In re Josiah D., 011321 CTCA, AC 44096

Docket Nº:AC 44096
Opinion Judge:LAVINE, J.
Party Name:IN RE JOSIAH D. ET AL. [*]
Attorney:Karen Oliver Damboise, for the appellant (respondent father). Kim Mathias, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon and Evan O'Roark, assistant attorneys general, for the appellee (petitioner).
Judge Panel:Bright, C. J., and Lavine and Elgo, Js.
Case Date:January 13, 2021
Court:Appellate Court of Connecticut

IN RE JOSIAH D. ET AL. [*]

No. AC 44096

Court of Appeals of Connecticut

January 13, 2021 [***]

Argued November 9, 2020

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 Fairfield, Juvenile Matters, where the matter was tried to the court, Brillant, J.; judgments terminating the respondents' parental rights, from which the respondent father appealed to this court.

Affirmed.

Karen Oliver Damboise, for the appellant (respondent father).

Kim Mathias, assistant attorney general, with whom, on the brief, were William Tong, attorney general, and Benjamin Zivyon and Evan O'Roark, assistant attorneys general, for the appellee (petitioner).

Bright, C. J., and Lavine and Elgo, Js. [**]

OPINION

LAVINE, J.

The respondent father, Geraldo D. (father), appeals from the judgments of the trial court rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his sons, Josiah D. (Josiah) and Jovani D. (Jovani) (collectively, sons or boys), 1 on the ground that he had failed to achieve a sufficient degree of personal rehabilitation pursuant to General Statutes § 17a-112 (j) (3) (B) (i). On appeal, the father does not challenge the trial court's findings and conclusions but claims that (1) the court committed reversible error by failing to notify him that it would be drawing an adverse inference from his decision not to testify in accordance with Practice Book § 35a-7A and In re Samantha C., 268 Conn. 614, 847 A.2d 883 (2004), and (2) this court should exercise its supervisory authority to adopt a canvass requiring the trial court to notify the father that the court would draw an adverse inference upon his decision not to testify. The petitioner counters that the court properly notified the father in accordance with Practice Book § 35a-7A, but if this court determines that the court's notice was improper, the error was harmless, as it did not adversely affect the outcome of the trial.2 We conclude that the court properly notified the father that it may draw an adverse inference from his decision not to testify and decline the father's invitation to exercise our supervisory authority to require any notice beyond what is required by Practice Book § 35a-7A. We affirm the judgments of the trial court.

‘‘Proceedings to terminate parental rights are governed by § 17a-112. . . . Under [that provision], a hearing on a petition to terminate parental rights consists of two phases: the adjudicatory phase and the dispositional phase. During the adjudicatory phase, the trial court must determine whether one or more of the . . . grounds for termination of parental rights set forth in § 17a-112 [(j) (3) (B) (i)] exists by clear and convincing evidence. The [petitioner] . . . in petitioning to terminate those rights, must allege and prove one or more of the statutory grounds. . . . Subdivision (3) of § 17a-112 (j) carefully sets out . . . [the] situations that, in the judgment of the legislature, constitute countervailing interests sufficiently powerful to justify the termination of parental rights in the absence of consent. . . . Because a respondent's fundamental right to parent his or her child is at stake, [t]he statutory criteria must be strictly complied with before termination can be accomplished and adoption proceedings begun.'' (Internal quotation marks omitted.) In re Tresin J., 334 Conn. 314, 322-23, 222 A.3d 83 (2019). ‘‘If the trial court determines that a statutory ground for termination exists, it proceeds to the dispositional phase. In the dispositional phase, the trial court determines whether termination is in the best interests of the child.'' (Internal quotation marks omitted.) In re Destiny R., 134 Conn.App. 625, 629, 39 A.3d 727, cert. denied, 304 Conn. 932, 43 A.3d 660 (2012).

The record discloses that employees of the Department of Children and Families (department) had been involved with the boys' family since 2004, as a result of a referral regarding one of their mother's older children. In May, 2016, and again in November, 2016, the petitioner filed neglect petitions and motions for orders of temporary custody with respect to the boys, but subsequently withdrew them and the boys were returned to their parents. The department, however, continued to be involved with the family in connection with the mother's older child and pursuant to a referral from local police. The petitioner invoked a ninety-six hour administrative hold on the boys on March 24, 2017. On March 28, 2017, the petitioner filed motions for orders of temporary custody and neglect petitions as to each of the boys. On May 31, 2017, the court, Ginocchio, J., adjudicated the boys neglected. On April 13, 2018, the petitioner filed petitions for the termination of the parental rights of the father and the mother as to each of the boys. As to the father, the petitioner alleged, pursuant to § 17-112 (j) (3) (B) (i), that, in a prior proceeding, the boys were found to have been neglected, abused, or uncared for, and that the father had failed to achieve a sufficient degree of personal rehabilitation that would encourage the belief that within a reasonable time considering the ages and needs of his sons, the father could assume a responsible position in their respective lives.

The termination of parental rights trial was held before the court, Brillant, J., on September 24, 25, and 26, and December 10, 2019. On February 24, 2020, the court issued a memorandum of decision, which included the procedural history, the court's factual findings and conclusions, and an order terminating the father's parental rights as to the boys. In its decision, the court noted that the father had appeared for trial and was represented by counsel.3 The court advised the father of his rights pursuant to In re Yasiel R., 317 Conn. 773, 794, 120 A.3d 1188 (2015).4 The court noted that the petitioner had introduced twenty-eight exhibits and called eight witnesses at trial. The father was represented by counsel, but he ‘‘did not introduce any exhibits, did not testify on his own behalf, and did not call any witnesses.'' The court stated that it drew ‘‘an adverse inference with regard to [the] [f]ather.'' At the petitioner's request, the court took judicial notice of the court record.

The court found that on February 10, 2017, local police reported to the department that a motorist had seen then three year old Josiah running across the street in heavy traffic. Josiah had been playing in the yard of the family home under the father's supervision, but the father did not realize that Josiah had left the yard until he saw him across the street with the motorist and the police. At the time, the department investigated the family home and found that it was cluttered and needed to be cleaned.

On March 23, 2017, an elementary school staff member reported to the department that Josiah had not attended preschool since March 9, 2017. The department attempted to visit the family home on March 23, 2017, but no one was home. The department visited the nearby maternal grandmother's home. The maternal grandmother informed the department that due to intimate partner violence between the father and the mother, she financially assisted the mother in leaving the home the mother shared with the father. The department returned to the home and met the father, who informed the department that the mother had taken the boys on avacation because he and the mother could not afford heat or electricity in the home. The department observed that the home was cold, cluttered with laundry, smelled of dirty diapers, and appeared to be without electricity.

On March 24, 2017, the department invoked a ninety-six hour administrative hold on the boys due to its concerns regarding their lack of adequate housing. On March 28, 2017, the court, Hon. Jonathan J. Kaplan, judge trial referee, granted the petitioner's motions for orders of temporary custody of the boys. The petitioner had filed neglect petitions on behalf of each of the boys as to each of his parents on March 17, 2017. On May 31, 2017, Judge Ginocchio adjudicated the boys neglected and committed them to the care of the petitioner.5 On February 8, 2018, Judge Ginocchio and, on January 10, 2019, the court, Maronich, J., approved the department's permanency plans for termination of the father's parental rights as to his sons and for the boys to be adopted. On April 13, 2018, the petitioner filed petitions for termination of the father's parental rights as to his sons, alleging in part that the father had failed to achieve the degree of personal rehabilitation that would encourage the belief that within a reasonable time, considering the age and needs of the boys, the father could assume a responsible position in their lives pursuant to § 17-112 (j) (3) (B) (i).[6]

The court found that the father was born in 1975, and that he has a wife and two children in Brazil. His primary language is Portuguese, and he relies on the mother for interpretation. He is an undocumented individual, who works as a landscaper, and has no criminal history in the United States. In June, 2017, after the boys had been committed to the petitioner's care, the father was referred to the Midwestern Connecticut Council of Alcoholism, Inc. (MCCA) for a substance abuse and mental health assessment. His test results were negative and no treatment recommendations were made for him. In September, 2018, the father again was referred to MCCA to confirm that he had no substance abuse issues, but he did not comply with the referral.

Although the father had no...

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