May 18, 2016
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
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
L. Babbitt, for the minor child.
DiPentima, C.J., and Alvord and Gruendel, Js.
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),
trial court terminated her parental rights with respect to
her son, Raymond B., Jr. 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.
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.,
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. 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.
September 29, 2014, the commissioner filed a petition to
terminate the parental rights of the respondent with respect
to Raymond, Jr., her second child.The trial court, Dyer,
J., adjudicated the child neglected after the respondent
entered a plea of nolo contendre on May 15,
2015. 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.
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
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. 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.
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.
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.
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
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