In re Yasiel R.

• Decision Date: 18 August 2015
• Docket Number: No. 19372.,19372.
• Citation: 120 A.3d 1188,317 Conn. 773
• Parties: In re YASIEL R. et al.
• Court: Connecticut Supreme Court

317 Conn. 773

120 A.3d 1188

In re YASIEL R. et al.^*

No. 19372.

Supreme Court of Connecticut.

Argued Feb. 11, 2015.

Decided Aug. 18, 2015.

James P. Sexton, assigned counsel, with whom was Michael S. Taylor, West Hartford, for the appellant (respondent).

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 Oliver Damboise, for the minor children.

Christine Perra Rapillo, director of delinquency defense and child protection, filed a brief for the Office of the Chief Public Defender as amicus curiae.

ROGERS, C.J., and PALMER, ZARELLA, EVELEIGH, McDONALD, ESPINOSA and VERTEFEUILLE, Js.

Opinion

EVELEIGH, J.

This certified appeal raises important issues concerning the review of unpreserved claims under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), and our supervisory authority over the administration of justice in connection with the need to canvass a parent in a termination of parental rights proceeding. The present case arises from the trial court's judgments terminating the parental rights of the respondent mother, Ashley P., to her two minor children.¹ On appeal, the Appellate Court concluded that, in order to prevail on an unpreserved claim under Golding, which requires that a party establish that an alleged constitutional violation “clearly exists,” a party must point to binding Connecticut precedent. In re Yasiel R., 151 Conn.App. 710, 721, 94 A.3d 1278 (2014). The respondent appeals, upon our grant of certification,² claiming that: (1) the Appellate Court improperly construed the third prong of Golding ; (2) because her right to due process was violated, she can prevail under Golding; and (3) even if her right to due process was not violated, this court should nonetheless reverse the Appellate Court's judgment under our supervisory authority because the trial court failed to canvass her regarding her decision to waive her right to a trial and to not contest the allegations of the petitioner, the Commissioner of Children and Families.³ We conclude, contrary to the Appellate Court, that the absence of existing Connecticut precedent does not preclude consideration of a claim under Golding, but we are not convinced that the trial court's failure to canvass the respondent constituted a denial of her right to due process under the fourteenth amendment to the United States constitution. We are, however, convinced that we are warranted in using our supervisory authority over the administration of justice to require that a trial court canvass a parent who does not consent to the termination prior to the start of a termination of parental rights trial, in order to ensure the overall fairness of the termination of parental rights process. See part III of this opinion. Accordingly, we reverse the judgment of the Appellate Court.

The Appellate Court opinion sets forth the following relevant facts 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 [the respondent's] 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.⁴ 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.⁵ 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....’

“[The trial] court terminated the parental rights of the respondent [as to both Yasiel and Sky on November 13, 2013]. 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.” (Footnotes altered.) In re Yasiel R., supra, 151 Conn.App. at 712–14, 94 A.3d 1278. On appeal to the Appellate Court, the respondent argued that the trial court violated her right to due process when it failed to canvass her about her decision to waive her right to a full trial and to not contest the exhibits presented to the court by the petitioner. Id., at 712, 94 A.3d 1278. The Appellate Court affirmed the judgments of the trial court, concluding that the respondent failed to demonstrate that the failure to canvass her was plain error and that her constitutional claim failed under the third prong of Golding. Id., at 721–22, 94 A.3d 1278. Specifically, with regard to review under Golding, the Appellate Court concluded that the respondent's claim failed because she failed to “cite to any precedent from Connecticut for the proposition that a parent has a constitutional right to be personally canvassed at the trial stage of a termination proceeding.” Id., at 721, 94 A.3d 1278. The respondent then filed a petition for certification to appeal which we granted. See footnote 2 of this opinion.

After oral argument in this court, we ordered the parties to submit supplemental briefs to answer the following questions: “If this court were to conclude that the respondent ... cannot prevail on her claim that the due process clause of the fourteenth amendment ... required the trial court to canvass her personally regarding her decision not to challenge the evidence introduced by the petitioner ... and not to adduce any evidence of her own, should this court nevertheless consider whether to require the canvass under our inherent supervisory authority over the administration of justice? If so, should this court exercise its supervisory authority to require such a canvass?” The parties submitted supplemental briefs answering these questions.

I

We first consider whether the Appellate Court properly construed the third prong of Golding so as to require that there be directly applicable binding Connecticut precedent for a constitutional violation clearly to exist such that relief can be afforded to the respondent.

It is not disputed that the respondent did not preserve her constitutional claim before the trial court. Therefore, she seeks our review pursuant to Golding. In State v. Golding, supra, 213 Conn. at 239–40, 567 A.2d 823, we held that an appellant “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 state 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.” (Emphasis omitted; footnote omitted.) The Appellate Court held that “[i]n [the present] case, the first two prongs of Golding are satisfied.⁶

First, the record is adequate to review the respondent's claim. Second, ‘a claim concerning the termination of a respondent's parental rights is of constitutional magnitude in that [t]he right to the integrity of the family is among the most fundamental rights guaranteed by the fourteenth amendment.’ ” (Footnote altered.) In re Yasiel R., supra, 151 Conn.App. at 721, 94 A.3d 1278. The court concluded, however, that the respondent's claim faltered on the third prong of Golding because she failed to show that a constitutional violation clearly existed where, although the respondent pointed to cases from other jurisdictions in support of her due process claim, she failed to “cite to any precedent from Connecticut for the proposition that a parent has a constitutional right to be personally canvassed at the trial stage of a termination proceeding.” Id.

On appeal to this court, the respondent claims that the text of the third prong of Golding does not support ...