandum of decision on June
21, 2016, granting the petition to terminate the respon-
dent’s parental rights. The court found that the peti-
tioner had proved by clear and convincing evidence that
the Department of Children and Families (department)
had made reasonable efforts to locate the respondent
and reunify him with Larry and, moreover, that the
respondent was unwilling to benefit from those reunifi-
cation efforts. See General Statutes § 17a-112 (j) (1). In
particular, the court noted the respondent’s continued,
deliberate evasion of consistent attempts by the depart-
ment to engage him in late 2014 and throughout 2015
concerning paternity testing and his visitation rights;
indeed, the court found that ‘‘[i]t was only with the
commencement of [the respondent’s] protracted incar-
ceration on or about November 30, 2015, [that he]
bec[a]me responsive to [the department’s] inquiries or
offers of paternity testing.’’
Next, the court found that the petitioner had proven
by clear and convincing evidence all three grounds for
termination asserted in the petition. First, with respect
to the ground of abandonment; see General Statutes
§ 17a-112 (j) (3) (A); the court began by determining
that, under the circumstances of the present case, the
fact that the respondent’s paternity was not established
until ‘‘March or April’’ of 2016 did not preclude a finding
of abandonment. The court found that, despite Charla
J.’s initial suggestion that Edward D. was Larry’s father,
the respondent ‘‘did in fact perceive himself’’ to be the
father. The court also noted that the petitioner ‘‘aggres-
sively’’ sought paternity testing of the respondent and
Edward D., to which the respondent refused to submit
in order to avoid arrest and incarceration on outstand-
ing criminal warrants. As to whether the respondent’s
conduct amounted to abandonment, the court observed
that, so long as the respondent was free in the commu-
nity rather than incarcerated, ‘‘he was content to be
perceived as Larry’s father without any of the responsi-
bilities or consequences attendant to fatherhood.’’ The
court concluded that the respondent’s ‘‘evasion of pater-
nity testing, and his contentment with merely being
perceived to a limited few as [Larry’s] father, without
assuming any financial, emotional, or physical support
of his young son, constitutes abandonment.’’
Second, the court found that, pursuant to § 17a-112
(j) (3) (B) (i), Larry had been adjudicated neglected or
uncared for in a prior proceeding on March 10, 2015,
and that the respondent had failed to demonstrate that
he had sufficiently rehabilitated so as to encourage the
belief that he could assume a responsible role in Larry’s
life within a reasonable period of time. In reaching that
conclusion, the court relied, in part, on the information
elicited from the respondent by Dr. Schroeder during
the psychological evaluation. Specifically, the respon-
dent told Dr. Schroeder that he was ready to ‘‘sign [his]
rights over’’ and acknowledged, ‘‘If I can’t take care of
myself, I can’t take care of [Larry].’’ Furthermore, citing
Dr. Schroeder’s report, the court found that the respon-
dent suffered from a variety of mental health issues
stemming from his traumatic childhood, including
depression, posttraumatic stress disorder, bipolar dis-
order, anxiety, and recurring nightmares. The court
described the respondent’s mental health issues as inad-
equately treated and ‘‘severe in intensity and duration.’’
The court found it ‘‘telling’’ that, in each of the three
instances in which Larry was brought to visit the respon-
dent in prison, the respondent either terminated the
meeting early or refused to show up at all. The court
attributed this behavior to the respondent’s ‘‘significant
untreated mental and emotional issues and a genuine
fear and lack of knowledge about how to interact with
young children . . . .’’ Crediting Dr. Schroeder’s opin-
ion that the respondent’s mental health issues needed
to be addressed before reunification would be in Larry’s
best interests, the court concluded that ‘‘[i]t is not in
[Larry’s] best interest to remain in foster care for the
foreseeable future, awaiting to see what, if anything,
[the respondent] chooses to do regarding his multi-
faceted issues upon his release from prison next
month.’’
Third, the court found that the petitioner had pre-
sented clear and convincing evidence that the respon-
dent lacked an ongoing parent-child relationship with
Larry. See General Statutes § 17a-112 (j) (3) (D). The
court reasoned that, given the respondent’s consistent
absence from Larry’s life and failure to take advantage
of the department’s early 2015 attempt to arrange for
visitation, ‘‘[n]o parent child relationship was ever
established.’’ Furthermore, relying on the ‘‘reasons
articulated in the previously discussed adjudicatory
grounds,’’ the court determined that ‘‘allowing further
time to elapse to determine if such a parent-child rela-
tionship could be established in the future would be
detrimental to [Larry].’’
Finally, after considering and issuing written findings
as to the factors set forth in § 17a-112 (k), the court
found that terminating the respondent’s parental rights
was in Larry’s best interests. In reaching that conclu-
sion, the court relied on the following facts. The respon-
dent evaded all contact with the department, including
its offer to arrange for visitation, until he was incarcer-
ated. The court previously issued specific steps that set
forth the respondent’s obligations to make reunification
viable. Larry was ‘‘thriving’’ while under foster care.
The respondent either terminated his supervised visits
with Larry early or refused to participate at all, despite
the fact that Larry had traveled over an hour to visit
him in prison, which ‘‘is not in the child’s best interest.’’
Although the respondent was scheduled to be released
from prison the following month, he entirely failed to
establish a relationship with Larry despite having been
provided an opportunity to do so. Thus, the court con-
cluded that the respondent’s ‘‘attendance and behaviors
at prison visits since December, 2015, do not support
a finding, in light of the other findings previously made,
that it would be in [Larry’s] best interest to stay in foster
care to give [the respondent] time to reintegrate back
into society and to see if he could be a potential resource
for his son.’’
Accordingly, the court terminated the respondent’s
parental rights as to Larry. This appeal followed.
The respondent claims that the court’s failure to
advise him of his constitutional rights and to appoint
him counsel prior to ordering his participation in a
psychological evaluation violated his due process
rights. Acknowledging that he failed to preserve this
claim in the trial court by objecting to the admission
of Dr. Schroeder’s report into evidence, the respondent
seeks to prevail under State v. Golding, 213 Conn. 233,
239–40, 567 A.2d 823 (1989). We conclude that the
alleged constitutional violation was harmless beyond a
reasonable doubt.4
Under Golding, ‘‘an appellant can prevail on a claim
of constitutional error not preserved at trial 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. In the absence of any one of these
conditions, the [respondent’s] claim will fail.’’ (Internal
quotation marks omitted.) In re Yasiel R., 317 Conn.
773, 779, 120 A.3d 1188 (2015); see id., 781. Furthermore,
‘‘[t]he appellate tribunal is free . . . to respond to the
[respondent’s] claim by focusing on whichever condi-
tion is most relevant in the particular circumstances.’’
(Internal quotation marks omitted.) In re Lukas K., 120
Conn. App. 465, 472, 992 A.2d 1142 (2010), aff’d, 300
Conn. 463, 14 A.3d 990 (2011).
In the present case, we conclude that the respon-
dent’s claim fails the fourth Golding requirement
because the alleged constitutional violation was harm-
less beyond a reasonable doubt. Accordingly, we need
not address the first three Golding requirements. See
State v. Golding, supra, 213 Conn. 241–42 (‘‘In many
cases of an alleged constitutional violation . . . the
state is able to demonstrate the harmlessness of such
alleged violation beyond a reasonable doubt. . . .
Under such circumstances, it would be a waste of judi-
cial resources, and a pedantic exercise, to delve deeply
into the constitutional merits of a claim that can appro-
priately be resolved in accordance with the relevant
harmless error analysis.’’ [Citations omitted.]); see also
State v. Dickson, 322 Conn. 410, 497, 141 A.3d 810 (2016)
(Robinson, J., concurring); State v. Kulmac, 230 Conn.
43, 64–65, 644 A.2d 887 (1994).
The respondent argues that, as a result of the court’s
failure to appoint counsel or canvass him prior to order-
ing his participation in the psychological evaluation, he
participated in the evaluation without the benefit of
counsel or knowledge of his rights, which caused him
to provide Dr. Schroeder with information that was
used against him in the termination proceedings. A
review of the court’s factual findings and reasoning,
however, makes abundantly clear that Dr. Schroeder’s
evaluation did not form the basis for the court’s decision
to terminate the respondent’s parental rights. The court
terminated the respondent’s parental rights on three
independent grounds—abandonment, failure to rehabil-
itate, and the lack of an ongoing parent-child relation-
ship—and the court relied upon the information gleaned
from the evaluation only in support of its finding of
failure to rehabilitate. The court did not rely upon the
evaluation in support of its findings of abandonment
or the lack of an ongoing parent-child relationship, each
of which are independently sufficient to support the
court’s decision to terminate the respondent’s parental
rights. See In re Jermaine S., 86 Conn. App. 819, 822
n.4, 863 A.2d 720 (‘‘[w]e may affirm the court’s decision
if we find that it properly concluded that any one of
the statutory circumstances [under § 17a-112 (j) (3)]
existed’’ [internal quotation marks omitted]), cert.
denied, 273 Conn. 938, 875 A.2d 43 (2005). The respon-
dent has not challenged any of the court’s findings with
respect to these alternative grounds for termination.
Furthermore, in finding that terminating the respon-
dent’s parental rights was in Larry’s best interests, the
court relied not on the information obtained by Dr.
Schroeder, but on the respondent’s failure to appear in
court, evasion of the petitioner’s attempts to establish
paternity, and erratic behavior during visits with Larry.5
On that basis, we conclude that the petitioner has estab-
lished beyond a reasonable doubt that, even without the
allegedly tainted evidence derived from Dr. Schroeder’s
evaluation, the court’s ultimate decision to terminate
the respondent’s parental rights would have remained
the same. Accordingly, any error was harmless.
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.
** January 31, 2017, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
In the same proceeding, the court also terminated the parental rights of
Larry’s mother, Charla J. Additionally, the court terminated the parental
rights of Charla J. and another individual, Wayne B., as to their minor
daughter, Leah B. Because Charla J. and Wayne B. have not appealed from
those judgments, we refer to Larry’s father as the respondent throughout
this opinion.
2
The temporary custody order and neglect petition originally identified
another individual, Edward D., as Larry’s biological father. Subsequently,
after paternity testing, conducted in February, 2015, determined that Edward
D. was not Larry’s biological father, he was dismissed from the case.
3
The respondent failed to appear at the previously scheduled paternity
test, which had been ordered in January, 2015. At the trial on the termination
petition, the respondent testified that he elected not to attend the paternity
test because in early 2015 he received a letter from the department informing
him that Edward D. was Larry’s father. See footnote 2 of this opinion. The
court explicitly discredited this testimony in its memorandum of decision,
finding instead that, ‘‘[c]learly, [the respondent] evaded [the department’s]
attempts to contact him and to engage with him because he feared incarcera-
tion on outstanding criminal arrest warrants. Only upon his protracted period
of incarceration that commenced on . . . November 30, 2015, did [the
respondent] become responsive to [the department’s] inquiries or offers of
paternity testing.’’
4
Although the respondent suggested in his original brief, without any
accompanying legal analysis, that this court should exercise its supervisory
authority to reverse the court’s judgment, he clarified at oral argument that
he was not pursuing that claim.
5
Although Dr. Schroder opined that terminating the respondent’s parental
rights would be in Larry’s best interests—an opinion the court credited in
support of its finding that the respondent had failed to rehabilitate—the
court did not rely on that opinion when analyzing the § 17a-112 (k) criteria
in the dispositional portion of its decision.