In re Luis N. , 175 Conn. App. 271 ( 2017 )

 IN RE LUIS N. ET AL.*
(AC 39934)
Lavine, Prescott and Harper, Js.
Syllabus
The respondent father appealed to this court from the judgments of the
trial court terminating his parental rights with respect to his two minor
children. In response to a motion filed by the father seeking to have
the children, who were six and seven years old at the time, testify at
the termination trial, the court ruled that, in lieu of testimony, it would
invite the children to the courthouse so that they would have an opportu-
nity to get to know the court and observe the courtroom, and to under-
stand that the court would be deciding the case, and all counsel agreed
to the procedure outlined by the court for the meeting. The court made
no inquiry of the children during the visit, during which one of the
children spontaneously stated that she would be willing to stay with
her foster mother or go back to her parents, and during which the
children’s guardian ad litem and a visitation supervisor for the Depart-
ment of Children and Families were present. Following the meeting,
the court stated on the record what had transpired, and it had the
guardian ad litem make a statement regarding comments of the children
during the meeting. Held:
1. The respondent father could not prevail on his unpreserved claim that
the trial court deprived him of a fair trial by meeting with the children
ex parte, allowing a department visitation supervisor to attend the meet-
ing, and failing to make a record of its observations of the children:
although the record was adequate for review, and the claim was of
constitutional magnitude and reviewable under State v. Golding (213
Conn. 233), even if the trial court’s ex parte meeting violated the father’s
right to a fair trial, any error was harmless, as the father did not challenge
the court’s statutory findings, in support of the termination judgments,
concerning the reasonable efforts to reunify the father with his children,
the fact that he was unable and unwilling to benefit from reunification
efforts, his failure to achieve a sufficient degree of personal rehabilitation
as required by statute, and the best interests of the children; moreover,
although the father did not have the opportunity to cross-examine the
children and the department visitation supervisor, the court stated on the
record immediately after meeting with the children what had transpired
during the meeting and inquired of the father and others whether they
wanted further explanation, which was declined by counsel, and the
court instructed the guardian ad litem to report what had transpired at
the meeting, including the spontaneous comment made by one of the
children that was repeated by the department visitation supervisor;
furthermore, the father could not prevail under the plain error doctrine
given his failure to challenge the factual basis of the judgments terminat-
ing his parental rights, and to reverse the judgments under these circum-
stances could undermine public confidence in the integrity of the
judicial system.
2. The respondent father could not prevail on his claim that the trial court
erred in failing to declare a mistrial, sua sponte, after it held an ex parte
meeting with the children in the presence of the department visitation
supervisor and allegedly drew evidentiary conclusions from its observa-
tion of the children; the father was aware of and agreed to the court’s
ex parte meeting with the children, there was nothing in the record to
support the appearance of impartiality or bias on the part of the trial
court due to the presence of the department visitation supervisor, and,
because the father’s counsel did not object or ask the court to recuse
itself or to declare a mistrial when the court informed the parties about
the supervisor’s presence, the father could not now raise a claim that
was not raised before the trial court.
Argued May 31—officially released July 27, 2017**
Procedural History
Amended petitions by the Commissioner of Children
and Families to terminate the respondents’ parental
rights as to their minor children, brought to the Superior
Court in the judicial district of Middlesex, Child Protec-
tion Session at Middletown, where the court, Rubinow,
J., denied the respondents’ motion to present child testi-
mony; thereafter, the matter was tried to the court;
judgments terminating the respondents’ parental rights,
from which the respondent father appealed to this
court. Affirmed.
Albert J. Oneto IV, assigned counsel, for the appellant
(respondent father).
Frank H. LaMonaca, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, and Benjamin Zivyon, assistant attorney general,
for the appellee (petitioner).
Opinion
LAVINE, J. The respondent father, S.N., appeals from
the judgments of the trial court terminating his parental
rights in his son, L.N., and his daughter, M.N.1 On appeal,
the respondent claims that the judgments should be
reversed because the court met with the children ex
parte in the presence of a Department of Children and
Families visitation supervisor, failed to make a record
of its observations regarding the children, and failed
to declare a mistrial. We affirm the judgments of the
trial court.
I
A
The Termination Facts
In a 120 page memorandum of decision, the trial
court, Rubinow, J., made the following findings of fact
that are relevant to the termination of parental rights
petitions at issue in the present appeal. L.N. was born
in July, 2008, and M.N. was born in June, 2009. They
came to the attention of the Department of Children
and Families (department), in February, 2011, when
they were in the custody of their mother, B.F.,2 who
was overwhelmed by caring for them. The children
remained in her custody until October 11, 2011, when
the department removed them pursuant to General Stat-
utes § 17a-101g. On October 21, 2011, the court, Hon.
William L. Wollenberg, judge trial referee, sustained
the orders of temporary custody in the petitioner, the
Commissioner of Children and Families, and ordered
specific steps for the respondent to aid in his reunifica-
tion with the children.
On August 9, 2012, the court, Frazzini, J., adjudi-
cated the children neglected as to the respondent on
the ground that they were exposed to conditions injuri-
ous to their well-being.3 Judge Frazzini ordered the chil-
dren committed to the custody of the petitioner and
issued new specific steps for the respondent to facilitate
reunification. See General Statutes § 46b-129. On
December 12, 2012, the petitioner filed petitions to ter-
minate the respondent’s parental rights in the children.
In her amended petitions, the petitioner alleged that
the department had made reasonable efforts to locate
the respondent and to reunify him with the children,
that the respondent was unable or unwilling to benefit
from reasonable reunification efforts, that he had failed
to achieve personal rehabilitation, and that termination
of his parental rights in the children was in their best
interests. The trial on the termination petitions was
held on approximately sixteen days between November
24, 2014, and August 3, 2016. Judge Rubinow issued a
memorandum of decision in which the respondent’s
parental rights in the children were terminated on
November 15, 2016. The court, Olear, J., granted the
late counsel and the waiver of fees. The respondent
appealed.
Judge Rubinow made extensive findings of fact with
regard to the respondent, which we summarize for the
purposes of the present appeal. The respondent was
born in 1981 and was graduated from high school. In
2011, he was employed at a car wash. The respondent
had relatively simultaneous relationships with several
women that resulted in the births of eight children,
some of whom are only a few months apart in age.4 He
is married to T.F., the mother of two of his children:
S.N., Jr. (S Jr.) and Y.5
The court found that department personnel met with
the respondent on numerous occasions, beginning in
February, 2011,6 when the children were in B.F.’s cus-
tody. He agreed to work with the department and take
care of the children on some weekends as a way of
helping B.F. The department made in-home family pres-
ervation services available to the respondent from Feb-
ruary through October, 2011, but he never availed
himself of the services. In October, 2011, when the
children were removed from B.F.’s custody, the respon-
dent proposed that the children move into his parents’
home. The department deemed the respondent’s plan
inappropriate; it involved too many people sharing too
few bedrooms.7
Starting in October, 2011, the department provided
the respondent with once a week, two hour supervised
visits with the children. The department also provided
him with behavioral health services to help him comply
with his specific steps, in addition to a one-on-one
fatherhood education program adjusted to meet his cog-
nitive and reading limitations.8 In June, 2012, Bruce
Freedman, a licensed psychologist, conducted a court-
ordered psychological evaluation of the respondent,
which included an observation of the respondent’s
interaction with the children.
The petitioner filed petitions to terminate the respon-
dent’s rights in both of the children on December 12,
2012. In November, 2013, the department decided not
to pursue the termination petitions due to the positive
feedback it had received from the agencies and individu-
als who were providing services to the respondent.
Instead, the department planned to reunify the respon-
dent with the children by February 10, 2014.9 The depart-
ment, therefore, increased the amount of supervised
visitation the respondent had with the children with a
goal of ending supervision. At the time, L.N. was five
years old and M.N. was four.
Prior to the planned reunification, the respondent
was living in a two bedroom apartment with C, his
oldest daughter. He planned to sleep in the living room
while C and M.N. slept in one of the bedrooms, and
L.N. slept in the other bedroom. Although the respon-
dent and T.F. are married, they live apart during the
week and spend weekends together along with C, S Jr.,
Y, and other children for whom T.F. was responsible.
Although the respondent wanted his children to live
full time in the same household with T.F.’s children, he
never obtained an apartment large enough to accommo-
date them all. Freedman conducted another court-
ordered psychological evaluation, which again included
an observation of the respondent’s interaction with L.N.
and M.N.
The department’s reunification plan for the respon-
dent was disrupted, however. In 2011, the respondent
had secured employment as a school van driver. On
December 10, 2013, the department received a com-
plaint regarding the respondent’s conduct while he was
working as a school van driver. The department investi-
gated and found that a seventh grader and a tenth grader
had reported observing the respondent as he watched
inappropriate images on his phone while the van was
stopped. When the respondent noticed that the students
were watching him, he ‘‘pulled his phone away.’’ The
respondent denied that he was ‘‘looking at porn,’’ but
admitted that he frequently looked at pictures of women
in lingerie.10 Despite this incident, the department con-
tinued its reunification plan for the respondent.
The court found that the reunification plan was inter-
rupted again on February 7, 2014, when M.N. disclosed
that her half brother S Jr., who was six years old at the
time, had sexually molested her. B.F. and M.N.’s foster
mother both reported the alleged abuse to the depart-
ment. The alleged abuse occurred in the respondent’s
apartment when he left M.N. and S Jr. unattended while
he was in the bathroom, possibly showering. The court
found that M.N. credibly had reported the details of the
sexual abuse during therapy. S Jr. had sexually touched
M.N.’s genitals, exposed his own genitals, and stated
to M.N. that he wanted to ‘‘plug her’’ and have sex with
her. The respondent was aware of M.N.’s accusations
and discussed the matter with S Jr. Following the con-
versation, the respondent did not believe that S Jr. had
committed the alleged sexual abuse or that he had made
sexually suggestive comments to M.N.11 The department
personnel debated whether the respondent should be
reunited with the children or the termination petitions
should be pursued. In the fall of 2014, notwithstanding
the parenting education and individual coaching that
the respondent had received, the respondent lacked a
concrete, viable plan to keep M.N. safe when she was
visiting with any of his other children, including S Jr.
In view of the circumstances, the department elected
to forgo reunification and to proceed with the termina-
tion of parental rights petitions that had been filed in
2012.
In its memorandum of decision, the court set forth
the elements of General Statutes § 17a-112 (j),12 which
the petitioner was required to prove by clear and con-
vincing evidence in order to prevail on her petitions. The
court found that the department had made reasonable
efforts to maintain consistent contact with the respon-
dent and had made reasonable reunification efforts for
the respondent during the adjudicatory period13 and
that the respondent was unable or unwilling to benefit
from reunification efforts as contemplated by § 17a-112
(j) (1).14
The court further found by clear and convincing evi-
dence that the respondent had failed to achieve such
degree of personal rehabilitation as would encourage
the belief that, within a reasonable time, considering
the ages and specialized needs of the children, he could
assume a responsible position in their lives. The court
made specific findings of fact related to the statutory
requirements.
In 2012, Freedman found that the respondent had
significant difficulty interacting with L.N. and M.N., but
by late 2013, the respondent’s parenting techniques had
improved considerably. The respondent, however, still
showed some social avoidance, shyness, and insecurity
in his reading skills. Freedman was more concerned,
however, that the respondent had fathered many chil-
dren, some of whom were exactly the same age, and
the respondent did not know their birth dates. He also
did not know the name of the school C attended. Freed-
man had serious concerns about the respondent’s abil-
ity to supervise and emotionally support his progeny,
especially if the respondent’s dream of blending his
families came to fruition.
Despite all of the parent education services that the
respondent had received, the court found that he did
not appreciate the problems he faced supporting eight
children and finding time to spend with each of them.
He had failed to achieve any meaningful degree of
insight into L.N.’s and M.N.’s specialized needs. Without
such insight, the respondent did not have the ability to
prevent M.N. from again being exposed to S Jr.’s sexual
behavior, to manage the sibling rivalry attendant to
the long-term reunification of L.N. and M.N. with the
respondent’s other children and to manage the addi-
tional stress presented by T.F.’s need to care for her
young twins.
To further support its conclusion that the respondent
had failed to achieve the requisite degree of rehabilita-
tion required by § 17a-112 (j) (3) (B) (i), the court exam-
ined the nature and extent of the respondent’s
compliance with the specific steps ordered for him
under § 46b-129. In general, the court found that the
respondent had only facially complied with a number of
the steps. His mere attendance at educational programs
and his cooperation with service providers did not sup-
port the conclusion that he had achieved any degree
of personal rehabilitation that encouraged the belief
that, within a reasonable time, considering the ages of
the children and their special needs, he could assume
a responsible position in their lives.15 Although the
respondent cooperated with the department, he had
failed to make measurable progress toward the funda-
mental treatment goal of being able to provide a safe
and nurturing environment for the children. The court
concluded that the petitioner had met her burden of
proving by clear and convincing evidence that the
respondent had failed to achieve rehabilitation within
the meaning of a § 17a-112 (j) (3) (B) (i).
The trial court also made the following findings, as
required by § 17a-112 (k). The reunification services the
department provided to the respondent and the children
were timely and appropriate.16 The respondent, how-
ever, was not able to improve his ability to serve as a
safe, effective parent to the children pursuant to the
specific steps ordered for him. L.N. was three years old
and M.N. was two at the time the order of temporary
custody entered; L.N. was eight years old and M.N. was
seven at the time the respondent’s parental rights in
them were terminated.
The court found that the children are bonded to one
another and know that the respondent is their biological
father, even though they have lived in foster care since
October, 2011. The children have no memory of their
time with the respondent prior to the time they were
removed from B.F.’s care; their memories of the respon-
dent derive from their supervised visits with him. The
children are bonded to the respondent and have a posi-
tive relationship with T.F. Although the children enjoy
the time they spend with the respondent, they do not
look to him for emotional support.
The children were placed with their foster mother,
M.F., in October, 2011, and they have close emotional
ties to her. They also are bonded to M.F.’s two biological
children and her domestic partner, H.B., on whom they
rely. H.B. works as a public safety officer and his sched-
ule permits him to transport the children to services
when M.F. is working as a certified medical technician.
The court found that although the respondent has
limited financial resources, his economic circum-
stances have not prevented him from maintaining a
meaningful relationship with the children. He also was
not ‘‘prevented from maintaining a meaningful relation-
ship with the [children] by the unreasonable act or
conduct of the other parent of the [children], or the
unreasonable act of any other person . . . .’’ General
Statutes § 17a-112 (k) (7). The respondent has benefit-
ted from subsidized housing services. Despite his crimi-
nal history, the respondent has held lawful employment,
but he lost his position as a school van driver because
he was looking at inappropriate material on his phone
in the presence of schoolchildren. The court found that
that misconduct was inconsistent with the role of an
adult responsible for the safe transportation of other
people’s children. The respondent’s decisions about his
personal life and his inability or unwillingness to benefit
from reunification efforts, not economic factors,
impeded his ability to develop a meaningful relationship
with the children.
The court responded to the respondent’s argument
that M.F. had impeded his relationship with the children
due to her unwillingness or inability to attend various
counseling sessions or to provide the children with
consistent attendance at counseling. The court did not
condone M.F.’s inconsistency in transporting the chil-
dren to counseling, but it found that her conduct did not
prevent the respondent from maintaining a meaningful
relationship with them. According to Sam Christodlous,
the children’s guardian ad litem, M.F. made efforts to
involve the respondent in activities for the children,
such as birthday parties, but he did not regularly accept
her invitations.
In addressing the best interests of the children, the
court considered the children’s particular specialized
needs in the context of the respondent’s response to
reunification efforts and his failure to achieve a degree
of personal rehabilitation sufficient to encourage the
belief that he could assume a responsible position in
the life of the children within a reasonable time. The
court fully credited Christodlous’ opinion that was
founded on what the court described as his thorough,
detailed, careful, compassionate, yet objective, investi-
gation of the children’s and their parents’ circum-
stances. The clear and convincing evidence, the court
found, established that the respondent has not reached
the point where, on a daily basis, he could meet the best
interests of either of the children. The court, therefore,
concluded that it was in the best interests of the children
that the respondent’s parental rights in them be termi-
nated. The respondent’s application for the appoint-
ment of counsel and the waiver of fees to appeal was
granted.
B
The Facts Regarding the Appeal
The respondent appealed and raises two interrelated
claims concerning an ex parte meeting the court had
with the children. The following facts are related to the
respondent’s claims. In January, 2016, the respondent
and B.F. expressed an interest in having the children
testify at the termination of parental rights trial, but
they wished to protect the children from cross-examina-
tion. On January 14, 2016, the respondent and B.F. filed
a joint motion requesting permission for the children
to testify pursuant to Practice Book § 32a-4 (b).17 The
motion argued that the children, ages six and seven at
that time, were parties to the termination proceedings
and should be permitted to testify on their own behalf.
The motion represented that the children had expressed
to the respondent and to B.F., during their respective
visits, a desire to live with them. The respondent and
B.F. argued that the children’s testimony was crucial
in determining the best interests of the children and
therefore was relevant. Before the court ruled on the
motion for the children to testify, on January 15, 2016,
Alina Bricklin-Goldstein, the children’s attorney, filed
a motion for the appointment of a guardian ad litem for
the children. Counsel for the petitioner, the respondent,
and B.F. did not object. The court granted the motion
and appointed Christodlous.
The joint motion for the children to testify came
before the court on March 18, 2016. The court described
the children as ‘‘very young,’’ and, in lieu of testimony,
the court offered to invite the children to come to court
to see what goes on; to observe the physical structure
of the courtroom; to meet the court reporter, the mar-
shal, the clerk and the judge; and to sit on the bench.
The court represented that it would take no testimony
from the children, as the court had concluded that it
was not in the best interests of the children to put them
in a position where they were either subject to cross-
examination or where they could draw the conclusion
that something that they had stated would lead to an
outcome. Although the children may have opinions and
a desired outcome, the court stated that the children’s
opinions and desires could be represented by Bricklin-
Goldstein. The court had not yet reached a conclusion
regarding the outcome of the proceedings, but it under-
stood that, from time to time, the children wished to
live with the respondent when they are with him and
with B.F. when they are with her.
The court asked Christodlous whether he knew the
children well enough to have an opinion as to whether
they would benefit from an opportunity to visit the
court. Christodlous stated that he thought that he knew
the children well enough to offer an opinion, to wit: ‘‘I
think because the children so much want to see what
happens in this court, I don’t think they should necessar-
ily be here during the hearing, but I do think [it would]
be very beneficial for them to come in, see the court-
room, meet Your Honor, too. . . . [T]hey understand
through their lawyer that Your Honor makes the deci-
sion, no one else does.’’ He also opined that it would
be beneficial for the children if both he and Bricklin-
Goldstein were present, but that the respondent and
B.F. should not be present. The following colloquy
then transpired.
‘‘The Court: If the court inquired of the children only
as to whether they had any questions for the court, do
you think that would suffice in franchising them with
regard to this process without infringing upon what
should be, at their ages and stages of development, as
innocent as is practicable, a perception of reality?
‘‘Attorney Christodlous: I think so. I can’t give a 100
percent answer on that, but I think so. Yes, Your Honor.
‘‘The Court: Do you know of any therapeutic basis
[for] why either child should not be allowed to come
into the courtroom and see what’s going on here?
‘‘Attorney Christodlous: I do not, and I personally
believe it would be beneficial for them to be here.’’
Bricklin-Goldstein stated that coming to the court-
room would be a great experience for the children.
Counsel for the respondent and F.B. stated that their
clients were satisfied with the procedure that the court
outlined. The court inquired of the assistant attorney
general, Frank H. LaMonaca, whether the department
could bring the children to court at 9 a.m., on April 27,
2016. LaMonaca suggested that the foster mother could
bring the children to court. The court declined to permit
the foster mother to bring the children to court.
The court ordered the department to produce the
children at the courthouse on April 27, 2016, and to
take them to the juvenile clerk’s office, where they
could be brought to the courtroom by the clerk with
the assistance of Bricklin-Goldstein and Christodlous.
The court would be present at 9 a.m. on that date. The
court further stated that it is ‘‘the court’s expectation
that the children will . . . not be subject to a record
process; this is not an opportunity for them to give
testimony. If they do have a question for the court, Mr.
Christodlous will be here, and I hope you will accept
his explication [of] and response [to] what it is they
asked, or what it is they had to say. In the event that
they should create any drawings, as sometimes happens
when kids are in court and are faced with a great big
desk like this and see pens and paper on it, the court
will of course save them and make them available to
counsel. But, I do not expect to obtain any testimony.
They won’t be subject to cross-examination. So, even
if they should say something, they won’t be under oath,
and it will not be evidence. Is that satisfactory?’’18 All
counsel agreed to the procedure outlined by the court.19
After the court met with the children on April 27,
2016, it placed the following statement on the record.
‘‘Counsel, before court commenced today in resolution
of the motions for child testimony that had been filed,
the court had made arrangements to meet with the
children so they would have the opportunity, as you all
had agreed, to get to know the court, to understand
that the court and the court alone would be making
the decision in this case, and to observe the facilities,
particularly the courtroom in which the case has been
ongoing for so many years.
‘‘This court had the opportunity to observe the chil-
dren interacting with court staff at the child protection
clerk’s office. This court had the opportunity to observe
the children interacting with court staff and with [the
department] visitation supervisor, who was present at
the request, I understand, of the children’s counsel and
their guardian ad litem during this process. Several
spontaneous comments were made by the children, by
[L.N.], in particular. I will repeat them only if you
request, but before I do so, there was in the presence
of the court, but not on the record, and the marshal
was also present, and the marshal trainee was also
present, as was the clerk. I believe the monitor was
still in the room as well.
‘‘There was an inquiry of the children related to the
children’s desired outcome in these proceedings pre-
sented by an individual, notwithstanding any orders
that had been issued by the court previously to enhance
the court’s opportunity to see the children in as neutral
a setting as possible, and the goal, again, was to enhance
the children’s understanding that the court and the
court alone would be making decisions in the case. I
believe that . . . Christodlous could summarize that
which occurred. I don’t attribute any intent on any party.
***
‘‘Attorney Christodlous: The children made some
statements which the [department] visitation supervi-
sor did not believe Your Honor heard and repeated . . .
the statements directly to Your Honor. He felt—he was
thinking he was assisting, did not intend any harm, but
he did repeat the statements, which the children had
made, and I do not know whether Your Honor had
heard the statements initially made by the children, but
he repeated [them], and I’m quite clear Your Honor
heard what he said . . . because Your Honor indicated
to him that you did not want to hear from him.
‘‘The Court: The court did hear all of the comments
that were made by the children in the courtroom. Their
visit in this courtroom was directed at achieving the
one goal I identified, so that they would see the court-
room, have the opportunity to observe the facilities,
and understand the environment in which the case is
being tried. This court made no inquiry of the children
as to what they desire. To the extent the Court now
has had the opportunity to observe the children, if that
is not a part—their behavior and their demeanor is not
a part of the report by the guardian ad litem at the
appropriate time during the case, and I rather expect
it will be, I will bring to your attention then that which
I observed. I can do that now if you’d like, but my goal
was not to acquire evidence for use in the case. That’s
what . . . Christodlous’ presence at the visit to the
courtroom was for, so he can be cross-examined.
‘‘It is not that the court attributes no value to what
the children said, the court does not know enough about
these children to place their comments in any context
one way or another. There have been sufficient con-
cerns raised throughout the course of the evidence con-
cerning the status of the children, and supported by
the court’s observations of their behavior and demeanor
today, both in the child protection clerk’s office and in
the courtroom.’’
The court directed Christodlous to consider and
investigate the children’s best interests and to inform
the court of his opinion regarding the nature, type, and
scope of a placement environment to address the best
interests of each child in sustained growth, develop-
ment, well-being, continuity, stability, and conduct as
they grow into their preteen and teenage years, that
will most likely lead to their success in the community.
Christodlous agreed to do so. The court asked whether
anyone needed to hear further from the court regarding
its observations of the children. All counsel responded
in the negative.
On August 3, 2016, Christodlous testified, in relevant
part, as follows. ‘‘I . . . met with the children on six
separate occasions. I met with them at both parents’
homes, at the foster parent’s home, the school, and of
course, here in the court. I have had an opportunity to
sit down and talk to the children as well as [department
personnel] and the child’s attorney. I’ve also discussed
this matter with all the attorneys involved in this matter.
I have reviewed all the records that were the exhibits
. . . in the court file. And again, I did read all the tran-
scripts and prepare that way. I listened to testimony
while here on the case since I was appointed, and I had
questions which were asked on my behalf by other
parties in this matter when they came up. . . .
‘‘The only time the children were in the courtroom,
one of the children actually changed what she had said
earlier to her attorney in my presence. And what she
had said the last time we were here was that she would
be willing to stay with her foster mom or go back to
her parents. I did take that as a sign that she has become
quite comfortable at her foster parent’s [home], which
supports what I saw when I was there.’’ On cross-exami-
nation by B.F.’s counsel, Christodlous testified that
M.N. once had expressed that she wished to live with
B.F., but she also stated that she would be happy to
stay with her foster mother. M.N.’s statement about
staying with her foster mother was made when she was
in the courthouse.
On January 10, 2017, the respondent filed a motion for
articulation and rectification in which he asked Judge
Rubinow to articulate the legal basis of her March 18,
2016 order directing the department to produce the
children at the courthouse to meet the judicial author-
ity, but not for them to give testimony, be cross-exam-
ined or for any evidentiary purpose, so that they may
be exposed to the architectural ambience of the court-
house and the courtroom, among other things. The
respondent also moved that the court rectify the record
to set forth the details of its April 27, 2016 encounter
with the children during which the court had the ‘‘oppor-
tunity to observe the children interacting with court
staff . . . and with the [department] visitation supervi-
sor’’ and hear several spontaneous comments the chil-
dren made about their desired outcome of the
proceedings. The petitioner objected to the motion for
articulation and rectification.
In responding to the respondent’s motion for articula-
tion and rectification, on February 23, 2017, Judge Olear
noted that Judge Rubinow had retired from the bench
on November 16, 2016, and that ‘‘[n]o party to the pro-
ceeding has asked that the trial court conduct a hearing
on the pending motions, and the court declines to do
so sua sponte, as the court has determined that holding
a hearing would not provide any information that would
suffice to permit the court to respond to the motions for
articulation and rectification.’’ (Emphasis in original.)
Judge Olear denied the motion for articulation and recti-
fication.20 The respondent appealed.
First, we set forth ‘‘the well established legal frame-
work for deciding termination of parental rights peti-
tions. [A] hearing on a petition to terminate parental
rights consists of two phases: the adjudicatory phase
and the dispositional phase. During the adjudicatory
phase, the trial court must determine whether one or
more of the . . . grounds for termination of parental
rights set forth in § 17a-112 [(j) (3)] exists by clear and
convincing evidence. . . . If the trial court determines
that a statutory ground for termination exists, then it
proceeds to the dispositional phase. During the disposi-
tional phase, the trial court must determine whether
termination is in the best interests of the child.’’ (Inter-
nal quotation marks omitted.) In re Elijah G.-R., 167
Conn. App. 1, 18–19, 142 A.3d 482 (2016).
II
The respondent’s first claim on appeal is that the
court deprived him of a fair trial when it violated the
parties’ agreement permitting the court to meet with the
children ex parte by allowing a department visitation
supervisor to attend the meeting and by failing to make
a record of its observations of the children. The respon-
dent did not preserve this claim at trial and on appeal
seeks (1) review and reversal pursuant to State v. Gold-
ing, 213 Conn. 233, 567 A.2d 823 (1989), as modified in
In re Yasiel R., 317 Conn. 733, 781, 120 A.3d 1188 (2015),
or, in the alternative, (2) reversal pursuant to the plain
error doctrine. Even if we assume without deciding
that the court violated the respondent’s rights, we are
persuaded that any error was harmless. The respondent,
therefore, cannot prevail under Golding or the plain
error doctrine.
A
Golding Review
constitutional right to a fair trial by meeting with the
children ex parte in the company of a department visita-
tion supervisor and by failing to make a record of its
observations of the children. He seeks to reverse the
judgments terminating his parental rights in the children
pursuant to Golding. Even if we assume, without decid-
ing, that the respondent’s rights were violated, the peti-
tioner has persuaded us that any error was harmless.
‘‘[A respondent] can prevail on a claim of constitu-
tional 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 clam is
of constitutional magnitude alleging the violation of a
fundamental right; (3) the alleged constitutional viola-
tion . . . exists and . . . deprived the [respondent] of
a fair trial; and (4) if subject to harmless error analysis,
the [petitioner] has failed to demonstrate harmlessness
of the alleged constitutional violation beyond a reason-
able doubt.’’ (Emphasis in original; footnote omitted.)
State v. Golding, supra, 213 Conn. 239–40.
We will review the respondent’s claim because the
record is adequate for review and the claim is of consti-
tutional magnitude.21 See In re Tayler F., 296 Conn.
524, 553, 995 A.2d 611 (2010) (right to confrontation
and cross-examination in civil action is grounded in due
process clauses of fifth and fourteenth amendments).
Although the respondent did not have the opportunity
to cross-examine the children and the department visi-
tation supervisor, immediately after meeting with the
children, the court stated on the record what had tran-
spired during the meeting and inquired of the respon-
dent and others whether they wished further
explanation.22 All counsel declined further explanation
by the court. Moreover, the court instructed Christod-
lous to report what transpired at the meeting, including
the spontaneous comment made by one of the children
that was repeated by the department visitation
supervisor.
The respondent cannot prevail on appeal because he
has not challenged any facts found by the court that
support its judgments terminating the respondent’s
parental rights in the children. More specifically, the
respondent does not challenge the court’s findings,
required by the statute, that the department made rea-
sonable efforts to reunify him with the children; that he
was unable and unwilling to benefit from reunification
efforts; that he 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, he could assume a responsible position
in their lives; or that it was in the best interests of the
children to terminate his parental rights in them.
‘‘In many cases of an alleged constitutional violation
. . . the [petitioner] is able to demonstrate the harm-
lessness of such alleged violations beyond a reasonable
doubt. . . . Under such circumstances, it would be a
waste of judicial resources, and a pedantic exercise, to
delve deeply into the constitutional merits of a claim
that can appropriately be resolved in accordance with
the relevant harmless error analysis.’’ (Citations omit-
ted.) State v. Golding, supra, 213 Conn. 241–42.
In this case, it was the children’s concerns that the
court sought to allay by inviting them to come into the
courtroom. This case illustrates, however, the danger
inherent in any case in the court’s meeting with children
outside the presence of counsel for the parties. No
matter how good the intentions of the court may be
and how controlled such a meeting may be, there is
always a possibility that something may go wrong. In the
present case, the petitioner has demonstrated beyond a
reasonable doubt that the constitutional error, if any,
was harmless. Thus, the respondent’s claim fails to sat-
isfy the fourth prong of Golding. We conclude, there-
fore, that reversal of the termination judgments is
not warranted.
B
Plain Error
The respondent also seeks reversal of the judgments
terminating his parent rights in the children pursuant
to the plain error doctrine. For the same reason that
he cannot prevail under Golding, i.e., he failed to chal-
lenge the court’s factual findings, the respondent cannot
prevail under the plain error doctrine.
‘‘[The plain error] doctrine, codified at Practice Book
§ 60-5, is an extraordinary remedy used by appellate
courts to rectify errors committed at trial that, although
unpreserved, are of such monumental proportion that
they threaten to erode our system of justice and work
a serious and manifest injustice on the aggrieved party.
[T]he plain error doctrine . . . is not . . . a rule of
reviewability. It is a rule of reversibility. That is, it is a
doctrine that this court invokes in order to rectify a
trial court ruling that, although either not properly pre-
served or never raised at all in the trial court, nonethe-
less requires reversal of the trial court’s judgment, for
reasons of policy. . . . In addition, the plain error doc-
trine is reserved for truly extraordinary situations [in
which] the existence of the error is so obvious that it
affects the fairness and integrity of and public confi-
dence in the judicial proceedings. . . . Plain error is a
doctrine that should be invoked sparingly. . . .
Implicit in this very demanding standard is the notion
. . . that invocation of the plain error doctrine is
reserved for occasions requiring the reversal of the
judgment under review. . . . [Thus, an appellant] can-
not prevail under [the plain error doctrine] . . . unless
he demonstrates that the claimed error is both so clear
and so harmful that a failure to reverse the judgment
would result in manifest injustice. . . .
‘‘[Our Supreme Court has] clarified the two step
framework under which we review claims of plain error.
First, we must determine whether the trial court in fact
committed an error and, if it did, whether that error
was indeed plain in the sense that it is patent [or] readily
discernible on the face of a factually adequate record,
[and] also . . . obvious in the sense of not debatable.
. . . [T]his inquiry entails a relatively high standard,
under which it is not enough for the [respondent] simply
to demonstrate that his position is correct. Rather, [to
prevail] the party [claiming] plain error [reversal] must
demonstrate that the claimed impropriety was so clear,
obvious and indisputable as to warrant the extraordi-
nary remedy of reversal. . . .
‘‘In addition, although a clear and obvious mistake
on the part of the trial court is a prerequisite for reversal
under the plain error doctrine, such a finding is not,
without more, sufficient to warrant the application of
the doctrine. Because [a] party cannot prevail under
plain error unless it has demonstrated that the failure
to grant relief will result in manifest injustice . . .
under the second prong of the analysis we must deter-
mine whether the consequences of the error are so
grievous as to be fundamentally unfair or manifestly
unjust. . . . Only if both prongs of the analysis are
satisfied can the appealing party obtain relief.’’ (Internal
quotation marks omitted.) In re Sydnei V., 168 Conn.
App. 538, 562–64, 147 A.3d 147, cert. denied, 324 Conn.
903, 151 A.3d 1289 (2016). The respondent failed to
identify the harm that would undermine the public’s
confidence in the outcome.
For the same reasons articulated in part II A of this
opinion, we decline to reverse the judgments of the
trial court on the ground of plain error. If there is no
Golding violation, ipso facto, there can be no plain
error. Given the unchallenged factual basis of the termi-
nation of the respondent’s parental rights in the chil-
dren, to reverse the judgments, we believe, might in
and of itself undermine the public’s confidence in the
integrity of our judicial system. For the foregoing rea-
sons, we will not reverse the termination of parental
rights judgments pursuant to the plain error doctrine.
III
The respondent’s second claim on appeal is that it
was error for the trial court not to declare a mistrial,
sua sponte, after it revealed that it had met the children
in the company of a department visitation supervisor
and that it allegedly had drawn evidentiary conclusions
from its observations of the children. We disagree.
In making this claim, the respondent argues that the
presence of the department visitation supervisor at the
meeting with the children created the appearance of
impropriety that required the court to recuse itself pur-
suant to rule 2.11 (a) of the Code of Judicial Conduct.23
In essence, the respondent relies on his plain error
argument, which we addressed in part II B of this opin-
ion. In other words, the court’s meeting with the chil-
dren in the presence of the department visitation
supervisor constituted plain error and, therefore, an
appearance of impropriety.24
To support his claim the respondent relies on two
cases that are factually distinct. Our Supreme Court
reversed the judgment of dissolution in Cameron v.
Cameron, 187 Conn. 163, 444 A.2d 915 (1982). In that
case, the trial court stated on the record several times,
before the defendant husband took the witness stand,
that the defendant or his counsel had deliberately falsi-
fied a financial affidavit. See id., 170. Our Supreme Court
found that those ‘‘expressions of a preconceived view
of the credibility of a witness who had not yet testified
before the trier . . . must have been devastating to the
defendant and astounding to any observer schooled in
the simple faith that the court is an instrument of jus-
tice.’’ Id. In remanding the case for a new trial, the court
stated that proof of actual bias is not necessary where
the appearance of impartiality is lacking. Id. There is
nothing in the record to support even the appearance
of impartiality or bias on the part of the court in the
present case. Throughout the trial, especially when
negotiating how to address the children’s desire to
understand the termination proceeding, the court
repeatedly stated that it had not come to any conclu-
sions. Moreover, the court went out of its way early in
the proceedings to make known to the parties that the
court suffers from asthma, as do the children, and that
the court’s daughter was a patient of a physician who
also treated one of the children. At no time did the
respondent ask the court to recuse itself.
The respondent also compares the trial court to the
trial judge in Abington Ltd. Partnership v. Heublein,
246 Conn. 815, 717 A.2d 1232 (1998). That case con-
cerned easement rights. Id., 817. The judge in that case
viewed the subject property in the presence of the par-
ties and their counsel. Id., 821. Unbeknownst to the
parties and counsel, the court secretly returned to the
site and engaged an adjoining property owner in a dis-
cussion of the property that was the subject of the
litigation. Id. That fact came to light when the adjoining
property owner was called as a witness and disclosed
his conversation with the judge. Id. The plaintiff filed
a motion for the judge to disqualify himself and for a
mistrial, thereby preserving its claim for appeal. Id. The
judge denied the motion, claiming that his ex parte visit
did not cause him to be prejudiced about the merits of
the litigation, and later rendered judgment on behalf of
the defendants. Id., 822, 824. On appeal, our Supreme
Court reversed the judgment on the ground that the
judge’s ex parte visit to the property created the appear-
ance of impropriety that required the judge to recuse
himself pursuant to canon 3 (c) (1) (now rule 2.11 [a])
of the Code of Judicial Conduct. Id., 825–26. Conversely,
the record in the present case contains nothing to indi-
cate that the court’s actions approached the surrepti-
tious behavior of the judge in the Abington Ltd.
Partnership case.
In the present case, the respondent knew that the
court was to meet ex parte with the children, and agreed
to it. When trial resumed, the court immediately
informed the parties that the department visitation
supervisor was present during its meeting with the chil-
dren and that the supervisor repeated a comment made
by one of the children. The respondent was represented
by counsel, who did not object, and did not ask the
court to recuse itself or declare a mistrial. A litigant
cannot pursue one course of action at trial and seek
to have the judgment reversed when the outcome is
adverse. See Ingels v. Saldana, 103 Conn. App. 724,
730, 930 A.2d 774 (2007). To permit a party to raise a
claim on appeal that was not raised at trial is unfair to
the opposing parties and the trial court. Appellate
courts do not sanction ambuscade of the trial court.
See Nweeia v. Nweeia, 142 Conn. App. 613, 618, 64 A.3d
1251 (2013). For the foregoing reasons, the court did
not err in failing to declare, sua sponte, a mistrial.
The judgments are 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.
** July 27, 2017, 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 children’s mother,
B.F. She filed a separate appeal to challenge the termination of her parental
rights in the children. See In re Luis N., 175 Conn. App. , A.3d
(2017).
2
The respondent and B.F. did not live together.
3
On May 31, 2012, Judge Frazzini adjudicated the children neglected as
to B.F. The petitioner filed petitions to terminate the parental rights of B.F.
in the children on December 12, 2012. The termination petitions as to both
the respondent and B.F. were consolidated for trial.
4
Only L.N. and M.N. are the subject of the present appeal.
5
T.F. also has other children.
6
At the time, the respondent had custody of his oldest child, C, who lived
with him, a female companion, his sister and his parents. The other adults
in the household took care of C before and after her school day while the
respondent was at work.
7
The department also was concerned about the ability of the respondent’s
mother, who suffers from Parkinson’s disease and requires in-home health
assistance, to care for L.N., M.N., and the other children who lived there.
8
Gregory Davis, the mentor assigned to help the respondent, modified
all aspects of the advanced parenting curriculum to meet the respon-
dent’s needs.
9
Although the children were to be reunified with the respondent, the
department planned for the children to remain in the custody of the peti-
tioner.
10
The court found that the respondent was transferred to a different route
following the incident in which students observed him viewing inappropriate
material on his phone. In 2016, the respondent lost his employment as a
school van driver. He returned to work at the car wash.
11
The department referred M.N. for therapy at a child abuse treatment
center. S Jr. also was placed in therapy.
12
General Statutes § 17a-112 (j) provides in relevant part: ‘‘(1) the Depart-
ment . . . has made reasonable efforts to locate the parent and to reunify
the child with the parent . . . unless the court finds in this proceeding that
the parent is unable or unwilling to benefit from reunification efforts . . .
(2) termination is in the best interest of the child, and (3) . . . (B) the child
(i) has been found by the Superior Court . . . to have been neglected,
abused or uncared for in a prior proceeding . . . and the parent of such
child has been provided specific steps to take to facilitate the return of the
child to the parent . . . and has 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 child, such parent could assume a
responsible position in the life of the child . . . .’’
13
The court found that the department’s reunification efforts for the
respondent were reasonable in view of his status as the father of many
young children, including S Jr., who allegedly sexually abused M.N., and
the respondent’s cognitive challenges.
14
The court found that the respondent was unable or unwilling (1) to
participate in in-home family preservation services by asserting that his
work schedule prevented him from doing so, (2) to comply with instructions
that the children could not eat certain foods given their allergies, (3) to
benefit from all of the one-on-one mentoring services regarding individual
father related, impulse control, and parent behavior monitoring services
provided that was clearly and convincingly apparent by his using a phone
to view inappropriate images on a school van, (4) to follow the department’s
reasonable instructions that there could be no ‘‘accumulated family’’ over-
night visitation at his residence, (5) to perform without full support the
basic management tasks required of a parent, (6) to manage fundamental
parental obligations of household management or managing a blended fam-
ily, (7) to acquire the reading skills needed to complete school forms for
L.N., and (8) to develop a safety plan for M.N. The court also found that
when the respondent testified in April, 2016, he was unwilling or unable to
recall any particular content of the therapeutic services offered by Klingberg
Family Centers two years earlier, and he did not believe that S Jr., had
behaved inappropriately with M.N.
15
The court made the following findings with respect to the children. Both
of the children suffer from eczema, which is exacerbated by eating certain
foods. They both also have chronic asthma.
During his first days in foster care, L.N. had tantrums and engaged in
sexualized behaviors with M.N. Because he was not toilet trained, L.N.’s
entry into day care was delayed until he was three and one-half years old.
In addition to his sexualized behavior, L.N. exhibited other signs of having
been traumatized, e.g., smearing feces and urinating on himself. He had
difficulty in school and in his foster home, had tantrums and cried in ways
that were inappropriate for a five and one-half year old. He was defiant and
oppositional. In June, 2014, L.N. was evaluated at the Klingberg Family
Centers because his oppositional and defiant behaviors had continued,
among other inappropriate behavior, in his after-school program and foster
home. He was diagnosed with generalized anxiety disorder, symptoms of
hyperactivity, sleep problems, fears, and inability to concentrate. He received
therapy and gradually was able to sit still for longer periods in school.
He failed to make academic progress, however, and given his specialized
behavior needs, the department arranged for his school to conduct a planning
and placement team meeting, which led to the implementation of special
education services for him.
M.N. has special emotional needs due to her history of sexual trauma.
She received therapy at Klingberg Family Centers, where she exhibited fear;
physical and verbal aggression toward others; difficulty with fine motor
skills, sitting still, paying attention and concentrating; and learning chal-
lenges. M.N. also intentionally urinated on herself at school, which is consis-
tent with sexual trauma, to obtain the attention of the school nurse. She
was diagnosed as a child victim of sexual abuse. She received therapy and
was taught relaxation skills appropriate to her age. Despite improvement
over the years, M.N. had a very difficult time in school. She struggled to
stay on task, and was removed from class due to her behavioral issues. She
consistently stated that she did not trust S Jr., and that she did not want
to be near him. Her specialized emotional needs require that her caregivers
be able to adhere to a designated appropriate safety plan to prevent M.N.
from future sexual victimization.
16
The trial court identified at least ten social service agencies and charita-
ble organizations that had provided support, counseling, or services to the
children, the respondent, and B.F.
17
Practice Book § 32a-4 provides in relevant part: ‘‘(b) Any party who
intends to call a child or youth as a witness shall first file a motion seeking
permission of the judicial authority. . . .
‘‘(d) The judicial authority with the consent of all parties may privately
interview the child or youth. Counsel may submit questions and areas of
concern for examination. The knowledge gained in such a conference shall
be shared on the record with counsel and, if there is no legal representation,
with the parent.’’
18
See Manaker v. Manaker, 11 Conn. App. 653, 655–57, 528 A.2d 1170(1987) (judge able to disregard evidence not properly admitted).
19
The court then explicitly denied the joint motion for the children to
testify.
20
The respondent filed a motion for review with this court, asking that
his motion for review be granted and that this court order the trial court
to hold a hearing at which Judge Rubinow and others appear to create an
appellate record for review. The petitioner objected to the motion for review.
This court granted the motion for review, but denied the relief requested.
21
In her brief, the petitioner argued that the respondent waived his claim
that he was deprived of a fair trial because he consented to the court’s
meeting ex parte with the children in the courthouse and also responded
in the negative to the court’s asking the parties whether anyone needed to
hear anything further from the court in report of its observations with the
children. Because we conclude that the respondent was not deprived of a
fair trial, we need not decide whether he waived the right to raise the claim
on appeal.
22
See Practice Book § 32a-4 (d) (judicial authority with consent of all
parties may privately interview the child; knowledge gained in such confer-
ence shall be shared on the record with counsel).
We further note that the court’s prompt report to the parties and their
counsel is consistent with rule 2.9 (b) of the Code of Judicial Conduct,
which provides, ‘‘[i]f a judge inadvertently receives an unauthorized ex parte
communication bearing on the substance of a matter, the judge shall make
provision promptly to notify the parties of the substance of the communica-
tion and provide the parties with an opportunity to respond.’’ The court
gave the respondent an opportunity to respond, but he or his counsel chose
not to so.
23
Rule 2.11 (a) of the Code of Judicial Conduct provides in part: ‘‘A judge
shall disqualify . . . herself in any proceeding in which the judge’s impartial-
ity might reasonably be questioned . . . .’’
24
The respondent does not assert that the court was actually biased or
motivated by anything other than a good faith desire to make the children
feel enfranchised in the legal proceedings, about which they had questions
and concerns.