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In re Leilah W.

Court of Appeals of Connecticut

June 3, 2016

IN RE LEILAH W. [*]

          Argued April 7, 2016

         Appeal from Superior Court, judicial district of Litchfield, Juvenile Matters, Ginocchio, J.

          David E. Schneider, Jr., for the appellant (respondent father).

          Cynthia Mahon, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gregory T. D’Auria, solicitor general, and Benjamin Zivyon, assistant attorney general, for the appellee (petitioner).

          Rebecca Mayo Goodrich, for the minor child.

          DiPentima, C. J., and Keller and Prescott, Js. [**]

          OPINION

          PRESCOTT, J.

         The respondent father, Richard L., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families, terminating his parental rights with respect to his daughter, Leilah W.[1] On appeal, the respondent claims that the court improperly (1) failed to conduct a pretrial canvass of him in accordance with our Supreme Court’s decision in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188 (2015); and (2) determined, in accordance with General Statutes § 17a-112 (j) (3) (B) (i), that the petitioner had proven by clear and convincing evidence that Leilah previously was adjudicated neglected and that the respondent has failed to achieve a sufficient degree of personal rehabilitation to encourage a belief that he could assume a responsible position in Leilah’s life within a reasonable period of time.[2] We affirm the judgment of the trial court.

         The record reveals the following relevant facts, which are uncontested or were found by the trial court, and procedural history. Leilah was born on September 2, 2013. On September 26, 2013, the respondent was arrested on burglary charges and incarcerated. The Department of Children and Families (department) obtained an order in October, 2013, granting the petitioner temporary custody of Leilah after her mother tested positive for opiates and marijuana. The petitioner subsequently filed a neglect petition. Both the application for the order of temporary custody and the neglect petition identified Leilah’s father as Kenneth A.; however, a December 16, 2013 paternity test later revealed that Kenneth A. was not Leilah’s biological father.

         Leilah was adjudicated neglected on February 11, 2014, and committed to the care and custody of the petitioner. On March 21, 2014, a paternity test identified the respondent as Leilah’s biological father.[3] The petitioner filed a motion on July 21, 2014, asking the court to order specific steps for the respondent, [4] which the court approved and ordered on August 6, 2014. On September 10, 2014, the court approved a permanency plan of reunification and again issued specific steps to both parents.

         On May 19, 2015, the petitioner filed a petition to terminate the parental rights of Leilah’s mother and the respondent. The petitioner also filed a social study in support of that petition. With respect to the respondent, the petition sought termination on the ground that no ongoing parent-child relationship existed between the respondent and Leilah. On July 15, 2015, over the objection of the respondent, the court approved a permanency plan of termination and adoption. At that time, Leilah’s mother consented to termination of her parental rights.

         Shortly thereafter, the petitioner successfully moved to amend the termination petition with respect to the respondent. The amended petition was filed on August 5, 2015, and included as an additional ground for termination that Leilah previously had been adjudicated neglected and that, considering Leilah’s age and needs, the respondent had failed to achieve a degree of personal rehabilitation necessary to encourage a belief that he could assume a responsible position in Leilah’s life within a reasonable amount of time. With the amended petition, the petitioner also filed an amended social study.

         A trial was conducted on the operative amended petition on October 5, 2015, before Judge Ginocchio. The respondent was represented by counsel throughout the proceedings. Both the petitioner and the respondent presented exhibits and called witnesses. The petitioner’s sole witness was Reagan Horvay, the department social worker assigned to Leilah’s case. Horvay was cross-examined extensively by the respondent’s attorney. The respondent testified on his own behalf and also presented testimony from Elizabeth Cooper, a counselor with the Department of Correction, and Carl Hoyt, the department social worker case aide who supervised his visitations with Leilah. The attorney for the minor child presented testimony from Leilah’s foster mother.

         Shortly after the close of evidence, the assistant attorney general representing the petitioner informed the court that it had not conducted a canvass of the respondent prior to the start of trial in accordance with our Supreme Court’s recent decision in In re Yasiel R., supra, 317 Conn. 773. In In re Yasiel R., which was decided on August 18, 2015, less than two months prior to the start of the respondent’s trial, our Supreme Court held that due process did not require a trial court to canvass a parent in a termination proceeding regarding her counsel’s decision not to contest the evidence presented against her and to waive her right to a full trial. Id., 787–88. Nevertheless, pursuant to the court’s supervisory powers over the administration of justice, it stated that ‘‘public confidence in the integrity of the judicial system would be enhanced by a rule requiring a brief canvass of all parents immediately before a parental rights termination trial so as to ensure that the parents understand the trial process, their rights during the trial and the potential consequences.’’ (Emphasis added.) Id., 794.

         To remedy its oversight in the present case, the court asked the parties to return to court on October 7, 2015, at which time the court advised the respondent that it had failed to canvass him in accordance with In re Yasiel R. prior to trial. The court indicated that although the respondent had been afforded a full trial with an attorney present, it nevertheless was obligated to advise the respondent of certain rights and to provide him with an opportunity to consult with his attorney regarding those rights. The following colloquy ensued:

         ‘‘The Court: So what I would have said before trial is, before we begin this hearing on the termination of parental rights petition, the parent should understand that in the event the court terminates your parental rights this will result in the end of your legal relationship with your child. You will have no legal rights, no authority and no responsibility for the child. You will no longer have any rights to make decisions of any kind affecting the child. You will not be entitled to any state or federal benefits or entitlements on behalf of the child. The child will be eligible to be adopted.

         ‘‘And I’m assured that you and Attorney [Brya Ann] Darley [the respondent’s counsel] did discuss all that before the trial. Correct?

‘‘[The Respondent]: Yes, sir.
‘‘The Court: And Attorney Darley-
‘‘[The Respondent’s Counsel]: Yes, Your Honor.
‘‘The Court:-you confirmed that?

         ‘‘It goes on to say, at the hearing you will have the right to be represented by an attorney, you will have your lawyer with you, your lawyer will help protect your legal rights. Those legal rights include the right to question, confront and cross examine any witness to test their memory and determine if they are telling the truth. You will have the right to object to testimony and to the admission of any documents or exhibits including any social studies or psychological reports. The objections must be made in accordance with the rules of evidence. You will have the right to have your own defense put on for you and you may call your own witnesses to assist you in challenging the allegations made against you. You have the right to testify-that is, tell your side of the story if you want to do so, but no one can make you testify because you’ll still have the right to remain silent. If you do not testify the court could draw an adverse inference against you-that means the court could decide that you were not testifying because your testimony would not be helpful to you. Finally, you are advised that if you do not present any witness on your own behalf or do not cross examine witnesses, the court will decide the matter based upon the evidence presented at the trial.

         ‘‘Do you have any questions you wish to ask, please consult with your attorney first. So, I’ll have you consult with your lawyer and then let me know if you have any questions about what I’ve just read to you.

‘‘[The Respondent]: I have no questions, sir.
‘‘The Court: All right. And anything further ...

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