In re Zen T. , 149 Conn. App. 376 ( 2014 )

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IN RE ZEN T.*
(AC 36083)
Gruendel, Beach and Harper, Js.
Argued March 6—officially released March 28, 2014**
(Appeal from Superior Court, judicial district of
Hartford, Juvenile Matters, Gleeson, J.)
Heather S., self-represented, the appellant (respon-
dent mother).
Amor C. Rosario, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Lisabeth B. Mindera, counsel for the minor child.
Opinion
GRUENDEL, J. The respondent mother, Heather S.,
appearing as a self-represented party, appeals from the
judgment of the trial court terminating her parental
rights as to her minor child, Zen T.1 On appeal, the
respondent claims that she was denied effective assis-
tance of counsel and was thereby prejudiced. We dis-
agree and, accordingly, affirm the judgment of the
trial court.
The record discloses the following relevant factual
and procedural history. In March, 2012, the respondent
and Cory T. brought the child, who was less than three
months old, to the emergency room because his left
leg was swollen. An X-ray, CAT scan, and MRI were
conducted, which revealed that ‘‘[the child] had sus-
tained at least eight fractures, two additional long bone
irregularities . . . as well as bilateral chronic subdural
hematomas, for a total of eleven injuries. These injuries
occurred on multiple occasions over a time period of
at least three weeks.’’ In addition, ‘‘[a]ll of the injuries
resulted from trauma which could not have occurred
during the normal handling of an infant; nor could [the
child], who at three months of age was unable to stand,
crawl, or even roll over, have accidently injured
himself.’’
The petitioner, the Commissioner of Children and
Families, thereafter filed a petition with the court,
requesting that the parental rights of the respondent be
terminated. ‘‘The statutory ground alleged in the peti-
tion against the respondent mother is that the child has
been denied, by reason of an act or acts of parental
commission or omission, including, but not limited to,
sexual molestation or exploitation, severe physical
abuse or a pattern of abuse, the care, guidance, or
control necessary for the child’s physical, educational,
moral, or emotional well-being, [pursuant to] General
Statutes § 17a-112 (j) (3) (C). The matter was tried to
the court . . . . The respondent mother was present
and was represented at trial by counsel. . . . The peti-
tioner called nine witnesses and introduced twenty
exhibits. [The respondent] called nine witnesses, testi-
fied in her own behalf and introduced twenty-one
exhibits.’’
After the trial concluded, the court held that the peti-
tioner proved, by clear and convincing evidence, that:
(1) the Department of Children and Families (depart-
ment) made reasonable efforts to reunify the family, as
required by § 17a-112 (j) (1); (2) termination was in the
best interest of the child, pursuant to § 17a-112 (j) (2);
and (3) with respect to § 17a-112 (j) (3) (C), the child’s
various fractures and hematomas were serious physical
injuries that were nonaccidental or were otherwise
inadequately explained. The court further found that
all seven grounds for termination delineated in § 17a-
112 (k)2 existed. It then ordered the termination of the
respondent’s parental rights. This appeal followed.
The respondent claims that she was denied effective
assistance of counsel and was prejudiced as a result of
this ineffectiveness. She therefore concludes that the
case should be remanded for a new trial. We disagree.
‘‘Ordinarily, we would not review the respondent’s
claim because it was not raised at trial, and, therefore,
the record is inadequate to review the claim. . . . The
evidence on the face of the record, however, demon-
strates that the respondent was not prejudiced by the
representation she received at the termination of paren-
tal rights trial. The respondent’s claim, therefore, fails.’’
In re Dylan C., 126 Conn. App. 71, 90–91, 10 A.3d
100 (2011).
‘‘In Connecticut, a parent who faces the termination
of his or her parental rights is entitled, by statute, to the
assistance of counsel. . . . Because of the substantial
interests involved, a parent in a termination of parental
rights hearing has the right not only to counsel but to
the effective assistance of counsel. . . . In re Alexan-
der V., 223 Conn. 557, 569, 613 A.2d 780 (1992).
‘‘In determining whether counsel has been ineffective
in a termination proceeding, we have enunciated the
following standard: The range of competence . . .
requires not errorless counsel, and not counsel judged
ineffective by hindsight, but counsel whose perfor-
mance is reasonably competent, or within the range of
competence displayed by lawyers with ordinary training
and skill in [that particular area of the] law. . . . The
respondent must prove that [counsel’s performance]
fell below this standard of competency and also that
the lack of competency contributed to the termination
of parental rights. . . . A showing of incompetency
without a showing of resulting prejudice . . . does not
amount to ineffective assistance of counsel.’’ (Emphasis
omitted; footnote omitted; internal quotation marks
omitted.) In re Dylan C., supra, 126 Conn. App. 91.
‘‘In making such a claim, it is the responsibility of the
respondent to create an adequate record pointing to
the alleged ineffectiveness and any prejudice the
respondent claims resulted from that ineffectiveness.’’
In re Christopher C., 129 Conn. App. 55, 59, 20 A.3d
689 (2011). ‘‘In the absence of findings by the trial court
in this regard, we directly review the trial court record.’’
In re Jah’za G., 141 Conn. App. 15, 36, 60 A.3d 392,
cert. denied, 308 Conn. 926, 64 A.3d 329 (2013).
The respondent claims that her trial counsel was
ineffective because (1) he was unprepared to ade-
quately analyze and challenge the methods of evaluation
and conclusions drawn by the forensic psychologist
who evaluated the respondent and testified as an expert
witness at trial;3 (2) he failed to request a continuance
to secure reasonable time to prepare the case or a
meaningful defense;4 (3) he missed the deadline for
disclosure of evidence;5 (4) he required the respondent
to write her own questions when she chose to testify;6
(5) he failed to correct the record of statements she
previously made to the department;7 and (6) he wrote
in his brief that the department made reasonable efforts
to reunify the child with her.8
In the present case, we need not decide whether
the respondent’s counsel provided assistance that fell
below that of lawyers with ordinary training in termina-
tion of parental rights cases because the respondent has
not demonstrated that her trial counsel’s representation
resulted in prejudice to her. In order to demonstrate
prejudice, the respondent has the ‘‘burden of proving
that any alleged inadequacy of counsel could have
affected the outcome of the termination proceedings.’’
In re Mariah S., 61 Conn. App. 248, 269, 763 A.2d 71(2000), cert. denied, 255 Conn. 934, 767 A.2d 104 (2001).
The respondent does not specify in her brief how
any of the alleged deficiencies by her counsel resulted
in prejudice to her. She makes only conclusory state-
ments, for example, stating that her counsel’s deficienc-
ies ‘‘changed the perception of the trial court judge and
ultimately the outcome of the case.’’ Bald assertions
such as these are not enough to prove prejudice. The
respondent was required to demonstrate that the out-
come of the case—the judgment terminating her paren-
tal rights—would have been different had the alleged
ineffectiveness of her counsel not occurred. She failed
to do just that. To the contrary, the record reveals that
any alleged ineffectiveness of her counsel did not result
in prejudice because there was overwhelming evidence
that supported the court’s judgment. First, the respon-
dent’s parental rights were terminated on the strength
of the petitioner’s case that the child suffered serious
physical injuries and that those injuries were not ade-
quately explained by the respondent, pursuant to § 17a-
112 (j) (3) (C). Moreover, as set forth in § 17a-112 (j) (3)
(C), ‘‘nonaccidental or inadequately explained serious
physical injury to a child shall constitute prima facie
evidence of acts of parental commission or omission
sufficient for the termination of parental rights.’’
Furthermore, the court ‘‘examined multiple relevant
factors [in making its decision] including the child’s
interests in physical safety, sustained growth, develop-
ment, well-being, stability and continuity of his environ-
ment; his length of stay in foster care; the nature of his
relationship with his biological parents; the degree and
quality of contact maintained with his biological par-
ents; and his genetic bond to the respondents. The court
. . . also balanced this child’s crucial need for physical
safety, emotional stability, validation, consistency and
permanency against the potential benefit of maintaining
a connection with his biological parents.’’ After consid-
ering each of these factors, the court determined that
it was in the best interests of the child to terminate the
respondent’s parental rights.
‘‘Moreover, our Supreme Court has indicated . . .
that the trial judge is a minister of justice rather than
strictly an umpire in a forensic encounter . . . .
Although as a trial judge must adhere to dictates of
impartiality, he or she, nevertheless, has the duty to
deter and correct misconduct of attorneys with respect
to their obligations as officers of the court to support
the authority of the court and enable the trial to proceed
with dignity. . . . Thus, a judge presiding over a pro-
ceeding wherein trial counsel had been woefully inade-
quate would not, consistent with judicial duty sit idly
by and permit the client to suffer the consequences. To
be sure, the trial judge may be more inclined to vigilance
in solemn proceedings, such as those terminating paren-
tal rights, wherein the indigent litigants have obtained
court-appointed counsel. . . . In re Jonathan M., 255
Conn. 208, 234, 764 A.2d 739 (2001).’’ (Internal quotation
marks omitted.) In re Dylan C., supra, 126 Conn. App.
92–93. Nowhere in its memorandum of decision or in
the transcript of the trial did the court give any indica-
tion that the respondent was not receiving effective
assistance of counsel. And, the respondent has not iden-
tified where in the record that she alerted the court to
her dissatisfaction with counsel. See id.After reviewing the respondent’s claim of ineffective
assistance of counsel and resultant prejudice, we con-
clude that the respondent did not meet her burden of
demonstrating that any alleged inadequacy of counsel
prejudiced her in a way that affected the outcome of
the termination proceeding. See In re Mariah S., supra,
61 Conn. App. 269. In light of the foregoing reasons,
the respondent’s ineffective assistance of counsel
claim fails.
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.
** March 28, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The respondent father, Cory T., tendered a signed written consent to
terminate his parental rights to the court. The court thereafter canvassed
the father and found that his consent was knowing, voluntary, and with a
full understanding of all the consequences. It then accepted his consent and
terminated Cory T.’s parental rights to the child. Cory T. is not a party to this
appeal. Accordingly, we refer in this opinion to Heather S. as the respondent.
2
General Statutes § 17a-112 (k) provides in relevant part: ‘‘[I]n determining
whether to terminate parental 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 an agency to facilitate the reunion of the child with
the parent; (2) whether the Department of Children and Families has made
reasonable efforts to reunite the family pursuant to the federal Adoption
Assistance and Child Welfare Act of 1980, as amended; (3) the terms of any
applicable court order entered into and agreed upon by any individual or
agency and the parent, and the extent to which all parties have fulfilled
their obligations under such order; (4) the feelings and emotional ties of
the child with respect to the child’s parents, any guardian of such 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; (5) the age of the child; (6) 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 such child home in the
foreseeable future . . . and (7) 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.’’
3
The psychologist’s ‘‘report indicate[d] that although [the respondent] did
not show signs of mental illness, [she] showed indications of substantial
psychological problems, which would prevent her from safely caring for an
infant.’’ The respondent claims that she ‘‘did not have any unresolved and
significant psychological issues and if those issues did not actually preclude
the possibility of her safe reunification with [the child], then [she] has been
prejudiced by counsel’s failure to adequately prepare for or challenge the
psychologist’s testimony.’’ (Internal quotation marks omitted.)
4
Since her counsel did not request a continuance, the respondent claims
that he did not adequately prepare for trial and that she was therefore
deprived of a meaningful defense of psychological fitness, a defense she
claims ‘‘could have been a solid defense if it was diligently pursued.’’
5
The respondent claims that she was prejudiced when her trial counsel
missed the deadline to disclose evidence, stating that ‘‘several powerful
pieces of evidence were never brought to light that would surely have
changed the perception of the trial court judge and ultimately the outcome
of the case.’’ She states that this evidence included a calendar of ‘‘many
things in order to watch [the child] and his diagnosed colic and acid reflux,’’
which would have ‘‘disproven certain allegations by the paternal grandpar-
ents and . . . given more credibility . . . to the [respondent’s] belief of
mental abuse by the paternal grandmother . . . .’’
6
She claims prejudice in this instance because her trial counsel insisted
that she write her own questions if she chose to testify. The respondent
states that this action ‘‘left an impression on the court of not having the
proper respect for his client’’ and forced her to be her own trial counsel at
a crucial time in the trial ‘‘knowing that she had a criminal case of neglect
pending where all things in these proceedings could be used against her in
criminal court.’’
7
The respondent claims that when her counsel failed to correct her state-
ments, she was unable to give her side of the story.
8
The respondent asserts on appeal that she believed that her case was
mismanaged because of ‘‘altered forms, misleading notes and accepting
bias[ed] statements without lending the [respondent] the opportunity to
share her side of the story.’’ The respondent, however, has failed to challenge
any of the trial court’s findings regarding the reasonableness of the depart-
ment’s efforts, and therefore this specific instance of her ineffective assis-
tance of counsel claim is moot. See In re Alison M., 127 Conn. App. 197,
205–206, 15 A.3d 194 (2011) (review of respondent’s challenge to finding
that she was unable to benefit from reunification services was moot because
she failed to challenge trial court’s finding that department made reasonable
efforts to reunify her with children). As our Supreme Court has noted, ‘‘it
is not the province of appellate courts to decide moot questions, discon-
nected from the granting of actual relief or from the determination of which
no practical relief can follow.’’ (Emphasis omitted; internal quotation marks
omitted.) In re Jorden R., 293 Conn. 539, 556, 979 A.2d 469 (2009).