In re Raymond B.
In re Raymond B.
Opinion
*857
The respondent mother, Brandy B., appeals from the judgment of the trial court, rendered
*858
in favor of the petitioner, the Commissioner of Children and Families (commissioner). In accordance with General Statutes § 17a-112 (j)(3)(E),
1
*477
the trial court terminated her parental rights with respect to her son, Raymond B., Jr.
2
On appeal, the respondent claims that the court improperly failed to conduct a pretrial canvass of her in accordance with our Supreme Court's decision in
In re Yasiel R.,
The facts and procedural history of this case are not in dispute. On May 29, 2014, the commissioner sought temporary custody of the respondent's minor child, Raymond B., Jr. The court found that the respondent continued to allow the child to be around her longtime boyfriend, Raymond B., Sr., 3 despite her admitted *859 knowledge that Raymond, Sr., previously had been convicted of having sexual contact with a child as well as having committed an act of domestic violence Raymond, Sr., recently had been released on probation related to another sentence, imposed for attempting to strangle the respondent. Following that domestic violence incident, the respondent applied for a restraining order against Raymond, Sr., and alleged that he had subjected her to a "continuous threat of present physical pain or physical injury." Despite this domestic violence and warnings from the Department of Children and Families (department) that Raymond, Sr., should not be allowed to have any contact with the child, the respondent allowed the child to visit with Raymond, Sr., a minimum of eleven times from February, 2013, through May, 2014. 4 The trial court, Dyer, J., granted the commissioner's petition for an order of temporary custody after finding that the child was in immediate physical danger from his surroundings.
On September 29, 2014, the commissioner filed a petition to terminate the parental rights of the respondent with respect to Raymond, Jr., her second child. 5 The trial court, Dyer, J., adjudicated the child neglected after the respondent entered a plea of nolo contendre on May 15, 2015. 6 The court found that the commissioner had proven neglect on the grounds of injurious *860 conditions. The respondent agreed to the commitment of Raymond, Jr., to the custody of the commissioner. The court *478 declared a mistrial as to the termination of the respondent's parental rights. The court granted the respondent additional time to rehabilitate in order to reunify with Raymond, Jr.
In January, 2016, the commissioner proceeded with a petition to terminate the respondent's parental rights respect to Raymond, Jr. The respondent appeared and was represented by counsel. A trial was commenced on January 11, 2016. The respondent's counsel was an active and thorough participant in the trial. The respondent's counsel raised objections to the commissioner's direct examination of witnesses, objected to the admittance of certain evidence, cross-examined witnesses and also presented a witness to testify. The child also was represented by counsel, who requested that the court grant the commissioner's petition.
At the beginning of the second day of the trial, before the commissioner rested her case-in-chief, the court, Hon. Francis J. Foley III, judge trial referee, sua sponte, canvassed the respondent in order to satisfy our Supreme Court's newly created supervisory rule regarding the termination of parental rights that was established in In re Yasiel R. 7 As part of the canvass, the trial court first advised the respondent as to the significance of her parental rights being terminated. The respondent was informed that her rights included having legal representation, questioning and confronting the witnesses who testified, objecting to testimony and evidence, submitting evidence, presenting a defense, *861 calling witnesses, and testifying or not testifying. The respondent acknowledged that she understood these rights. 8 *479 Following the canvass, the respondent did not object to the timing or the content of the court's canvass. Further, the respondent did not file a posttrial motion for a mistrial or a request to open the evidence. The respondent did not seek any other additional relief coincident with the trial.
In its memorandum of decision, the trial court found: "Based upon [the respondent's] continued involvement *862 with dysfunctional, abusive men, her inability to maintain the necessary and appropriate parental skills that have been taught to her and her failure to fully address the mental health issues of her profoundly dysfunctional youth, the court concludes that [the respondent] cannot provide the safe, structured, consistent, constant, nurturing environment that a special needs child such as [Raymond, Jr.] requires. [The respondent] has not ever witnessed or experienced appropriate parenting herself. Her life has been totally tragic and dysfunctional. There is nothing in her present circumstances that suggests that she can even independently sustain herself, not to mention her fragile, needy child.
"The court finds by clear and convincing evidence that [the respondent] is the mother of the child, under the age of seven years, who is neglected or uncared for, and that she has failed or is unable to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the [commissioner]." This appeal followed. 9
*863
The respondent claims that the trial court erred by failing to conduct a pretrial canvass of her in accordance with our Supreme Court's decision in
In re Yasiel R.,
supra,
In
In re Yasiel R.,
supra,
I
The respondent first argues that her unpreserved claim is of a constitutional nature and should be reviewed pursuant to
Golding.
"[A] [respondent] can prevail on a claim of constitutional error not preserved at trial only if
all
of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation ... exists and ... deprived the defendant of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt."(Emphasis in original; footnote omitted.)
State v. Golding,
supra,
"In accordance with our case law and rules of practice, appellate review generally is limited to issues that were distinctly raised at trial.... Only in [the] most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.... The reason for the rule is obvious: to permit a party to raise a claim on appeal that has not been raised at trial-after it is too late for the trial court or the opposing party to address the claim-would encourage trial by ambuscade, which is unfair to both the trial court
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and the opposing party."(Citations omitted; internal quotation marks omitted.)
In re Leilah W.,
The respondent has failed to sustain her burden of proof as to the third prong of
Golding.
In
In re Yasiel R.,
supra,
II
We next address the respondent's argument that the trial court's contravention of our Supreme Court's direction to conduct a canvass "at the very start of the termination trial"; id., at 794,
"[T]he plain error doctrine is reserved for truly extraordinary situations [in which] the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings.... Plain error is a doctrine that should be invoked sparingly.... Implicit in this very demanding standard is the notion ... that invocation of the plain error doctrine is reserved for occasions requiring the
*866
reversal of the judgment under review.... [I]n addition to examining the patent nature of the error, the reviewing court must examine that error for the grievousness of its consequences in order to determine whether reversal under the plain error doctrine is appropriate. A party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice." (Internal quotation marks omitted.)
State v. Miller,
The respondent in this case was canvassed. Our Supreme Court's central purpose for the canvass rule was to ensure that "the respondent fully understands his or her rights."
In re Yasiel R.,
supra,
*482
*867
In
In re Leilah W.,
Returning to the facts of this post-
In re Yasiel R.
juvenile appeal, the respondent was familiar with these proceedings, as she had twice before had her parental rights terminated, in the same courthouse, with respect to two other children. She also was on notice that her parental rights as to Raymond, Jr., were in jeopardy. After Raymond, Jr., was adjudicated neglected in May, 2015, and upon the request of the commissioner, the trial court declared a mistrial as to the termination of parental rights trial, thereby affording the respondent with additional time to attempt to rehabilitate herself as a parent. When the new termination trial commenced
*868
in January, 2016, the respondent was represented by counsel, who raised objections and presented the testimony of a witness. The facts of this case cannot in any way be marshaled as an affront to "public confidence in the process...."
In re Yasiel R.
supra,
We are not convinced that the failure to conduct the canvass upon the commencement of the trial was so significant as to affect " 'the fairness and integrity of and public confidence in the judicial proceedings,' ";
State v. Miller,
supra,
The judgment is affirmed.
In this opinion the other judges concurred.
General Statutes (Supp. 2016) § 17a-112 (j) provides in relevant part: "The Superior Court, upon notice and hearing as provided in sections 45a-716 and 45a-717, may grant a petition filed pursuant to this section if it finds by clear and convincing evidence that ... (3) ... (E) the parent of a child under the age of seven years who is neglected, abused or uncared for, has failed, is unable or is unwilling to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time, considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent's parental rights of another child were previously terminated pursuant to a petition filed by the Commissioner of Children and Families...."
We note that § 17a-112 (j)(3)(E) was amended in 2015; see Public Acts 2015, No. 15-159, § 1; however, the amendment is not relevant to this appeal. For convenience, references herein are to the revision codified in the 2016 supplement to the General Statutes.
In the same proceeding, the child's father, Justin P., appeared before the trial court with counsel, but during the pendency of the case he filed an affidavit consenting to the termination of his parental rights. The trial court canvassed Justin P. and found that he knowingly and voluntarily consented to the termination. Justin P. has not appealed from the trial court's judgment. Throughout this opinion, we refer to Brandy B. as the respondent.
Raymond, B., Sr., is not related to Raymond, B., Jr. Throughout this opinion we refer to them as Raymond, Sr., and Raymond, Jr., respectively.
As a result of the last of these several visits, Raymond, Sr., was arrested because his probation orders prohibited him from having contact with an unrelated child.
The respondent's parental rights previously were terminated with respect to her first child, Makayla. During the May 15, 2015 termination trial, the respondent consented to the termination of her parental rights with respect to her third child, Nashton.
The court canvassed the respondent after she entered her plea. The court thereafter stated: "The court canvass[ed] [the respondent] and finds that [the respondent's] plea of no contest was knowingly, voluntarily and [understood by the respondent] after the adequate advice and assistance from counsel with a full understanding of her rights. The court finds a factual basis for the plea. The plea is accepted and may be recorded."
The court stated: "I think that in an abundance of caution, I am going to give [the respondent mother] the In re Yasiel R. advisement. I don't think she needs it. She's exercising all of her legal rights-usually that relates to people who don't exercise their legal rights-and the other reason is that she's been through this process twice in the past, so she knows what I'm going to tell her. But I'm going to advise you in any event."
The court canvassed the respondent as follows: "In a termination of parental rights hearing, you should understand that in the event the court terminates your parental rights, this will result in the end of your legal relationship with the child. You'll have no legal rights, no authority, no responsibility, and you will no longer have the right to make any decisions of any kind affecting the minor child. You will not be entitled to any state or federal benefits or entitlements, and the child, if the court grants the termination of parental rights, will be eligible to be adopted.
"At this hearing, you have the right to be represented by a lawyer, and you do have a lawyer. Attorney [Alyssa S.] Pershan is a licensed lawyer in the state of Connecticut who is qualified to represent people before this court.
"She-you have the right to question and confront any of the witnesses against you that may be brought in by the Department of Children and Families, and to have your lawyer test their memory to determine if they are being truthful. You have the right to object to any testimony. You have the right to an admission of any documents-you have the right to object to the admission of any documents, including social studies or psychological reports, and your lawyer has been exercising that right right along.
"You have the right to make any objections in accordance with the rules of evidence. You have the right to present your defense, if any, to this case. You may call your own witnesses to assist you. You may testify if you want to testify, but you don't have to testify because you have the right to remain silent. But you do have the right to tell your side of the story if you wish. If you do not testify, the court could draw an adverse inference against you. I can tell you that I will not do that.
"And, finally, you are advised that if you do not present any witnesses on your own behalf and do not object to any testimony, the court will decide the matter based upon the evidence that has been properly presented.
"Do you think you understand those rights?"
The respondent answered yes.
At the close of oral argument before this court, Chief Judge DiPentima thanked the parties for agreeing to expedite the case so that it could be heard before the court adjourned for the 2015-2016 term. This effort was in keeping with our Supreme Court's emphasis on expedient resolution of juvenile matters: "It is universally recognized that delay in determining whether to terminate parental rights can cause serious and potentially irreparable harm in the lives of the young children who are involved in the termination proceedings. The legislature also has recognized the potential for such harm in General Statutes § 46b-142 (d), which provides: Notwithstanding subsections (a), (b) and (c) of this section, the Department of Children and Families, or any party to the action aggrieved by a final judgment in a termination of parental rights proceeding, shall be entitled to
an expedited hearing
before the Appellate Court. A final decision of the Appellate Court
shall be issued as soon as practicable
after the date on which the certified copy of the record of the case is filed with the clerk of the Appellate Court." (Emphasis in original; internal quotation marks omitted.)
In re Yasiel R.,
The respondent has not claimed any error as to the content of the canvass.
We note that the question of whether the supervisory rule announced in
In re Yasiel R.
should be continued to be applied retroactively is before our Supreme Court in
In re Egypt E.,
SC 19643 and SC 19644. Additionally, the commissioner's petition for certification to appeal from this court's decision in
In re Daniel N.,
The respondent has interpreted our decision in
In re Daniel N.,
supra,
The Supreme Court's supervisory rule in
In re Yasiel R.
regarding the pretrial canvassing of parents in termination trials was announced after the termination trial in
In re Daniel N.
had been conducted. This court concluded that the rule that was adopted by our Supreme Court in
In re Yasiel R.
was retroactive to termination trials that were conducted prior to its announcement.
In re Daniel N.,
supra,
This court in
In re Daniel N.
was compelled to order a new termination trial because the respondent had not been canvassed in accordance with the recently created supervisory rule. The absence of the canvass in that case eliminated the precise safeguard that our Supreme Court put in place for all termination of parental rights trials, irrespective of any considered analysis of whether the parent understood the nature of the proceedings, his or her rights, and the consequences of termination. See
In re Yasiel R.,
supra,
As this court noted in
In re Leilah W.,
Reference
- Full Case Name
- In Re RAYMOND B., JR.
- Cited By
- 3 cases
- Status
- Published