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In re Raymond B.

Court of Appeals of Connecticut

July 1, 2016


          Argued May 18, 2016

         Appeal from Superior Court, judicial district of Windham, Child Protection Session at Willimantic, Hon. Francis J. Foley III, judge trial referee.

          Michael S. Taylor, assigned counsel, with whom was Matthew C. Eagan, assigned counsel, for the appellant (respondent mother).

          Benjamin Zivyon, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, Gergory T. D’Auria, solicitor general, and Michael J. Besso and Daniel M. Salton, assistant attorneys general, for the appellee (petitioner).

          Kelly L. Babbitt, for the minor child.

          DiPentima, C.J., and Alvord and Gruendel, Js.


          ALVORD, J.

         The respondent mother, Brandy B., appeals from the judgment of the trial court, rendered in favor of the petitioner, the Commissioner of Children and Families (commissioner). In accordance with General Statutes § 17a-112 (j) (3) (E), [1] the trial court terminated her parental rights with respect to her son, Raymond B., Jr.[2] On appeal, the respondent claims that the court improperly failed to conduct a pretrial canvass of her in accordance with our Supreme Court’s decision in In re Yasiel R., 317 Conn. 773, 120 A.3d 1188, reconsideration denied, 319 Conn. 921, 126 A.3d 1086 (2015), and that the error is not subject to harmless error analysis. We affirm the judgment of the trial court.

         The facts and procedural history of this case are not in dispute. On May 29, 2014, the commissioner sought temporary custody of the respondent’s minor child, Raymond B., Jr. The court found that the respondent continued to allow the child to be around her longtime boyfriend, Raymond B., Sr., [3] despite her admitted knowledge that Raymond, Sr., previously had been convicted of having sexual contact with a child as well as having committed an act of domestic violence Raymond, Sr., recently had been released on probation related to another sentence, imposed for attempting to strangle the respondent. Following that domestic violence incident, the respondent applied for a restraining order against Raymond, Sr., and alleged that he had subjected her to a ‘‘continuous threat of present physical pain or physical injury.’’ Despite this domestic violence and warnings from the Department of Children and Families (department) that Raymond, Sr., should not be allowed to have any contact with the child, the respondent allowed the child to visit with Raymond, Sr., a minimum of eleven times from February, 2013, through May, 2014.[4] The trial court, Dyer, J., granted the commissioner’s petition for an order of temporary custody after finding that the child was in immediate physical danger from his surroundings.

         On September 29, 2014, the commissioner filed a petition to terminate the parental rights of the respondent with respect to Raymond, Jr., her second child.[5]The trial court, Dyer, J., adjudicated the child neglected after the respondent entered a plea of nolo contendre on May 15, 2015.[6] The court found that the commissioner had proven neglect on the grounds of injurious conditions. The respondent agreed to the commitment of Raymond, Jr., to the custody of the commissioner. The court declared a mistrial as to the termination of the respondent’s parental rights. The court granted the respondent additional time to rehabilitate in order to reunify with Raymond, Jr.

         In January, 2016, the commissioner proceeded with a petition to terminate the respondent’s parental rights with respect to Raymond, Jr. The respondent appeared and was represented by counsel. A trial was commenced on January 11, 2016. The respondent’s counsel was an active and thorough participant in the trial. The respondent’s counsel raised objections to the commissioner’s direct examination of witnesses, objected to the admittance of certain evidence, cross-examined witnesses and also presented a witness to testify. The child also was represented by counsel, who requested that the court grant the commissioner’s petition.

         At the beginning of the second day of the trial, before the commissioner rested her case-in-chief, the court, Hon. Francis J. Foley III, judge trial referee, sua sponte, canvassed the respondent in order to satisfy our Supreme Court’s newly created supervisory rule regarding the termination of parental rights that was established in In re Yasiel R.[7] As part of the canvass, the trial court first advised the respondent as to the significance of her parental rights being terminated. The respondent was informed that her rights included having legal representation, questioning and confronting the witnesses who testified, objecting to testimony and evidence, submitting evidence, presenting a defense, calling witnesses, and testifying or not testifying. The respondent acknowledged that she understood these rights.[8]

         Following the canvass, the respondent did not object to the timing or the content of the court’s canvass. Further, the respondent did not file a posttrial motion for a mistrial or a request to open the evidence. The respondent did not seek any other additional relief coincident with the trial.

         In its memorandum of decision, the trial court found: ‘‘Based upon [the respondent’s] continued involvement with dysfunctional, abusive men, her inability to maintain the necessary and appropriate parental skills that have been taught to her and her failure to fully address the mental health issues of her profoundly dysfunctional youth, the court concludes that [the respondent] cannot provide the safe, structured, consistent, constant, nurturing environment that a special needs child such as [Raymond, Jr.] requires. [The respondent] has not ever witnessed or experienced appropriate parenting herself. Her life has been totally tragic and dysfunctional. There is nothing in her present circumstances that suggests that she can even independently sustain herself, not to mention her fragile, needy child.

         ‘‘The court finds by clear and convincing evidence that [the respondent] is the mother of the child, under the age of seven years, who is neglected or uncared for, and that she has failed or is unable to achieve such degree of personal rehabilitation as would encourage the belief that within a reasonable period of time considering the age and needs of the child, such parent could assume a responsible position in the life of the child and such parent’s parental rights of another child were previously terminated pursuant to a petition filed by the [commissioner].’’ This appeal followed.[9]

         The respondent claims that the trial court erred by failing to conduct a pretrial canvass of her in accordance with our Supreme Court’s decision in In re Yasiel R., supra, 317 Conn. 773. The respondent further argues that a harmless error analysis is inapplicable to the present circumstances and therefore a new trial is warranted. The respondent did not raise this claim at trial and failed to preserve the issue for appeal. Nonetheless, the respondent asks us to review the claim under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823 (1989), as modified in In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015), or in the alternative, under the plain error doctrine. ...

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