Jonathan P., In re

• Decision Date: 11 September 1990
• Docket Number: No. 8221,8221
• Citation: 579 A.2d 587,23 Conn.App. 207
• Parties: In re JONATHAN P. et al. *
• Court: Connecticut Court of Appeals

Page 587

579 A.2d 587

23 Conn.App. 207

In re JONATHAN P. et al. ^*

No. 8221.

Appellate Court of Connecticut.

Argued May 11, 1990.

Decided Sept. 11, 1990.

David J. Wenc, Windsor Locks, for appellant (respondent father).

Mary-Anne Ziewacz Mulholland, Asst. Atty. Gen., with whom, on the brief, were Clarine Nardi Riddle, Atty. Gen., and Susan T. Pearlman, Asst. Atty. Gen., for appellee (petitioner).

Before FOTI, LAVERY and CRETELLA, JJ.

FOTI, Judge.

The respondent father ¹ is appealing the judgment of the trial court terminating his parental rights to three minor children rendered after petitions were brought by the department of children and youth services (DCYS) pursuant to General Statutes § 17-43a. He claims that the trial court improperly proceeded and heard testimony before he arrived in court. We agree and remand for further proceedings.

The following facts are uncontested and are relevant to the disposition of this appeal. The petitions submitted by DCYS allege abandonment, absence of parent-child relationships, and failure to rehabilitate. They are directed at both parents and their ability to care for their three children, Jonathan P., born April 4, 1983, Waddiel P., born October 12, 1985, and Daniel G., born October 20, 1986. ² After DCYS obtained service on the respondent by publication, separate counsel was appointed for him, although his whereabouts were unknown. In addition, the court ordered that a psychological evaluation of the mother, who was incarcerated at the time, and the children be made by a Spanish-speaking psychologist. On the initial date set for trial, the father, who had been located in the custody of the department of correction, appeared with counsel and requested that he be included in the family's psychological evaluation. The court granted the continuance. Before the next assigned trial date, DCYS amended the petitions to incorporate the circumstances underlying the alleged grounds for terminating the rights of both parents. The trial was delayed a second time at the request of the mother's counsel and did not begin until more than nine months after the petitions were filed.

On the first day of trial, the mother, her counsel, counsel for the children, counsel for DCYS and the respondent's counsel came before the court. The respondent's absence was noted on the record by the court. Before the proceedings began, the respondent's counsel was excused so that she could phone the department of correction to determine the respondent's whereabouts. In the absence of the respondent's counsel, the court examined the file and determined that a habeas writ had been issued to enable the respondent to be in court that day. Before the respondent's counsel returned to the courtroom, the court read the names of the mother and all counsel who were present into the record. Although the respondent's and his counsel's absences were again noted, the court chose to proceed, stating "I really don't like to keep expert witnesses waiting.... [I]t isn't as important to have [the respondent] here because he really can't second-guess the evaluator, but I think we probably have to have permission of [his counsel]." Despite that probability, the court proceeded without first obtaining the permission of the respondent's attorney. The court commenced the trial by calling, as its own witness, Julia Ramos Grenier, a psychologist, who had conducted the family's psychological evaluation.

When the respondent's counsel returned to the courtroom she was informed by the court that Ramos Grenier had been called and was testifying. The respondent's counsel voiced no objection, and advised the court that the respondent was on his way.

After the respondent's counsel returned to the courtroom, but before the respondent arrived, Ramos Grenier's entire report, including the evaluation of the respondent, was entered as a full exhibit. In addition, Ramos Grenier testified as to the respondent's paternal capabilities four times. On each occasion the respondent's counsel had the opportunity to object to the questioning, but did not.

The respondent arrived in the courtroom after an extensive cross-examination of Ramos Grenier by his attorney. The transcript indicates that he was present for the remaining seven transcript pages of Ramos Grenier's testimony. ³ The court granted the respondent's counsel leave to recall and reexamine the witness if she thought it was necessary now that she could confer with her client. When the respondent arrived, however, his counsel did not seek a recess to confer with him and neglected either to recall or to reexamine the witness any further.

The respondent attended the remainder of the trial. He testified in his own behalf and submitted a posttrial brief that did not raise the issue of his absence during Ramos Grenier's testimony.

As a general rule, a claim that is not raised at trial cannot be raised for the first time on appeal. State v. Scott, 10 Conn.App. 347, 350, 522 A.2d 1245, cert. denied, 204 Conn. 804, 528 A.2d 1152 (1987). In accordance with Practice Book § 4185, ⁴ however, this court may notice plain error ⁵ in the interest of justice; State v. Eric T., 8 Conn.App. 607, 614, 513 A.2d 1273 (1986); or where the court and counsel have overlooked a clearly applicable statute; Hartford Federal Savings & Loan Assn. v. Tucker, 181 Conn. 607, 609, 436 A.2d 1259 (1980); or a rule of practice is ignored. Lampasona v. Jacobs, 7 Conn.App. 639, 641, 509 A.2d 1089 (1986).

We conclude that the plain error doctrine must be invoked in the present case because the trial court ignored the mandatory language of state statutes and the rules of practice, and because the respondent was denied his right to due process.

Before a hearing on the termination of a respondent's parental rights can commence, the court is obligated under the mandatory language of Practice Book § 1041(2) ⁶ to determine that all legally necessary parties are present and to note the same for the record. A parent is a legally necessary party in a termination proceeding; General Statutes § 45-61d(b)(1); ⁷ Practice Book § 1023(l )(3); ⁸ and has a statutory right of confrontation in such proceedings. General Statutes § 46b-135(b). ⁹

The trial court in the present case did not follow the mandates of our statutes and rules of practice when it commenced the termination proceeding in the absence of the respondent and his counsel. It is in the interest of justice to ensure that any parent caught in the throes of a termination proceeding be present, or at least represented by counsel, from the beginning of the hearing. Because a parent is a necessary party to a termination hearing, it was clearly improper for the court to proceed in the absence of the respondent and his counsel. Furthermore, it should be emphasized that, under the circumstances of this case, it would have been improper for the court to proceed before the respondent arrived at court, even if his counsel had been in the courtroom at the time.

The petitioner's reliance on the outcome of In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 446 A.2d 808 (1982), to support its assertions that the respondent was adequately represented at the hearing is misplaced. While the rule of law set forth in that case applies here, the facts, and consequently the outcome, are clearly distinguishable. In that case, the father, whose attorney was present throughout the hearing, was incarcerated in California. He asked the court to postpone the termination proceedings until he was released at some time in the indefinite future and the court properly denied his request. In the present case, the respondent was incarcerated in Connecticut and was on his way to the courthouse after a writ of habeas corpus had been issued to ensure his presence at the hearing.

As noted above, the trial court also denied the respondent his right to due process. The principles of due process, as determined by the balancing test set forth in Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), apply to termination cases. In re Juvenile Appeal (Docket No. 10155), supra, 187 Conn. at 435, 446 A.2d 808. In applying this test, this court must consider (1) the private interests at stake, (2) the probable value of additional safeguards, and (3) the risk of improperly denying the respondent his interests in the child through the procedure used. Id., at 435-36, 446 A.2d 808.

The first two criteria of the balancing test are easily fulfilled by the case at hand. First, because a parent's rights are unquestionably constitutionally protected interests of high magnitude; id., at 440, 446 A.2d 808; the respondent's private interest in retaining his parental rights is clearly compelling and constitutionally protected. Id., at 436, 446 A.2d 808. The second criterion need not come into play in this case because the respondent does not ask us to enforce "additional" safeguards, but rather he asks us to afford him the benefit of the safeguards already in place in our statutes and rules of practice.

The third prong of this balancing test, questioning whether the respondent was denied his protected interest in the child by the procedure used, is governed by two cases recently decided by this court. In Rozbicki v. Huybrechts, 22...