In re Jacquelyn W.
150 A.3d 692
| Conn. App. Ct. | 2016Background
- Jacquelyn (b. 2005) was adjudicated neglected in 2012; DCF initially provided protective supervision and later custody/commitment.
- From Sept. 2013–June 2015 Jacquelyn lived with her paternal aunt, Shirley, formed a strong bond, and wished to remain with Shirley while maintaining contact with her mother (respondent).
- On June 1, 2015 the Commissioner of Children and Families (petitioner) moved to transfer permanent legal guardianship to Shirley; the respondent mother objected.
- A hearing was held Jan. 25, 2016; the respondent, represented by counsel, did not testify. On Feb. 9, 2016 the court granted the petitioner’s motion, finding by clear and convincing evidence the statutory factors for transfer were satisfied and that transfer was in the child’s best interest.
- The respondent appealed, arguing (1) the court failed to canvass her before trial as required by In re Yasiel R., and (2) the court drew an adverse inference from her silence without warning her that such an inference could be taken.
Issues
| Issue | Plaintiff's Argument (Petitioner) | Defendant's Argument (Respondent) | Held |
|---|---|---|---|
| Whether court must canvass parent before a hearing to transfer permanent guardianship (per In re Yasiel R.) | In re Yasiel R. canvass is limited to TPR trials; no canvass required for guardianship transfer | Failure to canvass was plain error and supervisory authority should extend Yasiel R. to guardianship transfers | Court declined to extend Yasiel R.; no plain error because Yasiel R. applies to termination of parental rights only; supervisory authority not warranted here |
| Whether court erred by drawing adverse inference from respondent's failure to testify without warning her | No adverse inference was drawn; court relied on documentary and testimonial record | Court’s memorandum suggested an adverse inference; respondent was entitled to warning per In re Samantha C. | Court found no adverse inference; articulation confirmed court did not consider respondent’s silence |
Key Cases Cited
- In re Yasiel R., 317 Conn. 773 (Conn. 2015) (requires pretrial canvass of parents in termination of parental rights trials to explain process, rights, and potential consequences)
- In re Samantha C., 268 Conn. 614 (Conn. 2004) (trier may draw adverse inference from failure to rebut evidence but respondent must be warned that silence may be used against them)
- Remillard v. Remillard, 297 Conn. 345 (Conn. 2010) (a party cannot ambush a trial court on appeal; preservation rules apply)
- State v. Golding, 213 Conn. 233 (Conn. 1989) (standards for appellate review of unpreserved constitutional claims)
- In re Jason B., 137 Conn. App. 408 (Conn. App. 2016) (judgments construed by reading the entire decision; uncontroverted evidence may support findings)