Mark C., In re

• Decision Date: 14 July 1992
• Docket Number: No. 10774,10774
• Court: Connecticut Court of Appeals
• Parties: In re MARK C. et al. *

Page 181

610 A.2d 181

28 Conn.App. 247

In re MARK C. et al. ^*

No. 10774.

Appellate Court of Connecticut.

Argued May 6, 1992.

Decided July 14, 1992.

George C. Heck, Old Lyme, for appellant (respondent mother).

Benjamin Zivyon, Asst. Atty. Gen., with whom, on the brief, were Richard Blumenthal, Atty. Gen., and Denise Lillo Vecchio, Asst. Atty. Gen., for appellee (petitioner).

Susan M. Connolly, Niantic, for minor children.

Before DUPONT, C.J., and DALY and FOTI, JJ.

DALY, Judge.

The respondent mother ¹ appeals from the trial court's judgment terminating her parental rights pursuant to General Statutes § 17a-112(b)(2) and (3). ² The respondent claims (1) that the trial court improperly took judicial notice of the findings from the earlier neglect proceedings in this case and (2) that the trial court's decision was not supported by clear and convincing evidence as required by General Statutes § 17a-112. We affirm the judgment of the trial court.

The following facts are relevant to this appeal. The respondent was the mother of Mark C., born March 31, 1983, and Amy C., born July 2, 1984. In May, 1986, the department of children and youth services (DCYS) received a report of physical abuse involving Mark. The respondent pleaded guilty to criminal charges involving this incident of physical abuse. The evidence at the termination hearing revealed that Mark's father actually abused the child but that the respondent falsely accepted responsibility for the incident. On July 29, 1986, petitions were filed by DCYS alleging that both children were neglected and uncared for by their parents. On December 16, 1986, the children were determined to be neglected because they were living in conditions deemed to be injurious to their health and well-being. The children were allowed to remain under the care and custody of the respondent subject to DCYS protective supervision. Both parents entered into a service agreement with DCYS concerning the children that was effective for a six month period. During this period, the father continued to abuse Mark physically. The parents' failure to comply with the service agreement resulted in both children's being committed to the custody and guardianship of DCYS for a period of eighteen months on January 26, 1988.

During November, 1988, the father was incarcerated and the respondent resumed temporary custody of both children. The respondent had complied with her service agreement during the period preceding this reunification with her children. On January 19, 1989, the commissioner obtained a court order preventing the father from contacting or residing with his children upon his release from jail. During April, 1989, the commissioner discovered that the father was making contact with the children in violation of the court order and sought to have the father held in contempt for his violation of the January restraining order. On June 1, 1989, Susan Wax, the DCYS social worker overseeing this case, found the father in the respondent's apartment alone with the children. Both children told their therapists that their father was staying with them during the period that the restraining order was in effect. The children were removed from the respondent's home and placed in a foster home. The children remained in foster care from that time until the present.

On December 17, 1990, the commissioner sought to terminate both parents' parental rights as to Mark and Amy. The trial court found that there was clear and convincing evidence establishing that the respondent had failed to rehabilitate herself and would not be able to resume a responsible role in the lives of the children pursuant to General Statutes § 17a-112(b)(2). The court further found that there was clear and convincing evidence to support the termination of her parental rights. General Statutes § 17a-112(b)(3). The court ruled that the respondent's acts of omission deprived the children of the care necessary for their physical and emotional well-being. After finding that the statutory grounds for termination were satisfied, the court applied the statutory factors set forth in General Statutes § 17a-112 (d). ³ The court held that it was in the children's best interests to terminate the respondent's parental rights. The respondent appealed from that decision.

I

The respondent claims that the trial court improperly took judicial notice of decisions and findings related to the earlier neglect proceedings. The respondent argues that such judicial notice resulted in the imposition of a lower standard of proof in the parental termination phase. The respondent did not object to the court's decision to take judicial notice of the earlier proceedings and now argues that the court's taking judicial notice constituted plain error. We reject the respondent's argument.

The following facts are pertinent to the resolution of this claim. The commissioner requested that the court take judicial notice of certain items in the court file involving earlier proceedings in this case. The court asked the respondent's counsel and the counsel representing the children whether they had any objections to the commissioner's request. The respondent's counsel voiced a concern only about the meaning of one of the orders in the file. After clarification of that order, the respondent's counsel did not raise any other objection to this request. Counsel for the children did not object to this request. The court then took judicial notice of the record of the earlier proceedings. The commissioner's written motion requested that the court take judicial notice of all past proceedings in this case as well as all documents contained in the court file. In its extensive written memorandum of decision, the court noted that its factual findings derived from the court file of which it took judicial notice. The respondent failed to request that the trial court articulate exactly how it used the contents of the judicially noticed material.

A claim not raised at trial is generally not reviewable by this court on appeal. In re Jonathan P., 23 Conn.App. 207, 211, 579 A.2d 587 (1990). Although Practice Book § 4185 ⁴ allows a reviewing court to review alleged errors not raised at trial, "[i]t is only in rare cases that this exception to the requirement for seasonable assertion of claims in the trial court may be invoked." Ralto Developers, Inc. v. Environmental Impact Commission, 220 Conn. 54, 59, 594 A.2d 981 (1991). " 'Such 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.' " Id., quoting State v. Hinckley, 198 Conn. 77, 87-88, 502 A.2d 388 (1985).

"Judicial notice ... meets the objective of establishing facts to which the offer of evidence would normally be directed." State v. Tomanelli, 153 Conn. 365, 368, 216 A.2d 625 (1966). Judicial notice relieves a party only of having to offer proof on the matter; it does not constitute conclusive proof of the matter nor is the opposing party prevented from offering evidence disputing the matter established by judicial notice. Id., at 369, 216 A.2d 625. Here, the commissioner offered independent evidence from witnesses who were involved in the earlier proceedings to support the finding of neglect as well as the need to terminate the respondent's parental right. The respondent never attempted to dispute any of the documents that were admitted pursuant to the taking of judicial notice of the earlier proceedings.

The trial court has the power to take judicial notice of court files of other actions between the same parties. Carpenter v. Planning & Zoning Commission, 176 Conn. 581, 591, 409 A.2d 1029 (1979). "[T]his does not mean that it might use every statement it found in the papers constituting the file with the same effect as though the facts were in evidence before it." German v. German, 125 Conn. 84, 89, 3 A.2d 849 (1938). It would be improper for the trial court to base its decision terminating the respondent's parental rights solely on findings from the earlier proceedings that were judicially noticed by the court. Here, the court merely took into consideration the evidence from the earlier proceedings in determining whether the commissioner presented clear and convincing evidence justifying the termination of parental rights. The respondent was given an opportunity to object to the court's taking of judicial notice but did not object.

The respondent appears to argue that because the trial court took judicial notice of the court file in this case it terminated her parental rights under the preponderance of the evidence standard instead of the clear and convincing evidence standard. The earlier proceedings concerning the neglect determination by the court required proof by only a preponderance of the evidence to remove the children from the respondent's care and custody. See In re Juvenile Appeal (84-AB), 192 Conn. 254, 267 n. 13, 471 A.2d 1380 (1984). The respondent raises a general allegation that the taking of judicial notice of the earlier proceedings tainted the parental termination decision. The respondent fails to point to any particular aspect of the court's ruling to show that it applied the lesser evidentiary standard. The court, in its memorandum of decision, refers only to the clear and convincing evidence standard. The respondent did not show any judicially noticed facts that were used by the trial court in its decision to terminate her parental rights. The reports, such as the social study and evaluations from the earlier proceedings, were prepared by persons...