IN RE LEILAH W.
(AC 38620)
Appellate Court of Connecticut
Argued April 7-officially released June 3, 2016
DiPentima, C. J., and Keller and Prescott, Js.
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David E. Schneider, Jr., for the appellant (respondent father).
Cynthia Mahon, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D‘Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).
Rebecca Mayo Goodrich, for the minor child.
Opinion
PRESCOTT, J. The respondent father, Richard L., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his daughter, Leilah W.1 On appeal, the respondent claims that the court improperly (1) failed to conduct a pretrial canvass of him in accordance with our Supreme Court‘s decision in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015); and (2) determined, in accordance with
The record reveals the following relevant facts, which are uncontested or were found by the trial court, and procedural history. Leilah was born on September 2, 2013. On September 26, 2013, the respondent was arrested on burglary charges and incarcerated. The Department of Children and Families (department) obtained an order in October, 2013, granting the petitioner temporary custody of Leilah after her mother tested positive for opiates and marijuana. The petitioner subsequently filed a neglect petition. Both the application for the order of temporary custody and the neglect petition identified Leilah‘s father as Kenneth A.; however, a December 16, 2013 paternity test later revealed that Kenneth A. was not Leilah‘s biological father.
Leilah was adjudicated neglected on February 11, 2014, and committed to the care and custody of the petitioner. On March 21, 2014, a paternity test identified the respondent as Leilah‘s biological father.3 The petitioner filed a motion on
On May 19, 2015, the petitioner filed a petition to terminate the parental rights of Leilah‘s mother and the respondent. The petitioner also filed a social study in support of that petition. With respect to the respondent, the petition sought termination on the ground that no ongoing parent-child relationship existed between the respondent and Leilah. On July 15, 2015, over the objection of the respondent, the court approved a permanency plan of termination and adoption. At that time, Leilah‘s mother consented to termination of her parental rights.
Shortly thereafter, the petitioner successfully moved to amend the termination petition with respect to the respondent. The amended petition was filed on August 5, 2015, and included as an additional ground for termination that Leilah previously had been adjudicated neglected and that, considering Leilah‘s age and needs, the respondent had failed to achieve a degree of personal rehabilitation necessary to encourage a belief that he could assume a responsible position in Leilah‘s life within a reasonable amount of time. With the amended petition, the petitioner also filed an amended social study.
A trial was conducted on the operative amended petition on October 5, 2015, before Judge Ginocchio. The respondent was represented by counsel throughout the proceedings. Both the petitioner and the respondent presented exhibits and called witnesses. The petitioner‘s sole witness was Reagan Horvay, the department social worker assigned to Leilah‘s case. Horvay was cross-examined extensively by the respondent‘s attorney. The respondent testified on his own behalf and also presented testimony from Elizabeth Cooper, a counselor with the Department of Correction, and Carl Hoyt, the department social worker case aide who supervised his visitations with Leilah. The attorney for the minor child presented testimony from Leilah‘s foster mother.
Shortly after the close of evidence, the assistant attorney general representing the petitioner informed the court that it had not conducted a canvass of the respondent prior to the start of trial in accordance with our Supreme Court‘s recent decision in In re Yasiel R., supra, 317 Conn. 773. In In re Yasiel R., which was decided on August 18, 2015, less than two months prior to the start of the respondent‘s trial, our Supreme Court held that due process did not require a trial court to canvass a parent in a termination proceeding regarding her counsel‘s decision not to contest the evidence presented against her and to waive her right to a full trial. Id., 787-88. Nevertheless, pursuant to the court‘s supervisory powers over the administration of justice, it stated that “public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately
To remedy its oversight in the present case, the court asked the parties to return to court on October 7, 2015, at which time the court advised the respondent that it had failed to canvass him in accordance with In re Yasiel R. prior to trial. The court indicated that although the respondent had been afforded a full trial with an attorney present, it nevertheless was obligated to advise the respondent of certain rights and to provide him with an opportunity to consult with his attorney regarding those rights. The following colloquy ensued:
“The Court: So what I would have said before trial is, before we begin this hearing on the termination of parental rights petition, the parent should understand that in the event the court terminates your parental rights this will result in the end of your legal relationship with your child. You will have no legal rights, no authority and no responsibility for the child. You will no longer have any rights to make decisions of any kind affecting the child. You will not be entitled to any state or federal benefits or entitlements on behalf of the child. The child will be eligible to be adopted.
“And I‘m assured that you and Attorney [Brya Ann] Darley [the respondent‘s counsel] did discuss all that before the trial. Correct?
“[The Respondent]: Yes, sir.
“The Court: And Attorney Darley-
“[The Respondent‘s Counsel]: Yes, Your Honor.
“The Court:—you confirmed that?
“It goes on to say, at the hearing you will have the right to be represented by an attorney, you will have your lawyer with you, your lawyer will help protect your legal rights. Those legal rights include the right to question, confront and cross examine any witness to test their memory and determine if they are telling the truth. You will have the right to object to testimony and to the admission of any documents or exhibits including any social studies or psychological reports. The objections must be made in accordance with the rules of evidence. You will have the right to have your own defense put on for you and you may call your own witnesses to assist you in challenging the allegations made against you. You have the right to testify—that is, tell your side of the story if you want to do so, but no one can make you testify because you‘ll still have the right to remain silent. If you do not testify the court could draw an adverse inference against you—that means the court could decide that you were not testifying because your testimony would not be helpful to you. Finally, you are advised that if you do not present any witness on your own behalf or do not cross examine witnesses, the court will decide the matter based upon the evidence presented at the trial.
“Do you have any questions you wish to ask, please consult with your attorney first. So, I‘ll have you consult with your lawyer and then let me know if you have any questions about what I‘ve just read to you.
“[The Respondent]: I have no questions, sir.
“The Court: All right. And anything further on that?
“[The Respondent‘s Counsel]: No, Your Honor.
“The Court: All right. So the record shall reflect that I did canvass him pursuant to the supervisory authority of the Supreme Court of the State of Connecticut.”
The hearing concluded shortly thereafter. At no time during the hearing did the respondent or his counsel voice any objection regarding either the content of the court‘s canvass or its failure to conduct the canvass pretrial. The respondent did not file any posthearing motion seeking a mistrial, asking to reopen the evidence, or requesting any other additional relief.
The court issued a written decision on October 26, 2015, granting the petition to terminate the parental rights of the respondent and, by consent, Leilah‘s mother. With respect to the respondent, the court found that the petitioner had proven by clear and convincing evidence both grounds for termination asserted in the operative amended petition.
First, the court found, pursuant to
Second, the court found that the petitioner also had proven by clear and convincing evidence that termination of parental rights was appropriate because the respondent lacked any parent-child relationship with Leilah. The court found the following facts particularly relevant to this ground for termination. Despite being aware during the mother‘s pregnancy that he potentially could be the father, the respondent “yielded to the mother‘s request to allow [Kenneth A.] to take responsibility for Leilah.” The respondent, who has been incarcerated for much of Leilah‘s life, has visited with Leilah only once a month, and, because of his incarceration, his contact during visits was restricted. For example, he was not permitted to hold her, feed her, comfort her, or change her. Although Leilah sometimes referred to the respondent as “daddy,” she also referred
After considering and making written findings regarding the criteria set forth in
I
The respondent first claims that he is entitled to a new trial because the court improperly failed to conduct a pretrial canvass of him in accordance with the supervisory rule announced by our Supreme Court in In re Yasiel R., supra, 317 Conn. 773. He argues that the court‘s effort to advise him of his rights after the close of evidence was insufficient to remedy the error because it failed to satisfy the purpose underlying the pretrial canvass mandated by In re Yasiel R. The petitioner, on the other hand, responds that, under the facts of this case, which are distinct from those that led to the decision in In re Yasiel R., the trial court did not commit reversible error by providing the canvass after the close of evidence, and the respondent has failed to demonstrate how he was prejudiced by the late canvass. We agree with the petitioner.
At the outset, we note that the respondent never distinctly raised any claim of error before the trial court regarding the canvass and, thus, failed to properly preserve his claim for appellate review.7 After the court acknowledged its error in failing to canvass the respondent at the start of the trial, it attempted to remedy that error by providing an advisement of rights after the close of evidence. The respondent and his counsel acquiesced to the late canvass, never indicating to the court any dissatisfaction with the court‘s actions or arguing that the respondent had been irreparably harmed and a new trial was necessary.
In accordance with our case law and rules of practice, appellate review generally is limited to issues that were distinctly raised at trial. State v. Canales, 281 Conn. 572, 579, 916 A.2d 767 (2007); see also Practice Book § 60-5 (“court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose
It is equally well settled, however, that a reviewing court, although not bound to consider a claim that was not raised to the trial court, may do so at its discretion. See Persico v. Maher, 191 Conn. 384, 403, 465 A.2d 308 (1983) (although appellate court not bound to consider unpreserved claims of error, it may elect to do so on occasion, “not by reason of the appellant‘s right to have it determined but because in our opinion in the interest of public welfare or of justice between individuals it ought to be done” [internal quotation marks omitted]). We are unaware of any statutory or procedural rule limiting that discretion. Several reasons convince us to review the respondent‘s claim in this instance, despite his failure to raise any issues before the trial court.8
First, the petitioner will not be unfairly prejudiced if we review the claim. She has fully addressed the merits of the respondent‘s claim in her brief, and, although as part of that discussion she mentions that the respondent never raised any issue concerning the late canvass to the trial court, she does not directly assert that the respondent failed to preserve his claim or provide analysis of that issue. Second, the precise contours of our Supreme Court‘s decision in In re Yasiel R. have yet to be fully explored or explained, and, thus, our consideration of the issue raised by the respondent may be beneficial in defining the parameters of this new supervisory rule. Finally, because the trial court acknowledged its error in failing to give the required canvass prior to the start of trial, our review of the respondent‘s claim, particularly whether that error should automatically result in a new trial, would not amount to the type of ambush of the trial court that we ordinarily attempt to avoid by eschewing review of unpreserved claims.9 Whether the trial court‘s failure to strictly comply with the rule announced in In re Yasiel R. warrants the granting of a new trial raises a mixed question of law and fact over which we exercise plenary review. See In re Joseph W., 121 Conn. App. 605, 616, 997 A.2d 512 (2010), aff‘d, 301 Conn. 245, 21 A.3d 723 (2011); see also In re Daniel N., 163 Conn. App. 322, [REDACTED] A.3d [REDACTED] (2016). Having decided to exercise our discretion to review the respondent‘s unpreserved claim, we turn to our consideration of its merits.
Our Supreme Court exercised its supervisory powers in In re Yasiel R. to announce a new rule that, although not constitutionally required, it concluded was necessary to protect the perceived fairness of the judicial system with regard to termination of parental rights proceedings. In setting forth the parameters of its newly crafted canvass requirement, our Supreme
Although this court recently held that the In re Yasiel R. canvass requirement must be applied retroactively, and we ordered a new trial in a termination proceeding in which the parent never received a canvass regarding his rights; In re Daniel N., supra, 163 Conn. App. 333-37; we are unconvinced under the facts of the present case that the trial court‘s failure strictly to comply with the Supreme Court‘s supervisory rule by canvassing the respondent after the close of evidence at the termination trial ended requires reversal of the judgment of termination and a new trial. We agree with the petitioner that our Supreme Court‘s decision in State v. Smith, 275 Conn. 205, 881 A.2d 160 (2005), is instructive in resolving the respondent‘s claim because it demonstrates that a trial court‘s failure to comply with a supervisory rule does not automatically require reversal and a new trial in all cases.
In Smith, the defendant raised an unpreserved claim that he was entitled to a new criminal trial because the trial court had utilized language in its instructions to the jury that our Supreme Court, pursuant to its supervisory powers, previously had instructed courts to refrain from using. Id., 237; see also State v. Aponte, 259 Conn. 512, 522, 790 A.2d 457 (2002). The Supreme Court determined, consistent with its decision in Aponte, that the trial court‘s use of the prohibited language did not implicate the defendant‘s
With respect to whether the trial court‘s action amounted to plain error, the Supreme Court explained that although it had directed trial courts to discontinue use of the challenged jury instruction language because it was concerned about the danger of misleading the jury, it was unconvinced in the case before it that any such danger actually existed or that the trial court‘s error in using the language was “so significant as to affect the fairness and integrity of or the public confidence in the proceeding.” Id., 240. Similarly, the Supreme Court declined to reverse the judgment on the basis of its supervisory authority, stating: “The trial court‘s failure to heed our direction to discontinue the use of the challenged jury instruction was not such an extraordinary violation that it threatened the integrity of the trial, and it certainly did not rise to the level of implicating the perceived fairness of the judicial system as a whole. The defendant does not suggest that the trial court deliberately disregarded this court‘s mandate. Nor do we consider a new trial necessary to emphasize the importance of our direction in Aponte to the trial courts of this state.” Id., 242. In other words, merely demonstrating that a trial court has violated a supervisory mandate is not alone enough to warrant a reversal. The party raising the issue of noncompliance also must demonstrate actual harm.
In the present case, the trial court‘s noncompliance with our Supreme Court‘s supervisory rule does not rise to the level of reversible error. It is undisputed that the trial court failed to heed the new rule that our Supreme Court announced less than two months prior to the beginning of the respondent‘s trial, requiring a brief pretrial canvass of all parents subject to termination of their parental rights sufficient to convince the trial court that the parent fully understands his or her rights and the consequences of the termination proceeding. Nevertheless, as in Smith, there is nothing in the record that indicates that the court deliberately chose not to conduct the mandated canvass. Further, although not conducted before trial, the court did conduct a canvass of the respondent immediately after the trial and before any decision was rendered on the petition. Although this was not the procedure envisioned by our Supreme Court, and, accordingly should be avoided, if any concerns arose regarding the respondent‘s understanding of his trial rights, the trial court could have reopened the evidence to allow for additional proceedings if necessary.
In canvassing the respondent after the close of evidence, the court fully advised the respondent of his rights as a parent in a termination proceeding, including potential consequences. The respondent acknowledged that he had been informed of these same rights prior to trial by his attorney. The court gave the respondent an opportunity to consult with his attorney after the canvass, and the respondent indicated that he had no questions. There was no request for any additional consultation time or a continuance. At no time did the respondent or his counsel voice any objection to the trial court regarding the timing of the canvass or its content.10 The respondent did not move for a mistrial, and never asked the court to reopen the evidence so that he could present any additional witnesses, raise challenges to the petitioner‘s exhibits or recall witnesses for cross-examination. Although the respondent argues on appeal that it was useless for the court to provide a canvass after the evidence was admitted and the witnesses questioned, he fails to explain how he would have proceeded differently had the court properly canvassed him prior to the start of trial.
On the basis of our review of the trial court‘s canvass, we conclude that the court reasonably could have concluded that the respondent fully understood the trial process, the rights he had during the trial, and the potential consequences of the termination of his parental rights. The stated purpose underlying our Supreme Court‘s supervisory rule appears to have been effectuated in the present case. The respondent has failed to demonstrate that he was harmed by the trial court‘s failure to canvass him prior to the start of trial, and we do not believe that it is necessary to reverse the judgment simply to emphasize the importance of compliance with our Supreme Court‘s holding in In re Yasiel R. Accordingly, we reject the respondent‘s claim.
II
The respondent next claims that the court improperly concluded that termination
We begin by setting forth applicable legal principles, including our standard of review. “A hearing on a termination of parental rights petition consists of two phases, adjudication and disposition. . . . In the adjudicatory phase, the court must determine whether the [petitioner] has proven, by clear and convincing evidence, a proper ground for termination of parental rights. . . . In the dispositional phase, once a ground for termination has been proven, the court must determine whether termination is in the best interest of the child.” (Citations omitted.) In re Vincent D., 65 Conn. App. 658, 664-65, 783 A.2d 534 (2001).
“Failure of a parent to achieve sufficient personal rehabilitation is one of six statutory grounds on which a court may terminate parental rights pursuant to
“Personal rehabilitation as used in [
“A conclusion of failure to rehabilitate is drawn from both the trial court‘s factual findings and from its weighing of the facts in assessing whether those findings satisfy the failure to rehabilitate ground set forth in
Before turning to the court‘s determination that the respondent has failed to rehabilitate, we address what we construe as challenges to the subordinate factual findings of the court. First, the respondent argues that the court improperly found that the “adjudicatory date” was May 19, 2015, whereas the correct date was actually August 5, 2015. Second, the respondent argues that although the court based its failure to rehabilitate conclusion in part on the respondent‘s unaddressed mental health issues, “there was no reliable evidence that he had unaddressed mental health issues and that they needed to be addressed.” We address each argument in turn.
A
The respondent first argues that the court improperly found that the “adjudicatory date” was May 19, 2015. “In the adjudicatory phase of a termination proceeding, the court is limited to considering events that precede the date of the filing of the petition or the latest amendment to the petition, also known as the adjudicatory date. Practice Book § [35a-7] (a). The court may consider, however, events occurring after the adjudicatory date during the dispositional phase of a termination proceeding. Practice Book § [35a-9].” In re Sheena I., 63 Conn. App. 713, 721, 778 A.2d 997 (2001). Furthermore, “the court may rely on events occurring after the [adjudicatory] date . . . when considering the issue of whether the degree of rehabilitation is sufficient to foresee that the parent may resume a useful role in the child‘s life within a reasonable time.” (Emphasis omitted; internal quotation marks omitted.) In re Selena O., 104 Conn. App. 635, 646, 934 A.2d 860 (2007).
In the present case, the court never specifically identifies May 19, 2015, as the “adjudicatory date” in its memorandum of decision. However, the court does indicate that the petition for termination was filed on May 19, 2015. The court never mentions that an amended petition was filed on August 5, 2015. Because the adjudicatory date is the date
B
The respondent also challenges the court‘s finding that, despite his participation in several programs while incarcerated, he had unaddressed mental health issues “including a bipolar disorder that has been largely left untreated.” The respondent argues that there was no testimony presented at trial from a mental health pro-vider or exhibit offered at trial indicating that the respondent had any mental health issues that needed to be addressed. We disagree.
As we have often repeated, “[b]ecause it is the trial court‘s function to weigh the evidence and determine credibility, we give great deference to its findings. . . . In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. Instead, we make every reasonable presumption . . . in favor of the trial court‘s ruling.” (Internal quotation marks omitted.) In re Severina D., 137 Conn. App. 283, 292, 48 A.3d 86 (2012). As the petitioner correctly indicates in her brief, there is ample evidence in the record to support the court‘s findings concerning the respondent‘s mental health, including admissions by the respondent.
For example, the amended social study filed with the operative petition was admitted as a full exhibit at trial without objection, and the court was entitled to rely upon that exhibit in support of its findings. See In re Tabitha P., 39 Conn. App. 353, 368, 664 A.2d 1168 (1995). In the amended social study, the department summarized information that it had obtained regarding the respondent‘s mental health issues, including information obtained during telephone conversations with the respondent. According to the study, the respondent was diagnosed with bipolar disorder in 2002, and he had received extensive psychiatric care as an adolescent. Prior to incarceration, the respondent was receiving disability benefits for bipolar disorder. In addition to the social study, during her direct testimony, Horvay testified that the respondent had indicated when he became a party to the proceedings that he was bipolar and that he receives social security disability benefits, which he planned to continue receiving after his release from prison. She described him as having “vacillated from wanting to address [his bipolar disorder], to not wanting to address it,” but had shared that his medication in the past had caused him to gain weight and that he “didn‘t want to be on medications again.” Horvay also testified that the department believed the respondent needed to address his mental health issues despite the respondent‘s
On the basis of the aforementioned evidence and our review of the record, making every reasonable presumption in favor of upholding the court‘s factual findings as we must, we believe that the court‘s finding that the respondent continued to suffer from bipolar disorder that remained largely untreated is supported by the record and, thus, not clearly erroneous.
C
Finally, we turn to the court‘s ultimate conclusion that the respondent had failed to rehabilitate. The respondent argues that the court relied too heavily upon his past incarceration and events prior to Leilah‘s birth as the basis for that conclusion. He contends that, contrary to the court‘s decision, he has achieved the requisite degree of personal rehabilitation. He points to the fact that he is no longer incarcerated, having been released to a halfway house. The respondent explains that the halfway house will assist him “in obtaining housing and getting into appropriate programs.” He asserts that he is committed to being a better father and that he wants a relationship with his child. He notes that he completed a substance abuse program while incarcerated and that he participated in the Inside Out Dad Program, a parenting course for incarcerated fathers. Although the record certainly reflects that the respondent has made some strides toward improving his ability to manage his own life, on the basis of our review of the record as a whole, we are convinced that there is sufficient evidence to sustain the court‘s conclusion that he has failed to rehabilitate to a sufficient degree necessary to encourage a belief that he could assume a responsible role in Leilah‘s life in a reasonable period of time given her age and needs.
The respondent‘s suggestion that his incarceration was the principal factor relied upon by the trial court in reaching its decision is simply not supported by the record. Rather, this was only one of many factors considered by the court. Moreover, it was entirely appropriate for the court to take the respondent‘s incarceration into consideration in deciding the issue of whether the respondent had failed to rehabilitate. Although incarceration certainly is not indicative of abandonment of a child and never, in and of itself, provides a proper basis for terminating parental rights; see In re Katia M., 124 Conn. App. 650, 661, 6 A.3d 86, cert. denied, 299 Conn. 920, 10 A.3d 1051 (2010); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 443, 446 A.2d 808 (1982); “incarceration nonetheless may prove an obstacle to reunification due to the parent‘s unavailability“; In re Katia M., supra, 661; and, thus, is properly considered by the court in considering whether to terminate parental rights on the ground of failure to rehabilitate. Id., 664-65.
The court acknowledged that the respondent had made some progress, as evidenced by the programs that he had completed while incarcerated. Nevertheless, the court concluded that the respondent had failed to demonstrate “any significant period of sobriety, employment and lack of criminal activity while in the community.” In reaching that conclusion, the court not only had evidence of the respondent‘s most recent incarceration, but his extensive criminal history, which comprised more than twenty criminal convictions dating back to 2008, including several
In sum, we conclude on the basis of our review of the record that there was sufficient evidence to support the court‘s conclusion that there was clear and convincing evidence that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable period of time, he could assume a responsible position in Leilah‘s life.
The judgment is affirmed.
In this opinion the other judges concurred.
* In accordance with the spirit and intent of
** Subsequent to oral argument, Chief Judge DiPentima replaced Justice Borden on the panel, and she has reviewed the record, briefs and the recording of the oral argument prior to participating in the decision of this appeal.
*** June 3, 2016, the date that this decision was released as a slip opinion, is the operative date for all substantive and procedural purposes.
PRESCOTT, J.
JUDGE OF THE APPELLATE COURT