In re Daniel A. ( 2014 )

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IN RE DANIEL A., JR.*
(AC 36068)
Gruendel, Beach and Schaller, Js.
Argued February 19—officially released April 23, 2014**
(Appeal from Superior Court, judicial district of New
Haven, Juvenile Matters, Brown, J.)
David B. Rozwaski, assigned counsel, for the appel-
lant (respondent father).
Renee Bevacqua Bollier, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, and Benjamin Zivyon and Susan T. Pearlman,
assistant attorneys general, for the appellee (peti-
tioner).
Michael D. Day, for the appellee (respondent
mother).
Opinion
SCHALLER, J. The respondent father, Daniel A.,
appeals from the judgment of the trial court terminating
his parental rights with respect to his minor child, Dan-
iel A., Jr.1 On appeal, the respondent claims that the
court improperly (1) failed to conduct an adequate can-
vass with respect to his election to represent himself
during trial, thereby depriving him of his right to coun-
sel, and (2) terminated his parental rights pursuant to
General Statutes § 17a-112 (j). We affirm the judgment
of the trial court.
The record reveals the following relevant facts and
procedural history. In January, 2011, the respondent
and the mother left the child, who was less than one year
old at the time, at the home of his paternal grandparents’
(grandparents) without notifying the grandparents
where they were going or when they would return. With
the whereabouts of both the respondent and the mother
unknown, the petitioner, the Commissioner of Children
and Families (commissioner), filed an order of tempo-
rary custody and a petition of neglect with respect to
the child. In March, 2011, the child was adjudicated
neglected and committed to the care of the commis-
sioner. On the same date, the court ordered final spe-
cific steps for the respondent and the mother to regain
custody of the child. It furthered ordered the grandpar-
ents licensed as relative foster parents for the child.
The location of the respondent and the mother was
unknown during all of the foregoing proceedings. Their
whereabouts remained unknown until April, 2011, when
the mother informed the commissioner that the respon-
dent had been arrested and incarcerated on criminal
charges. The mother was later arrested in June, 2011,
on criminal charges.
On January 5, 2012, the commissioner filed a petition
to terminate the parental rights of both the respondent
and the mother. With respect to the respondent, the
commissioner alleged that his parental rights should be
terminated on the ground that he ‘‘failed to achieve
such degree of personal rehabilitation as would encour-
age the belief that within a reasonable time, considering
the age and needs of the child, [he] could assume a
responsible position in the life of the child.’’ General
Statutes § 17a-112 (j) (3) (B). The trial encompassed
eleven days over the eight month period beginning in
September, 2012 and ending in May, 2013. The respon-
dent was incarcerated for a majority of the trial.2 In
addition, with the exception of the first day of trial, the
respondent represented himself at trial. Following the
trial, in a comprehensive memorandum of decision, the
court granted the commissioner’s petition, thereby ter-
minating the parental rights of both the respondent and
the mother.
In its decision, the court found, as required by § 17a-
112 (j) (1),3 that the Department of Children and Fami-
lies (department) made reasonable efforts to reunify
both parents with the child and that both parents were
either unable or unwilling to benefit from such reunifi-
cation efforts. With respect to the respondent’s parental
rights, the court found that he had failed to achieve a
sufficient degree of personal rehabilitation. See General
Statutes § 17a-112 (j) (3).4 The court also found that
the termination of his parental rights was in the best
interests of the child. See General Statutes § 17a-112
(j) (2).5 Pursuant to § 17a-112 (k),6 the court detailed
its findings with respect to both parents and concluded
that the parental rights of both the respondent and the
mother should be terminated. Accordingly, the court
granted the petition. This appeal followed. Additional
facts will be set forth as necessary.
I
The respondent first claims that the court improperly
failed to conduct an adequate canvass with respect to
his election to represent himself, thereby depriving him
of his right to counsel. Specifically, the respondent con-
tends that the court failed to advise him of his right to
counsel, inter alia, at the time he was considering self-
representation. As a result of this purported failure,
the respondent further contends that his election to
represent himself was not accompanied by an intelli-
gent and voluntary waiver of his right to counsel.
According to the respondent, because his waiver of
counsel was neither intelligent nor voluntary, he was
deprived of his right to counsel.7 We disagree.
We begin our analysis by setting forth the governing
legal principles regarding the right to counsel, self-rep-
resentation, and waiver in the context of a termination
of parental rights proceeding. It is well settled that a
parent confronted with the termination of his or her
parental rights is guaranteed the right to the assistance
of counsel by virtue of General Statutes § 46b-135 (b),
which provides that ‘‘[a]t the commencement of any
proceeding on behalf of’’ a neglected or uncared-for
child, the parents of the child ‘‘shall have the right to
counsel’’ and, if required due to indigency, counsel shall
be provided for them.8 See General Statutes §§ 45a-717
(b) and 46b-136 (recognizing parent’s right to counsel
in termination proceedings); see also In re Samantha
C., 268 Conn. 614, 663–64, 847 A.2d 883 (2004) (appoint-
ment of counsel to indigent parents in termination pro-
ceedings required by statute); In re Zowie N., 135 Conn.
App. 470, 479–80, 41 A.3d 1056 (same), cert. denied,
305 Conn. 916, 46 A.3d 170 (2012).
Our law further recognizes the possibility that a par-
ent may waive his or her statutory right to counsel in
favor of representing him or her self. See General Stat-
utes § 45a-717 (b);9 see also In re Zowie N., supra, 135
Conn. App. 483–85. In the criminal context, which both
our Supreme Court and this court previously have uti-
lized as persuasive authority in addressing similar mat-
ters,10 a defendant who elects to represent himself
‘‘relinquishes, as a purely factual matter, many of the
traditional benefits associated with the right to counsel.
For this reason, in order to [exercise the right to self-
representation, one] must knowingly and intelligently
[forgo] those relinquished benefits.’’ State v. Flanagan,
293 Conn. 406, 418–19, 978 A.2d 64 (2009). This is so
because ‘‘[t]he right to counsel and the right to self-
representation present mutually exclusive alternatives.
. . . [T]he two rights cannot be exercised simultane-
ously. . . . [One] properly exercises his [or her] right
to self-representation by knowingly and intelligently
waiving his [or her] right to representation by counsel.’’
Id., 418.
Waiver, of course, is the intentional relinquishment
of a known right. In re Baby Girl B., 224 Conn. 263,
296–97, 618 A.2d 1 (1992). ‘‘[A] proper waiver of counsel
must be intelligent and voluntary and . . . its basis,
having been clearly determined by the trial court,
should appear on the record.’’ (Internal quotation marks
omitted.) In re Manuel R., 207 Conn. 725, 736–37, 543
A.2d 719 (1988).
A
At the threshold of the respondent’s claim is his con-
tention that the court was required to conduct a specific
canvass akin to the criteria set forth in Practice Book
§ 44-3, which governs a criminal defendant’s exercise
of the right to self-representation and corresponding
waiver of the right to counsel.11 Specifically, he con-
tends that the court was required, but failed to (1)
apprise him of his right to counsel, (2) determine
whether he appreciated the consequences of self-repre-
sentation, (3) determine whether he comprehended the
nature of the proceedings, and (4) apprise him of the
dangers and disadvantages of self-representation. We
are not persuaded.
‘‘The interpretive construction of the rules of practice
is to be governed by the same principles as those regu-
lating statutory interpretation. . . . The interpretation
and application of a statute, and thus a Practice Book
provision, involves a question of law over which our
review is plenary.’’ (Citations omitted; internal quota-
tion marks omitted.) Wiseman v. Armstrong, 295 Conn.
94, 99, 989 A.2d 1027 (2010).
Practice Book § 44-3 ‘‘was adopted in order to imple-
ment the right of a defendant in a criminal case to act
as his own attorney . . . .’’ (Emphasis added; internal
quotation marks omitted.) State v. Flanagan, supra, 293
Conn. 419. The respondent does not direct us to any
authority indicating that the statutory right to counsel in
termination proceedings carries with it a corresponding
right to self-representation. Nor does he provide any
support for the assertion that § 44-3 extends beyond its
plain confinement to criminal proceedings. In addition,
we note that § 44-3 does not require a specific canvass,
as ‘‘the court may accept a waiver of the right to counsel
without specifically questioning a defendant on each
of the factors listed in Practice Book § [44-3] if the
record is sufficient to establish that the waiver is volun-
tary and knowing.’’ (Internal quotation marks omitted.)
State v. T.R.D., 286 Conn. 191, 204, 942 A.2d 1000 (2008).
Thus, even if we were to embrace the notion that a
court in a termination proceeding is required to conduct
a canvass pursuant to § 44-3, which we do not, the
purported waiver of a criminal defendant’s constitu-
tional right to counsel does not precipitate ‘‘a constitu-
tional right to a specifically formulated canvass.’’ State
v. Webb, 238 Conn. 389, 429, 680 A.2d 147 (1996). A
fortiori, we cannot conclude that the purported waiver
of a parent’s statutory right to counsel triggers such a
canvass absent express language to that effect in the
statutory scheme governing termination proceedings.
This is not to say, however, that a court is without
an obligation to determine whether a parent has intelli-
gently and voluntarily waived the right to counsel in
favor of self-representation. ‘‘[T]he determination of
whether there has been an intelligent waiver of the
right to counsel must depend, in each case, upon the
particular facts and circumstances surrounding that
case, including the background, experience, and con-
duct of the accused. . . . This important decision rests
within the discretion of the trial judge. . . . Our task,
therefore, is to determine whether the court abused its
discretion in allowing the defendant to discharge his
counsel and to represent himself.’’ (Internal quotation
marks omitted.) State v. Coleman, 83 Conn. App. 672,
685, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d
571 (2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290,
16 L. Ed. 2d 1091 (2005).
B
At the heart of the respondent’s claim is his con-
tention that the court improperly determined that his
election to represent himself and waive his right to
counsel was intelligent and voluntary. We are not per-
suaded.
To the extent that the court permitted the respondent
to represent himself, it necessarily determined that he
intelligently and voluntarily elected to do so. We review
the latter determination for an abuse of discretion. See
State v. T.R.D., supra, 286 Conn. 202 (‘‘[w]e review [a]
trial court’s determination with respect to whether [a
criminal] defendant knowingly and voluntarily elected
to proceed pro se for abuse of discretion’’ [internal
quotation marks omitted]).
This court previously has set forth what is required
to support an effective waiver of the statutory right to
counsel in a termination proceeding by way of analogy
to the criminal context: ‘‘[A]lthough a defendant need
not have the skill and expertise of an attorney to compe-
tently and intelligently choose [self-representation], a
record that affirmatively shows that [he] was literate,
competent, and understanding, and that he was volunta-
rily exercising his informed free will sufficiently sup-
ports a waiver [of counsel].’’ (Internal quotation marks
omitted.) In re Zowie N., supra, 135 Conn. App. 483;
accord State v. Flanagan, supra, 293 Conn. 419. Accord-
ingly, we must determine whether the record supports
the court’s determination that the respondent intelli-
gently and voluntarily elected to represent himself,
thereby waiving his statutory right to counsel.
The following additional facts and procedural history
inform our review. On February 23, 2012, the court set
a trial date in the underlying matter. At that time, the
respondent was represented by his first appointed coun-
sel. Thereafter, on July 24, 2012, the respondent’s coun-
sel moved to withdraw on the basis that the respondent
no longer desired his representation. The court denied
the motion and asked both counsel and the respondent
to reassess the situation, which the court would recon-
sider at the next hearing. At the next hearing, on August
14, 2012, both the respondent and his counsel informed
the court that their relationship was irretrievably bro-
ken. On the same date, the court granted the motion
to withdraw and appointed the respondent new coun-
sel. The matter then proceeded to trial as scheduled.
On the first day of trial, September 6, 2012, the com-
missioner’s case-in-chief commenced. Neither the
respondent nor his counsel indicated any issues regard-
ing representation to the court. On the second day of
trial, September 18, 2012, the respondent’s counsel
informed the court that there was an irretrievable break-
down in the attorney-client relationship. The respon-
dent, addressing the court, stated that ‘‘a serious
conflict of interest’’ existed with his counsel. When the
court inquired whether this situation had just arisen,
the respondent’s counsel answered in the affirmative.
The court ordered a short recess so that counsel could
confer with the respondent. Following the recess, the
respondent’s counsel stated: ‘‘[A]pparently we have
irreconcilable differences with regard to the defense of
this case, and [the respondent] believes that he would
be better off serving himself or without me, whichever.’’
The respondent’s counsel again confirmed to the court
that this situation had arisen that day. Thereafter, the
following colloquy occurred:
‘‘[The Respondent]: Actually, Your Honor, [the situa-
tion] started on our last court date but [respondent’s
counsel] didn’t come out to talk to me . . . they rushed
me right out of the building so I couldn’t address it at
that time, so this is the first time. . . . I put in for a
legal call to the facility. They never called me in. I would
have called him ahead of time with it but there’s a
process that I have to go with . . . [because I am]
incarcerated . . . . It gets to be tough sometimes, so
I would have [called him ahead of time] if I had a chance
to, but the counselors [at the correctional facility], you
know, do the best they can do.
‘‘The Court: So you’re asking for another attorney?
‘‘[The Respondent]: It’d be nice, yes. Your honor,
[counsel and I] agreed when he came up to visit me
. . . at the [correctional] facility, and I showed him
paperwork that I have with me now that’s in direct
contradiction to what’s in this [petition for termination
of parental rights] and what’s been testified to. . . . I
asked him to pursue it [during cross examination of
the commissioner’s witness]. He took it upon himself
to totally not do it, deeming it irrelevant, but whatever,
[he told] me one thing coming here, [but chose] to do
another [thing].
‘‘The Court: Okay. . . here’s the situation: it’s up to
[your counsel] to determine what type of trial strategy
to employ because . . . he is the individual who has
reviewed the facts in your case, reviewed the evidence
that the state had offered or intends on offering, and
is acting zealously to represent your interests in this
matter. . . . [A]s far as the court’s concerned, for the
first time this has been brought to the court’s atten-
tion . . . .’’
The court then confirmed that the respondent’s coun-
sel was moving to withdraw. After hearing from all of
the parties on the motion to withdraw,12 the following
colloquy occurred:
‘‘The Court: If I deny the request to appoint new
counsel, would you still be asking for [counsel] to be
taken off the case and you represent yourself?
‘‘[The Respondent]: Yeah. I mean, he’s not going to
do anything. I don’t trust him anymore. Once we went
down there and he refused to ask these questions and
do anything, I [am left to believe] he’s siding with them,
the other state employees . . . there’s a conspiracy
going on and they’re conspiring together . . . to not
. . . ask these questions.
‘‘The Court: So the answer to my question is . . . if
I grant the motion to withdraw as counsel, I do not
have any intention of appointing a third attorney. So
are you prepared to represent yourself in this matter?
‘‘[The Respondent]: Would I be able to use [the moth-
er’s] attorney just for asking certain questions?
‘‘The Court: No.
‘‘[The Respondent]: All right, then I’ll do . . . .
‘‘The Court: I’ll tell you . . . .
‘‘[The Respondent]: Then I’ll represent myself. Okay.
‘‘The Court: I’ll tell you what I will do. For the balance
of the day I will instruct [counsel] to remain; you’re
representing yourself. . . . If you want to turn to him
and ask him something, I’ll allow you to do that.’’
The respondent then inquired how, in light of his
incarceration, he should perform certain tasks related
to his self-representation.
‘‘The Court: You will . . . have to make your
requests to the court and . . . the clerk’s office, and
we’ll assist you in any way that we can. My advice
would be to continue to work with [counsel], but you’ve
indicated to me that is something you cannot do. Am
I right about that?
‘‘[The Respondent]: Yeah. I have no faith in him and
no trust in him at all and this is . . . probably the most
important case in my life because it has to do with
my son.
‘‘The Court: Okay . . . . So I am going to grant the
motion for [respondent’s counsel] to withdraw. . . . I
have indicated that counsel should remain in the court-
room, and if [the respondent] wishes to ask you a ques-
tion and you can help him out, do so. . . . Before you
leave today we will give you, [respondent], a copy of
an appearance form so that you’ll be acting on your
own behalf in this matter, and you will be expected to
comport yourself appropriate with regard to proce-
dures. Anything you need to do, if there’s something
you need to file, objections you need to make, that’s
something that you will need to do. And I do this
because this is the second time now that a request has
been made to have new counsel appointed. So that’s
how we are going to proceed.’’
When the trial continued, the commissioner’s case-
in-chief resumed with the presentation of a witness for
testimony. During the respondent’s cross-examination
of the commissioner’s witness, he attempted to elicit
testimony that was potentially incriminating against
him. The court interjected, reminding the respondent
that he ‘‘has a right to remain silent. Anything you say
can and will be used against you. You do have a right
to be represented by an attorney with regard to any
criminal issues. We’ve already covered the issue with
regard to this trial.’’ The respondent did not indicate
that he desired counsel and continued on his own behalf
for the remainder of the day’s testimony. Prior to
adjourning for the day, the court paused to inform the
respondent of the posture of the case. The court notified
the parties that it would be scheduling the next trial
date as to provide the respondent with an opportunity
to review certain documents. In addition, the court
detailed for the respondent the arrangements it had
made for him to work with the clerk’s office. The court
concluded by asking the respondent whether he wanted
his standby counsel present for the remainder of trial.
The respondent responded: ‘‘Yeah, he can stay on. Yes,
please.’’ Thereafter, the court adjourned for the day.
The respondent represented himself for the remainder
of trial with standby counsel available to him.
On the basis of the foregoing, it is evident that the
court, on the second day of trial, was confronted with
a motion from the respondent’s counsel to withdraw
and a request from the respondent himself for substitute
counsel. The respondent continually insisted that his
appointed counsel withdraw in the face of ample warn-
ings from the court that it would not provide him with
substitute counsel. In addition, the respondent initially
associated his counsel’s withdrawal as something that
would precipitate his self-representation.13 When con-
fronted with the choice of retaining appointed counsel
and self-representation, the respondent elected the lat-
ter. His election was therefore voluntary unless it
resulted from an antecedent deprivation of his statutory
right to appointed counsel. See, e.g., McKee v. Harris,
649 F.2d 927, 931 (2d Cir. 1981) (‘‘the very essence of
a voluntary waiver is that it be the product of a free
and meaningful choice’’), cert. denied, 456 U.S. 917, 102
S. Ct. 1773, 72 L. Ed. 2d 177 (1982).
The record also indicates that the trial judge was
familiar with the respondent as a result of presiding over
four previous proceedings in the underlying termination
case. At least two of these proceedings involved a dis-
agreement between the respondent and his first
appointed counsel concerning representation. More-
over, the respondent demonstrated a general under-
standing of legal proceedings and trial tactics prior to
counsel’s withdrawal and his self-representation. Spe-
cifically, the respondent indicated that he had drafted
and delivered to counsel a list of witnesses before the
second day of trial, made suggestions to counsel regard-
ing cross-examination tactics on the first day of trial,
asked practical questions regarding filings and motions
to the court directly, and demonstrated a familiarity
with particular allegations in the petition to terminate
his parental rights. Finally, the record indicates that the
respondent understood the gravity of the proceedings.
When the court inquired whether his position was that
he could no longer retain appointed counsel, having
already been informed he would have to represent him-
self if appointed counsel were to withdraw, he
responded: ‘‘Yeah. I have no faith in him and no trust
in him at all and this is . . . probably the most
important case in my life because it has to do with
my son.’’
Under these circumstances, we conclude that there
is ample support in the record for the court’s determina-
tion that the respondent intelligently and voluntarily
elected to represent himself, thereby waiving his statu-
tory right to counsel. Although the record indicates that
the respondent did not state, in so many words, that
he no longer desired counsel, he engaged in a course
of conduct that demonstrated that he ‘‘knew what he
[was] doing and [that] his choice [was] made with eyes
open . . . .’’ (Internal quotation marks omitted.) State
v. T.R.D., supra, 286 Conn. 206. The respondent did not
equivocate in his insistence that his appointed counsel
withdraw, notwithstanding the express warnings from
the court that substitute counsel would not be forth-
coming and that he would have to represent himself.
With respect to substitute counsel, the statutory right
to counsel in termination proceedings does not encom-
pass an unbridled right to counsel of one’s choice. In
re Elysa D., 116 Conn. App. 254, 262 n.9, 974 A.2d
834, cert. denied, 293 Conn. 936, 981 A.2d 1079 (2009).
Absent a showing of good cause, the substitution of
counsel is not warranted. Id. The court, faced with a
motion to withdraw and request for substitute counsel
on the second day of trial, inquired into the circum-
stances of the respondent’s representation. Having
determined that he was not entitled to substitute coun-
sel,14 a determination that the respondent does not chal-
lenge on appeal, the court properly presented the
respondent with the choice of retaining counsel or rep-
resenting himself for the remainder of trial. In the crimi-
nal context, our Supreme Court has determined that a
trial court, having first made inquiries as to the defen-
dant’s choice of representation, may ‘‘properly insist
that the defendant choose between representation by
his existing counsel and [self-representation]’’ in the
interests of orderly procedure. (Internal quotation
marks omitted.) State v. Gethers, 197 Conn. 369, 380,
497 A.2d 408 (1985).
In sum, the record unequivocally demonstrates that
the respondent comprehended that substitute counsel
would not be appointed upon the withdrawal of his
appointed counsel. The respondent nevertheless
insisted on counsel’s withdrawal and understood this
was functionally equivalent to an election to represent
himself. Accordingly, we conclude that the court did
not abuse its discretion in permitting the respondent
to represent himself and waive his statutory right to
counsel.
II
The respondent next claims that the court improperly
terminated his parental rights. Specifically, he contends
that the record does not support the court’s findings
that (1) he was either unwilling or unable to benefit from
reunification efforts, (2) he had failed to rehabilitate
himself, and (3) it was in the best interests of the child
to grant the petition for termination of parental rights.
In response, the commissioner argues that the respon-
dent’s first contention is moot and, therefore, not sub-
ject to appellate review. As to the respondent’s second
and third contentions, the commissioner argues that
the court’s findings are amply supported by the record.
We agree with the commissioner.
Before addressing the respondent’s claim, however,
we note that a ‘‘hearing on a petition to terminate paren-
tal rights consists of two phases, adjudication and dis-
position. . . . In the adjudicatory phase, the trial court
determines whether one of the statutory grounds for
termination of parental rights . . . exists by clear and
convincing evidence. If the trial court determines that
a statutory ground for termination exists, it proceeds
to the dispositional phase. . . . In the dispositional
phase of a termination of parental rights hearing, the
trial court must determine whether it is established by
clear and convincing evidence that the continuation of
the parents’ parental rights is not in the best interests
of the child. In arriving at that decision, the court is
mandated to consider and make written findings regard-
ing seven factors delineated in . . . § [17a-112 (k)]
. . . .’’ (Internal quotation marks omitted.) In re Alison
M., 127 Conn. App. 197, 203–204, 15 A.3d 194 (2011).
A
The respondent first contends that the court’s finding
in the adjudicatory phase of the proceeding that he was
unable or unwilling to benefit from reunification efforts
was clearly erroneous. The commissioner, in response,
argues that this contention is moot and not subject to
appellate review. We agree with the commissioner.
Before a court may grant a petition for termination
of parental rights, it must find, by clear and convincing
evidence, ‘‘that . . . the [department] has made rea-
sonable efforts to locate the parent and reunify the
child with the parent in accordance with subsection
(a) of section 17a-111b, unless the court finds in this
proceeding that the parent is unable or unwilling to
benefit from reunification efforts . . . .’’ (Emphasis
added.) General Statutes § 17a-112 (j) (1). Our Supreme
Court has determined that the language of § 17a-112 (j)
(1) requires the commissioner to ‘‘prove either that [the
department] has made reasonable efforts to reunify or,
alternatively, that the parent is unwilling or unable to
benefit from reunification efforts.’’ (Emphasis omitted.)
In re Jorden R., 293 Conn. 539, 552, 979 A.2d 469 (2009).
‘‘[E]ither finding, standing alone, provides an indepen-
dent basis for satisfying § 17a-112 (j) (1).’’ Id., 556.
In the present case, the court found by clear and
convincing evidence that the department (1) ‘‘made rea-
sonable efforts to reunify the parents with the son,’’
and (2) ‘‘that the parents are either unable or unwilling
to benefit from reunification efforts.’’ The respondent
challenges only the court’s second finding on appeal.
To the extent that the court’s first finding provides an
independent basis for satisfying § 17a-112 (j) (1), our
review of the respondent’s challenge with respect to the
court’s second finding could not result in any practical
relief and is, therefore, moot. See In re Jorden R., supra,
293 Conn. 556 (‘‘[i]t is not the province of appellate
courts to decide moot questions, disconnected from the
granting of actual relief or from the determination of
which no practical relief can follow’’ [emphasis omitted;
internal quotation marks omitted]); In re Alison M.,
supra, 127 Conn. App. 206 (same). Accordingly, we
decline to review the respondent’s first contention.
B
The respondent’s second contention is directed at
the court’s finding in the adjudicatory phase of the
proceeding that he had failed to rehabilitate himself to
such a degree that in the foreseeable future, he would
be in a position to adequately provide for his child.
The respondent contends that this finding was clearly
erroneous. We disagree.
In addition to finding that the commissioner has
established by clear and convincing evidence the reuni-
fication requirements of § 17a-112 (j) (1), a court must
determine whether a statutory ground for termination
exists in accordance with § 17a-112 (j) (3) before it may
grant a petition for termination of parental rights. In the
present case, the court found by clear and convincing
evidence that the father had failed to rehabilitate him-
self pursuant to § 17a-112 (j) (3) (B) (i), which provides,
in relevant part, ‘‘the child has been found by the Supe-
rior Court . . . to have been neglected 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 pursuant to section
46b-129 and has failed to achieve such degree of per-
sonal 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.’’ See In re Elvin G., 310
Conn. 485, 503, 78 A.3d 797 (2013).
The respondent focuses his contention on the per-
sonal rehabilitation requirement of § 17a-112 (j) (3) (B)
(i). This court previously has recognized that ‘‘[p]er-
sonal rehabilitation as used in the statute refers to the
restoration of a parent to his or her former constructive
and useful role as a parent. . . . [T]he court must ana-
lyze the respondent’s rehabilitative status as it relates
to the needs of the particular child . . . . [I]n assessing
rehabilitation, the critical issue is not whether the par-
ent has improved [his] ability to manage [his] own life,
but rather whether [he] has gained the ability to care
for the particular needs of the child . . . at issue.’’
(Citations omitted; internal quotation marks omitted.)
In re Alison M., supra, 127 Conn. App. 206–207.
In addition, we set forth our standard of review. ‘‘On
appeal, we review a trial court’s finding that a parent
has failed to rehabilitate [himself] in accordance with
the rules that apply generally to a trier’s finding of fact.
We will overturn such a finding of fact only if it is
clearly erroneous in light of the evidence in the whole
record. . . . We do not examine the record to deter-
mine whether the trier of fact could have reached a
conclusion other than the one reached. . . . [O]n
review by this court every reasonable presumption is
made in favor of the trial court’s ruling.’’ (Internal quota-
tion marks omitted.) Id., 207. ‘‘It is axiomatic that a
trial court’s factual findings are accorded great defer-
ence. . . . A finding is clearly erroneous when either
there is no evidence in the record to support it, or
the reviewing court is left with the definite and firm
conviction that a mistake has been made.’’ (Citation
omitted; internal quotation marks omitted.) In re Jor-
den R., supra, 293 Conn. 558.
In the present case, the respondent contends that the
only evidence the court relied on in finding that he had
failed to rehabilitate pursuant to § 17a-112 (j) (3) (B)
(i) was the testimony of Nancy Randall, a psychiatrist
who evaluated the respondent in connection with the
termination proceeding. He directs our attention to Ran-
dall’s testimony during trial that reunification of the
child with the respondent was conceivable, but that it
would likely have to occur at least one year following
the respondent’s release from prison as to allow time
for him to demonstrate sobriety, stable housing,
employment, and law-abiding behavior. Insofar as Ran-
dall suggested that reunification may be conceivable
on the basis of her understanding that the respondent
would be incarcerated for several years, he contends
that his March, 2013 parole, which occurred several
months after Randall’s testimony, was an unforeseen
contingency that may have altered her recommendation
as to reunification. In addition, the respondent contends
that there is scant evidence to support the finding that
he failed to rehabilitate or, alternatively, that there was
no basis in the record for denying him additional time
to do so. He specifically asserts that the ‘‘evidence is
to the contrary,’’ and that he is ‘‘committed to improving
his situation so that he can be a responsible parental
figure.’’ In support of this assertion, the respondent
cites his efforts to obtain employment and maintain
housing, as well as his consistent visitation with the
child.
We fail to perceive how any of these assertions dem-
onstrate that the court’s finding that the respondent had
failed to rehabilitate is clearly erroneous. The record
demonstrates that the court expressly predicated its
finding not only on the testimony of Randall, but her
written report made in connection with her psychologi-
cal evaluation of the respondent, the mother, the child,
and the paternal grandparents. Notwithstanding this
additional evidence, even if we were to assume,
arguendo, that the court relied solely on Randall’s testi-
mony, the record reveals that she was expressly asked
to opine on the respondent’s ability to care for the
child on the assumption that the respondent would be
released from incarceration in early 2013. She testified
that the prognosis was poor, as she did in her written
report. In addition, the court expressly considered the
fact that the respondent was paroled in March, 2013,
as well as the evidence demonstrating the respondent’s
efforts to rehabilitate. Specifically, the court acknowl-
edged that the respondent ‘‘certainly availed himself of
a variety of services, both before, during, and after his
incarceration. As the evidence offered at trial indicates,
including exhibits offered by [the respondent] himself,
his efforts to maintain his sobriety and compliance with
treatment has not always been successful. He has dem-
onstrated a willingness to seek help for his problems.’’
(Emphasis added.) In making its finding, the court also
considered Randall’s testimony pertaining to the
respondent’s ‘‘impulse control and judgment issues, as
well as [his] lengthy history of substance abuse which
involved arrests and convictions for possession of nar-
cotics.’’
On the basis of Randall’s report and testimony, and
the evidence offered by the respondent, the court found
that ‘‘after eight years of incarceration for various
crimes, [the respondent’s] release to a sober house in
March 2013 is only the beginning of a long road for [the
respondent] regarding his rehabilitation. There is no
evidence of his ability to maintain his sobriety outside of
an institutional setting, his ability to seek and maintain
housing and employment, and his ability to avoid new
entanglements with the criminal justice system. [He]
will be on parole and then probation until October 2018.
He is subject to re-incarceration for a violation of the
terms of either parole or probation, as well as for the
commission of any new offenses. [He] needs to focus
on these aspects of his life. It is possible that within a
year or two he could achieve a certain level of stability
and sobriety.’’ The respondent’s efforts to improve his
own affairs are certainly commendable, but are not
dispositive of the question of whether he could assume
a responsible position in the life of his child within a
reasonable time. See In re Halle T., 96 Conn. App. 815,
838 n.18, 902 A.2d 670, cert. denied, 280 Conn. 924, 908
A.2d 1087 (2006).
In sum, we cannot conclude that the court’s finding
regarding the respondent’s failure to rehabilitate was
clearly erroneous. There was sufficient evidence to sup-
port the court’s finding and we are not left with a defi-
nite and firm conviction that a mistake has been made.
C
The respondent’s final contention is directed at the
court’s finding in the dispositional phase of the proceed-
ing that it was in the best interests of the child to grant
the petition for termination of the respondent’s parental
rights. The respondent contends that this finding was
clearly erroneous. We disagree.
‘‘In the dispositional phase of a termination of paren-
tal rights hearing, the emphasis appropriately shifts
from the conduct of the parent to the best interest of
the child. . . . It is well settled that we will overturn
the trial court’s decision that the termination of parental
rights is in the best interest of the [child] only if the
court’s findings are clearly erroneous. . . . The best
interests of the child include the child’s interests in
sustained growth, development, well-being, and conti-
nuity and stability of [his or her] environment. . . . In
the dispositional phase of a termination of parental
rights hearing, the trial court must determine whether
it is established by clear and convincing evidence that
the continuation of the respondent’s parental rights is
not in the best interest of the child. In arriving at this
decision, the court is mandated to consider and make
written findings regarding seven factors delineated in
[§ 17a-112 (k)]. . . . The seven factors serve simply as
guidelines for the court and are not statutory prerequi-
sites that need to be proven before termination can be
ordered. . . . There is no requirement that each factor
be proven by clear and convincing evidence.’’ (Internal
quotation marks omitted.) In re Alison M., supra, 127
Conn. App. 211; see footnotes 5 and 6 of this opinion.
The respondent contends that the court’s finding that
the termination of his parental rights was in the best
interests of the child was clearly erroneous because (1)
he continues to have meaningful contact with the child,
and (2) he has made progress toward rehabilitating
himself.
The respondent’s efforts to rehabilitate, although
commendable, speak to his own conduct, not the best
interests of the child. The court nevertheless considered
such efforts in its dispositional findings, noting that the
respondent ‘‘took advantage of services offered to him,
including substance abuse, mental health, and visita-
tion’’ and that he ‘‘has made efforts at reunification,
including successfully completing several programs
while incarcerated. He visited his son while incarcer-
ated and took advantage of any programs that were
made available to him.’’ To the extent that the court
expressly considered the respondent’s efforts to reha-
bilitate in finding that it was in the child’s best interests
to terminate the respondent’s parental rights, we fail
to perceive how such efforts could now undermine the
court’s best interests finding.
With respect to the respondent’s continued and mean-
ingful contact with the child, it is apparent that the court
considered this contact in rendering its best interests
finding. The record reveals that the court expressly
considered that the child ‘‘appeared to have a closer
attachment to [the respondent].’’ Although the child
may share a bond with the respondent, ‘‘[o]ur courts
consistently have held that even when there is a finding
of a bond between parent and a child, it still may be
in the child’s best interest to terminate parental rights.’’
(Internal quotation marks omitted.) In re Joseph L., 105
Conn. App. 515, 531, 939 A.2d 16, cert. denied, 287 Conn.
902, 947 A.2d 341, 342 (2008). The court concluded
as much in the present case. It found that, despite a
conviction that the respondent ‘‘sincerely intends to
make positive strides,’’ there was a greater conviction
that ‘‘it is not in the child’s best interest to delay perma-
nency to see if either parent can achieve rehabilitation
sufficient to care for the child.’’ The court noted Ran-
dall’s conclusion that a delay in permanency ‘‘could be
damaging to [the child’s] emotional health and devel-
opment.’’
On the basis of the record before us, we decline to
disturb the court’s finding that the termination of the
respondent’s parental rights was in the best interests
of the child.
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.
** April 23, 2014, the date that this decision was released as a slip opinion,
is the operative date for all substantive and procedural purposes.
1
The court also terminated the parental rights of the respondent mother,
who has withdrawn her appeal from that judgment. We refer to the respon-
dent father as the respondent in this opinion.
2
The respondent was paroled to an inpatient treatment facility in
March, 2013.
3
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court . . . may grant a petition filed pursuant to this section if it finds by
clear and convincing evidence that (1) the Department of Children and
Families has made reasonable efforts to locate the parent and to reunify
the child with the parent in accordance with subsection (a) of section 17a-
111b, unless the court finds in this proceeding that the parent is unable or
unwilling to benefit from reunification efforts, except that such finding is
not required if the court has determined at a hearing pursuant to section
17a-111b, or determines at trial on the petition, that such efforts are not
required . . . .’’
4
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court . . . may grant a petition filed pursuant to this section if it finds by
clear and convincing evidence that . . . (3) . . . (B) the child (i) has been
found by the Superior Court or the Probate Court to have been neglected
or uncared for in a prior proceeding, or (ii) is found to be neglected or
uncared for and has been in the custody of the commissioner for at least
fifteen months and the parent of such child has been provided specific steps
to take to facilitate the return of the child to the parent pursuant to section
46b-129 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 . . . .’’
5
General Statutes § 17a-112 (j) provides in relevant part: ‘‘The Superior
Court . . . may grant a petition filed pursuant to this section if it finds by
clear and convincing evidence that . . . (2) termination is in the best inter-
est of the child . . . .’’
6
General Statutes § 17a-112 (k) provides: ‘‘Except in the case where termi-
nation is based on consent, in determining whether to terminate parental
rights under this section, the court shall consider and shall make written
findings regarding: (1) The timeliness, nature and extent of services offered,
provided and made available to the parent and the child by an agency to
facilitate the reunion of the child with the parent; (2) whether the Department
of Children and Families has made reasonable efforts to reunite the family
pursuant to the federal Adoption Assistance and Child Welfare Act of 1980,
as amended; (3) the terms of any applicable court order entered into and
agreed upon by any individual or agency and the parent, and the extent to
which all parties have fulfilled their obligations under such order; (4) the
feelings and emotional ties of the child with respect to the child’s parents,
any guardian of such child’s person and any person who has exercised
physical care, custody or control of the child for at least one year and with
whom the child has developed significant emotional ties; (5) the age of the
child; (6) the efforts the parent has made to adjust such parent’s circum-
stances, conduct, or conditions to make it in the best interest of the child
to return such child home in the foreseeable future, including, but not limited
to, (A) the extent to which the parent has maintained contact with the child
as part of an effort to reunite the child with the parent, provided the court
may give weight to incidental visitations, communications or contributions,
and (B) the maintenance of regular contact or communication with the
guardian or other custodian of the child; and (7) the extent to which a
parent has been prevented from maintaining a meaningful relationship with
the child by the unreasonable act or conduct of the other parent of the
child, or the unreasonable act of any other person or by the economic
circumstances of the parent.’’
7
Following the commencement of this appeal, the respondent moved for
articulation of the court’s judgment with respect to several issues. The
court granted the respondent’s motion for articulation in part, limiting its
articulation to the following question: ‘‘What was the specific factual and
legal basis for the trial court’s finding and determination that the [respon-
dent] waived his right to representation by counsel, and would be allowed
to proceed pro se?’’ Accordingly, the respondent properly preserved this
claim for appellate review. See Practice Book §§ 61-10 and 66-5.
8
Pursuant to General Statutes § 46b-121 (a) (1), ‘‘[j]uvenile matters in the
civil session include all proceedings concerning . . . termination of paren-
tal rights of children committed to a state agency . . . .’’
9
General Statutes § 45a-717 (b) provides in relevant part: ‘‘If a party
appears without counsel, the court shall inform such party of the party’s
right to counsel and upon request, if he or she is unable to pay for counsel,
shall appoint counsel to represent such party. No party may waive counsel
unless the court has first explained the nature and meaning of a petition
for the termination of parental rights.’’ (Emphasis added.)
10
See, e.g. In re Jonathan M., 255 Conn. 208, 224–25, 764 A.2d 739 (2001);
State v. Anonymous, 179 Conn. 155, 159, 425 A.2d 939 (1979); In re Isaiah
J., 140 Conn. App. 626, 639–40, 59 A.3d 892, cert. denied, 308 Conn. 926, 64
A.3d 333, cert. denied sub nom. Megan J. v. Katz, U.S. , 134 S. Ct. 317,
187 L. Ed. 2d 224 (2013); In re Zowie N., supra, 135 Conn. App. 476–77 n.6.
11
The respondent refers to the decision of this court in State v. Coleman,
83 Conn. App. 672, 851 A.2d 329, cert. denied, 271 Conn. 910, 859 A.2d 571(2004), cert. denied, 544 U.S. 1050, 125 S. Ct. 2290, 16 L. Ed. 2d 1091 (2005),
as an example of an appropriate canvass regarding a criminal defendant’s
request to exercise his or her right of self-representation and corresponding
waiver of counsel. Id., 685. In Coleman, this court simply set forth the factors
of Practice Book § 44-3, which provides: ‘‘A defendant shall be permitted
to waive the right to counsel and shall be permitted to represent himself
or herself at any stage of the proceedings, either prior to or following the
appointment of counsel. A waiver will be accepted only after the judicial
authority makes a thorough inquiry and is satisfied that the defendant:
‘‘(1) Has been clearly advised of the right to the assistance of counsel,
including the right to the assignment of counsel when so entitled;
‘‘(2) Possesses the intelligence and capacity to appreciate the conse-
quences of the decision to represent oneself;
‘‘(3) Comprehends the nature of the charges and proceedings, the range
of permissible punishments, and any additional facts essential to a broad
understanding of the case; and
‘‘(4) Has been made aware of the dangers and disadvantages of self-repre-
sentation.’’
12
After the other parties addressed the court with respect to the motion
to withdraw, the respondent indicated that his problem with his counsel
arose during the previous day of trial, when his counsel did not cross-
examine the commissioner’s witness to the respondent’s satisfaction: ‘‘That
moment was critical. I asked him if he planned on [questioning the commis-
sioner’s witness] again, he said it’s not his turn. He’s letting go of a prime
chance at putting forth what I was saying about these lies and cementing
[the witness] to these lies which [the witness] has already done anyway,
but . . . he’s just refusing. I also sent to him a list of people that should
be on a witness list to help me in my case, and he pretty much said to heck
with it because [the list contained] the judge that sentence me in drug court.
[The judge] doesn’t have to come in, obviously, but a letter from him would
have been nice so [the judge] can say . . . [the witness] gave me programs
[that] she didn’t [actually give me]. [The witness] is making accusations that
I said things when I got arrested [that] I didn’t [say]. I have my police report
here. These are all things that he should have questioned [the witness] about
to . . . get her in the transcripts, and he’s refusing to and he didn’t . . .
he said he’s not [questioning] her again.’’
13
The respondent’s counsel, prior to the court’s inquiry regarding the
respondent’s preference for substitute counsel, stated that ‘‘[the respondent]
believes that he would be better off serving himself or without me,
whichever.’’
14
We note that a difference of opinion as to trial strategy, the basis of
the respondent’s request for substitute counsel in the present case, does
not warrant the appointment of new counsel. See In re Isaiah J., supra,
140 Conn. App. 636; In re Kaitlyn A., 118 Conn. App. 14, 25, 982 A.2d
253 (2009).