In re Raymond B. , 166 Conn. App. 856 ( 2016 )

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IN RE RAYMOND B., JR.*
(AC 38927)
DiPentima, C. J., and Alvord and Gruendel, Js.
Argued May 18—officially released July 1, 2016**
(Appeal from Superior Court, judicial district of
Windham, Child Protection Session at Willimantic, Hon.
Francis J. Foley III, judge trial referee.)
Michael S. Taylor, assigned counsel, with whom was
Matthew C. Eagan, assigned counsel, for the appellant
(respondent mother).
Benjamin Zivyon, assistant attorney general, with
whom, on the brief, were George Jepsen, attorney gen-
eral, Gergory T. D’Auria, solicitor general, and Michael
J. Besso and Daniel M. Salton, assistant attorneys gen-
eral, for the appellee (petitioner).
Kelly L. Babbitt, for the minor child.
Opinion
ALVORD, J. The respondent mother, Brandy B.,
appeals from the judgment of the trial court, rendered
in favor of the petitioner, the Commissioner of Children
and Families (commissioner). In accordance with Gen-
eral Statutes § 17a-112 (j) (3) (E),1 the trial court termi-
nated her parental rights with respect to her son,
Raymond B., Jr.2 On appeal, the respondent claims that
the court improperly failed to conduct a pretrial canvass
of her in accordance with our Supreme Court’s decision
in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188, recon-
sideration denied, 319 Conn. 921, 126 A.3d 1086 (2015),
and that the error is not subject to harmless error analy-
sis. We affirm the judgment of the trial court.
The facts and procedural history of this case are not
in dispute. On May 29, 2014, the commissioner sought
temporary custody of the respondent’s minor child,
Raymond B., Jr. The court found that the respondent
continued to allow the child to be around her longtime
boyfriend, Raymond B., Sr.,3 despite her admitted
knowledge that Raymond, Sr., previously had been con-
victed of having sexual contact with a child as well as
having committed an act of domestic violence Ray-
mond, Sr., recently had been released on probation
related to another sentence, imposed for attempting
to strangle the respondent. Following that domestic
violence incident, the respondent applied for a
restraining order against Raymond, Sr., and alleged that
he had subjected her to a ‘‘continuous threat of present
physical pain or physical injury.’’ Despite this domestic
violence and warnings from the Department of Children
and Families (department) that Raymond, Sr., should
not be allowed to have any contact with the child, the
respondent allowed the child to visit with Raymond,
Sr., a minimum of eleven times from February, 2013,
through May, 2014.4 The trial court, Dyer, J., granted
the commissioner’s petition for an order of temporary
custody after finding that the child was in immediate
physical danger from his surroundings.
On September 29, 2014, the commissioner filed a
petition to terminate the parental rights of the respon-
dent with respect to Raymond, Jr., her second child.5
The trial court, Dyer, J., adjudicated the child neglected
after the respondent entered a plea of nolo contendre
on May 15, 2015.6 The court found that the commis-
sioner had proven neglect on the grounds of injurious
conditions. The respondent agreed to the commitment
of Raymond, Jr., to the custody of the commissioner.
The court declared a mistrial as to the termination of
the respondent’s parental rights. The court granted the
respondent additional time to rehabilitate in order to
reunify with Raymond, Jr.
In January, 2016, the commissioner proceeded with
a petition to terminate the respondent’s parental rights
with respect to Raymond, Jr. The respondent appeared
and was represented by counsel. A trial was com-
menced on January 11, 2016. The respondent’s counsel
was an active and thorough participant in the trial. The
respondent’s counsel raised objections to the commis-
sioner’s direct examination of witnesses, objected to
the admittance of certain evidence, cross-examined wit-
nesses and also presented a witness to testify. The child
also was represented by counsel, who requested that
the court grant the commissioner’s petition.
At the beginning of the second day of the trial, before
the commissioner rested her case-in-chief, the court,
Hon. Francis J. Foley III, judge trial referee, sua sponte,
canvassed the respondent in order to satisfy our
Supreme Court’s newly created supervisory rule regard-
ing the termination of parental rights that was estab-
lished in In re Yasiel R.7 As part of the canvass, the
trial court first advised the respondent as to the signifi-
cance of her parental rights being terminated. The
respondent was informed that her rights included hav-
ing legal representation, questioning and confronting
the witnesses who testified, objecting to testimony and
evidence, submitting evidence, presenting a defense,
calling witnesses, and testifying or not testifying. The
respondent acknowledged that she understood these
rights.8
Following the canvass, the respondent did not object
to the timing or the content of the court’s canvass.
Further, the respondent did not file a posttrial motion
for a mistrial or a request to open the evidence. The
respondent did not seek any other additional relief coin-
cident with the trial.
In its memorandum of decision, the trial court found:
‘‘Based upon [the respondent’s] continued involvement
with dysfunctional, abusive men, her inability to main-
tain the necessary and appropriate parental skills that
have been taught to her and her failure to fully address
the mental health issues of her profoundly dysfunc-
tional youth, the court concludes that [the respondent]
cannot provide the safe, structured, consistent, con-
stant, nurturing environment that a special needs child
such as [Raymond, Jr.] requires. [The respondent] has
not ever witnessed or experienced appropriate parent-
ing herself. Her life has been totally tragic and dysfunc-
tional. There is nothing in her present circumstances
that suggests that she can even independently sustain
herself, not to mention her fragile, needy child.
‘‘The court finds by clear and convincing evidence
that [the respondent] is the mother of the child, under
the age of seven years, who is neglected or uncared
for, and that she has failed or is unable to achieve such
degree of personal rehabilitation as would encourage
the belief that within a reasonable period of time consid-
ering the age and needs of the child, such parent could
assume a responsible position in the life of the child
and such parent’s parental rights of another child were
previously terminated pursuant to a petition filed by
the [commissioner].’’ This appeal followed.9
The respondent claims that the trial court erred by
failing to conduct a pretrial canvass of her in accor-
dance with our Supreme Court’s decision in In re Yasiel
R., supra, 317 Conn. 773. The respondent further argues
that a harmless error analysis is inapplicable to the
present circumstances and therefore a new trial is war-
ranted. The respondent did not raise this claim at trial
and failed to preserve the issue for appeal. Nonetheless,
the respondent asks us to review the claim under State
v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989),
as modified in In re Yasiel R., 317 Conn. 773, 781, 120
A.3d 1188 (2015), or in the alternative, under the plain
error doctrine. See Practice Book § 60-5. The respon-
dent cannot prevail under Golding, and we disagree
that the timing of the thorough canvass warrants rever-
sal under the plain error doctrine.10
In In re Yasiel R., supra, 317 Conn. 777, the respon-
dent mother’s parental rights were terminated after she
agreed to forgo a trial and instead submitted her argu-
ments to the trial court on the papers. The trial court
in that case did not canvass the respondent as to her
decisions to waive her right to a full trial and to not
contest the commissioner’s exhibits. Id. In response to
these circumstances, our Supreme Court exercised its
supervisory authority to establish a rule requiring a
pretrial canvassing of all parents involved in termina-
tion trials. Id., 794. The court recognized that the respon-
dent was not constitutionally entitled to a canvass. Id.,
793. Our Supreme Court, however, stated that it was
creating a rule that covered all parents involved in termi-
nation trials: ‘‘[W]e conclude that public confidence in
the integrity of the judicial system would be enhanced
by a rule requiring a brief canvass of all parents immedi-
ately 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 conse-
quences.’’11 Id., 794.
I
The respondent first argues that her unpreserved
claim is of a constitutional nature and should be
reviewed pursuant to Golding. ‘‘[A] [respondent] 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 demon-
strate harmlessness of the alleged constitutional viola-
tion beyond a reasonable doubt.’’ (Emphasis in original;
footnote omitted.) State v. Golding, supra, 213 Conn.
239–40.
‘‘In accordance with our case law and rules of prac-
tice, appellate review generally is limited to issues that
were distinctly raised at trial. . . . Only in [the] most
exceptional circumstances can and will this court con-
sider a claim, constitutional or otherwise, that has not
been raised and decided in the trial court. . . . 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
ambuscade, which is unfair to both the trial court and
the opposing party.’’ (Citations omitted; internal quota-
tion marks omitted.) In re Leilah W., 166 Conn. App.
48, 59, A.3d (2016).
The respondent has failed to sustain her burden of
proof as to the third prong of Golding. In In re Yasiel R.,
supra, 317 Conn. 781–82, our Supreme Court addressed
whether the due process clause of the fourteenth
amendment to the United States constitution requires
that a trial court canvass a parent about his or her rights
in a parental termination proceeding. ‘‘[W]e conclude
that due process does not require that a trial court
canvass a respondent who is represented by counsel
when the respondent does not testify or present wit-
nesses and the respondent’s attorney does not object
to exhibits or cross-examine witnesses.’’ Id., 787–88. In
the present case, it should be noted that the respon-
dent’s counsel presented witness testimony, objected
to exhibits, and cross-examined the commissioner’s
witnesses. Because the respondent cannot satisfy the
third prong of Golding; see id., 788; we reject her consti-
tutional claim.
II
We next address the respondent’s argument that the
trial court’s contravention of our Supreme Court’s direc-
tion to conduct a canvass ‘‘at the very start of the termi-
nation trial’’; id., 794; warrants reversal as plain error.
We disagree.
‘‘[T]he plain error doctrine is reserved for truly
extraordinary situations [in which] the existence of the
error is so obvious that it affects the fairness and integ-
rity of and public confidence in the judicial proceedings.
. . . Plain error is a doctrine that should be invoked
sparingly. . . . Implicit in this very demanding stan-
dard is the notion . . . that invocation of the plain
error doctrine is reserved for occasions requiring the
reversal of the judgment under review. . . . [I]n addi-
tion to examining the patent nature of the error, the
reviewing court must examine that error for the griev-
ousness of its consequences in order to determine
whether reversal under the plain error doctrine is appro-
priate. A party cannot prevail under plain error unless
it has demonstrated that the failure to grant relief will
result in manifest injustice.’’ (Internal quotation marks
omitted.) State v. Miller, 150 Conn. App. 667, 678, 92
A.3d 986, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014).
The respondent in this case was canvassed. Our
Supreme Court’s central purpose for the canvass rule
was to ensure that ‘‘the respondent fully understands
his or her rights.’’ In re Yasiel R., supra, 317 Conn. 795.
The trial court accomplished this when it conducted the
canvass midway through trial. The fact that a canvass
occurred distinguishes this case from our opinion in In
re Daniel N., 163 Conn. App. 322, A.3d (2016),
petition for cert. filed (Conn. March 1, 2016) (No.
150299).12
In In re Leilah W., supra, 166 Conn. App. 65–66, this
court recently concluded that canvassing a respondent
at the conclusion of the termination of parental rights
trial was harmless error. In doing so, this court
addressed the contours of what constitutes compliance
with the canvass rule: ‘‘Although this was not the proce-
dure envisioned by our Supreme Court, and, accord-
ingly should be avoided, if any concerns arose regarding
the respondent’s understanding of his trial rights, the
trial court could have reopened the evidence to allow
for additional proceedings if necessary.’’ Id., 64. This
court also stated that the burden is on the respondent
to show the harm of a noncompliant canvass.13 Id., 63.
Returning to the facts of this post-In re Yasiel R.
juvenile appeal, the respondent was familiar with these
proceedings, as she had twice before had her parental
rights terminated, in the same courthouse, with respect
to two other children. She also was on notice that her
parental rights as to Raymond, Jr., were in jeopardy.
After Raymond, Jr., was adjudicated neglected in May,
2015, and upon the request of the commissioner, the
trial court declared a mistrial as to the termination of
parental rights trial, thereby affording the respondent
with additional time to attempt to rehabilitate herself
as a parent. When the new termination trial commenced
in January, 2016, the respondent was represented by
counsel, who raised objections and presented the testi-
mony of a witness. The facts of this case cannot in any
way be marshaled as an affront to ‘‘public confidence
in the process . . . .’’ In re Yasiel R. supra, 317
Conn. 794–95.
We are not convinced that the failure to conduct the
canvass upon the commencement of the trial was so
significant as to affect ‘‘ ‘the fairness and integrity of
and public confidence in the judicial proceedings,’ ’’;
State v. Miller, supra, 150 Conn. App. 678; as required
for reversal under the plain error doctrine.
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.
** July 1, 2016, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
General Statutes (Supp. 2016) § 17a-112 (j) provides in relevant part:
‘‘The Superior Court, upon notice and hearing as provided in sections 45a-
716 and 45a-717, may grant a petition filed pursuant to this section if it finds
by clear and convincing evidence that . . . (3) . . . (E) the parent of a
child under the age of seven years who is neglected, abused or uncared for,
has failed, is unable or is unwilling to achieve such degree of personal
rehabilitation as would encourage the belief that within a reasonable period
of time, considering the age and needs of the child, such parent could
assume a responsible position in the life of the child and such parent’s
parental rights of another child were previously terminated pursuant to a
petition filed by the Commissioner of Children and Families . . . .’’
We note that § 17a-112 (j) (3) (E) was amended in 2015; see Public Acts
2015, No. 15-159, § 1; however, the amendment is not relevant to this appeal.
For convenience, references herein are to the revision codified in the 2016
supplement to the General Statutes.
2
In the same proceeding, the child’s father, Justin P., appeared before
the trial court with counsel, but during the pendency of the case he filed
an affidavit consenting to the termination of his parental rights. The trial
court canvassed Justin P. and found that he knowingly and voluntarily
consented to the termination. Justin P. has not appealed from the trial court’s
judgment. Throughout this opinion, we refer to Brandy B. as the respondent.
3
Raymond, B., Sr., is not related to Raymond, B., Jr. Throughout this
opinion we refer to them as Raymond, Sr., and Raymond, Jr., respectively.
4
As a result of the last of these several visits, Raymond, Sr., was arrested
because his probation orders prohibited him from having contact with an
unrelated child.
5
The respondent’s parental rights previously were terminated with respect
to her first child, Makayla. During the May 15, 2015 termination trial, the
respondent consented to the termination of her parental rights with respect
to her third child, Nashton.
6
The court canvassed the respondent after she entered her plea. The
court thereafter stated: ‘‘The court canvass[ed] [the respondent] and finds
that [the respondent’s] plea of no contest was knowingly, voluntarily and
[understood by the respondent] after the adequate advice and assistance
from counsel with a full understanding of her rights. The court finds a
factual basis for the plea. The plea is accepted and may be recorded.’’
7
The court stated: ‘‘I think that in an abundance of caution, I am going
to give [the respondent mother] the In re Yasiel R. advisement. I don’t think
she needs it. She’s exercising all of her legal rights—usually that relates to
people who don’t exercise their legal rights—and the other reason is that
she’s been through this process twice in the past, so she knows what I’m
going to tell her. But I’m going to advise you in any event.’’
8
The court canvassed the respondent as follows: ‘‘In a termination of
parental rights hearing, you should understand that in the event the court
terminates your parental rights, this will result in the end of your legal
relationship with the child. You’ll have no legal rights, no authority, no
responsibility, and you will no longer have the right to make any decisions
of any kind affecting the minor child. You will not be entitled to any state
or federal benefits or entitlements, and the child, if the court grants the
termination of parental rights, will be eligible to be adopted.
‘‘At this hearing, you have the right to be represented by a lawyer, and
you do have a lawyer. Attorney [Alyssa S.] Pershan is a licensed lawyer
in the state of Connecticut who is qualified to represent people before
this court.
‘‘She—you have the right to question and confront any of the witnesses
against you that may be brought in by the Department of Children and
Families, and to have your lawyer test their memory to determine if they
are being truthful. You have the right to object to any testimony. You have
the right to an admission of any documents—you have the right to object
to the admission of any documents, including social studies or psychological
reports, and your lawyer has been exercising that right right along.
‘‘You have the right to make any objections in accordance with the rules
of evidence. You have the right to present your defense, if any, to this case.
You may call your own witnesses to assist you. You may testify if you want
to testify, but you don’t have to testify because you have the right to remain
silent. But you do have the right to tell your side of the story if you wish.
If you do not testify, the court could draw an adverse inference against you.
I can tell you that I will not do that.
‘‘And, finally, you are advised that if you do not present any witnesses
on your own behalf and do not object to any testimony, the court will decide
the matter based upon the evidence that has been properly presented.
‘‘Do you think you understand those rights?’’
The respondent answered yes.
9
At the close of oral argument before this court, Chief Judge DiPentima
thanked the parties for agreeing to expedite the case so that it could be
heard before the court adjourned for the 2015–2016 term. This effort was
in keeping with our Supreme Court’s emphasis on expedient resolution of
juvenile matters: ‘‘It is universally recognized that delay in determining
whether to terminate parental rights can cause serious and potentially irrepa-
rable harm in the lives of the young children who are involved in the
termination proceedings. The legislature also has recognized the potential
for such harm in General Statutes § 46b-142 (d), which provides: Notwith-
standing subsections (a), (b) and (c) of this section, the Department of
Children and Families, or any party to the action aggrieved by a final judg-
ment in a termination of parental rights proceeding, shall be entitled to an
expedited hearing before the Appellate Court. A final decision of the Appel-
late Court shall be issued as soon as practicable after the date on which
the certified copy of the record of the case is filed with the clerk of the
Appellate Court.’’ (Emphasis in original; internal quotation marks omitted.)
In re Yasiel R., 319 Conn. 921, 922, 126 A.3d 1086 (2015) (denying motion
for reconsideration) (Zarella, J., dissenting).
10
The respondent has not claimed any error as to the content of the
canvass.
11
We note that the question of whether the supervisory rule announced
in In re Yasiel R. should be continued to be applied retroactively is before
our Supreme Court in In re Egypt E., SC 19643 and SC 19644. Additionally,
the commissioner’s petition for certification to appeal from this court’s
decision in In re Daniel N., 163 Conn. App. 322, A.3d (2016) (retroac-
tively applying In re Yasiel R. supervisory rule), is pending before our
Supreme Court.
12
The respondent has interpreted our decision in In re Daniel N., supra,
163 Conn. App. 322, as holding that a harmless error analysis is inapplicable
if a trial court has deviated in any degree from the canvass rule announced
in In re Yasiel R. This is an unreasonable reading of that opinion considering
that this court did not address harmless error in deciding In re Daniel N.
In the present case, the harmlessness of the court’s error complements the
plain error analysis of this decision.
The Supreme Court’s supervisory rule in In re Yasiel R. regarding the
pretrial canvassing of parents in termination trials was announced after the
termination trial in In re Daniel N. had been conducted. This court concluded
that the rule that was adopted by our Supreme Court in In re Yasiel R. was
retroactive to termination trials that were conducted prior to its announce-
ment. In re Daniel N., supra, 163 Conn. App. 335–36. In his opinion concur-
ring in part and dissenting in part in In re Yasiel R., Justice Zarella stated:
‘‘I disagree with the majority’s retroactive application of [the] canvass
requirement in the present case and its use of its supervisory authority to
reverse the judgments of the trial court on the ground that the trial court
had failed to conduct such a canvass, which was not required at the time
of the termination proceedings.’’ In re Yasiel R., supra, 317 Conn. 807.
This court in In re Daniel N. was compelled to order a new termination
trial because the respondent had not been canvassed in accordance with
the recently created supervisory rule. The absence of the canvass in that
case eliminated the precise safeguard that our Supreme Court put in place
for all termination of parental rights trials, irrespective of any considered
analysis of whether the parent understood the nature of the proceedings,
his or her rights, and the consequences of termination. See In re Yasiel R.,
supra, 317 Conn. 788–89, 796.
13
As this court noted in In re Leilah W., supra, 166 Conn. App. 58 n.7:
‘‘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 proce-
dural 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 he believed that the court’s curative effort
was insufficient and a new trial was necessary to protect adequately the
respondent’s rights.’’