In re Matthew P. ( 2014 )


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    IN RE MATTHEW P. ET AL.*
    (AC 36562)
    Lavine, Prescott and Lavery, Js.
    Argued September 22—officially released October 28, 2014**
    (Appeal from Superior Court, judicial district of
    Middlesex, Child Protection Session, Hon. Thayer
    Baldwin, Jr., judge trial referee [mistrial]; Hon. Barbara
    M. Quinn, judge trial referee [judgments].)
    David J. Reich, for the appellant (respondent
    mother).
    Jessica Gauvin, 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
    LAVERY, J. The respondent mother,1 Charlene C.,
    appeals from the judgments of the trial court rendered
    in favor of the petitioner, the Commissioner of Children
    and Families, terminating her parental rights as to her
    two children, M and P. On appeal, the respondent claims
    that the court’s denial of her motion for a continuance
    constituted a violation of due process. We affirm the
    judgments of the court.
    The following facts and procedural history, as found
    by the court, are relevant to this appeal. The respondent
    has struggled with substance abuse and mental illness
    since her early adolescence.2 In June 2009, M was born
    to the respondent and Matthew P. In January, 2010,
    the Department of Children and Families (department)
    invoked a ninety-six hour administrative hold on behalf
    of M, removing him from the respondent’s care for
    the first time. At that time, the respondent had been
    exhibiting out-of-control behaviors and was transported
    to the emergency room to receive medical treatment
    for being under the influence of narcotics. An ex parte
    order of temporary custody was subsequently granted.
    This order was sustained on January 29, 2010. On May
    11, 2010, M was adjudicated neglected and committed
    to the care and custody of the petitioner.
    Due to the respondent’s progress with regard to her
    treatment and sobriety, the court granted the petition-
    er’s motion to revoke the commitment of M on Septem-
    ber 1, 2010. The court also entered an order of protective
    supervision for a period of six months. In November,
    2010, P was born to the respondent and Paul A. Subse-
    quently, the court granted the petitioner’s motion to
    extend protective supervision of M until April, 2011.
    Two months later, in June, 2011, both children were
    removed from the respondent’s care by an order of
    temporary custody because the respondent and Paul
    A. appeared highly intoxicated at a train station with
    both children in their care. The respondent subse-
    quently was charged with two counts of risk of injury
    to a minor. On September 6, 2011, the children were
    adjudicated neglected and committed to the care and
    custody of the petitioner. On September 20, 2011, the
    court granted the petitioner’s motion to revoke commit-
    ment of the children. The court ordered protective
    supervision of the children for six months.
    In January, 2012, the children were again adjudicated
    neglected and were committed to the care and custody
    of the petitioner because the respondent had been
    involved in a car accident in which P was unrestrained.
    Upon examination at the hospital, P exhibited dilated
    pupils and a decreased heart rate, consistent with sec-
    ondary exposure to phencyclidine (PCP). The respon-
    dent was arrested for assault, risk of injury, and breach
    of peace. On July 9, 2012, the court granted the respon-
    dent’s motion to revoke commitment and ordered pro-
    tective supervision for six months.
    Six days later, on July 17, 2012, the department
    removed the children from the respondent’s care due
    to her intoxication and incoherence. Subsequently, the
    court sustained the order of temporary custody. This
    removal marked M’s fourth and P’s third such commit-
    ment to the petitioner’s custody.
    In early August, 2012, the department placed the chil-
    dren in the custody of the respondent’s sister, JAC, as
    a foster care provider. At that time, JAC was a partici-
    pant in the department’s young adolescent program.
    Within a month, JAC was overwhelmed by caring for
    M and P in addition to her own child. In September,
    2012, the department removed M and P from JAC’s
    home.3
    On November 28, 2012, the petitioner filed petitions
    to terminate the respondent’s parental rights. The peti-
    tions alleged that the department had made reasonable
    efforts to reunify the respondent with the children and
    that she was unable or unwilling to benefit from the
    reunification efforts. The petitions further alleged that
    the respondent had 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, she could assume a responsible
    position in their lives. See General Statutes § 17a-112
    (j) (3) (B).
    A trial took place over three days in April, 2013. The
    court, Hon. Thayer Baldwin, Jr., judge trial referee,
    consolidated for trial the petitioner’s termination of
    parental rights petitions and a motion filed by the
    respondent to transfer guardianship of the children to
    JAC. After the trial had concluded, Judge Baldwin
    retired before rendering a decision, and the court,
    Brown, J., declared a mistrial. The matter was trans-
    ferred to the Child Protection Session in Middletown
    for a retrial of the petitions.
    The second trial was held on December 5, 2013, and
    January 13, 2014. On the first day of trial, the respon-
    dent’s counsel, Howard J. Wicker, orally moved the
    court for an open-ended continuance. Wicker indicated
    that his client was hospitalized due to a recurrence of
    an ‘‘eye infection or a facial infection’’ and, therefore,
    could not be present. The court, Hon. Barbara M.
    Quinn, judge trial referee, noted Wicker’s objection to
    proceeding without the respondent but indicated that,
    considering the procedural history of this case, the trial
    would commence as scheduled. In light of the interests
    at stake, the court ordered that the respondent would
    be permitted to review the transcripts from the first
    day of trial with her attorney, and to call or recall any
    witnesses for direct or cross-examination when she was
    present in the courtroom. On the first day of trial, the
    court admitted the petitioner’s twenty-seven exhibits in
    full and heard testimony from Logan Green, a physician
    whom the court had ordered to evaluate the respondent,
    and four of the department’s social workers: Elizabeth
    Hazelwood, Kelli Wright, Jerene Davis, and Kelly
    Stratton.
    On the second day of trial, the respondent was pre-
    sent. The respondent had had approximately one month
    to review the transcripts from the first day of trial with
    her attorney. The petitioner called Chrichton Stewart,
    a department social work supervisor, to testify. The
    respondent then recalled Davis and Green for further
    cross-examination. Additionally, the respondent testi-
    fied and presented two of her own witnesses: Deborah
    F., her former foster mother, and JAC.
    Judge Quinn further found that from the most recent
    date that the respondent’s children had been removed,
    in June, 2012, through the period of time when the
    termination of parental rights petitions were retried,
    she has ‘‘remain[ed] drug-addicted and has failed to
    address her serious mental health issues.’’ As of Janu-
    ary, 2014, the respondent had not completed a sub-
    stance abuse treatment program or addressed her
    mental health. The court heard testimony that, as a
    result, the respondent has lost her housing and remains
    transient with no legal source of income. Pursuant to
    the order of temporary custody granted in July, 2012,
    the children presently remain in the care of the peti-
    tioner. Both children currently reside in the same pre-
    adoptive foster home.
    On January 23, 2014, Judge Quinn issued a memoran-
    dum of decision terminating the respondent’s parental
    rights.4 The court found that the respondent has been
    provided with ‘‘[a]n extraordinary number of services,’’
    including outpatient services and, until recently, sup-
    portive housing. Having found that the petitioner had
    satisfied the necessary statutory factors to terminate
    the respondent’s parental rights by clear and convincing
    evidence, the court concluded that the termination of
    the respondent’s parental rights was in the children’s
    best interest. See General Statutes § 17a-112; In re Val-
    erie D., 
    223 Conn. 492
    , 511, 
    613 A.2d 748
     (1992). Thus,
    the court terminated the respondent’s parental rights
    pursuant to § 17a-112 (j) (3) (B) for failing to achieve
    personal rehabilitation.5 This appeal followed.
    On appeal, the respondent claims that her due pro-
    cess rights were violated because Judge Quinn improp-
    erly denied her request for a continuance during the
    termination proceedings, which prevented her from
    being present on the first day of trial.6 The respondent
    acknowledges that the court implemented procedures
    to enable her to examine witnesses on the second day
    of trial; however, the respondent argues that these pro-
    cedural protections were constitutionally inadequate.
    We do not agree.
    We begin our analysis by setting forth the applicable
    standard of review. ‘‘Ordinarily, we resolve claims con-
    cerning the denial of a motion for a continuance under
    the abuse of discretion standard. . . . The substance
    of the [respondent’s] claim, however, concerns due pro-
    cess. We resolve due process claims pursuant to
    Mathews v. Eldridge, 
    424 U.S. 319
    , 334–35, 
    96 S. Ct. 893
    , 
    47 L. Ed. 2d 18
     (1976).’’ (Citations omitted.) In re
    Jaime S., 
    120 Conn. App. 712
    , 738, 
    994 A.2d 233
     (2010),
    appeal dismissed, 
    300 Conn. 294
    , 
    12 A.3d 566
     (2011)
    (certification improvidently granted). ‘‘[The] test [in
    Mathews] requires a consideration of the private inter-
    est that will be affected by the official action, the risk
    of an erroneous deprivation of such interest through
    the procedures used, and the probable value, if any, of
    additional or substitute procedural safeguards, and the
    Government’s interest, including the function involved
    and the fiscal and administrative burdens that the addi-
    tional or substitute procedural requirement would
    entail.’’ (Internal quotation marks omitted.) Giordano
    v. Giordano, 
    39 Conn. App. 183
    , 194, 
    664 A.2d 1136
    (1995). ‘‘Stated differently, we must determine if the
    private interest of the [respondent] in the companion-
    ship, love and control of the child is at risk of being
    erroneously terminated because of the lack of an ade-
    quate procedural safeguard that could be provided for
    [her] without disregarding the state’s interest in the
    well-being of the child and the fiscal and administrative
    burden on the state.’’ In re Jaime S., supra, 738.
    ‘‘Due process does not mandate full evidentiary hear-
    ings on all matters, and not all situations calling for
    procedural safeguards call for the same kind of proce-
    dure. . . . So long as the procedure afforded ade-
    quately protects the individual interests at stake, there
    is no reason to impose substantially greater burdens
    . . . under the guise of due process.’’ (Citation omitted;
    internal quotation marks omitted.) GMAC Mortgage
    Corp. v. Glenn, 
    103 Conn. App. 264
    , 275, 
    931 A.2d 290
    (2007). ‘‘The bottom-line question is whether the denial
    rendered the [proceeding] fundamentally unfair in view
    of the Mathews factors.’’ In re Shaquanna M., 
    61 Conn. App. 592
    , 606, 
    767 A.2d 155
     (2001). Our balancing of
    the three Mathews factors leads us to the conclusion
    that the denial of the respondent’s motion for a continu-
    ance did not render the termination proceeding funda-
    mentally unfair.
    The first Mathews factor concerns ‘‘the private inter-
    est that will be affected by the official action.’’ Mathews
    v. Eldridge, 
    supra,
     
    424 U.S. 335
    . It is axiomatic that the
    respondent has a constitutionally protected interest in
    her parental rights. See, e.g., Stanley v. Illinois, 
    405 U.S. 645
    , 651, 
    92 S. Ct. 1208
    , 
    31 L. Ed. 2d 551
     (1972);
    In re Alison M., 
    127 Conn. App. 197
    , 220, 
    15 A.3d 194
    (2011). The petitioner does not dispute that the respon-
    dent’s interest in retaining her parental rights to her two
    sons is constitutionally protected. Because a petition to
    terminate parental rights threatens this fundamental
    interest, the first Mathews factor weighs in favor of the
    respondent. See In re Tremaine C., 
    117 Conn. App. 521
    ,
    530, 
    980 A.2d 317
    , cert. denied, 
    294 Conn. 920
    , 
    984 A.2d 69
     (2009).
    The second Mathews factor concerns the risk of error
    regarding the loss of the respondent’s parental rights
    occasioned by her absence from the first day of trial.
    In the present case, we must consider the risk of an
    erroneous deprivation of the respondent’s interest,
    given the existing procedures, and the value, if any,
    of the additional safeguard of granting the requested
    continuance. See Mathews v. Eldridge, 
    supra,
     
    424 U.S. 335
    .
    On appeal, the respondent claims that she was
    deprived of the opportunity to take part in and observe
    the first day of the termination proceedings. The respon-
    dent alleges that ‘‘[her] presence [at the first day of
    trial] was vital in order for her to properly participate
    in the trial.’’ Specifically, the respondent claims that
    she did not receive a fair trial, and her due process
    rights were violated, because ‘‘there is at least a possibil-
    ity that [she] could have provided some insight to help
    her attorney based on her observations at trial’’ had
    she been present on December 5, 2013. The respondent
    further claims that ‘‘the additional safeguard that the
    court should have allowed was determining how long
    [she] was expected to remain in the hospital and grant-
    ing a continuance if that stay was short term.’’
    The respondent also argues that in assessing the risk
    of erroneous deprivation in the present case, this court
    should consider the fact that she recalled two of the
    petitioner’s witnesses on the second day of trial. The
    respondent claims that the present case is distinguish-
    able from In re Juvenile Appeal (Docket No. 10155),
    
    187 Conn. 431
    , 
    446 A.2d 808
     (1982), because, unlike the
    incarcerated individual in that case, she availed herself
    of the opportunity to recall two witnesses for further
    cross-examination, therefore demonstrating her dissat-
    isfaction with the procedural protections invoked by
    the court in her absence. Specifically, the respondent
    claims that the present case is distinguishable from
    cases involving the termination of an incarcerated indi-
    vidual’s parental rights because she was not ‘‘expected
    to be unavailable for an extended period of time, but
    was merely temporarily hospitalized.’’ We are not per-
    suaded.
    We conclude that the second Mathews factor weighs
    in favor of the petitioner for the following reasons. First,
    the respondent was on notice of the issues to be raised
    and the testimony to be presented at the second trial
    because she had already witnessed the entire trial that
    had commenced in April, 2013, before the mistrial was
    declared. Second, the respondent has failed to establish
    exactly what assistance she might have provided her
    attorney had she been present at the first day of trial.
    We note that the respondent’s counsel was present on
    the first day of trial and represented her interests during
    her absence. This court has stated that ‘‘[i]t is in the
    interest of justice to ensure that any parent caught in
    the throes of a termination proceeding be present, or
    at least represented by counsel, from the beginning of
    the hearing.’’ (Emphasis added.) In re Jonathan P., 
    23 Conn. App. 207
    , 212, 
    579 A.2d 587
     (1990); see also In
    re Lukas K., supra, 
    120 Conn. App. 475
    .7 Accordingly,
    although the respondent was absent from the first day
    of the proceedings, her counsel was present and ade-
    quately protected her from the risk of an erroneous
    deprivation of her parental rights to her children. Third,
    our Supreme Court has found in similar instances that
    the specific procedures implemented by the court in
    the present matter were sufficient to protect the due
    process rights of a parent who was absent from a termi-
    nation proceeding due to incarceration. See, e.g., In re
    Juvenile Appeal (Docket No. 10155), supra, 
    187 Conn. 436
    –37, 441 (holding that court’s denial of motion for
    continuance did not deny incarcerated father’s right
    to due process where he was provided with complete
    transcript of first day of termination proceeding). The
    petitioner correctly notes that ‘‘[t]he trial court provided
    [the respondent] with transcripts of the testimony from
    the first day of trial, over a month to review them with
    her trial counsel and the option to recall any of the
    [p]etitioner’s witnesses.’’ Finally, the respondent had
    the opportunity to present her own witnesses or recall
    any of the petitioner’s five witnesses for cross-examina-
    tion on the second day of trial when she was present.
    The respondent testified on her own behalf and chose
    to recall two of the petitioner’s witnesses, Davis and
    Green, for further cross-examination. The respondent
    could have recalled the rest of the petitioner’s witnesses
    who testified on the first day of trial for either direct
    or cross-examination, but she chose not to do so.
    Accordingly, we conclude, on the basis of this record,
    that the risk of an erroneous deprivation under these
    circumstances was very low.
    The third factor of the Mathews balancing test con-
    cerns the government’s interest in the termination pro-
    ceeding, which is twofold. ‘‘First, the state has a fiscal
    and administrative interest in lessening the cost
    involved in termination proceedings. . . . Second, as
    parens patriae, the state is also interested in the accu-
    rate and speedy resolution of termination litigation in
    order to promote the welfare of the affected child.’’
    (Citation omitted.) In re Alexander V., 
    223 Conn. 557
    ,
    565, 
    613 A.2d 780
     (1992).
    The respondent argues that the third factor weighs
    in her favor because the burden on the government in
    granting the continuance would have been minimal.
    The respondent further argues that her temporary
    unavailability while hospitalized is distinguishable from
    the indefinite unavailability of a parent who is incarcer-
    ated, and, therefore, ‘‘there would have been little bur-
    den on the state had the continuance been granted.’’
    We disagree.
    First, ‘‘the state has a fiscal and administrative inter-
    est in lessening the cost involved in termination pro-
    ceedings.’’ In re Alexander V., supra, 
    223 Conn. 565
    . In
    the present case, the state does not suggest that the
    fiscal and administrative costs of granting a continu-
    ance would have been prohibitive. In denying the
    respondent’s motion for a continuance, however, the
    court noted the lack of alternative dates to reschedule
    the proceeding. Further, the respondent acknowledges
    that, at the time of the requested continuance, her coun-
    sel made no representation to the court indicating how
    long the respondent would be hospitalized. In light of
    the fact that all party representatives and the petition-
    er’s witnesses were present on the first day of trial, we
    conclude that delaying the proceeding by granting the
    continuance would have resulted in the very economic
    and administrative burdens on resources considered by
    this prong. See In re Candids E., 
    111 Conn. App. 210
    ,
    218, 
    958 A.2d 229
     (2008).
    Second, as parens patriae, the state is ‘‘interested
    in the accurate and speedy resolution of termination
    litigation in order to promote the welfare of the affected
    [children].’’ In re Alexander V., supra, 
    223 Conn. 565
    .
    ‘‘This furthers the express public policy of this state
    to provide all of its children a safe, stable nurturing
    environment.’’ State v. Anonymous, 
    179 Conn. 155
    , 171,
    
    425 A.2d 939
     (1979). ‘‘As the Appellate Court [has] cor-
    rectly noted, [b]ecause of the psychological effects of
    prolonged termination proceedings on young children,
    time is of the essence . . . . Accordingly, we recognize
    that the state has a vital interest in expediting the termi-
    nation proceedings . . . .’’ (Citation omitted; internal
    quotation marks omitted.) In re Alexander V., supra,
    565. Accordingly, we consider the state’s interest, as
    parens patriae, in minimizing the delay that a continu-
    ance would occasion in promptly determining the chil-
    dren’s uncertain future. See id.
    The respondent urges this court to ‘‘only weigh the
    delay that the continuance itself would have caused’’
    in assessing the third Mathews factor. We agree with
    the respondent that the mistrial was ‘‘not due to any
    fault of [hers],’’ and it is likely that ‘‘any delay [caused
    by a continuance] would have been short term, until
    the [respondent] was released from the hospital.’’ In
    assessing this prong, however, we do not consider in
    isolation the delay that the requested continuance
    would have caused. Rather, we consider the delay that
    would result from granting the continuance in the con-
    text of the age and complexity of the termination pro-
    ceedings, including, in the present case, the
    undesirability of further delay given that the termination
    petitions had previously been tried in full.
    ‘‘We have articulated a number of factors that appro-
    priately may enter into an appellate court’s review of
    a trial court’s exercise of its discretion in denying a
    motion for a continuance. Although resistant to precise
    cataloguing, such factors revolve around the circum-
    stances before the trial court at the time it rendered
    its decision, including: the timeliness of the request for
    continuance; the likely length of the delay; the age and
    complexity of the case; the granting of other continu-
    ances in the past; the impact of delay on the litigants,
    witnesses, opposing counsel and the court; the per-
    ceived legitimacy of the reasons proffered in support
    of the request; [and] the [party’s] personal responsibility
    for the timing of the request . . . .’’ (Emphasis added;
    internal quotation marks omitted.) State v. Coney, 
    266 Conn. 787
    , 801–802, 
    835 A.2d 977
     (2003).
    In the present case, the department’s extensive
    involvement with these children weighs the third
    Mathews factor in favor of the petitioner. M, now age
    five, has been removed from the respondent’s care on
    four separate occasions. Since his birth in 2010, there
    have been three instances where P has been removed
    from the respondent’s care. During these removal peri-
    ods, the children were placed in foster care. The respon-
    dent testified that she had abused an illegal substance,
    specifically, cocaine, as recently as two weeks before
    testifying. The state, as parens patriae, has a strong
    interest in promoting the type of stability and perma-
    nency in the lives of these two children that they
    undoubtedly deserve and need.
    Additionally, the protracted nature of these termina-
    tion proceedings is a factor to be considered in
    assessing the third prong of Mathews. In the present
    case, the termination petitions were previously tried in
    full over three days in April, 2013. Those proceedings
    concluded in a mistrial, however. Although the respon-
    dent is not at fault for the delay occasioned by the
    mistrial, the occurrence of a mistrial strengthens the
    state’s interest in minimizing delays in the second trial.
    Delaying the matter by granting the continuance would
    have placed an unnecessary burden on the state’s inter-
    est in providing permanency and stability to M and P.
    See In re Candids E., supra, 
    111 Conn. App. 218
    –19.
    Therefore, the third prong of Mathews favors the peti-
    tioner.
    After carefully considering the three factors of the
    Mathews balancing test, we conclude that, under these
    circumstances, the court’s failure to grant the respon-
    dent a continuance did not violate her due process
    rights to be present at the termination proceedings.
    Accordingly, the court did not err in terminating the
    respondent’s parental rights.
    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.
    ** October 28, 2014, the date that this decision was released as a slip
    opinion, is the operative date for all substantive and procedural purposes.
    1
    Paul A., the father of P, consented to the termination of his parental
    rights on November 4, 2013. In a memorandum of decision dated January
    23, 2014, the court, Hon. Barbara M. Quinn, judge trial referee, terminated
    the parental rights of Matthew P., the father of M, on the ground of abandon-
    ment and no ongoing parent-child relationship. Neither father is a party to
    this appeal. Accordingly, we refer in this opinion to the respondent mother
    as the respondent.
    2
    Specifically, the court, Hon. Barbara M. Quinn, judge trial referee, made
    the following factual findings: ‘‘[The respondent] is now twenty-seven years
    old and is the mother of the two children, [M and P]. She is the old[er] of
    two children born to her parents. She herself had an extensive history
    with [the department] as a child, due to her mother’s substance abuse,
    incarceration and exposure to domestic violence. When she was [thirteen],
    guardianship was transferred to her grandmother, who suffered from alco-
    holism and had difficulty controlling [the respondent’s] behaviors. [The
    respondent’s] own use of illegal substances began a few years earlier, at
    age eleven. She has been in and out of substance abuse treatment since
    that time. She left [the department’s] care at the age of [eighteen], but
    remained involved with adolescent services until she became [twenty-one].
    She has a good relationship with her younger sister. . . .
    ‘‘[The respondent] is a convicted felon and has many arrests and convic-
    tions in her record. She suffers from the combination of significant drug
    addiction and unsuccessfully treated mental health problems. [The] sub-
    stances she has abused include alcohol, cocaine, heroin, PCP and mari-
    juana.’’ The court further found that the respondent has been diagnosed with
    ‘‘Mood Disorder NOS, Attention Deficit Hyperactivity Disorder, Conduct
    Disorder, Antisocial Personality Disorder, anxiety and depressive
    symptoms.’’
    3
    Subsequently, on April 22, 2013, and on August 4, 2013, the respondent
    filed motions to transfer guardianship of the children to JAC. The court,
    Hon. Barbara M. Quinn, judge trial referee, denied both motions.
    4
    The court also denied the respondent’s motion to transfer guardianship
    to JAC. The respondent has not challenged this decision on appeal.
    5
    General Statutes § 17a-112 (j) (3) (B) provides in relevant part: ‘‘[T]he
    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 . . . .’’
    6
    The record reveals that the respondent’s trial counsel made an oral
    motion for a continuance, but did not formally allege a violation of the
    respondent’s due process rights. Counsel for the petitioner, however, urged
    the court to employ procedural safeguards ‘‘to both balance these children’s
    needs for permanency with mother’s due process rights.’’ The court
    responded by continuing with the proceedings, but provided that the respon-
    dent could call or recall any witnesses on the second day of trial. Accordingly,
    in enacting these procedural safeguards in the respondent’s absence, it
    appears that the court treated the respondent’s objection as alleging a depri-
    vation of the constitutionally protected right to due process of law. Cf. In
    re Lukas K., 
    120 Conn. App. 465
    , 471, 
    992 A.2d 1142
     (2010), aff’d, 
    300 Conn. 463
    , 
    14 A.3d 990
     (2011). Thus, we conclude that this constitutional issue
    was properly preserved for appellate review, and, accordingly, we proceed
    to evaluate the merits of the respondent’s due process claim.
    7
    The court in Lukas noted: ‘‘There can be, however, circumstances in a
    termination hearing in which the mere presence, alone, of a respondent’s
    counsel, is not sufficient for a court to proceed in the respondent’s absence.’’
    (Internal quotation marks omitted.) In re Lukas K., supra, 
    120 Conn. App. 475
    . This court has identified one such instance where the respondent was
    on his way to the courthouse after a writ of habeas corpus had been issued
    to ensure his presence at the hearing. See In re Jonathan P., supra, 
    23 Conn. App. 212
    –13 (holding it would have been improper for court to proceed
    before respondent arrived, even if his counsel had been in courtroom at that
    time). We conclude that, in the present case, the presence of the respondent’s
    counsel was sufficient for the court to proceed in the respondent’s absence
    in light of the other procedural safeguards employed by the court.