In re Yasiel R. ( 2014 )

******************************************************
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 YASIEL R. ET AL.*
(AC 36298)
Gruendel, Beach and Norcott, Js.
Argued April 7—officially released July 11, 2014**
(Appeal from Superior Court, judicial district of
Willimantic, Juvenile Matters, Hon. Francis J. Foley III,
judge trial referee.)
James P. Sexton, assigned counsel, for the appellant
(respondent mother).
Stephen G. Vitelli, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Karen O. Damboise, for the minor children.
Opinion
GRUENDEL, J. The respondent mother appeals from
the judgments of the trial court terminating her parental
rights as to her minor children, Yasiel R. and Sky R.1
On appeal, the respondent claims that the court was
required to canvass her personally about her decisions
not to contest the exhibits presented to the court by the
petitioner, the Commissioner of Children and Families,
and to waive her right to a full trial, pursuant to (1)
Practice Book § 35a-12 and (2) constitutional due pro-
cess requirements. We affirm the judgments of the
trial court.
The record discloses the following relevant factual
and procedural history. The respondent’s ‘‘fourth child,
Yasiel, was born to [the respondent] when she was
twenty-two years old. The father . . . was fifteen years
old when he impregnated [the respondent]. [The
respondent] was subsequently arrested for statutory
rape. [The father] moved in with [the respondent] while
she was pregnant. After the child was born, [the respon-
dent] reported that [the father] became increasingly
violent. She said she did not want to remain in the
relationship and wished to leave, but she became preg-
nant with Sky, her fifth child, in July, 2009, only four
months after Yasiel was born.’’ The two children were
removed from the respondent’s care on September 21,
2011. The respondent was thereafter provided with
supervised visitation and transportation.
Due to the respondent’s various arrests and her men-
tal health and substance abuse issues, the petitioner
filed petitions to terminate her parental rights in Novem-
ber, 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.3 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 [termina-
tion of parental rights], she cannot bring herself to con-
sent 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 coun-
sel 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.4 At no time did the court canvass the respon-
dent 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
. . . .’’
In its November 13, 2013 memorandum of decision,
the court terminated the parental rights of the respon-
dent. In so doing, the court held that the petitioner had
proved, by clear and convincing evidence, that (1) the
children were neglected or uncared for in a prior pro-
ceeding, (2) the respondent was provided specific steps
to take to facilitate the return of the children, and (3)
the respondent had failed to achieve such degree of
personal rehabilitation as would encourage the belief
that within a reasonable time, considering the age and
needs of the children, such parent could assume a
responsible position in the lives of the children. The
court also held that, in considering all the statutory
criteria set forth in General Statutes § 17a-112 (k), termi-
nation was in the best interests of the children. This
appeal followed.
The respondent concedes that she failed to preserve
for review the issue of whether the court erred in failing
to personally canvass her at the trial stage of the termi-
nation proceedings. ‘‘Such objection would have alerted
the court to the claim of error, afforded the court an
opportunity to address the claim on the record and, if
necessary, to take corrective action in advance of an
appeal.’’ State v. Elson, 125 Conn. App. 328, 348–49, 9
A.3d 731 (2010), rev’d in part on other grounds, 311
Conn. 726, A.3d (2014). Furthermore, ‘‘[i]t is
the appellant’s responsibility to present such a claim
clearly to the trial court . . . . For us [t]o review [a]
claim, which has been articulated for the first time on
appeal and not before the trial court, would result in
a trial by ambuscade of the trial judge.’’ (Internal quota-
tion marks omitted.) Feen v. New England Benefit Cos.,
Inc., 81 Conn. App. 772, 776, 841 A.2d 1193, cert. denied,
269 Conn. 910, 852 A.2d 739 (2004). For this reason, we
ordinarily limit our review on appeal to issues that were
distinctly raised at trial and ruled on by the court. We
may, however, consider unpreserved claims under the
rubric of plain error or, if it concerns an alleged consti-
tutional error, under State v. Golding, 213 Conn. 233,
567 A.2d 823 (1989). The respondent argues that we are
able to review the merits of her claims through these
alternative avenues.
I
The respondent argues that the court, in violation of
Practice Book § 35a-1, failed to canvass her personally
about her decisions not to contest the petitioner’s exhib-
its and to waive her right to a full trial. We disagree.
The respondent first contends that although she did
not object to the court’s failure to comply with Practice
Book § 35a-1, the issue is reviewable on appeal because
the judge is presumed to know the statutes and the
rules of practice that govern the cases he adjudicates.
This argument is contrary to the plain language of Prac-
tice Book § 60-5, which provides in relevant part: ‘‘The
court shall not be bound to consider a claim unless it
was distinctly raised at the trial or arose subsequent to
the trial. . . .’’
The respondent alternatively argues that the judg-
ments of the court should be reversed because its over-
sight constituted plain error. Practice Book § 60-5, in
addition to the aforementioned provision, also provides
in relevant part that ‘‘[t]he [reviewing] court may in the
interests of justice notice plain error not brought to the
attention of the trial court.’’ The plain error doctrine,
however, is ‘‘not . . . a rule of reviewability. It is a rule
of reversibility. . . . It is a doctrine that should be
invoked sparingly and only on occasions requiring the
reversal of the judgment under review. . . . Plain error
review is reserved for truly extraordinary situations
where the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . .
‘‘We engage in a two step analysis in reviewing 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 discernable 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 defendant simply to demonstrate that his posi-
tion is correct. Rather, the party seeking plain error
review must demonstrate that the claimed impropriety
was so clear, obvious and indisputable as to warrant
the extraordinary remedy of reversal. . . . 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 determine whether the conse-
quences of the error are so grievous as to be fundamen-
tally unfair or manifestly unjust.’’ (Citations omitted;
emphasis omitted; internal quotation marks omitted.)
Clougherty v. Clougherty, 131 Conn. App. 270, 273–74,
26 A.3d 704, cert. denied, 302 Conn. 948, 31 A.3d 383
(2011).
The respondent argues that plain error review is war-
ranted because the court failed to abide by the rules
of practice, namely, Practice Book § 35a-1. She supports
her argument by citing State v. Pina, 185 Conn. 473,
482, 440 A.2d 962 (1981), which held that ‘‘a trial court’s
failure to follow the mandatory provisions of a statute
prescribing trial procedures is plain error . . . [and
that the] failure to follow a procedural rule is similarly
erroneous.’’ (Citation omitted.) She then concludes that
the court’s ‘‘oversight not only violated our rules of
practice, but jeopardized [her] core due process rights
and deprived her of a fundamentally fair hearing.’’ She
further contends that ‘‘this error is both obvious on its
face and impugns procedures designed to ensure a fair
hearing, thereby undermining public confidence in Con-
necticut’s judicial proceedings . . . .’’ The petitioner,
in contrast, claims that the ‘‘court did not infringe on
[the respondent’s] opportunity to receive a fair trial’’
and therefore did not commit plain error. We agree with
the petitioner that plain error review is not warranted
in the present appeal.
The respondent’s argument ignores pertinent prece-
dent delineated by our Supreme Court in State v. Myers,
290 Conn. 278, 963 A.2d 11 (2009). In Myers, the defen-
dant was charged in the first part of a two part informa-
tion with, inter alia, possession of narcotics with intent
to sell. The state also charged him in the second part
of the information, part B, seeking an enhanced sen-
tence for his alleged violation of the repeat offender
provisions of General Statutes § 21a-277 (a). Id., 281–82.
The jury found the defendant guilty of the narcotics
charges, and the defendant’s counsel waived a jury trial
on part B of the information. The defendant did not
raise the issue before the trial court, but later claimed
that the court improperly convicted and sentenced him
without a guilty plea or a trial as to the part B informa-
tion, in violation of Practice Book § 42-2.5 Id., 284.
On appeal to this court, we held that although the
claim was unpreserved, the trial court’s failure to ‘‘put
the defendant to plea to accord him a hearing regarding
his jeopardy as a repeat offender and to make a finding
regarding his status as a repeat offender in accordance
with Practice Book § 42-2 constituted plain error, and
that it would be an injustice for [the] court not to afford
the defendant relief on the ground that he failed to
preserve his claim.’’ (Internal quotation marks omitted.)
Id., quoting State v. Myers, 101 Conn. App. 167, 186,
921 A.2d 640 (2007) rev’d in part, 290 Conn. 278, 963
A.2d 11 (2009). The judgment of this court was then
reversed in part by our Supreme Court, which stated:
‘‘Although we agree with the Appellate Court that the
trial court’s failure to comply with the procedures of
Practice Book § 42-2 was clearly improper, we conclude
that the Appellate Court abused its discretion in vacat-
ing the defendant’s sentence because the error in this
case did not result in manifest injustice. . . . [T]he
defendant’s brief is bereft of a single reason why the
absence of a trial or plea canvass on part B of the
information is such an obvious error that it affects the
fairness and integrity of and public confidence in the
judicial proceedings.’’ (Citations omitted; internal quo-
tation marks omitted.) State v. Myers, supra, 290
Conn. 289–90.
We are guided by this precedent in analyzing the
present appeal. In reviewing the respondent’s claim of
plain error, we must first ‘‘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 discernable on the face of a factually ade-
quate record, [and] also . . . obvious in the sense of
not debatable.’’ (Emphasis omitted; internal quotation
marks omitted.) Clougherty v. Clougherty, supra, 131
Conn. App. 273. Having thoroughly reviewed the record
and the parties’ briefs, we cannot conclude that, under
the facts and circumstances of this case, the court com-
mitted plain error. It is neither clear nor obvious that
Practice Book § 35a-1 has been violated in whole or in
part. In fact, the provision, though applied, has never
been interpreted. We therefore cannot unequivocally
conclude that the court was required to canvass the
respondent personally at the trial stage of the termina-
tion proceedings.
Even if we assume that it was error for the court not
to canvass the respondent personally, the respondent
has the burden to demonstrate that ‘‘the failure to grant
relief will result in manifest injustice . . . .’’ (Internal
quotation marks omitted.) Id., 273–74. The respondent
has failed in this regard. A blanket statement made on
appeal that the alleged error is obvious and undermines
public confidence is not sufficient. She did not provide
an adequate analysis on how such alleged error rises
to the level that would require us to reverse the judg-
ments of the trial court.6 The respondent, therefore,
cannot prevail under the plain error doctrine because
she has failed to demonstrate how the alleged error
resulted in consequences ‘‘so grievous as to be funda-
mentally unfair or manifestly unjust.’’ (Internal quota-
tion marks omitted.) Id., 274; see also Blumberg
Associates Worldwide, Inc. v. Brown & Brown of Con-
necticut, Inc., 311 Conn. 123, 154, 84 A.3d 840 (2014)
(‘‘[a] party cannot prevail under plain error unless it
has demonstrated that the failure to grant relief will
result in manifest injustice’’ [internal quotation marks
omitted]). Accordingly, we refuse to reverse.
II
The respondent also argues that the court violated
her due process rights by failing to canvass her regard-
ing her decisions not to contest the petitioner’s exhibits
against her and to waive her right to a full trial so
as to ensure that her decisions were made knowingly,
voluntarily, and intelligently. We disagree.
Because the respondent concedes that she did not
preserve the issue for appeal, the court did not have
an opportunity to rule on this matter. She therefore
seeks review pursuant to Golding of this alleged consti-
tutional error. ‘‘Our Supreme Court has held that a party
can prevail on a claim of constitutional error not pre-
served at trial only if all of the following four conditions
are satisfied: (1) the record is adequate to review the
alleged claim of error; (2) the claim is of constitutional
magnitude alleging the violation of a fundamental right;
(3) the alleged constitutional violation clearly exists
and clearly deprived the defendant of a fair trial; and
(4) if subject to harmless error analysis, the state has
failed to demonstrate harmlessness of the alleged con-
stitutional violation beyond a reasonable doubt. . . .
Golding applies to civil as well as criminal cases.’’ (Cita-
tion omitted; internal quotation marks omitted.) In re
Shane P., 58 Conn. App. 244, 253–54, 754 A.2d 169
(2000).
The respondent argues that the right to a contested
trial is a personal right that cannot be waived by coun-
sel. She argues that ‘‘the court destroyed forever [her]
fundamental right to parent her children, and it did
so by using a constitutionally defective procedure that
deprived her of an opportunity to contest the petition-
er’s allegations at a contested trial in which her attorney
could assist her in confronting any adverse witnesses
and in presenting her own arguments and evidence
orally.’’ She claims that due process ‘‘requires the trial
court to canvass personally a parent in any termination
proceeding where he or she is deciding not to contest
the petitioner’s allegations and/or waiving trial to
ensure those decisions are being made knowingly, vol-
untarily, and intelligently.’’ We cannot agree because
this right is not clearly established as the law of our
state.
In this case, the first two prongs of Golding are satis-
fied.7 First, the record is adequate to review the respon-
dent’s claim. Second, ‘‘a claim concerning the
termination of a respondent’s parental rights is of con-
stitutional magnitude in that [t]he right to the integrity
of the family is among the most fundamental rights
guaranteed by the fourteenth amendment.’’ (Internal
quotation marks omitted.) In re Shyliesh H., 56 Conn.
App. 167, 178, 743 A.2d 165 (1999). The respondent
has failed, however, to meet the third requirement of
Golding by showing that a constitutional violation
clearly exists and clearly deprived her of a fair trial.
Although she cites cases from other jurisdictions,8 she
cannot cite to any precedent from Connecticut for the
proposition that a parent has a constitutional right to be
personally canvassed at the trial stage of a termination
proceeding. And, after thorough research, we do not
find any binding precedent to support that proposition.
Given the lack of precedent, the respondent contends
that her due process claim is properly considered under
the guideposts set forth in Mathews v. Eldridge, 424
U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). According
to Mathews, due process requires consideration of three
factors: ‘‘First, the private interest that will be affected
by the official action; second, the risk of an erroneous
deprivation of such interest through the procedures
used, and probable value, if any, of additional or substi-
tute procedural safeguards; and finally, the Govern-
ment’s interest, including the function involved and the
fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.’’ Id.,
335. The respondent analyzes each factor and its appli-
cability to her termination case. The insurmountable
problem for the respondent in the present appeal, how-
ever, is the burden of proof and the high standard under
which an unpreserved claim pursuant to Golding is
reviewed. The burden is on the respondent to show
that ‘‘the alleged constitutional violation clearly exists
and clearly deprived [her] of a fair trial . . . .’’ (Empha-
sis added; internal quotation marks omitted.) In re
Shane P., supra, 58 Conn. App. 253. Under our current
legal landscape, we are not convinced that the court was
required to canvass the respondent personally about her
decision not to contest the petitioner’s exhibits at the
trial stage of her termination hearing. The respondent’s
claim of a clear constitutional error, therefore, must fail.
The judgments are affirmed.
In this opinion BEACH, J., concurred.
* In accordance with the spirit and intent of General Statutes § 46b-142
(b) and Practice Book § 79a-12, the names of the parties involved in this
appeal are not disclosed. The records and papers of this case shall be open
for inspection only to persons having a proper interest therein and upon
order of the Appellate Court.
** July 11, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The court also terminated the parental rights of the respondent father.
He did not appeal from those judgments. We therefore refer solely to the
respondent mother as the respondent.
2
Practice Book § 35a-1 provides: ‘‘(a) Notwithstanding any prior state-
ments acknowledging responsibility, the judicial authority shall inquire
whether the allegations of the petition are presently admitted or denied.
This inquiry shall be made of the parent(s) or guardian in neglect, abuse
or uncared for matters; and of the parents in termination matters.’’
‘‘(b) An admission to allegations or a written plea of nolo contendere
signed by the respondent may be accepted by the judicial authority. Before
accepting an admission or plea of nolo contendere, the judicial authority
shall determine whether the right to trial has been waived, and that the
parties understand the content and consequences of their admission or plea.
If the allegations are admitted or the plea accepted, the judicial authority
shall make its adjudicatory finding as to the validity of the facts alleged in
the petition and may proceed to a dispositional hearing. Where appropriate,
the judicial authority may permit a noncustodial parent or guardian to stand
silent as to the entry of an adjudication.’’
3
The petitioner does not cite to the record or append any relevant tran-
script to her appellate brief to support the aforementioned statement. The
respondent does not, however, dispute that this occurred.
4
According to the court’s November 13, 2012 memorandum of decision,
the respondent had a history of mental health issues, addiction problems,
educational deficits, and a dysfunctional family origin. Her counsel thus
wanted to emphasize that the respondent had stabilized her life by securing
employment and housing.
5
Practice Book § 42-2 provides: ‘‘When an information is divided into two
parts under Section 36-14, on a finding of guilty on the first part of the
information, a plea shall be taken and, if necessary, election made on the
second part and the trial thereon proceeded with. If the defendant elects a
jury trial on the second part of the information, such trial may be had to
the same or to another jury as the judicial authority may direct.’’
6
In fact, our Supreme Court in Myers clarified when plain error review
is warranted. It cited the United States Supreme Court’s decision in Boykin
v. Alabama, 395 U.S. 238, 242–43, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), which
‘‘concerned a criminal defendant . . . who was charged with common-law
robbery, an offense that, at that time, was punishable by death in the state
of Alabama. . . . At his arraignment, the petitioner pleaded guilty without
being canvassed in any way by the trial judge or addressing the court. . . .
The jury sentenced the petitioner to death . . . and the Alabama Supreme
Court upheld the petitioner’s conviction and death sentence.’’ (Citations
omitted; internal quotation marks omitted.) State v. Myers, supra, 290
Conn. 295–96.
In interpreting Boykin, our Supreme Court stated that ‘‘[u]nder these
extreme circumstances, the United States Supreme Court reversed, conclud-
ing that it was plain error for the trial judge to accept [the] petitioner’s
guilty plea without an affirmative showing that it was intelligent and volun-
tary. . . . The court equated the petitioner’s guilty plea with a waiver of
several of his constitutional rights, including the privilege against compul-
sory self-incrimination . . . the right to trial by jury . . . [and] the right to
confront one’s accusers . . . and declared that it could not presume a
waiver of these three important federal rights from a silent record.’’ (Cita-
tions omitted; internal quotation marks omitted.) Id., 296. We see no way
in which the present situation rises to the level discussed in Boykin, nor
has the respondent demonstrated as such.
7
‘‘The first two [prongs of Golding] involve a determination of whether
the claim is reviewable; the second two . . . involve a determination of
whether the defendant may prevail.’’ (Internal quotation marks omitted.)
State v. Lavigne, 307 Conn. 592, 599, 57 A.3d 332 (2012).
8
The respondent relies primarily on State ex rel. Children, Youth & Fami-
lies Dept. v. Stella P., 127 N.M. 699, 705, 986 P.2d 495 (App. 1999), in which
the court stated that ‘‘[m]inimum consideration of due process requires the
children’s court to inquire explicitly and on the record as to whether [the]
[m]other validly intended to waive her right to contest the termination.’’
This holding, set forth by the New Mexico Court of Appeals, is not binding
on this court, and we, as an intermediary court, decline the opportunity to
adopt such law for the state of Connecticut.