In re Jacquelyn W.

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IN RE JACQUELYN W.*
(AC 39013)
Beach, Prescott and Bishop, Js.
Argued September 8—officially released October 27, 2016**
(Appeal from Superior Court, judicial district of
Hartford, Juvenile Matters, Frazzini, J. [neglect
judgment]; Burgdorff, J. [motion for order of
commitment]; Hon. Robert G. Gilligan, judge trial
referee [motion to transfer permanent guardianship;
articulation].)
Karen Oliver Damboise, for the appellant (respon-
dent mother).
Carolyn A. Signorelli, assistant attorney general,
with whom, on the brief, were George Jepsen, attorney
general, Gregory T. D’Auria, solicitor general, and Ben-
jamin Zivyon, assistant attorney general, for the appel-
lee (petitioner).
Opinion
BEACH, J. The respondent mother, Wendy F., appeals
from the judgment of the trial court rendered in favor
of the petitioner, the Commissioner of Children and
Families, granting a motion to transfer permanent legal
guardianship of the respondent’s minor daughter, Jac-
quelyn W., to Jacquelyn’s aunt, Shirley R. The respon-
dent claims that the court improperly granted the
petitioner’s motion for permanent transfer of guardian-
ship because the court failed (1) to canvass her prior
to the hearing in accordance with In re Yasiel R., 317
Conn. 773, 120 A.3d 1188 (2015); and (2) to advise her
that the court could draw an adverse inference from her
failure to testify. We disagree and affirm the judgment of
the trial court.
The record reveals the following relevant facts and
procedural history. Jacquelyn was born in 2005. In 2012,
the court adjudicated Jacquelyn neglected and ordered
six months protective supervision by the Department
of Children and Families (department). Six months
later, the court granted the petitioner’s motion to com-
mit Jacquelyn to the department’s care and custody.
From September, 2013, until June, 2015, Jacquelyn
resided with her paternal aunt, Shirley R. Jacquelyn
developed a strong relationship with Shirley. She
referred to Shirley as ‘‘Auntie,’’ and had her own room in
Shirley’s apartment. While living with Shirley, Jacquelyn
continued to have regular visits and contact with her
mother. Jacquelyn expressed a desire to maintain her
relationship with her mother, but to continue to reside
with Shirley. On June 1, 2015, the petitioner moved to
transfer and to vest permanent legal guardianship of
Jacquelyn in Shirley. The respondent mother objected
to the motion.
The court, Hon. Robert G. Gilligan, judge trial ref-
eree, conducted a hearing on the motion on January
25, 2016. The respondent was represented by counsel
at this hearing, but did not testify. On February 9, 2016,
the court granted the petitioner’s motion for a perma-
nent transfer of legal guardianship. The court deter-
mined that, pursuant to General Statutes § 46b-129 (j)
(6), the department had established by clear and con-
vincing evidence that (1) a ground for termination of
parental rights existed—that is, that the respondent had
been provided with specific steps to take to facilitate
Jacquelyn’s return, and had failed to achieve the degree
of personal rehabilitation as would encourage the belief
that, within a reasonable time, the respondent could
assume a responsible position in Jacquelyn’s life; (2)
adoption was not appropriate in this case; (3) Shirley,
the proposed legal guardian, was Jacquelyn’s relative;
(4) Jacquelyn had resided with Shirley for at least one
year; (5) Shirley was a suitable and worthy guardian;
and (6) the transfer of permanent legal guardianship of
Jacquelyn to her aunt was in Jacquelyn’s best interest.
This appeal followed.
I
Prior to trial, the court did not provide the respondent
with the In re Yasiel R. canvass, nor was it requested
to do so. The respondent argues that the court’s failure
to provide a pretrial canvass constituted plain error, and
that this court should invoke its supervisory authority to
expand the canvass requirement to apply to hearings
regarding the permanent transfer of guardianship. We
disagree.
In In re Yasiel R., supra, 317 Conn. 773, our Supreme
Court held that parents must be canvassed prior to any
trial for termination of parental rights. Id., 793–94. As
part of that canvass, the court must explain the trial
process, the parent’s rights during trial, and the poten-
tial consequences of an adverse determination in the
proceeding. Id., 794.
The respondent’s claim regarding the canvass was
not preserved at trial. In re Yasiel R. had been published
shortly before trial in this case; the parties, then, had
the ability to invoke In re Yasiel R. and to request a
canvass, but did not do so. In these circumstances,
reversal would constitute an ambuscade of the trial
court; see Remillard v. Remillard, 297 Conn. 345, 352,
999 A.2d 713 (2010); and we would not reach the merits
of the issue unless application of another doctrine were
to except this case from the requirement of preser-
vation.
The court’s holding in In re Yasiel R. pertained to
a trial concerning the termination of parental rights;
accordingly, the fact that the respondent here was not
canvassed prior to the hearing regarding a permanent
transfer of legal guardianship does not constitute plain
error. The plain error doctrine1 is not available because
the In re Yasiel R. canvass requirement has not been
extended to require a canvass in the context of this case;
without a requirement to canvass, there is no error.
Additionally, our Supreme Court held in In re Yasiel
R. that the canvass was not constitutionally required;
In re Yasiel R., supra, 317 Conn. 787; and, therefore,
the claimed error is not of constitutional dimension.
Accordingly, the issue is not reviewable under Golding.2
The only other possible avenue for review of the unpre-
served claim is the invocation of our supervisory
authority.
The respondent argues that this court should exercise
its supervisory authority to extend the holding of In re
Yasiel R. to proceedings regarding permanent transfers
of legal guardianship. The respondent argues that such
expansion is appropriate in this case because perma-
nent transfers of guardianship are sufficiently similar
to terminations of parental rights to warrant a similar
canvass. In re Yasiel R. held that, with respect to termi-
sory authority was justified by the appearance of
‘‘unfairness’’ and ‘‘lack of concern over a parent’s rights’’
that results from a transfer of guardianship without a
pretrial canvass. In re Yasiel R., supra, 317 Conn. 794.
The respondent suggests that the same considerations
compel a similar exercise of supervisory authority in
this case.
In response, the petitioner asserts that the use of
supervisory authority to expand the In re Yasiel R.
canvass requirement is not appropriate. First, the peti-
tioner argues that our Supreme Court limited the can-
vass requirement to termination of parental rights
hearings, and that this court should not construe In
re Yasiel R. more broadly than it was intended. The
petitioner points out that the use of a court’s supervi-
sory powers ‘‘is an extraordinary remedy’’ to be invoked
only when the issue at hand is ‘‘of utmost seriousness’’;
(internal quotation marks omitted) id., 789–90; and that
the consequences following a permanent transfer of
guardianship do not justify the imposition of such an
extreme remedy. In that vein, the petitioner argues that
a permanent transfer of guardianship does not qualify
as an ‘‘exceptional circumstance’’ warranting the use
of our supervisory powers. We agree with the petitioner.
‘‘It is well settled that [a]ppellate courts possess an
inherent supervisory authority over the administration
of justice.’’ (Internal quotation marks omitted.) In re
Yasiel R., supra, 317 Conn. 789. ‘‘The exercise of our
supervisory powers is an extraordinary remedy to be
invoked only when circumstances are such that the
issue at hand, while not rising to the level of a constitu-
tional violation, is nonetheless of utmost seriousness,
not only for the integrity of a particular trial but also
for the perceived fairness of the judicial system as a
whole.’’ (Internal quotation marks omitted.) Id., 790.
Three criteria must be met in order for this court to
consider exercising its supervisory authority: (1) the
record must be adequate for review; (2) all parties must
be afforded an opportunity to be heard on the issue; and
(3) review of an unpreserved claim must not prejudice a
party. Id. ‘‘If these three threshold considerations are
satisfied, the reviewing court next considers whether
one of the following three circumstances exists: (1) the
parties do not object; (2) the party that would benefit
from the application of this court’s supervisory powers
cannot prevail; or (3) a claim of exceptional circum-
stances is presented that justifies deviation from the
general rule that unpreserved claims will not be
reviewed.’’ Id.
We decline to exercise our supervisory authority to
expand the In re Yasiel R. ruling to permanent transfers
of guardianship. Although the threshold considerations
for exercising our supervisory authority may well be
met, the circumstances of this case do not satisfy the
second set of requirements: the circumstances are not
exceptional to the degree necessary to justify exercising
our supervisory authority.
In In re Yasiel R., our Supreme Court recognized that
‘‘the lack of a canvass of all parents in a parental rights
termination trial may give the appearance of
unfairness’’; id., 793–94; and 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 . . . .’’
Id., 794. In deciding that the use of its supervisory
authority was appropriate, the court considered the
core rights at stake during a termination of parental
rights trial, including ‘‘fundamental parental rights and
right to family integrity . . . .’’ Id., 792. Although a par-
ent’s rights are affected by a permanent transfer of
guardianship, the consequences of a permanent transfer
are not as severe as a complete termination of a parent’s
rights. In this case, for example, it was expected that
the respondent mother would continue to have regular
visits and contact with her daughter, even after the
transfer of guardianship. Jacquelyn resides with a rela-
tive, but she has expressed the desire to continue her
relationship with the respondent. Although the transfer
of guardianship is by no means insignificant, it is not
as drastic a deprivation as a termination of parental
rights, and we decline to exercise our supervisory
authority to require a pretrial canvass beyond that
which In re Yasiel R. requires.3
II
The respondent next claims that the court erred by
drawing an adverse inference from her failure to testify
at trial without first advising her that such an inference
could be made. Because the record does not reflect
that the court drew such an inference, we disagree with
the respondent’s claim.
In support of her claim that the court drew an adverse
inference from her failure to testify, the respondent
relies on one sentence in the trial court’s memorandum
of decision: ‘‘The court was presented with no evidence
of any progress by [the respondent] despite having more
than ample time to encourage the belief that she could
assume a responsible position in the life of Jacquelyn.’’
The respondent argues that, in accordance with our
Supreme Court’s decision in In re Samantha C., 268
Conn. 614, 847 A.2d 883 (2004), the court erred in draw-
ing an adverse inference from the respondent’s silence
without first warning her that such an inference could
be taken.
The petitioner responds that the court did not draw
an adverse inference from the respondent’s silence, and,
therefore, there was no error in not warning the respon-
dent that an adverse inference could be drawn from
her failure to testify. The petitioner argues that, on a
reading of the trial court’s decision as a whole, it is clear
that the court’s statement was merely ‘‘an appropriate
observation about the evidentiary record,’’ and not an
adverse inference taken from the respondent’s silence.
Furthermore, the petitioner points out that the court
later articulated that it had not drawn an adverse infer-
ence from the respondent’s failure to testify. The peti-
tioner argues that the court’s articulation requires the
conclusion that no adverse inference was drawn in this
case. We agree with the petitioner.
‘‘We begin our analysis of the respondent’s claim by
noting that the question of whether the court drew an
adverse inference in the present case requires us to
interpret the court’s memorandum of decision. The con-
struction of a judgment is a question of law for the
court, such that our review of the defendant’s claim is
plenary. As a general rule, judgments are to be con-
strued in the same fashion as other written instruments.
. . . The determinative factor is the intention of the
court as gathered from all parts of the judgment.’’ (Inter-
nal quotation marks omitted.) In re Jason B., 137 Conn.
App. 408, 414, 48 A.3d 676 (2012).
In 2004, our Supreme Court held that ‘‘a trier of fact
generally may draw an adverse inference against a party
for its failure to rebut evidence’’; In re Samantha C.,
supra, 268 Conn. 637; but ‘‘respondents [are] entitled
to be notified by the court of the prospect that an
adverse inference might be drawn from their silence.’’
Id., 666; see also Practice Book § 35a-7A. If the court
is not inclined to draw an adverse inference against a
respondent, such warning is not required. In re Lukas
K., 120 Conn. App. 465, 475 n.4, 992 A.2d 1142 (2010),
aff’d, 300 Conn. 463, 14 A.3d 990 (2011).
The respondent argues that the court’s statement that
it ‘‘was presented with no evidence of any progress by
[the respondent]’’ reveals that the court drew an adverse
inference against the respondent. Even if this statement
in a vacuum could be construed as ambiguous, it does
not suggest that any such inference was drawn. The
trial court specifically stated that its decision was
‘‘[b]ased on the testimonial and documentary evidence
admitted,’’ including the department’s social study and
case status report, as well as testimony from Shirley
and from Jacquelyn’s social worker. The court noted
that the department’s social study ‘‘document[ed] the
multiple services offered to [the respondent] to address
her substance abuse, mental health and parenting issues
. . . [and her] failure to engage and comply with, or
fully benefit from, the programs and services offered
or provided, which resulted in [her] leaving or being
unsuccessfully discharged from the services . . . .’’ As
stated in the context of another case, ‘‘[w]hen read in
light of these statements, it is clear that the evidence
submitted by the petitioner . . . was found by the
court to be both credible and wholly uncontested by
the respondent.’’ In re Jason B., supra, 137 Conn. App.
415–16. The sentence at issue simply states that there
was no evidence of progress.
Moreover, at the petitioner’s request, the trial court
issued an articulation confirming that ‘‘[t]he court did
not draw any adverse inference from the respondent
mother’s failure to testify, and such failure was not
given any consideration in ruling on the matter.’’ The
respondent argues that, despite the court’s statements
in its articulation, its first decision reveals that an
adverse inference was drawn. The respondent dis-
misses the court’s articulation too easily. ‘‘In the interest
of judicial economy and proper presentation of the
issues on appeal, this court has repeatedly . . . relied
on those articulations to resolve the issues on appeal.’’
In re Nevaeh W., 317 Conn. 723, 738, 120 A.3d 1177
(2015). We conclude that we have no reason to doubt
the veracity of the court’s articulation, which estab-
lishes that the trial court did not draw an adverse infer-
ence against the respondent for failing to testify.
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.
** October 27, 2016, the date that this decision was released as a slip
opinion, is the operative date for all substantive and procedural purposes.
1
‘‘The plain error doctrine is reserved for truly extraordinary situations
where the existence of the error is so obvious that it affects the fairness
and integrity of and public confidence in the judicial proceedings. . . . 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. Smith, 275 Conn. 205, 240, 881 A.2d 160 (2005).
We perceive no manifest injustice from the record in this case.
2
See State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989) (‘‘a
defendant can prevail on a claim of constitutional error not preserved at
trial only if . . . (3) the alleged constitutional violation . . . exists and
. . . deprived the defendant of a fair trial,’’ as modified by In re Yasiel R.,
supra, 317 Conn. 781).
3
We note as well that there is nothing in the record to suggest that anything
different would have occurred at trial had the suggested canvass been given
or that the respondent suffered any actual harm as a result of the absence
of such a canvass.