In re Yasiel R.

• Decision Date: 11 July 2014
• Docket Number: No. 36298.,36298.
• Citation: 151 Conn.App. 710,94 A.3d 1278
• Court: Connecticut Court of Appeals
• Parties: In re YASIEL R. et al.

151 Conn.App. 710

94 A.3d 1278

In re YASIEL R. et al.^*

No. 36298.

Appellate Court of Connecticut.

Argued April 7, 2014.

Decided July 11, 2014.^**

James P. Sexton, assigned counsel, Cheshire, for the appellant (respondent mother).

Stephen G. Vitelli, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

Karen O. Damboise, for the minor children.

GRUENDEL, BEACH and NORCOTT, Js.

GRUENDEL, J.

The respondent mother appeals from the judgments of the trial court terminating her parental rights as to her minor children, Yasiel R. and Sky R.¹ On appeal, the respondent claims that the court was required to canvass her personally about her decisions not to contest the exhibits presented to the court by the petitioner, the Commissioner of Children and Families, and to waive her right to a full trial, pursuant to (1) Practice Book § 35a–1²and (2) constitutional due process requirements. We affirm the judgments of the trial court.

The record discloses the following relevant factual and procedural history. The respondent's “fourth child, Yasiel, was born to [the respondent] when she was twenty-two years old. The father ... was fifteen years old when he impregnated [the respondent]. [The respondent] was subsequently arrested for statutory rape. [The father] moved in with [the respondent] while she was pregnant. After the child was born, [the respondent] reported that [the father] became increasingly violent. She said she did not want to remain in the relationship and wished to leave, but she became pregnant with Sky, her fifth child, in July, 2009, only four months after Yasiel was born.” The two children were removed from the respondent's care on September 21, 2011. The respondent was thereafter provided with supervised visitation and transportation.

Due to the respondent's various arrests and her mental health and substance abuse issues, the petitioner filed petitions to terminate her parental rights in November, 2012. According to the petitioner, the court, on December 11, 2012, advised the respondent of her trial rights, entered denials to the petitions on her behalf, and appointed her an attorney.³ A contested hearing then was scheduled for November 12, 2013. At that hearing, the respondent's counsel stated that “although [the respondent is] not in agreement with the [termination of parental rights], she cannot bring herself to consent today. That being said, she's in agreement with the court taking the case on the papers. She's in agreement to the exhibits that ... have been entered.” Her counsel then stated that the respondent “wants the court to be aware that things have significantly changed for her over the last two years” and continued to explain those changes.⁴ At no time did the court canvass the respondent personally to question her decisions not to contest the petitioner's exhibits and to waive her right to a full trial. It stated only that “I think I understand your position, and I will certainly consider that [you've made great progress] when I'm reviewing all the material....”

In its November 13, 2013 memorandum of decision, the court terminated the parental rights of the respondent. In so doing, the court held that the petitioner had proved, by clear and convincing evidence, that (1) the children were neglected or uncared for in a prior proceeding, (2) the respondent was provided specific steps to take to facilitate the return of the children, and (3) 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 children, such parent could assume a responsible position in the lives of the children. The court also held that, in considering all the statutory criteria set forth in General Statutes § 17a–112 (k), termination was in the best interests of the children. This appeal followed.

The respondent concedes that she failed to preserve for review the issue of whether the court erred in failing to personally canvass her at the trial stage of the termination proceedings. “Such objection would have alerted the court to the claim of error, afforded the court an opportunity to address the claim on the record and, if necessary, to take corrective action in advance of an appeal.” State v. Elson, 125 Conn.App. 328, 348–49, 9 A.3d 731 (2010), rev'd in part on other grounds, 311 Conn. 726, 91 A.3d 862 (2014). Furthermore, “[i]t is the appellant's responsibility to present such a claim clearly to the trial court.... For us [t]o review [a] claim, which has been articulated for the first time on appeal and not before the trial court, would result in a trial by ambuscade of the trial judge.” (Internal quotation marks omitted.) Feen v. New England Benefit Cos., Inc., 81 Conn.App. 772, 776, 841 A.2d 1193, cert. denied, 269 Conn. 910, 852 A.2d 739 (2004). For this reason, we ordinarily limit our review on appeal to issues that were distinctly raised at trial and ruled on by the court. We may, however, consider unpreserved claims under the rubric of plain error or, if it concerns an alleged constitutional error, under State v. Golding, 213 Conn. 233, 567 A.2d 823 (1989). The respondent argues that we are able to review the merits of her claims through these alternative avenues.

I

The respondent argues that the court, in violation of Practice Book § 35a–1, failed to canvass her personally about her decisions not to contest the petitioner's exhibits and to waive her right to a full trial. We disagree.

The respondent first contends that although she did not object to the court's failure to comply with Practice Book § 35a–1, the issue is reviewable on appeal because the judge is presumed to know the statutes and the rules of practice that govern the cases he adjudicates. This argument is contrary to the plain language of Practice Book § 60–5, which provides in relevant part: “The court shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial....”

The respondent alternatively argues that the judgments of the court should be reversed because its oversight constituted plain error. Practice Book § 60–5, in addition to the aforementioned provision, also provides in relevant part that “[t]he [reviewing] court may in the interests of justice notice plain error not brought to the attention of the trial court.” The plain error doctrine, however, is “not ... a rule of reviewability. It is a rule of reversibility.... It is a doctrine that should be invoked sparingly and only on occasions requiring the reversal of the judgment under review.... Plain error review is reserved for truly extraordinary situations where the existence of the error is so obvious that it affects the fairness and integrity of and public confidence in the judicial proceedings....

“We engage in a two step analysis in reviewing claims of plain error. First, we must determine whether the trial court in fact committed an error and, if it did, whether that error was indeed plain in the sense that it is patent [or] readily discernable on the face of a factually adequate record, [and] also ... obvious in the sense of not debatable.... [T]his inquiry entails a relatively high standard, under which it is not enough for the defendant simply to demonstrate that his position is correct. Rather, the party seeking plain error review must demonstrate that the claimed impropriety was so clear, obvious and indisputable as to warrant the extraordinary remedy of reversal.... Because [a] party cannot prevail under plain error unless it has demonstrated that the failure to grant relief will result in manifest injustice ... under the second prong of the analysis we must determine whether the consequences of the error are so grievous as to be fundamentally unfair or manifestly unjust.” (Citations omitted; emphasis omitted; internal quotation marks omitted.) Clougherty v. Clougherty, 131 Conn.App. 270, 273–74, 26 A.3d 704, cert. denied, 302 Conn. 948, 31 A.3d 383 (2011).

The respondent argues that plain error review is warranted because the court failed to abide by the rules of practice, namely, Practice Book § 35a–1. She supports her argument by citing State v. Pina, 185 Conn. 473, 482, 440 A.2d 962 (1981), which held that “a trial court's failure to follow the mandatory provisions of a statute prescribing trial procedures is plain error ... [and that the] failure to follow a procedural rule is similarly erroneous.” (Citation omitted.) She then concludes that the court's “oversight not only violated our rules of practice, but jeopardized [her] core due process rights and deprived her of a fundamentally fair hearing.” She further contends that “this error is both obvious on its face and impugns procedures designed to ensure a fair hearing, thereby undermining public confidence in Connecticut's judicial proceedings....” The petitioner, in contrast, claims that the “court did not infringe on [the respondent's] opportunity to receive a fair trial” and therefore did not commit plain error. We agree with the petitioner that plain error review is not warranted in the present appeal.

The respondent's argument ignores pertinent precedent delineated by our Supreme Court in State v. Myers, 290 Conn. 278, 963 A.2d 11 (2009). In Myers, the defendant was charged in the first part of a two part information with, inter alia, possession of narcotics with intent to sell. The state also charged him in the second part of the information, part B, seeking an enhanced sentence for his alleged violation of the repeat offender provisions of General Statutes § 21a–277 (a). Id., at 281–82, 963 A.2d 11. The jury found the defendant guilty of the narcotics charges, and the defendant's counsel waived a jury trial on part B of the information. The defendant did not raise the issue before the trial court, but later...