In re Elijah G.-R., AC 38623

• Court: Appellate Court of Connecticut
• Decision Date: 07 July 2016
• Docket Number: AC 38623
• Parties: IN RE ELIJAH G.-R.

IN RE ELIJAH G.-R.^*

AC 38623

COURT OF APPEALS OF THE STATE OF CONNECTICUT

Argued May 16, 2016

July 7, 2016^**

Beach, Prescott and Bishop, Js.

(Appeal from Superior Court, judicial district of New London, Child Protection Session at Waterford, Driscoll, J.)

Jeffery R. Berry, for the appellant (respondent mother).

Daniel M. Salton, 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).

Don M. Hodgdon, for the minor child.

Opinion

PRESCOTT, J. The respondent, Deborah G., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating her parental rights with respect to her son, Elijah G.-R.¹ On appeal, the respondent claims that the court improperly (1) failed to conduct a pretrial canvass of her in accordance with our Supreme Court's decision in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015); (2) determined, in accordance with General Statutes § 17a-112 (j) (1), that the petitioner had proven by clear and convincing evidence that the Department of Children and Families (department) had made reasonable efforts to reunify her with Elijah; and (3) determined, in accordance with § 17a-112 (j) (2) and (k), that the petitioner had proven by clear and convincing evidence that termination of her parental rights was in the best interest of Elijah. We affirm the judgment of the trial court.

The record reveals the following relevant facts, as set forth by the trial court in its oral memorandum of decision, and procedural history. "When Elijah was born, [the respondent] was residing in a drug treatment facility for mothers and children. [The respondent] had entered the facility shortly before Elijah was born, asserting that she had used crack cocaine during her pregnancy. [After Elijah was born, the petitioner] learned that [the respondent] had left the facility without permission and [had] used crack cocaine, thus subjecting herself and Elijah to discharge.

"The [petitioner] imposed a [ninety-six] hour administrative hold on Elijah [who was approximately one month old] on January 22, 2013. On January 23, 2013, an [ex parte] order of temporary custody was sought by the [petitioner] and a neglect petition was filed. The order of temporary custody was granted by Judge Mack.²

"On February 1, 2013, [the respondent] appeared, was appointed counsel, and filed a written plea of nolo contendere, which was accepted, and Elijah was adjudicated neglected and committed to [the petitioner] . . . ." (Footnote added.)

"[The respondent was issued court-ordered specific steps for reunification, which] included in significant part that she cooperate and make progress in individual and parenting counseling, that she cooperate with substance abuse treatment, that she not use illegal drugs, that she obtain an adequate home and income, that she immediately advise [the department] of the status of her household especially with regard to the child's safety, and that she visit Elijah as often as permitted."

On October 22, 2014, the petitioner filed a petition to terminate the parental rights of Elijah's father and the respondent. With respect to the respondent, thepetition sought termination on the ground that Elijah had been adjudicated neglected or uncared for, and 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 child, she could assume a responsible position in his life. See General Statutes (Supp. 2016) § 17a-112 (j) (3) (B) (i).³

A trial was conducted on the petition over the span of five days between May 28, and June 29, 2015. Both the petitioner and the respondent presented exhibits and called witnesses. The respondent testified on her own behalf.⁴ In total, thirty exhibits were presented, and nine witnesses were called.

The court issued an oral decision on October 27, 2015, granting the petition to terminate the parental rights of the respondent and Elijah's father. With respect to the respondent, the court found that the petitioner had proven by clear and convincing evidence the ground for termination asserted in the petition. The court also found, pursuant to § 17a-112 (j) (1), that the department had made reasonable efforts to reunify Elijah with the respondent and that the respondent was unable or unwilling to benefit from reunification efforts.

Having found that the ground for termination had been proven, the court considered the appropriate disposition of the child and made written findings regarding the best interest of the child pursuant to the criteria set forth in § 17a-112 (k). On the basis of these findings, the court determined by clear and convincing evidence that termination of the parental rights of the respondent and the father was in the best interest of Elijah. Accordingly, the court terminated the parental rights of both parents, and appointed the petitioner as Elijah's statutory parent for the purpose of securing his adoption by his foster parents. This appeal followed.⁵ Additional facts will be set forth as necessary.

I

The respondent first 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., supra, 317 Conn. 773. Specifically, she alleges that the supervisory rule announced in In re Yasiel R. required the court to canvass her prior to the start of trial and that the timing of the court's canvass after the trial had ended, but before the court issued its decision, automatically requires the judgment terminating her parental rights to be reversed and a new trial ordered. The petitioner responds that the supervisory rule announced In re Yasiel R. should not be applied retroactively, and, even if it is retroactive, any error in conducting the canvass is subject to harmless error analysis, and no harm occurred as a result of the untimely canvass inthis case. We agree in part with the petitioner. Specifically, we conclude that the respondent has failed to establish that she was harmed by the In re Yasiel R. canvass being conducted after the close of evidence but prior to the court rendering its decision, and, thus, she is not entitled to a new trial.

The following additional facts and procedural history are necessary for our review of this claim. After trial, but prior to the trial court rendering its decision, our Supreme Court decided In re Yasiel R., supra, 317 Conn. 773. In In re Yasiel R., which was released on August 18, 2015, less than two months after the completion of the respondent's trial, our Supreme Court held that, pursuant to the court's supervisory powers over the administration of justice, "public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences." (Emphasis added.) Id., 794.

In an attempt to comply with this new rule, the court requested the parties to return to court on August 31, 2015. The court informed the parties, including the respondent and her trial attorney, Ryan Ziolkowski, of our Supreme Court's recent holding in In re Yasiel R. and canvassed her as follows: "[O]ur Supreme Court recently issued a decision in the case of In re Yasiel R. The decision came out approximately two weeks ago, and in it, [the court] indicated that there was an advisement [it wishes] the trial court to provide prior to the commencement of all termination cases, and they applied it retroactively in the case of In re Yasiel R.

"So, despite the fact that this case had concluded in terms of evidence, I have ordered it brought back in for the purpose of giving [the respondent] the following advisement.

"There is pending a termination of parental rights petition, and you should be aware that if granted, it would result in the end of your legal relationship with Elijah. You would have no legal rights, no authority, and no responsibility for Elijah. You would no longer have any right to make any decisions of any kind affecting your son.

"You would not be entitled to any state or federal benefits or entitlements that are based upon you being Elijah's mother. Elijah would be eligible to be adopted. You would not be able to obtain Elijah's birth certificate.

"Unless and until the termination petition is granted, you remain Elijah's legal mother, responsible for his financial support and entitled to all of those benefits I just described.

"Now, you have an attorney and your attorney wouldalways assist you with any defenses you may have had to the [petitioner's] allegations. As you are or should be aware, you did not have to prove anything at trial. That [the petitioner] has the burden of proving [the] case by clear and convincing evidence. And during that trial, you had legal rights, including the right to confront witnesses and to have your lawyer cross-examine those witnesses to determine the credibility of their testimony. You had a right to object to the admission of any documents or exhibits including social studies or psychological reports. You had the right to bring in your own witnesses and you did produce witnesses to assist you in challenging the allegations. You had the right to testify, and that is to tell your side of the story, present your case if you wanted to. You did not have to. You chose to.

"Now, I'm going to advise you as to an adverse inference even . . . though it's moot in this case, meaning it would not happen.

"If you had not testified, the court could have drawn an adverse inference against you; that is the court could decide you did not testify because you felt your testimony would not be helpful to you or would be...