In re Tremaine C.

• Decision Date: 13 October 2009
• Docket Number: No. 30083.,30083.
• Citation: 117 Conn.App. 521,980 A.2d 317
• Court: Connecticut Court of Appeals
• Parties: In re TREMAINE C.<SMALL><SUP>*</SUP></SMALL>

980 A.2d 317

117 Conn.App. 521

In re TREMAINE C.^*

No. 30083.

Appellate Court of Connecticut.

Argued June 2, 2009.

Decide October 13, 2009.

David J. Reich, for the appellant (respondent father).

Michael J. LaMonica, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Susan T. Pearlman and Renee Bevacqua Bollier, assistant attorneys general, for the appellee petitioner.

John Anthony Radziunas, for the minor child.

BEACH, ROBINSON and SCHALLER, Js.

SCHALLER, J.

The respondent father appeals from the judgment of the trial court terminating his parental rights with respect to his minor son, Tremaine. On appeal, the respondent¹ claims that his constitutional due process rights to be present at trial and to confront witnesses were violated.² We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the respondent's appeal. Tremaine was born in June, 2006. The respondent was incarcerated at the time of Tremaine's birth, and the child was removed from the mother's care when he was born because he tested positive for cocaine. After Tremaine's birth, the respondent visited with him monthly³ until the respondent was released from prison in November, 2006. He continued to visit consistently with Tremaine in December, 2006, and the first two weeks of January, 2007. The respondent's last visit with Tremaine was on January 8, 2007. After January 8, 2007, the respondent had no contact with Tremaine or with the department of children and families (department) concerning Tremaine's well-being.

On June 22, 2007, the petitioner, the commissioner of children and families, filed a termination of parental rights petition as to both parents.⁴ The respondent properly was served with the termination of parental rights petition. On July 22, 2007, the respondent was defaulted for nonappearance.

On November 7, 2007, the hearing on the termination of parental rights petition commenced as to the mother. During the hearing, the court noted the respondent's absence from the proceedings, and the default was noted on the record. Lakesha Smith, a social worker for the department, testified that she had been unable to locate the respondent because, she believed, he was attempting to evade the authorities because of an outstanding arrest warrant for a violation of probation. Smith testified that in September, 2007, she checked the department of correction Internet site for information regarding the respondent's whereabouts, but the site indicated that the respondent was unaccounted for as an "absconder." Smith also testified that she then contacted the respondent's parole officer, who informed her that the respondent was on the run from authorities. Smith testified that after the respondent was released in November, 2006, on special probation, he was arrested in the summer of 2007 and did not report for his court appearance. Finally, Smith testified that she had checked the department of correction Internet site on November 6, 2007, and determined that the respondent was still "on the run."

Smith testified that after January 8, 2007, the respondent had not seen Tremaine, had not inquired of the department or Tremaine's foster parents for information about Tremaine, had not sent letters, cards or gifts and had not sent financial support. She also testified that the respondent participated in the substance abuse evaluation to which she referred him and attended his intake appointment at New Haven Family Alliance but that he did not return for parenting services. In addition, Smith testified that the department had not been permitted to check the home listed as the respondent's mailing address⁵ to determine if it was an appropriate setting for Tremaine.

The hearing was continued to November 27, 2007, for additional testimony. On November 27, 2007, however, the hearing was continued again, this time to January 29, 2008, due to the mother's hospitalization.⁶ On January 29, 2008, Smith testified that she had had no contact with the respondent since the November 7, 2007 hearing, that the respondent had made no inquiry to her office concerning the well-being of Tremaine and that she had not received any Christmas presents, cards or letters for Tremaine from the respondent. Smith also testified that the respondent had not provided any financial support for Tremaine since the November 7, 2007 hearing. The remainder of Smith's testimony on that date related to the petition to terminate the mother's parental rights. Lauralee Candelario, a substance abuse counselor, also testified on January 29, 2008, about the mother's substance abuse issues. During closing argument, the petitioner's counsel did not address the termination of the respondent's parental rights.

On February 14, 2008, the petitioner filed a motion to open the evidence because Smith had checked the department of correction Internet site on January 30, 2008, and discovered that the respondent had been incarcerated on or about January 18, 2008. On February 26, 2008, an attorney was appointed to represent the respondent. The respondent was provided with the transcripts of both the November 7, 2007 and January 29, 2008 proceedings. The court informed the respondent that he was free to call or recall any witness to the witness stand. On April 15, 2008, the court granted the petitioner's motion to open the evidence and was ready to proceed with the termination hearing. The respondent's attorney requested a continuance to prepare adequately. The court granted the continuance, and trial was scheduled to resume on May 19, 2008.

On May 19, 2008, the respondent called Smith for purposes of cross-examination. Smith testified that she had made efforts to contact the respondent prior to November 7, 2007. Specifically, she contacted the respondent's family members and his probation officer, and she sent letters to the respondent's home. Between November 7, 2007, and January 29, 2008, Smith continued to attempt to locate the respondent. She checked the department of correction Internet site twice a month. She tried checking the department of correction site on January 28, 2008, to locate the respondent, but the site was not functioning. The respondent never informed Smith that he was incarcerated in January, 2008. Smith discovered that the respondent was incarcerated when she checked the department of correction Internet site again on January 30, 2008. On May 19, 2008, Smith also testified that although the respondent visited Tremaine in December, 2006, and January, 2007, he did not help care for Tremaine.

During closing arguments, the respondent's attorney argued for a new trial, but when questioned by the court, he withdrew the request. Instead, the respondent's attorney argued that the court should deny the petition for the termination of parental rights on the ground that the petitioner did not make reasonable efforts to locate the respondent.⁷

On May 19, 2008, the court found that the petitioner had made reasonable efforts to locate the respondent. The fact that the petitioner did not discover until January 30, 2008, that the respondent had been incarcerated sometime around January 18, 2008, did not change the court's conclusion that the petitioner had made reasonable efforts to locate the respondent. Furthermore, the court found that the respondent evaded the petitioner's attempts to locate him, presumably because he feared reincarceration, and that the respondent could not be located by the petitioner because the respondent did not want to be found. The court terminated the respondent's parental rights after finding that he had abandoned Tremaine.⁸

The respondent's claim on appeal is that the court deprived him of his constitutional due process rights to be present at trial and to confront witnesses. Specifically, he claims that "he had a due process right to be at trial once he was apprehended and incarcerated and has the right to have a new trial even if [the department] and the court were unaware that he was incarcerated." We disagree.

Because the respondent did not preserve his claim at trial, he requests review under State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989),⁹ and the plain error doctrine. See Practice Book § 60-5. Under Golding, a party "can prevail on a claim of constitutional error not preserved at trial only if all of the following conditions are met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the [petitioner] has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt. In the absence of any one of these conditions, the [respondent's] claim will fail. The appellate tribunal is free, therefore, to respond to the [respondent's] claim by focusing on whichever condition is most relevant in the particular circumstances." (Emphasis in original.) State v. Golding, supra, at 239-40, 567 A.2d 823.

In this case, there is an adequate record and a claim of constitutional magnitude implicating a fundamental right. "The right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); Lehrer v. Davis, 214 Conn. 232, 236, 571 A.2d 691 (1990); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982); State v. Anonymous, 179 Conn. 155, 162-63, 425 A.2d 939 (1979)." In re Alexander V., 25 Conn.App. 741, 743, 596 A.2d 934 (1991), aff'd, 223 Conn. 557, 613 A.2d 780 (1992). Thus, the first two Golding conditions are met, and we next consider whether a constitutional violation clearly exists and whether the respondent was...