In re Ivory W.
| Decision Date | 31 March 2022 |
| Docket Number | SC 20624 |
| Parties | IN RE IVORY W. ET AL. [*] |
| Court | Connecticut Supreme Court |
Argued December 13, 2021
Procedural History
Petitions by the Commissioner of Children and Families to terminate the respondents' parental rights with respect to their minor children, brought to the Superior Court in the judicial district of Middlesex, Juvenile Matters at Middletown, where the court, Sanchez-Figueroa, J., denied the respondent mother's motion for a continuance; thereafter the case was tried to the court, Sanchez-Figueroa J.; judgments terminating the respondents' parental rights, from which the respondent mother appealed. Affirmed.
Dana M. Hrelic, with whom were Johanna S. Katz and, on the brief Michael S. Taylor, for the appellant (respondent mother).
Evan O'Roark, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Frank LaMonaca, Nisa Khan, and Jiilian Hira, assistant attorneys general, for the appellee (petitioner).
Robinson, C. J., and D'Auria, Mullins, Kahn, Ecker and Keller, Js.
The primary issue before us in this appeal is whether the trial court violated the constitutional due process rights of the respondent mother, Amber F., [1] when it denied her motion for a continuance of the trial on petitions to terminate her parental rights pending the conclusion of a related criminal proceeding on the ground that she could not testify in her own defense in the termination proceeding without jeopardizing her fifth amendment right to avoid incriminating herself in the criminal proceeding. The petitioner, the Commissioner of Children and Families, filed these petitions to terminate the respondent's parental rights with respect to her children, Ivory W. and Darrick B., after the respondent admitted that she had sent explicitly sexual photographs of Ivory W. to several persons, including an individual who was a registered sex offender. The respondent was indicted in federal court on charges of distributing child pornography on the basis of the same conduct. During the proceedings on the petitions, the respondent filed four motions for a continuance of the trial, contending, among other things, that a continuance was required so that she could testify in defense of the termination of her parental rights without jeopardizing her fifth amendment right to avoid incriminating herself in the criminal proceeding. The trial court granted the first three motions, but denied the last one. After the trial, the trial court rendered judgments terminating the respondent's parental rights.[2] This appeal followed.[3]
The respondent claims that the trial court's denial of her motion for a continuance violated her due process right to present a defense to the termination of her parental rights under the federal and state constitutions. The respondent further claims that, if this court determines that the denial of her motion for a continuance was constitutional, the denial was an abuse of discretion. Finally, the respondent claims that, if this court determines that the denial of her motion for a continuance was neither unconstitutional nor an abuse of discretion, this court should exercise its supervisory authority over the administration of justice to direct our trial courts to grant motions for a continuance of termination of parental rights proceedings whenever related criminal proceedings against the parent are pending. We reject the respondent's claims and affirm the judgments of the trial court.
The record reveals the following relevant procedural history and facts. On October 2, 2017, the Department of Children and Families (department) received a referral from the Hartford Police Department indicating that it had received a report from an individual that he had received sexually explicit photographs of a child from the respondent. The individual reported that he had met the respondent on a dating website and that they had been having explicit sexual conversations with each other for several days. On this particular day, the respondent had sent him photographs of her breasts and her vagina. In addition, the respondent had sent him photographs showing the vagina of a child, later determined to be Ivory, who was then four years old. The individual reported the matter because he was a registered sex offender and was worried that he might be criminally implicated.
On October 3, 2017, a social worker and a social work investigator employed by the department and several Meriden police detectives went to the respondent's residence in response to the referral. The respondent admitted to them that she had sent photographs of Ivory's vagina to multiple persons by cellphone. The respondent also indicated that she had photographs of then two year old Darrick's genitalia on her cellphone but denied sharing them with anyone.
During the October 3, 2017 visit, the social worker observed that the respondent's residence was extremely dirty and unkempt. The floors were dirty, and there were overflowing garbage bags on the kitchen floor, causing a strong odor to permeate the apartment, and bugs crawling on the countertops, walls, and ceiling. The children also were dirty and had a strong odor.
On October 12, 2017, the petitioner filed ex parte motions for orders of temporary custody and neglect petitions on behalf of Ivory and Darrick, which the trial court granted. On October 20, 2017, the court sustained the orders of temporary custody at a hearing at which the respondent appeared and ordered preliminary specific steps to be taken by the respondent to regain custody of her children.
On January 23, 2018, the court adjudicated the children neglected and committed them to the care and custody of the petitioner. The respondent entered a plea of nolo contendere and did not contest the commitment. The court also ordered final specific steps[4] and a psychological examination of the respondent.
After the initial removal of the children, the department referred the respondent to a licensed clinical social worker for individual therapy. The respondent was discharged within two weeks for failing to comply with the therapist's cancellation policy. When the department subsequently referred the respondent to another service provider for individual therapy and a psychosexual evaluation in accordance with the court-ordered specific steps, the respondent again missed numerous appointments and was unable to focus during the sessions that she did attend. She was therefore discharged from that treatment program.
On August 30, 2018, the trial court conducted a hearing on the petitioner's proposal for a permanency plan of termination of parental rights and adoption for the children.[5] Although the respondent did not agree with the plan, she indicated through counsel that she was reserving her defenses for trial. After reviewing the department's social study in support of the plan, the court, on that same date, approved the permanency plan, finding that it would be in the best interests of the children. On December 7, 2018, the children were placed in a preadoptive foster home.
Later that month, on December 12, 2018, the petitioner filed petitions seeking to terminate the respondent's parental rights as to Ivory and Darrick. Both petitions alleged that the children had been found to have been neglected, abused, or uncared for in a prior proceeding and that the respondent had failed to achieve such degree of personal rehabilitation as would encourage the belief that, within a reasonable time, she could assume a responsible position in the life of her children. See General Statutes § 17a-112 (j) (3) (B) (i). The petition regarding Ivory also alleged that she had been denied the care, guidance, or control necessary for her physical, educational, moral, or emotional well-being by reason of the respondent's acts of commission, including sexual exploitation.[6] See General Statutes § 17a-112 (j) (3) (C). The trial court scheduled a trial on the termination petitions for May, 2019. Meanwhile, in December, 2018, the respondent was indicted in federal court on charges of engaging in sexually explicit conduct for the purposes of producing sexually explicit images of children that were then transmitted to others in violation of 18 U.S.C. § 2251 (a)[7] and distributing child pornography in violation of 18 U.S.C. § 2252A (a) (2).[8]
Three days before the scheduled trial date, the respondent's counsel filed a motion to withdraw and a motion for a continuance to allow the court to appoint new counsel. The court granted both motions. Two months later, on July 18, 2019, the trial court again approved the permanency plan of termination of parental rights and adoption on the basis of an updated social study from the department.[9] The court rescheduled trial for August, 2019.
One week before the August, 2019 trial date, the respondent filed a second motion for a continuance in which she requested that the court reschedule the trial to a date after her criminal trial, which, according to the respondent, was scheduled for November, 2019. The respondent contended that the continuance was necessary so that she could testify in her own defense at the termination proceeding, as required by due process, while preserving her fifth amendment privilege against self-incrimination in connection with the criminal proceeding. The petitioner objected to the motion on the ground that it was unclear when the criminal trial would take place and that it would be detrimental to the children, who had been in foster care nearly two years, to delay a final disposition. The children's attorney also objected to the motion for a continuance out of concern that the children required permanency. The trial court...
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