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In re Daniel N.

Appellate Court of Connecticut

February 11, 2016

IN RE DANIEL N. [*]

         Argued February 4, 2016.

Page 1261

[Copyrighted Material Omitted]

Page 1262

          Petition by the Commissioner of Children and Families to terminate the respondents' parental rights as to their minor child, brought to the Superior Court in the judicial district of New Haven, Juvenile Matters, where the matter was tried to the court, Cronan, J.; judgment terminating the respondents' parental rights, from which the respondent father appealed to this court.

          SYLLABUS

         The respondent father appealed to this court from the judgment of the trial court terminating his parental rights with respect to his minor child. He claimed, inter alia, that he was entitled to a new termination of parental rights trial because he had not been canvassed prior to the start of the termination trial, as required by In re Yasiel R. (317 Conn. 773, 120 A.3d 1188). In that case, our Supreme Court set forth a new rule requiring trial courts to 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 and that the parent understands the trial process, his or her rights during the trial, and the potential consequences. Although In re Yasiel R. was decided after the commencement of the father's termination trial in the present case, the father claimed that the ruling should be applied retroactively. He also challenged the trial court's finding pursuant to the statute (§ 17a-112 [k]) that expressly provides the circumstances that a trial court must consider in determining whether there has been interference with a parent's efforts to maintain a relationship with his or her minor child. Held :

         1. The respondent father could not prevail on his claim that the trial court improperly determined that the termination of his parental rights was in his child's best interest, which was based on his claim that in making its finding pursuant to § 17a-112 (k) (7), the court additionally should have considered the fact that his treatments for stage four cancer had caused a significant impediment to maintaining a meaningful relationship with his child; although the father claimed that the statutory provision additionally required the court to consider the effect of his illness and its treatment when the court evaluated the evidence, the statute clearly contained no such requirement and this court could not, by judicial construction, read into the legislation provisions that were not clearly contained therein.

          2. This court concluded that the respondent father was entitled to a new termination of parental rights trial, the trial court having failed to canvass the father prior to the start of his trial in accordance with the rule mandated by our Supreme Court in In re Yasiel R., and this court having concluded that the rule was intended to be given retroactive effect; although our Supreme Court did not clearly state that the new rule would be applied prospectively only, that court applied the new rule to the respondent in that case, even though it had found no error by the trial court and no violation of the respondent's constitutional rights, and denied a motion for reconsideration in that case requesting the court to clarify that the new rule did not apply to any cases where the trial had already taken place, and this court is bound by Supreme Court precedent.

         Michael D. Day, for the appellant (respondent father).

         René e Bevacqua Bollier, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Michael J. Besso and Benjamin Zivyon, assistant attorneys general, for the appellee (petitioner).

         Thomas F. Mitola, for the minor child.

         Alvord, Sheldon and Keller, Js. ALVORD, J. In this opinion the other judges concurred.

          OPINION

Page 1263

          [163 Conn.App. 324] ALVORD, J.

          The respondent father, Jose N., appeals from the judgment rendered in favor of the petitioner, the Commissioner of Children and Families, in which the trial court terminated the respondent's parental rights with respect to his minor son, Daniel[1] On appeal, the respondent claims that the court improperly terminated his parental rights because (1) the termination was not in Daniel's best interest, and (2) the respondent was not canvassed prior to the start of the termination trial as required by In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015). Although we agree with the court that the termination of the respondent's parental rights was in Daniel's best interest, we reverse the judgment of the court on the sole ground that the court did not canvass the respondent in accordance with the new rule recently mandated by our Supreme Court in In re Yasiel R. [2]

         The following is a brief summary of the facts and procedural history of this matter. Daniel was born in 2006. He has two half siblings, born in 2012, who have [163 Conn.App. 325] a different father. Shortly after Daniel's birth, the Department of Children and Families (department) became involved with the family, and the department continued to be involved throughout a period of time extending to and after the birth of Daniel's half siblings, because of substance abuse, domestic violence, and mental health issues. On September 27, 2012, the court granted the petitioner's motion for an order of temporary custody for all three children, which led to an adjudication of neglect and Daniel's commitment to the care and custody of the petitioner. Daniel was returned to his mother's care on January 24, 2013, under an order of protective supervision. On September 17, 2013, the petitioner invoked a ninety-six hour hold on Daniel after being informed by a representative of the Family Based Recovery program that Daniel's mother was in a drug induced condition. The ninety-six hour hold was followed by a court order of temporary custody. The respondent was incarcerated at this time, and thus was not a potential resource for Daniel's care. The petitioner moved that the order of protective custody be modified to an order of commitment, which the court granted on October 8, 2013. Daniel has remained in the care and custody of the petitioner since that date.

         On December 26, 2013, the petitioner filed a petition to terminate the parental rights of Daniel's mother and the respondent, as well as the parental rights of the father of the half siblings. The termination of parental rights trial was held on

Page 1264

February 3, 4 and 5, and June 24 and 25, 2015. The respondent was represented by counsel throughout the entire trial, and the respondent testified at trial. Several witnesses testified at trial, and multiple exhibits were admitted into evidence in this fully contested case.

         The court issued its memorandum of decision on September 4, 2015, in which it made the following determinations: (1) the respondent was incarcerated when [163 Conn.App. 326] the termination proceedings were commenced; (2) Daniel's mother had domestic violence issues in her relationship with the respondent; (3) even though the department made reasonable efforts to reunify the respondent with Daniel, the respondent was unable or unwilling to benefit from the reunification efforts; (4) the petitioner established by clear and convincing evidence that Daniel had been found to be neglected or uncared for in a prior proceeding, and that the respondent had failed to achieve such a degree of personal rehabilitation as would encourage the belief that within a reasonable time, considering Daniel's age and needs, he could assume a responsible position in Daniel's life; (5) the respondent has a reported history of using and selling drugs; (6) the respondent testified at the termination of parental rights trial that he could not be a resource for Daniel; (7) the respondent did not want Daniel to visit him while he was incarcerated; [3] (8) since being released from prison, the respondent had been hindered in any efforts to reunify with Daniel by " his battle with stage four cancer and a lack of stability in his life" ; (9) Daniel has had multiple placements in his life; (10) Daniel was hospitalized twice in 2013 for psychiatric problems; (11) Daniel and his half siblings have been placed in the same therapeutic foster home; (12) referencing the testimony of Ines Schroeder, an expert in clinical and forensic psychology, who had been ordered by the court to conduct a psychological evaluation of Daniel, Daniel would suffer significantly if moved again because he has been at his current home for a long period of time and has developed a relationship with his foster parents to the point of calling them " mom" and " dad" ; and (13) there is " no justification [163 Conn.App. 327] for allowing more time for the parents to work on reunification." The court, ...


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