In re Leilah W. , 166 Conn. App. 48 ( 2016 )

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IN RE LEILAH W.*
(AC 38620)
DiPentima, C. J., and Keller and Prescott, Js.**
Argued April 7—officially released June 3, 2016***
(Appeal from Superior Court, judicial district of
Litchfield, Juvenile Matters, Ginocchio, J.)
David E. Schneider, Jr., for the appellant (respon-
dent father).
Cynthia Mahon, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gregory T. D’Auria, solicitor general, and Benja-
min Zivyon, assistant attorney general, for the
appellee (petitioner).
Rebecca Mayo Goodrich, for the minor child.
Opinion
PRESCOTT, J. The respondent father, Richard L.,
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 daughter, Leilah W.1 On appeal, the
respondent claims that the court improperly (1) failed
to conduct a pretrial canvass of him in accordance with
our Supreme Court’s decision in In re Yasiel R., 317
Conn. 773, 120 A.3d 1188 (2015); and (2) determined,
in accordance with General Statutes § 17a-112 (j) (3)
(B) (i), that the petitioner had proven by clear and
convincing evidence that Leilah previously was adjudi-
cated neglected and that the respondent has failed to
achieve a sufficient degree of personal rehabilitation
to encourage a belief that he could assume a responsible
position in Leilah’s life within a reasonable period of
time.2 We affirm the judgment of the trial court.
The record reveals the following relevant facts, which
are uncontested or were found by the trial court, and
procedural history. Leilah was born on September 2,
2013. On September 26, 2013, the respondent was
arrested on burglary charges and incarcerated. The
Department of Children and Families (department)
obtained an order in October, 2013, granting the peti-
tioner temporary custody of Leilah after her mother
tested positive for opiates and marijuana. The petitioner
subsequently filed a neglect petition. Both the applica-
tion for the order of temporary custody and the neglect
petition identified Leilah’s father as Kenneth A.; how-
ever, a December 16, 2013 paternity test later revealed
that Kenneth A. was not Leilah’s biological father.
Leilah was adjudicated neglected on February 11,
2014, and committed to the care and custody of the
petitioner. On March 21, 2014, a paternity test identified
the respondent as Leilah’s biological father.3 The peti-
tioner filed a motion on July 21, 2014, asking the court
to order specific steps for the respondent,4 which the
court approved and ordered on August 6, 2014. On Sep-
tember 10, 2014, the court approved a permanency plan
of reunification and again issued specific steps to
both parents.
On May 19, 2015, the petitioner filed a petition to
terminate the parental rights of Leilah’s mother and the
respondent. The petitioner also filed a social study in
support of that petition. With respect to the respondent,
the petition sought termination on the ground that no
ongoing parent-child relationship existed between the
respondent and Leilah. On July 15, 2015, over the objec-
tion of the respondent, the court approved a perma-
nency plan of termination and adoption. At that time,
Leilah’s mother consented to termination of her paren-
tal rights.
Shortly thereafter, the petitioner successfully moved
to amend the termination petition with respect to the
respondent. The amended petition was filed on August
5, 2015, and included as an additional ground for termi-
nation that Leilah previously had been adjudicated
neglected and that, considering Leilah’s age and needs,
the respondent had failed to achieve a degree of per-
sonal rehabilitation necessary to encourage a belief that
he could assume a responsible position in Leilah’s life
within a reasonable amount of time. With the amended
petition, the petitioner also filed an amended social
study.
A trial was conducted on the operative amended peti-
tion on October 5, 2015, before Judge Ginocchio. The
respondent was represented by counsel throughout the
proceedings. Both the petitioner and the respondent
presented exhibits and called witnesses. The petition-
er’s sole witness was Reagan Horvay, the department
social worker assigned to Leilah’s case. Horvay was
cross-examined extensively by the respondent’s attor-
ney. The respondent testified on his own behalf and
also presented testimony from Elizabeth Cooper, a
counselor with the Department of Correction, and Carl
Hoyt, the department social worker case aide who
supervised his visitations with Leilah. The attorney for
the minor child presented testimony from Leilah’s fos-
ter mother.
Shortly after the close of evidence, the assistant attor-
ney general representing the petitioner informed the
court that it had not conducted a canvass of the respon-
dent prior to the start of trial in accordance with our
Supreme Court’s recent decision in In re Yasiel R.,
supra, 317 Conn. 773. In In re Yasiel R., which was
decided on August 18, 2015, less than two months prior
to the start of the respondent’s trial, our Supreme Court
held that due process did not require a trial court to
canvass a parent in a termination proceeding regarding
her counsel’s decision not to contest the evidence pre-
sented against her and to waive her right to a full trial.
Id., 787–88. Nevertheless, pursuant to the court’s super-
visory powers over the administration of justice, it
stated 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.’’
(Emphasis added.) Id., 794.
To remedy its oversight in the present case, the court
asked the parties to return to court on October 7, 2015,
at which time the court advised the respondent that it
had failed to canvass him in accordance with In re
Yasiel R. prior to trial. The court indicated that although
the respondent had been afforded a full trial with an
attorney present, it nevertheless was obligated to advise
the respondent of certain rights and to provide him
with an opportunity to consult with his attorney regard-
ing those rights. The following colloquy ensued:
‘‘The Court: So what I would have said before trial
is, before we begin this hearing on the termination of
parental rights petition, the parent should understand
that in the event the court terminates your parental
rights this will result in the end of your legal relationship
with your child. You will have no legal rights, no author-
ity and no responsibility for the child. You will no longer
have any rights to make decisions of any kind affecting
the child. You will not be entitled to any state or federal
benefits or entitlements on behalf of the child. The child
will be eligible to be adopted.
‘‘And I’m assured that you and Attorney [Brya Ann]
Darley [the respondent’s counsel] did discuss all that
before the trial. Correct?
‘‘[The Respondent]: Yes, sir.
‘‘The Court: And Attorney Darley—
‘‘[The Respondent’s Counsel]: Yes, Your Honor.
‘‘The Court:—you confirmed that?
‘‘It goes on to say, at the hearing you will have the
right to be represented by an attorney, you will have
your lawyer with you, your lawyer will help protect
your legal rights. Those legal rights include the right to
question, confront and cross examine any witness to
test their memory and determine if they are telling the
truth. You will have the right to object to testimony
and to the admission of any documents or exhibits
including any social studies or psychological reports.
The objections must be made in accordance with the
rules of evidence. You will have the right to have your
own defense put on for you and you may call your own
witnesses to assist you in challenging the allegations
made against you. You have the right to testify—that
is, tell your side of the story if you want to do so, but
no one can make you testify because you’ll still have
the right to remain silent. If you do not testify the court
could draw an adverse inference against you—that
means the court could decide that you were not testi-
fying because your testimony would not be helpful to
you. Finally, you are advised that if you do not present
any witness on your own behalf or do not cross examine
witnesses, the court will decide the matter based upon
the evidence presented at the trial.
‘‘Do you have any questions you wish to ask, please
consult with your attorney first. So, I’ll have you consult
with your lawyer and then let me know if you have any
questions about what I’ve just read to you.
‘‘[The Respondent]: I have no questions, sir.
‘‘The Court: All right. And anything further on that?
‘‘[The Respondent’s Counsel]: No, Your Honor.
‘‘The Court: All right. So the record shall reflect that
I did canvass him pursuant to the supervisory authority
of the Supreme Court of the State of Connecticut.’’
The hearing concluded shortly thereafter. At no time
during the hearing did the respondent or his counsel
voice any objection regarding either the content of the
court’s canvass or its failure to conduct the canvass
pretrial. The respondent did not file any posthearing
motion seeking a mistrial, asking to reopen the evi-
dence, or requesting any other additional relief.
The court issued a written decision on October 26,
2015, granting the petition to terminate the parental
rights of the respondent and, by consent, Leilah’s
mother. With respect to the respondent, the court found
that the petitioner had proven by clear and convincing
evidence both grounds for termination asserted in the
operative amended petition.
First, the court found, pursuant to § 17a-112 (j) (3)
(B) (i), that Leilah had been adjudicated neglected or
uncared for in a prior proceeding on February 11, 2014,
and that the respondent had failed to rehabilitate suffi-
ciently so that, within a reasonable period of time, he
could assume a responsible position in Leilah’s life.
With respect to this ground, the court noted that the
respondent just recently had been released from prison,
and that he was obligated to reside at a halfway house
until July, 2016, and could not have custody of a child
there. The court also found that although the respon-
dent had completed several programs while incarcer-
ated, he had not addressed his domestic violence issues,
and had no intention of seeking treatment or taking
medication for his bipolar disorder, which the court
described as largely untreated. Further, according to
the court, there were no prospects for housing or mean-
ingful employment in the respondent’s future. Of partic-
ular concern to the court was the lack of any ‘‘viable
parenting plan on the horizon.’’ The court concluded
that because the respondent had ‘‘failed to demonstrate
any significant periods of sobriety, employment and
lack of criminal activity while in the community,’’ that,
considering the needs of a young child like Leilah, the
respondent could not be ‘‘in a position to be a placement
resource for the child within a reasonable time.’’5
Second, the court found that the petitioner also had
proven by clear and convincing evidence that termina-
tion of parental rights was appropriate because the
respondent lacked any parent-child relationship with
Leilah. The court found the following facts particularly
relevant to this ground for termination. Despite being
aware during the mother’s pregnancy that he potentially
could be the father, the respondent ‘‘yielded to the
mother’s request to allow [Kenneth A.] to take responsi-
bility for Leilah.’’ The respondent, who has been incar-
cerated for much of Leilah’s life, has visited with Leilah
only once a month, and, because of his incarceration,
his contact during visits was restricted. For example,
he was not permitted to hold her, feed her, comfort
her, or change her. Although Leilah sometimes referred
to the respondent as ‘‘daddy,’’ she also referred to other
males as ‘‘daddy.’’ The respondent’s incarceration had
prevented him from having a meaningful relationship
with his child. No emotional bond existed between the
respondent and Leilah, whose only memories of the
respondent were formed during her visits with him in
prison. The court concluded that ‘‘[t]o permit additional
time to develop a parent child relationship with his
daughter would not be in Leilah’s best interest because
[the respondent would] not be released from a half[way]
house until July of 2016 and Leilah’s permanency cannot
be delayed.’’
After considering and making written findings regard-
ing the criteria set forth in § 17a-112 (k), the court
determined that termination of the respondent’s paren-
tal rights was in the best interest of Leilah. Accordingly,
the court terminated the parental rights of both parents,
and appointed the petitioner as Leilah’s statutory parent
for the purpose of securing an adoptive family or other
permanent placement. This appeal followed.6
I
The respondent first claims that he is entitled to a
new trial because the court improperly failed to conduct
a pretrial canvass of him in accordance with the supervi-
sory rule announced by our Supreme Court in In re
Yasiel R., supra, 317 Conn. 773. He argues that the
court’s effort to advise him of his rights after the close of
evidence was insufficient to remedy the error because
it failed to satisfy the purpose underlying the pretrial
canvass mandated by In re Yasiel R. The petitioner, on
the other hand, responds that, under the facts of this
case, which are distinct from those that led to the deci-
sion in In re Yasiel R., the trial court did not commit
reversible error by providing the canvass after the close
of evidence, and the respondent has failed to demon-
strate how he was prejudiced by the late canvass. We
agree with the petitioner.
At the outset, we note that the respondent never
distinctly raised any claim of error before the trial court
regarding the canvass and, thus, failed to properly pre-
serve his claim for appellate review.7 After the court
acknowledged its error in failing to canvass the respon-
dent at the start of the trial, it attempted to remedy
that error by providing an advisement of rights after
the close of evidence. The respondent and his counsel
acquiesced to the late canvass, never indicating to the
court any dissatisfaction with the court’s actions or
arguing that the respondent had been irreparably
harmed and a new trial was necessary.
In accordance with our case law and rules of practice,
appellate review generally is limited to issues that were
distinctly raised at trial. State v. Canales, 281 Conn.
572, 579, 916 A.2d.767 (2007); see also Practice Book
§ 60-5 (‘‘court shall not be bound to consider a claim
unless it was distinctly raised at the trial or arose subse-
quent to the trial’’). ‘‘Only in [the] most exceptional
circumstances can and will this court consider a claim,
constitutional or otherwise, that has not been raised and
decided in the trial court.’’ (Internal quotation marks
omitted.) State v. Canales, supra, 579. ‘‘The reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court or the opposing party to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party.’’ (Internal quotation marks omitted.) In
re Azareon Y., 309 Conn. 626, 635, 72 A.3d 1074 (2013).
It is equally well settled, however, that a reviewing
court, although not bound to consider a claim that was
not raised to the trial court, may do so at its discretion.
See Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308
(1983) (although appellate court not bound to consider
unpreserved claims of error, it may elect to do so on
occasion, ‘‘not by reason of the appellant’s right to have
it determined but because in our opinion in the interest
of public welfare or of justice between individuals it
ought to be done’’ [internal quotation marks omitted]).
We are unaware of any statutory or procedural rule
limiting that discretion. Several reasons convince us to
review the respondent’s claim in this instance, despite
his failure to raise any issues before the trial court.
First, the petitioner will not be unfairly prejudiced if
we review the claim. She has fully addressed the merits
of the respondent’s claim in her brief, and, although as
part of that discussion she mentions that the respondent
never raised any issue concerning the late canvass to
the trial court, she does not directly assert that the
respondent failed to preserve his claim or provide analy-
sis of that issue. Second, the precise contours of our
Supreme Court’s decision in In re Yasiel R. have yet
to be fully explored or explained, and, thus, our consid-
eration of the issue raised by the respondent may be
beneficial in defining the parameters of this new super-
visory rule. Finally, because the trial court acknowl-
edged its error in failing to give the required canvass
prior to the start of trial, our review of the respondent’s
claim, particularly whether that error should automati-
cally result in a new trial, would not amount to the type
of ambush of the trial court that we ordinarily attempt
to avoid by eschewing review of unpreserved claims.8
Whether the trial court’s failure to strictly comply with
the rule announced in In re Yasiel R. warrants the
granting of a new trial raises a mixed question of law
and fact over which we exercise plenary review. See
In re Joseph W., 121 Conn. App. 605, 616, 997 A.2d 512
(2010), aff’d, 301 Conn. 245, 21 A.3d 723 (2011); see
also In re Daniel N., 163 Conn. App. 322, A.3d
(2016). Having decided to exercise our discretion to
review the respondent’s unpreserved claim, we turn to
our consideration of its merits.
Our Supreme Court exercised its supervisory powers
in In re Yasiel R. to announce a new rule that, although
not constitutionally required, it concluded was neces-
sary to protect the perceived fairness of the judicial
system with regard to termination of parental rights
proceedings. In setting forth the parameters of its newly
crafted canvass requirement, our Supreme Court stated:
‘‘[B]y exercising our supervisory authority in the pre-
sent case, we are promoting public confidence in the
process by ensuring that all parents involved in parental
termination proceedings fully understand their right to
participate and the consequences of the proceeding.
We conclude, therefore, that it is proper to exercise
our supervisory power in the present case and require
that, in all termination proceedings, the trial court must
canvass the respondent prior to the start of the trial.
The canvass need not be lengthy as long as the court
is convinced that the respondent fully understands his
or her rights. 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 judg-
ment is entered terminating parental rights; (2) the
respondent’s right to defend against the accusations; (3)
the respondent’s right to confront and cross-examine
witnesses; (4) the respondent’s right to object to the
admission of exhibits; (5) the respondent’s right to pre-
sent evidence opposing the allegations; (6) the respon-
dent’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 respondent 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 the evidence
presented during trial. The court should then inquire
whether the respondent understands his or her rights
and whether there are any questions. This canvass will
ensure that the respondent is fully aware of his or her
rights at the commencement of the trial. It will neither
materially delay the termination proceeding nor unduly
burden the state.’’ (Emphasis added.) In re Yasiel R.,
supra, 317 Conn. 794–95. The court stressed that the
canvass was required in all parental termination cases,
not just in those cases in which the respondent’s attor-
ney chooses not to contest evidence, as was the case
in In re Yasiel R.
Although this court recently held that the In re Yasiel
R. canvass requirement must be applied retroactively,
and we ordered a new trial in a termination proceeding
in which the parent never received a canvass regarding
his rights; In re Daniel N., supra, 163 Conn. App. 333–37;
we are unconvinced under the facts of the present case
that the trial court’s failure strictly to comply with the
Supreme Court’s supervisory rule by canvassing the
respondent after the close of evidence at the termina-
tion trial ended requires reversal of the judgment of
termination and a new trial. We agree with the petitioner
that our Supreme Court’s decision in State v. Smith,
275 Conn. 205, 881 A.2d 160 (2005), is instructive in
resolving the respondent’s claim because it demon-
strates that a trial court’s failure to comply with a super-
visory 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 had 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. Id., 237; see also State v. Aponte, 259 Conn. 512,
522, 790 A.2d 457 (2002). The Supreme Court deter-
mined, consistent with its decision in Aponte, that the
trial court’s use of the prohibited language did not impli-
cate the defendant’s constitutional rights, and, thus, he
was not entitled to Golding review.9 State v. Smith,
supra, 275 Conn. 239. 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 doctrine; id.,
239–40; or pursuant to the court’s supervisory authority.
Id., 242.
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 confi-
dence in the proceeding.’’ Id., 240. 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
extraordinary 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.’’ Id., 242. In other words, merely demon-
strating 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
demonstrate actual harm.
In the present case, the trial court’s noncompliance
with our Supreme Court’s supervisory rule does not
rise to the level of reversible error. It is undisputed that
the trial court failed to heed the new rule that our
Supreme Court announced less than two months prior
to the beginning of the respondent’s trial, requiring a
brief pretrial canvass of all parents subject to termina-
tion of their parental rights sufficient to convince the
trial court that the parent fully understands his or her
rights and the consequences of the termination proceed-
ing. Nevertheless, as in Smith, there is nothing in the
record that indicates that the court deliberately chose
not to conduct the mandated canvass. Further, although
not conducted before trial, the court did conduct a
canvass of the respondent immediately after the trial
and before any decision was rendered on the petition.
Although this was not the procedure envisioned by our
Supreme Court, and, accordingly should be avoided, if
any concerns arose regarding the respondent’s under-
standing of his trial rights, the trial court could have
reopened the evidence to allow for additional proceed-
ings if necessary. Accordingly, the trial court’s failure
to heed the Supreme Court’s requirement that a canvass
be conducted pretrial does not appear to have been
‘‘such an extraordinary violation that it threatened the
integrity of the trial.’’ State v. Smith, supra, 242.
In canvassing the respondent after the close of evi-
dence, the court fully advised the respondent of his
rights as a parent in a termination proceeding, including
potential consequences. The respondent acknowledged
that he had been informed of these same rights prior
to trial by his attorney. The court gave the respondent
an opportunity to consult with his attorney after the
canvass, and the respondent indicated that he had no
questions. There was no request for any additional con-
sultation time or a continuance. At no time did the
respondent or his counsel voice any objection to the
trial court regarding the timing of the canvass or its
content.10 The respondent did not move for a mistrial,
and never asked the court to reopen the evidence so
that he could present any additional witnesses, raise
challenges to the petitioner’s exhibits or recall wit-
nesses for cross-examination. Although the respondent
argues on appeal that it was useless for the court to
provide a canvass after the evidence was admitted and
the witnesses questioned, he fails to explain how he
would have proceeded differently had the court prop-
erly canvassed him prior to the start of trial.
On the basis of our review of the trial court’s canvass,
we conclude that the court reasonably could have con-
cluded that the respondent fully understood the trial
process, the rights he had during the trial, and the poten-
tial consequences of the termination of his parental
rights. The stated purpose underlying our Supreme
Court’s supervisory rule appears to have been effectu-
ated in the present case. The respondent has failed to
demonstrate 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 judg-
ment simply to emphasize the importance of compli-
ance with our Supreme Court’s holding in In re Yasiel
R. Accordingly, we reject the respondent’s claim.
II
The respondent next claims that the court improperly
concluded that termination of his parental rights was
warranted in accordance with § 17a-112 (j) (3) (B) (i)
because Leilah had been previously adjudicated
neglected and, in light of her age and needs, the respon-
dent had failed to achieve a sufficient degree of personal
rehabilitation necessary to encourage a belief that he
could assume a responsible position in Leilah’s life
within a reasonable period of time. The respondent
argues that the court focused too narrowly upon his
incarceration and on events that occurred prior to Lei-
lah’s birth, and contends that he has rehabilitated
enough to assume a responsible role in his daughter’s
life. The petitioner argues that the respondent fails to
recognize the statutory requirement that rehabilitation
must happen within a reasonably foreseeable time
period, and that the court’s finding that he would be
unable to rehabilitate in time for Leilah was firmly and
fully based upon evidence in the record. We again agree
with the petitioner.
We begin by setting forth applicable legal principles,
including our standard of review. ‘‘A hearing on a termi-
nation of parental rights petition consists of two phases,
adjudication and disposition. . . . In the adjudicatory
phase, the court must determine whether the [peti-
tioner] has proven, by clear and convincing evidence,
a proper ground for termination of parental rights. . . .
In the dispositional phase, once a ground for termina-
tion has been proven, the court must determine whether
termination is in the best interest of the child.’’ (Cita-
tions omitted.) In re Vincent D., 65 Conn. App. 658,
664–65, 783 A.2d 534 (2001).
‘‘Failure of a parent to achieve sufficient personal
rehabilitation is one of six statutory grounds on which
a court may terminate parental rights pursuant to § 17a-
112. [See General Statutes § 17a-112 (j) (3) (B) (i).] That
ground exists when a parent of a child whom the court
has found to be neglected fails to achieve such a degree
of rehabilitation as would encourage the belief that
within a reasonable time, considering the age and needs
of the child, the parent could assume a responsible
position in the life of that child.’’ (Internal quotation
marks omitted.) In re G. Q., 158 Conn. App. 24, 25, 118
A.3d 164, cert. denied, 317 Conn. 918, 118 A.3d 61 (2015).
‘‘Personal rehabilitation as used in [§ 17a-112 (j) (3)
(B) (i)] refers to the restoration of a parent to his or
her former constructive and useful role as a parent.’’
(Internal quotation marks omitted.) Id. ‘‘The statute
does not require [a parent] to prove precisely when [he]
will be able to assume a responsible position in [his]
child’s life. Nor does it require [him] to prove that [he]
will be able to assume full responsibility for [his] child,
unaided by available support systems.’’ (Internal quota-
tion marks omitted.) In re Shane M., 318 Conn. 569,
585, 122 A.3d 1247 (2015). Rather, ‘‘[§ 17a-112] requires
the trial court to analyze the [parent’s] rehabilitative
status as it relates to the needs of the particular child,
and further, that such rehabilitation must be foresee-
able within a reasonable time. . . . [The statute]
requires the court to find, by clear and convincing evi-
dence, that the level of rehabilitation [he or she] has
achieved, if any, falls short of that which would reason-
ably encourage a belief that at some future date [he or
she] can assume a responsible position in [his or her]
child’s life. . . . [I]n assessing rehabilitation, the criti-
cal issue is not whether the parent has improved [his
or her] ability to manage [his or her] own life, but rather
whether [he or she] has gained the ability to care for
the particular needs of the child at issue.’’ (Citation
omitted; emphasis omitted; internal quotation marks
omitted.) In re Sheila J., 62 Conn. App. 470, 480, 771
A.2d 244 (2001).11
‘‘A conclusion of failure to rehabilitate is drawn from
both the trial court’s factual findings and from its
weighing of the facts in assessing whether those find-
ings satisfy the failure to rehabilitate ground set forth in
§ 17a-112 (j) (3) (B). Accordingly . . . the appropriate
standard of review is one of evidentiary sufficiency,
that is, whether the trial court could have reasonably
concluded, upon the facts established and the reason-
able inferences drawn therefrom, that the cumulative
effect of the evidence was sufficient to justify its [ulti-
mate conclusion]. . . . When applying this standard,
we construe the evidence in a manner most favorable
to sustaining the judgment of the trial court.’’ (Emphasis
omitted; internal quotation marks omitted.) In re Shane
M., supra, 318 Conn. 587–88. We will not disturb the
court’s subordinate factual finding unless they are
clearly erroneous. Id., 587.
Before turning to the court’s determination that the
respondent has failed to rehabilitate, we address what
we construe as challenges to the subordinate factual
findings of the court. First, the respondent argues that
the court improperly found that the ‘‘adjudicatory date’’
was May 19, 2015, whereas the correct date was actually
August 5, 2015. Second, the respondent argues that
although the court based its failure to rehabilitate con-
clusion in part on the respondent’s unaddressed mental
health issues, ‘‘there was no reliable evidence that he
had unaddressed mental health issues and that they
needed to be addressed.’’ We address each argument
in turn.
A
The respondent first argues that the court improperly
found that the ‘‘adjudicatory date’’ was May 19, 2015.
‘‘In the adjudicatory phase of a termination proceeding,
the court is limited to considering events that precede
the date of the filing of the petition or the latest amend-
ment to the petition, also known as the adjudicatory
date. Practice Book § [35a-7] (a). The court may con-
sider, however, events occurring after the adjudicatory
date during the dispositional phase of a termination
proceeding. Practice Book § [35a-9].’’ In re Sheena I.,
63 Conn. App. 713, 721, 778 A.2d 997 (2001). Further-
more, ‘‘the court may rely on events occurring after the
[adjudicatory] date . . . when considering the issue of
whether the degree of rehabilitation is sufficient to fore-
see that the parent may resume a useful role in the
child’s life within a reasonable time.’’ (Emphasis omit-
ted; internal quotation marks omitted.) In re Selena O.,
104 Conn. App. 635, 646, 934 A.2d 860 (2007).
In the present case, the court never specifically identi-
fies May 19, 2015, as the ‘‘adjudicatory date’’ in its mem-
orandum of decision. However, the court does indicate
that the petition for termination was filed on May 19,
2015. The court never mentions that an amended peti-
tion was filed on August 5, 2015. Because the adjudica-
tory date is the date the latest amendment to the petition
is filed, we agree that the court misidentified the rele-
vant operative pleading and, thus, by implication, the
adjudicatory date. Nevertheless, the respondent has
failed to identify why this error is of any significance
to the court’s ultimate conclusion in this matter. For
example, the respondent has failed to identify any evi-
dence or event that the court improperly considered or
failed to consider as a result of its failure to correctly
identify the ‘‘adjudicatory date.’’ Moreover, because the
court may consider events that occurred both before
and after the adjudicatory date in considering whether
a respondent had failed to adequately rehabilitate, iden-
tification of the adjudicatory date is of no matter.
Accordingly, because any error regarding identification
of the adjudicatory date appears to be harmless, not
only when viewed in isolation, but taken as a whole;
see In re Selena O., supra, 104 Conn. App. 645; a new
trial clearly is not warranted.
B
The respondent also challenges the court’s finding
that, despite his participation in several programs while
incarcerated, he had unaddressed mental health issues
‘‘including a bipolar disorder that has been largely left
untreated.’’ The respondent argues that there was no
testimony presented at trial from a mental health pro-
vider or exhibit offered at trial indicating that the
respondent had any mental health issues that needed
to be addressed. We disagree.
As we have often repeated, ‘‘[b]ecause it is the trial
court’s function to weigh the evidence and determine
credibility, we give great deference to its findings. . . .
In reviewing factual findings, [w]e do not examine the
record to determine whether the [court] could have
reached a conclusion other than the one reached. . . .
Instead, we make every reasonable presumption . . .
in favor of the trial court’s ruling.’’ (Internal quotation
marks omitted.) In re Severina D., 137 Conn. App. 283,
292, 48 A.3d 86 (2012). As the petitioner correctly indi-
cates in her brief, there is ample evidence in the record
to support the court’s findings concerning the respon-
dent’s mental health, including admissions by the
respondent.
For example, the amended social study filed with the
operative petition was admitted as a full exhibit at trial
without objection, and the court was entitled to rely
upon that exhibit in support of its findings. See In re
Tabitha P., 39 Conn. App. 353, 368, 664 A.2d 1168 (1995).
In the amended social study, the department summa-
rized information that it had obtained regarding the
respondent’s mental health issues, including informa-
tion obtained during telephone conversations with the
respondent. According to the study, the respondent was
diagnosed with bipolar disorder in 2002, and he had
received extensive psychiatric care as an adolescent.
Prior to incarceration, the respondent was receiving
disability benefits for bipolar disorder. In addition to
the social study, during her direct testimony, Horvay
testified that the respondent had indicated when he
became a party to the proceedings that he was bipolar
and that he receives social security disability benefits,
which he planned to continue receiving after his release
from prison. She described him as having ‘‘vacillated
from wanting to address [his bipolar disorder], to not
wanting to address it,’’ but had shared that his medica-
tion in the past had caused him to gain weight and that
he ‘‘didn’t want to be on medications again.’’ Horvay
also testified that the department believed the respon-
dent needed to address his mental health issues despite
the respondent’s indicating that he did not believe he
needed treatment. During his own testimony at trial,
the respondent acknowledged that he had mental health
issues that would require further evaluation and
treatment.
On the basis of the aforementioned evidence and our
review of the record, making every reasonable pre-
sumption in favor of upholding the court’s factual find-
ings as we must, we believe that the court’s finding
that the respondent continued to suffer from bipolar
disorder that remained largely untreated is supported
by the record and, thus, not clearly erroneous.
C
Finally, we turn to the court’s ultimate conclusion
that the respondent had failed to rehabilitate. The
respondent argues that the court relied too heavily upon
his past incarceration and events prior to Leilah’s birth
as the basis for that conclusion. He contends that, con-
trary to the court’s decision, he has achieved the requi-
site degree of personal rehabilitation. He points to the
fact that he is no longer incarcerated, having been
released to a halfway house. The respondent explains
that the halfway house will assist him ‘‘in obtaining
housing and getting into appropriate programs.’’ He
asserts that he is committed to being a better father
and that he wants a relationship with his child. He notes
that he completed a substance abuse program while
incarcerated and that he participated in the Inside Out
Dad Program, a parenting course for incarcerated
fathers. Although the record certainly reflects that the
respondent has made some strides toward improving
his ability to manage his own life, on the basis of our
review of the record as a whole, we are convinced
that there is sufficient evidence to sustain the court’s
conclusion that he has failed to rehabilitate to a suffi-
cient degree necessary to encourage a belief that he
could assume as responsible role in Leilah’s life in a
reasonable period of time given her age and needs.
The respondent’s suggestion that his incarceration
was the principal factor relied upon by the trial court
in reaching its decision is simply not supported by the
record. Rather, this was only one of many factors con-
sidered by the court. Moreover, it was entirely appro-
priate for the court to take the respondent’s
incarceration into consideration in deciding the issue
of whether the respondent had failed to rehabilitate.
Although incarceration certainly is not indicative of
abandonment of a child and never, in and of itself,
provides a proper basis for terminating parental rights;
see In re Katia M., 124 Conn. App. 650, 661, 6 A.3d 86,
cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010); In re
Juvenile Appeal (Docket No. 10155), 187 Conn. 431,
443, 446 A.2d 808 (1982); ‘‘incarceration nonetheless
may prove an obstacle to reunification due to the par-
ent’s unavailability’’; In re Katia M., supra, 661; and,
thus, is properly considered by the court in considering
whether to terminate parental rights on the ground of
failure to rehabilitate. Id., 664–65.
The court acknowledged that the respondent had
made some progress, as evidenced by the programs that
he had completed while incarcerated. Nevertheless, the
court concluded that the respondent had failed to dem-
onstrate ‘‘any significant period of sobriety, employ-
ment and lack of criminal activity while in the
community.’’ In reaching that conclusion, the court not
only had evidence of the respondent’s most recent
incarceration, but his extensive criminal history, which
comprised more than twenty criminal convictions dat-
ing back to 2008, including several violations of proba-
tion. It was entirely appropriate for the court to consider
this evidence in evaluating whether the respondent was
likely to assume a responsible role in Leilah’s life within
an appropriate period of time. See In re Sarah Ann K.,
57 Conn. App. 441, 449–50, 749 A.2d 77 (2000). The
respondent has yet to play any significant role in his
daughter’s life because he has been incarcerated for
most of her life, and incarceration has been an impedi-
ment to the respondent being able to access programs
and treatment necessary to achieve a sufficient degree
of personal rehabilitation. More importantly, the
respondent continues to suffer from bipolar disorder
in addition to other mental health problems, including
a prior diagnosis for oppositional defiant disorder.
There is an established history of substance abuse and,
although he has received treatment, he has no track
record of maintaining sobriety outside a prison setting.
The respondent and Leilah’s mother were the subjects
of numerous reports of domestic violence. Neverthe-
less, the evidence demonstrates that he has no real
willingness to seek treatment or to take medication
to control his bipolar disorder, despite such treatment
being a requirement to reunify with his daughter. Simi-
larly, he showed an unwillingness to address his domes-
tic violence issues. As this court has previously
indicated, ‘‘a respondent’s failure to acknowledge the
underlying personal issues that form the basis for the
department’s concerns indicates a failure to achieve a
sufficient degree of personal rehabilitation.’’ In re
Shane M., 148 Conn. App. 308, 322, 84 A.3d 1265 (2014),
aff’d, 318 Conn. 569, 122 A.3d 1247 (2015).
In sum, we conclude on the basis of our review of
the record that there was sufficient evidence to support
the court’s conclusion that there was clear and convinc-
ing evidence that the respondent had failed to achieve
such degree of personal rehabilitation as would encour-
age the belief that, within a reasonable period of time,
he could assume a responsible position in Leilah’s life.
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.
** Subsequent to oral argument, Chief Judge DiPentima replaced Justice
Borden on the panel, and she has reviewed the record, briefs and the
recording of the oral argument prior to participating in the decision of
this appeal.
*** June 3, 2016, 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 by consent the parental
rights of Leilah’s mother, Nicole W. Because she has not appealed from that
judgment, we refer to Richard L. as the respondent throughout this opinion.
2
The respondent also claims on appeal that the court improperly con-
cluded that his parental rights should be terminated pursuant to § 17a-112
(j) (3) (D) because he did not have an ongoing parent-child relationship
with Leilah and permitting him further time to establish or reestablish such
a relationship would be detrimental to the best interest of the child. Because
we conclude that the court properly terminated the respondent’s parental
rights pursuant to § 17a-112 (j) (3) (B) (i), we do not address this additional
claim of error. See In re Brea B., 75 Conn. App. 466, 473, 816 A.2d 707
(2003) (because statutory grounds necessary to grant termination petition
expressed in disjunctive, judgment granting petition may be affirmed on
single ground).
3
After it was determined that Kenneth A. was not Leilah’s biological
father, the petitioner filed a motion seeking to amend the neglect petition,
to cite in additional parties, and to order additional paternity testing. As a
result, the respondent and John Doe were cited in as putative fathers. After
adjudicating Leilah neglected, the court provided the respondent with an
advisement of rights and ordered a paternity test. On April 16, 2014, the
court, Trombley, J., adjudicated the respondent as Leilah’s biological father.
The respondent filed a motion for visitation, which was granted on June
4, 2014.
4
Because he had not yet been identified as Leilah’s biological father at
the time of the neglect adjudication, no specific steps were ordered for the
respondent at that time.
5
Although we note that the proper inquiry is whether a parent will be
able to assume a responsible position in the child’s life, which does not
necessarily correlate with whether he or she is a viable placement resource
for the child, the court properly set forth the correct standard at the start
of its analysis regarding the respondent’s failure to rehabilitate and, read
as a whole, there is no indication in the court’s decision that it applied an
incorrect standard. The respondent has not raised the court’s ‘‘placement
resource’’ language as a claim of error in this appeal.
6
We note that the attorney for the minor child filed a statement pursuant
to Practice Book § 79a-6 (c) indicating that she supports and adopts the
brief submitted by the petitioner.
7
The decision in In re Yasiel R. was published several weeks prior to
the start of the respondent’s termination trial. Even if an argument could
be made against imposing a duty on a parent to recognize and to raise to
the court any failure to comply with a pretrial canvass intended to benefit
that parent, in the present case, once the procedural error was disclosed
by the trial court, and an effort was made by the court to cure the defect,
it was incumbent on the respondent to raise an objection before the trial
court if it believed that the court’s curative effort was insufficient and a
new trial was necessary to protect adequately the respondent’s rights.
8
Our decision to review the respondent’s unpreserved claim in this
instance is sui generis and should not be construed as diminishing in any
manner our oft stated admonition that we will not review claims of error
that have not first been raised and decided by the trial court. See, e.g., In
re Coby C., 107 Conn. App. 395, 409, 945 A.2d 529 (2008).
9
Pursuant to State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989), as
modified in In re Yasiel R., supra, 317 Conn. 781, ‘‘a defendant 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
violation of a fundamental right; (3) the alleged constitutional violation . . .
exists and . . . 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 constitutional violation beyond a reasonable doubt.’’ (Empha-
sis in original; footnote omitted.) State v. Golding, supra, 239–40; see also
In re Yasiel R., supra, 781 (modifying third prong by eliminating Golding’s
use of ‘‘clearly’’ in describing requirements under that prong of test).
10
We note that the trial court never specifically inquired whether the
respondent understood his rights, which our Supreme Court indicated in
In re Yasiel R. should be included as part of the mandated canvass. See In
re Yasiel R., supra, 317 Conn. 795. Nevertheless, the entirety of the content
of the canvass substantially complied with the requirements set forth by
our Supreme Court. In other instances in which a canvass is mandated to
ensure important rights are protected, our courts have not adhered talismani-
cally to any particular recitation in considering the overall adequacy of the
canvass given. See, e.g., State v. Claudio, 123 Conn. App. 286, 292, 1 A.3d
1131 (2010) (‘‘ ‘substantial compliance’ ’’ with plea canvass requirements set
forth in Practice Book §§ 39-19 and 39-20 sufficient to ensure intended
prophylactic safeguards met). In that context, we have explained that the
test for substantial compliance is whether literal compliance would have
made a difference. State v. Edwin A., 90 Conn. App. 380, 387, 876 A.2d 1272,
cert. denied, 275 C onn. 930, 883 A.2d 1248 (2005). At no time has the
respondent taken the position that he in fact failed to understand any of
the rights explained by the court or that had he been asked if he understood
he would have answered in the negative. Furthermore, that portion of the
respondent’s brief discussing the alleged insufficiency of the content of the
court’s canvass consists of no more than three sentences, with no citations
to any law or legal authority. It is axiomatic that ‘‘[w]e are not required
to review claims that are inadequately briefed.’’ (Internal quotation marks
omitted.) In re Brianna L., 139 Conn. App. 239, 250, 55 A.3d 572 (2012).
11
‘‘The clear and convincing standard of proof is substantially greater
than the usual civil standard of a preponderance of the evidence, but less
than the highest legal standard of proof beyond a reasonable doubt. It is
sustained if the evidence induces in the mind of the trier a reasonable belief
that the facts asserted are highly probably true, that the probability that
they are true or exist is substantially greater than the probability that they
are false or do not exist.’’ (Emphasis omitted; internal quotation marks
omitted.) In re Dylan C., 126 Conn. App. 71, 87, 10 A.3d 100 (2011).